HUDDY  ON 


SIXTH  EDITION 


1922 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


I 


V, 


THE    LAW 


OP 


AUTOMOBILES 


BY 


XENOPHON  P.  HUDDY,  LL.  B. 

OF  THE  NEW  YORK  BAE 


SIXTH    EDITION 


ARTHUR  F.  CURTIS 

Of  the  Delhi,  N.  Y.,  Bar.    Author  of  ''  The  Law  of  Electricity  "  and  Co-editor 

of  "  Street  Railway  Reports,"   "  Chattel  Mortgagee  and 

Conditional  Sales,"  etc. 


Albany,  N.  Y. 
MATTHEW  BENDER  &  COMPAX\' 

INCORPORATED 
1922 


Copyright,  1906 
Bv   MATTHEW  BENDER   &  COMPANY 


Copyright,  1909 
By  MATTHEW  BENDER  &  COMPANY 


Copyright,  1912 
By  MATTHEW   BENDER  &  COMPANY 


Copyright,  1916 
By  MATTHEW   BENDER  <!c  COMPANY 

incorporated 

Copyright,  1919 
By  MATTHEW  BENDER  &  COMPANY 

incorporated 


Copyright,  1922 

By  MATTHEW  BENDER  &  COMPANY" 

incorporated 

8 


T 


\  n  -  -, 


Made   in    U.    S.    A. 


First  Edition 


TO 

:\TY  WIFE 

WHO  IS 

MY   GREATEST   AND   WISEST    COUNSELOR 


686235 


PREFACE 


SIXTH    EDITION 


Since  the  publication  of  the  Fifth  Edition  of  HUDDY  on 
AUTOMOBILES,  the  progressive  increase  from  year  to  year 
in  the  number  of  automobile  decisions  has  continued.  Each 
year  adds  an  increasing  number  of  new  decisions  to  this 
branch  of  the  law.  The  profession  requires  the  latest  deci- 
sions to  keep  abreast  A\dth  the  law  on  the  subject.  With  a  view 
of  assisting  the  labors  of  an  overworked  profession,  a  new 
edition  of  this  work  has  been  deemed  desirable. 

When  preparing  a  new  edition,  it  has  been  thought  wise  to 
insert  a  new  chapter  relating  to  the  forfeiture  of  vehicles 
unlawfully  carrying  intoxicating  liquors.  This  branch  of  the 
law  is  in  an  early  period  of  development  and  many  contrary 
decisions  have  been  rendered  in  the  various  jurisdictions.  It 
is  a  subject  of  peculiar  interest,  and  it  is  hoped  that  the 
chapter  will  be  found  of  use. 

ARTHUR  F.  CURTIS. 

Delhi,  N.  Y.,  April  3, 1922. 


PREFACE 


FIFTH    EDITION 


The  common  kuowled^e  ol"  tin-  le^al  proression  as  to  the 
increasing  bull^  of  judicial  decision^;  on  AUTOMOBir.E  LAW 
renders  unnecessary  any  apolog>'  or  excuse  for  the  presenta- 
tion of  a  Fifth  Edition  of  Mr.  Huddy's  work. 

Mr.  Huddy  was  a  pioneer  author  in  tlie  law  pertaining  to 
motor  vehicles.  In  the  first  edition  published  in  1906,  he  built 
a  path  when  but  few  adjudicated  cases  marked  the  way,  and  he 
built  it  well.  Despite  the  amazing  development  of  the  motor 
carriage,  his  outline  of  the  subject  made  a  framework  which 
was  sufficient  for  four  editions  published  at  various  tiines 
during  a  decade. 

But  the  decisions  on  this  l)ranch  of  the  law  increased  faster, 
and  ever  faster.  A  lawyer  would  have  passed  the  recognized 
bounds  of  ordinary  common  sense  had  he  predicted  in  1906  the 
mass  of  judicial  authority  now  to  lie  found  in  the  reports.  To 
a  certain  extent  the  framework  constructed  by  ]\fr.  Huddy  has 
collapsed  under  the  bulk  of  court  decisions.  It  has,  therefore, 
been  deemed  advisable  to  re-arrange  and  re-write  the  major 
part  of  the  book.  Questions,  such  as,  for  example,  the  liabilit> 
of  the  owner  for  the  acts  of  his  chauffeur,  which  formerly 
constituted  but  a  part  of  a  chapter,  have,  in  the  course  of  the 
development  of  the  law,  assumed  such  importance,  that  no^^ 
they  are  entitled  to  an  entire  chapter. 

It  is  with  some  trepidation  that  the  editor  of  this  edition 
has  assumed  to  make  fundamental  changes  in  the  arrange- 
ment of  the  material.  But  care  has  been  observed  to  avoid  ihe 
escape  of  all  valuable  material  in  the  earlier  editions. 

With  the  hope  that  the  new  edition  will  be  of  equal  service 
as  its  predecessors  and  will  be  as  appreciatively  received  by 
the  profession,  it  is  respectfully  submitted. 

ARTHUR  F.  CURTIS 

Delhi,  N.  Y.,  October  1,  1919. 


TABLE  OF  CONTENTS 


SIXTH    p]DITION 


[References  are  to  Pages] 

chaptp:r  I. 

DEFINITIONS   AND   GENERAL   CONSIDERATIONS.  PAce 

Section     1.  Automobile  defined  1 

2.  Auto -^ 

3.  Car 4 

4.  Motor  and  motoring 4 

5.  Joy  riding * 

,    6.  Automobile  line  5 

7.  Automobile  as  a  stage  coach 5 

8.  Automobile  aa  a  vehicle 6 

9.  Automobile  as  a  carriage ~ 

10.  Automobile  as  a  pleasure  carriage 9 

11.  Automobile  as  a  wagon •  ^ 

12.  Automobile  as  an  appurtenance 10 

13.  Automobile  as  a  tool  or  implement  of  trade 10 

14.  Extrinsic  evidence  of  meaning  of  terms 10 

15.  Legislative  definitions 10 

16.  Traction  engine  as  automobile H 

17.  Bicycle  as  a  vehicle 12 

18.  Motorcycle  as  a  motor  vehicle 12 

19.  Motorcycle  as  a  carriage 13 

20.  Automobilist 1* 

21.  Owner 1* 

22.  Riding  and  driving 15 

23.  Automobile  parts  and  accessories 16 

24.  Highways 1 ' 

25.  Roads 1^ 

26.  Streets 1^ 

27.  Intersecting  streets '-I 

CHAPTER  II. 

HISTORICAL. 

Section  28.  Automobile  vehicle  of  modern  times 22 

29.  Development  of  motor  carriage 23 

30.  Growth  of  law 23 

31.  Law  keeps  up  with  improvement  and  progress 24 

32.  Highways  open  to  new  uses 25 

33.  Tendencies  in  legislation 25 

34.  Tendencies   in   judicial   decisions 26 

Lix] 


X  Table  or  Contents. 

CHAPTER  III. 

NATURE   AND   STATUS   OF   AUTOMOBILE.  PAGE 

Section  35.  Automobile  not  merely  a  machiue S* 

36.  Automobile  as  a  dangerous  machine 29 

37.  Not  dangeroiLS  per  se 33 

38.  Adverse  judicial  statements 36 

39.  Status  of  automoblist 38 

40.  Motive  power  as  affecting  status 39 

41.  CJomparison  of  automobiles  and  horse-drawn  vehicles 39 

42.  Advantages  over  animal-drawn  vehicles 40 

43.  Tendency  to  frighten  horses ^^ 

44.  Automobiles  as  earners *" 

45.  As  a  tool  or  implement  of  trade '^3 

CHAPTEB  IV. 

GENERAL  RIGHT  TO  USE  HIGHWAYS. 

Section  46.  General  purposes  of  streets  and  highways 44 

47.  New  means  of  transportation 45 

48.  Right  of  automobUist  to  use  highways 48 

49.  Equal  rights  of  automobilists  and  other  travelers 50 

50.  No  superior  rights  for  automobilists 52 

51.  Ferries  and  vessels 53 

52.  Toll  roads 54 

53.  Exclusion  of  non-residents 57 

54.  Automobile  racing 5  / 

55.  Setting  aside  highways  for  speed  contests 58 

CHAPTER  V. 

STATUTORY  REGULATION  OF  MOTOR  VEHICLES. 

Section  56.  Scope  of  chapter ^0 

57.  General  power  of  regulation 61 

58.  Regulatory  power  lodged  in  legislature 62 

59.  Purpose  of  acts 63 

60.  Title  and  form  of  statute 65 

61.  Due  process  of  law 66 

62.  Discrimination  between  motorists  and  other  persons 66 

63.  Discrimination    between    owners    of    different    machines  —  be- 

tween different  motor  vehicles 68 

64.  Discrimination   between    owners   of    different   machines  —  non- 

residents   69 

65.  Discrimination     between     owners     of     different     machines  — 

aliens "^ 

66.  Certainty  of  enactment 69 

67.  Repeal  of  statutes 70 

68.  Construction  of  regulations 71 


Tablk  of  Contents. 


XT 


CHAPTER  VI. 

MUNICIPAL  RErrULATIONS.  pack 

Sbctiok  69.  Scope  of   chapter -3 

70.  Municipal  power  in  general  —  power  delegated  from  state 74 

71.  Municipal  power  in  general  —  police  power  of  regulation 74 

72.  Municipal  power  in  general  —  abrogation  of  municipal  powers.  76 

73.  Municipal  power  in  general  —  Park  Ck)mrais8ioner6 78 

74.  Beg^ations  must  not  conflict  with  Constitution  — in  general.  .  79 

75.  Regulations  must  not   conflict  with  Constitution  —  discrimina- 

tion between  motorists  and  other  travelers 80 

76.  Regulations   must  not  conflict   with   Constitution  —  discrimina- 

tion between  motor  vehicles 80 

77.  Regulations  must  not  conflict  with  State  law 81 

78.  Regulations  must  be  reasonable 84 

79.  Manner  of  enactment 8^ 

80.  Application  of  regulation  beyond  municipal  limits 87 

81.  Punishment  for  violation  of  ordinance 88 

82.  Proof  of  ordinance gg 

CHAPTER  VII. 

FEDERAL  CONTROL  OVBB  MOTORING. 

Sbotion  83.  In  general g^ 

84.  Powers  of  St^te  and  Federal  governments 90 

85.  Regulation  of  internal  matters  belongs  to  State 90 

86.  Interstate  motoring   o-i 

87.  The  right  of  transit '....!!  96 

88.  Citizen 's  right  of  transit 9g 

89.  Transit  of  vehicle 9g 

90.  Limitation  on  license  fees 97 

91.  Questions  of  interstate  commerce  not  in  issue 97 

CHAPTER  \n.U. 

LICENSING  AND  REGISTRATION. 

Sbotion     92.  Scope  of  chapter 202 

93.  Nature  of  license j02 

94.  Nature  of  license  fee ^q^ 

95.  Purpose  of  registration jqc 

96.  General  power  to  require  registration  and  licensing 107 

97.  Power  of  municipal  corporations  —  in  general 109 

98.  Power  of  municipal  corporations -- licensing  power  annulled 

by  State  jjq 

99.  Power  of   municipal   corporations  —  abrogation   of  municipal 

powers  by  subsequent  general  statute Ill 

100.  Power  of  municipal  corporations  —  territorial  application  of 


ordinance. 


113 


101.  Constitutionality  of  regulations  —  in  general 114 

102.  Constitutionality  of  regulations  —  title II5 

103.  Constitutionality    of    regulations  —  interference    with    inter- 

state commerce   jl5 


xii  Table  of  Coisttents. 

PAGE 
Skotion  104.  Constitutionality  of  regulations  —  prohiliition  of  use  of  high- 
ways until  registration 117 

105.  Constitutionality    of    regulations  —  license    fees    Leyond    cost 

of  registration 118 

106.  Constitutionality  of  regulations  —  double  taxation 121 

107.  Constitutionality     of      regulations  —  exemption      from      other 

taxation 122 

108.  Constitutionality  of  regulations  —  taxation  not  leased  on  value 

of  property 123 

109.  Discrimination  — -  in  general   124 

110.  Discrimination  —  between    motor    vehicles    and    other    convey- 

ances   124 

111.  Discrimination  —  different  sizes  of  machines 125 

112.  Discrimination  —  vehicles  used  for  different  purposes . 126 

113.  Discrimination  —  dealers  in  different  class 127 

114.  Discrimination  —  non-residents. 128 

115.  Discrimination  —  non-resident  exemption  based  on  reciprocitj-.  129 

116.  Registration   by   particular   classes    of    owners  —  corporations 

and  partnerships 131 

117.  Registration  by  particular  classes  of  owners  —  registration  in 

trade  name 131 

118.  Registration  by  particular  classes  of  owners  —  dealers 132 

119.  Registration  by  particular  classes  of  owners  by  purchaser  of 

machine 134 

120.  Registration    by    particular    classes    of    owners  —  issuance    of 

blank  licenses  to  automobile  organization 135 

121.  Registration  by  particular  classes  of  owners  —  death  of  owner.  135 

122.  Disposition  of  license  moneys 135 

123.  Vehicles  to  which  regulations  are  applicable 136 

124.  Display  of  number  plate 137 

125.  Effect   of   non-registration    in   actions    for   injuries  —  Massa- 

chusetts rule   139 

126.  Effect    of   non-registration    in    actions   for   injuries  —  general 

rule 143 

127.  Eft'ect  of  non-registration  in  actions  for  injuries  —  burden  of 

proof 146 

128.  Certificate  as  evidence  of  ownership 147 

CHAPTEK  IX. 

PUBLIC  CARRIAGE  FOR  HIRE,  JITNEYS,  TAXICABS,  ETC. 

Section  129.  Scope  of  chapter 150 

130.  Definitions ►  150 

131.  Status  of  carriages  for  hire  —  jitney 153 

132.  Status  of  carriages  for  hire  —  taxicab 152 

133.  Status  of  carriages  for  hire  —  sight-seeing  automobile 154 

134.  Status  of  carriages  for  hire  — ■  furnishing  of  cars  from  garage 

on  order   154 

135.  Governmental  regulation  of  carriage  for  hire  —  in  general...  154 

136.  Governmental  regulation  of  carriage  for  hire  —  greater  power 

than  over  other  classes  of  vehicles 157 


Table  of  Contents.  xiii 

PAGE 

Section  137.  GovermiieTital  regulation  of  carriage  for  hire  —  discrimination.  158 

138.  Powers  of  municipalities  —  in  general 163 

139.  Powers  of  municipalities  —  aluogation  of  municipal  powers..  165 

140.  Powers  of  municipalities  —  reasonableness  of  municipal  regu- 

lation   166 

141.  Powers  of  municipalities  —  enactment  of  ordinance 167 

142.  Powers  of  municipalities  —  territorial  limits 167 

143.  State  regulatory  commissions 168 

144.  Licenses  —  in  general 170 

145.  Lcenses  —  application  to  vehicles 172 

146.  Licenses  —  nature  of  license 173 

147.  Licenses  — -  license  fees    175 

148.  Licenses  —  conflict  of  State  and  municipal  licensing  systems.  177 

149.  Licenses  —  plying  for  hire 178 

150.  Licenses  —  effect  of  failure  to  have  license 179 

151.  Licenses  —  transfer  of  license 180 

152.  Licenses  —  licensing  of  chauffeurs 180 

153.  Exclusion  from  streets 180 

154.  Restriction  to  certain  streets 181 

155.  Bonds  —  power  to  require  propnetor  to  give  bond 183 

156.  Bonds  —  inability  to  furnish  bond 185 

157.  Bonds  —  character  of  sureties 185 

158.  Bonds  —  extent  of  surety's  liability 187 

159.  Bonds  —  liability    for    accident    outside    of    municipality 189 

160.  Hack  stands  —  in  general 190 

161.  Hack  stands  —  sight-seeing  automobiles 190 

162.  Hack  stands  —  taxicab  service  for  hotel 191 

163.  Hack  stands  —  soliciting  passengers 191 

164.  Routes  and  schedules 193 

165.  Punishing  passenger  for  failure  to  pay  fare 193 

166.  Taximeters 194 

167.  Rate  of  fare 195 

168.  Miscellaneous  regulatory  matters 196 

169.  Liability  for  injury  to  passenger  —  in  general 197 

170.  Liability  for  injury  to  passenger  —  assault  on  passenger 199 

171.  Liability  for  conduct  of  driver 199 

172.  Imputation  of  negligence  of  driver  to  passenger 200 

173.  Rights  of  proprietor  of  vehicle 201 

CHAPTEK  X. 

PRIVATE   HIRE  OF  AUTOMOBILES. 

Section  174.  Scope  of  chapter 203 

175.  Nature  of  contract 20.' 

176.  Liability  for  injury  from  operation  of  machine  —  liability  of 

owner  for  operation  by  hirer 204 

177.  Liability  for  injury  from  operation  of  machine  —  liability  for 

acts  of  driver  furnished  by  owner 205 

178.  Ijiability  for  injury  from  operation  of  machine  —  liability  for 

acts  of  driver  furnished   bv   hirer 207 


xiv  Table  of  Contents. 

PAGE 

Section  179    Liability  for  iniury  from  operation  of  machine  —  injury  to 

207 

passenger "" ' 

180.  Injury  to  machine  —  care  to  be  exercised  by  hirer 208 

181.  Injury  to  machine  —  loss  of  machine 209 

182.  Injury  to  machine  —  conversion  of  macliine  by  hirer 209 

183.  Injury  to  machine  —  deviation  from  agreed  route 209 

184.  Injury  to  machine  —  right  of  action  by  hirer  for  injury 209 

185.  Duties  and  liabilities  of  parties  —  possession  of  machine 210 

186.  Duties  and  liabilities  of  parties  —  duty  to  carry  to  destination  210 

187.  Duties  and  liabilities  of  parties  —  termination  of  hiring 211 

188.  Duties  and  liabilities  of  parties  —  surrender  of  machine 211 

189.  Duties  and  liabilities  of  parties  —  compensation  for  hire 212 

CHAPTER  XI. 

GARAGE  AND  GARAGE  KEEPERS. 

Section  190.  Scope  of  chapter '^-^ 

191.  Garage  defined - ^^^ 

192.  Status  of  garage  keeper 215 

193.  Garage  as  a  nuisance 

194.  Restrictive  covenant  forbidding  garage 217 

195.  Regulatory  power  over  garages  —  in  general 220 

196.  Regulatory  power  over  garages  —  licensing 222 

197.  Regulatory  power  over  garages  —  location 222 

198.  Regulatory  power  over  garages  —  manner  of  construction 224 

199.  Regulatory  power  over  garages  —  storage  of  gasoline 224 

200.  Regulatory  power  over  garages  —  keeping  register  of  repairs.  226 

201.  Rights  of  garage  keeper 227 

202.  Liability  of  garage  keeper  —  in  general 230 

203.  Liability  of  garage  keeper  —  gratuitous  bailee 231 

204.  Liability  of  garage  keeper  —  injury  by  fire 232 

205.  Liability  of  garage  keeper  —  property  stolen  from  garage 232 

206.  Liability  of  garage  keeper  — use  of  machine  without  owner's 

consent "^ 

207.  Liability  of  garage  keeper  —  damage  to  machine  while  driven 

by  bailee ^^^ 

208.  Liability  of  garage  keeper  —  conversion  of  customer's  auto 


mobile. 


236 


209.  Liability  of  garage  keeper  —  delay  in  making  repairs 238 

210.  Liability  of   garage  keper  —  improper  performance  of   work 

on  machine *^° 

211.  Liability  of  garage  keeper  —  sale  of  inferior  supplies 2i39 

212.  Liability  of  garage  keeper  —  burden  of  proof 240 

213.  Liability  of   garage  keeper—  acts  of  driver  injuiying  third 

person 241 

214.  Liability  of  garage  keeper  —  acts  of  servant  towing  disabled 

machine 242 

215.  Liability  of  garage  keeper  —  defective  premises 243 


Table  of  Co^■T^:^•Ts.  xv 
CHAPTER  XII. 

CHAITFFKURS.  pack 

Section  216.  Scope  of  chapter 245 

217.  Chauffeur   defined    246 

218.  Origin  of  term  ' '  chauffeur  " 247 

219.  Status  of  chauffeur 247 

220.  Regulation   of  chauffeurs  —  in  general 248 

221.  Regulation  of  chauffeurs  —  powers  of  municipalities 249 

222.  Regulation  of  chauffeurs  —  age  limit 250 

223.  Licensing  of  chauffeurs —  in  general 251 

224.  Licensing  of  chauffeurs  —  discrimination  between  paid  chauf- 

feurs and  other  operators 252 

225.  Licensing  of  chauffeurs  —  unlicensed  chauffeurs  receiving  in- 

struction   253 

226.  Licensing  of  chauffeurs  —  effect  of  failure  of  chauffeur  to  have 

license 254 

227.  Rights  of  chauffeur 256 

228.  Liability  of  master  for  injury  to  chauffeur 257 

229.  Liability  of  chauffeur  to  owner 260 

CHAPTER  XIII. 

MISCELLANEOUS  SUBJECTS  OF  REGULATION. 

Section  230.  Speed 261 

231.  Exclusion  from  highways 263 

232.  Restriction  to  certain  streets 264 

233.  Identification  of  machine 266 

234.  Obstruction  of  streets 266 

235.  Advertising  on  public  vehicles 268 

236.  Law  of  road 268 

237.  Smoke  and  odors 270 

238.  Liability  for  injuries 271 

2.39.  Taxation 271 

240.  Service  of  process  on  automobilist 273 

CHAPTER  XIV. 

LAW   OF   THE   ROAD. 

Section  241.  In  general 276 

242.  Object  of  rules 277 

243.  Judicial  notice 277 

244.  Application  of  statutes  or  ordinances  —  pedestrians 278 

245.  Application  of  statutes  or  ordiniuices  —  bicycles 278 

246.  Application  of  statutes  or  ordinances  —  street  railway  cars . .  .  279 

247.  Driving  along  street  —  on  wrong  .'^ide  of  highway 279 

248.  Driving  jilong  street  —  distance  from  curb 281 

249.  Meeting  and  passing  other  travelers  —  in  general 282 

250.  Meeting  and  passing  other  travelers  —  right  of  center  line  of 

highway 284 

251.  Meeting    and    passing    other    travelers  —  seasonable    turn    to 

right.  . 283 


xvi  Table  of  Contents. 


PAGE 


Section  252.  Overtaking  and  passing  other  travelers  — turning  to  left   to 
pass 

253.  Overtaking    and   passing    other    travelers  —  turning    to    right 

after  passing ;  •  • 

254.  Overtaking  and  passing  other  travelers  — meeting  tliird  vehicle 

after  passing  toward  left --^^ 

255    Overtaking  and  pa-ssing  other  travelers  —  slower  vehicles  at 

curb 289 

256.  Overtaking    and    passing   other    travelers  —  duty   of    forward 

vehicle  to  permit  passage 290 

257.  Overtaking  and   passing  other   travelers  —  passing  at   corner 

where  forward  vehicle  turns  to  left 291 

258.  Turning  corners  —  turning  toward  the  right 291 

259.  Turning  corners  —  turning  toward  the  left 293 

260.  Intersecting  streets  —  equal  rights  of  travelers 295 

261.  Intersecting  streets  —  superior  right  of  first  arrival 296 

262.  Intersecting  streets  —  regulations  giving  superior  rights  along 

2Q7 
one  street  

263.  Turning  or  backing  machine 300 

264.  Signals  from  one  driver  to  another 303 

265.  Obedience  to  directions  of  traffic  officer 304 

266.  Driving  on  walk  or  place  reserved  for  pedestrians 304 

267.  Effect  of  violation  of  law  of  road  —  as  evidence  of  negligence.  304 

268.  Effect   of    violation   of  law   of   road  — imposition    of   higher 

degree  of  care 307 

269.  Effect  of  violation  of  law  of  road  —  proximate  cause 308 

270.  Excuse  for  violation  of  law  of  road  —  in  general 309 

271.  Excuse  for  violation  of  law  of  road  —  avoiding  obstacle  in 


road. 


ni 


272.  Excuse  for  violation  of  law  of  road  —  turning  to  avoid  negli- 

gent driving  of  another 312 

273.  Excuse  for  violation  of  law  of  road  —  insufficient  time  to  obey 


rule. 


513 


274  Excuse  for  violation  of  law  of  road— skidding  on  wrong  side 

of  road 313 

275.  Negligence  in  adhering  to  law  of  road 313 

CHAPTER  XV. 

NEGLIGENCE  IN  OPERATION  OF  MOTOR  VEHICLES,  IN  GENERAL. 
Section  276.  Analogy  to  law  governing  horse-drawn  vehicles 317 

277.  Degree  of  care  required  of  automobilists  —  in  general 318 

278.  Degree  of  care  required  of  automobilists  —  commensurate  with 

dangers 321 

279.  Degree    of    care    required   of    automobilists  —  higher    care   at 

street  crossings  326 

280.  Degree  of  care  required  of  automobilists  —  liigher  care  when 

driving  on  wrong  side  of  Mghway 328 

281.  Degree  of   care   required   of   automobilists  —  higher   care   im- 

posed by  statute 328 


Tablk  of  Contexts.  xvii 

PAGE 

Section  282.  Degree  of  care  roquireil  of   automobilists  —  care  by   common 

carriers 330 

283.  Driver  of  auto  not  an  insurer  against  accidents 330 

284.  Unavoidable  accident  —  in  general 332 

285.  Unavoidable  accident  —  conduct  of  driver  in  emergency 333 

286.  Unavoidable  accident  —  avoidance  of  dangerous  situation....  334 

287.  Unavoidable  accident  —  precedent  negligence  may  bar  claim  of 

unavoidable  accident  334 

288.  Unavoidable  accident  —  moving  automobile  under  directions  of 

police  oflScer 335 

289.  Proximate  cause  —  in  general    335 

290.  Proximate  cause  —  concurring  negligence  of  third  party 337 

291.  Proximate  cause  —  intervening  agency    338 

292.  Competency  of  driver  of  motor  vehicle  —  in  general 339 

293.  Competency  of  driver  of  motor  vehicle  —  presumption   as   to 

skill  of  driver 340 

294.  Competency  of   driver   of   motor   vehicle  —  physical   condition 

of  driver 341 

295.  Competency   of   driver   of   motor   vehicle  —  permitting    imma- 

ture child  to  drive  car 343 

296.  Competency  of  driver  of  motor  vehicle  —  opinion  of  witness 

as  to  competency  of  driver 344 

297.  Effect   of   violation    of    statute    or    municipal    ordinance  —  in 

general 344 

298.  Effect  of  violation  of  statute  or  municipal  ordinance  —  viola- 

tion as  contributory  negligence 348 

299.  Effect  of  violation  of  .statute  or  municipal   ordinance  —  who 

may  invoke  violation 349 

300.  Effect  of  violation  of  statute  or  municipal  ordinance  —  prox- 

imate cause  of  injury 351 

301.  Effect  of  violation  of  statute  or  municipal   ordinance  —  con- 

tributory negligence  of  injured  as  a  defense 353 

302.  Effect  of  violation  of  statute  or  municipal  ordinance  —  neces- 

sity of  pleading  ordinance 353 

303.  Speed  of  machine  —  in  general  355 

304.  Speed  of  machine  —  proximate   cause    356 

305.  Speed  of  machine  —  unreasonable  speed  prohibited 357 

306.  Speed  of  machine  —  statute  or  ordinance  regulating  speed...  359 

307.  Speed  of  machine  —  speed  at  night 360 

308.  Speed  of  machine  —  at  turns 362 

309.  Speed  of  machine  —  density   of   traffic 363 

310.  Speed  of  machine  —  passing  street  cars 363 

311.  Speed  of  machine  —  street  intersections    364 

312.  Speed  of  machine  —  at  railroad  or  street  railway  crossings...  366 

313.  Speed  of  machine  —  approaching  embankment  or  descent....  368 

314.  Speed  of  machine  —  over  bridges 369 

315.  Speed  of  machine  —  past  children  in  street 369 

316.  Speetl  of  machine  —  frightening   horses    369 

317.  Speed  of  machine  —  regulation  prohibiting  "•  unreasonable  " 

speed 370 


xviii  Taih.f.  of  Contents. 

PAGE 

Section  318.  Speed  of  machine  —  lire    and    police    vehicles 372 

319.  Speed  of  machine  —  military  or  mail  vehicle 374 

320.  Speed  of  machine  —  violation  of  speed  regulation  as  evidence 

of  negligence ' 374 

321.  Speed  of  machine  —  violation  of  speed  regulation  as  negligence 

per  se  375 

322.  Speed  of  machine  —  excessive  speed  as  prima  facie  evidence 

of  negligence 376 

323.  Speed  of  machine  —  excuse  of  violation  of  speed  regulation..  378 

324.  Speed  of  machine  —  negligent    thought    not    exceeding   speed 

limit 379 

325.  Speed  of  machine  —  pro\dnce  of  jury 381 

326.  Control , 382 

327.  Duty  to  stop 384 

328.  Negligence  in  stopping 387 

329.  Warning  of  approach  —  in  general 387 

330.  Warning  of  approach  —  statutes  or  ordinances ,  . . . .  390 

331.  Warning  of  approach  —  sufficiency  of  warning 393 

332.  Lookout  —  in  general    393 

333.  Lookout  —  toward  the  rear 395 

334.  Lookout  —  toward  the  side 396 

335.  Lookout  —  intensiveness  of  looking 396 

336.  Lookout  ■ —  charged  with  notice  of  what  should  have  been  seen .  397 

337.  Noise 398 

338.  Skidding 400 

339.  Condition  of  vehicle 402 

340.  Leaving  car  in  street  unattended  —  in  general 404 

341.  Leaving  car  in  street  unattended  —  at  night 406  ■ 

342.  Leaving  car  in  street  unattended  —  vehicle  started  by  act  of 

third  person 406 

343.  Leaving  car  in  street  unattended  — statute  or  ordinances ....  407 

344.  Lights  on  machine  —  statutory  requirements 407 

345.  Lights  on  machine  —  probative  force  of  violation 410 

346.  Lights  on  machine  —  sufficiency  of  lights 410 

347.  Lights  on  machine  —  proximate  cause 411 

348.  Lights  on  machine  —  animal-drawn  vehicles 412 

349.  Towing  disabled  vehicle 414 

350.  Sufficiency  of  compliance  with  statute 415 

351.  Contributory  negligence  of  injured  person 416 

352.  Assumption  that  other  travelers  will  exercise  due  care 417 

353.  Conflict  of  laws 419 

354.  Joinder  of  cause  of  action  for  injuries  to  two  persons 419 

355.  Damages  —  in  general 420 

356.  Damages  —  mental  anguish 421 

357.  Damages  —  punitive  damages    422 

358.  Damages  —  increased  damages 423 

359.  Function  of  jury 423 

360.  Traction  engines   426 


Tablk  of  Contents.  xix 

CHAPTER  XVI. 

COLLISIONS  WITH  OTHER  VEHICLES.  pagk 

SECTION  361.  Care  in  avoiding  other  vehicles,  in  general .■■■-■     428 

362.  Proof  of  defendant's  negligence  required  to  support  action     ^^^ 

for  injuries  

363.  Unavoidable  accident  —  generally ',"'■"      4,0 

364    Unavoidable  accident-skidding  to  avoid  injury  to  pedestrian    433 

364    Unavoidable  accident  —  deflection  to  avoid  dog «^ 

366  Unavoidable  accident  —  failure  of  brakes  to  work.  •••■••••     *•** 

367  Unavoidable  accident  —  vehicle    obscured    by    glare    of    other 

4o4 

lights .  „ 

368.  Unavoidable  accident  -  care  to  avoid  dfuigerous  situation. ...     434 

369.  Injury  from  wagon 

370.  Excessive  speed   • '  " 

371.  Turning  to  right  to  pass  approaching  vehicle— duty  of  each     ^^ 

to  exercise  reasonable  care ^    •  ■ 

372    Turning  to  right  to  pass  approaching  vehicle  —  law  of  road . . .     4rfb 

373.  Turning  to  right  to  pass  approaching  veliicle  -  statute  requir- 

ing turn  to  right  of  center  of  road 

374.  Turning  to  right  to  pass  approaching  vehicle  —  seasonable  turn 

.   ,  ,  4o8 

to  right . 

375.  Turning  to   right  to   pass  approaching  vehicle  -  violation  of 

law  of  road  not  negligence  per  se ■  •  • 

376.  Turning  to  right  to  pass  approaching  vehicle  -  presumption 

of  negligence  from  violation  of  law  of  road *40 

377.  Turning  to   right  to  pass  approaching  vehicle  —  rebuttal  of 

presumption  of  negligence  from  violation -i^l 

■  378.  Turning  to  right  to  pass  approaching  vehicle  —  obedience  to 

law  of  road  does  not  excuse  negligence 444 

379.  Turning  to  right  to  pass  approaching  vehicle  —  treble  damages 

under  statute 

380.  Overtaking  and  passing  —  in  general *^ 

381.  Overtaking  and  passing  —  forcing  forward  vehicle  in  danger- 

ous situation   

382.  Overtaking  and  passing  —  law  of  the  road 448 

383.  Overtaking  and  passing  —  effect  of  violation  of  law  of  road. .     449 

384.  Overtaking  and  passing  —  reading  statute  to  jury 450 

385.  Overtaking  and  passing  —  coUision  with  second  vehicle  after 

/.     .  450 

passing  first  

386.  Overtaking  and  passing  —  unexpected  stop  of  forward  ear.  . .  451 

387.  Overtaking  and  passing  —  passing  near  corner 453 

388.  Turning  corners  —  in   general    • 

389.  Turning  corners  —  turning  towards  the  right 455 

390.  Turning  corners  —  turning  towards  the  left 455 

391.  Approaching  intersecting  streets  —  in  general 457 

392.  Approaching  intersecting  streets  —  crowded  thoroughfares.  ...  458 

393.  Approaching  intersecting  streets  —  priority  of  first  arrival. ...  459 

394.  Approaching  intersecting  streets  —  priority  given  by  statute 

T  ....      4b0 

or  ordinance 

395.  Vehicle  standing  in  street 


XX 


Table  of  Contents. 


PAOF. 

464 
Section  396.  Proximate  cause 

397.  Joint  liability  of  Itoth  drivers  to  third  person 4bb 

398.  Contributory  negligence  —  generally 467 

399.  Contributory  negligence  —  proximate    result    of    contributory 

negligence •  ■ ^^^ 

400.  Contributory  negligence  —  unskillful  driving   4oJ 

401.  Contributory  negligence  —  alertness 470 

402.  Contributory  negligence  —  wantonness   or   recklessness   of    de- 

fendant   *^^ 

403.  Contributory  negligence  —  ^-iolation  of  law  of  road 472 

404.  Contributory  negligence  —  sudden  stop   474 

405.  Contributory  negligence  —  failure  to  give  passing  vehicle  suf- 

ficient space ' 

406.  Contributory  negligence  — absence  of  statutory  lights 475 

407.  Contributory  negligence  —  excessive  speed    •  • 476 

408.  Contributory  negligence  —  passenger  in  dangerous  position...  477 

409.  Contributory  negligence  —  reliance    on    obedience    of    law    of 

road  by  other  vehicles 477 

410.  Contributory  negligence  —  acts   in   emergency 4/9 


411.  Contributory  negligence  —  last   clear   chance 480 

412.  Pleading ^^^ 

413.  Negligence  is  generally  a  question  for  the  jury 484 


CHAPTER  XVII. 

COLLISION  WITH   PEDESTRIAN. 

Section  414.  General  duties  of  foot  travelers  aJid  drivers  of  motor  vehicles.  488 

415.  Proximate  cause    

416.  Unavoidable  accident   497 

417.  Persons  under  disability 498 

418.  Children  in  street  —  in  general 500 

419    Children  in  street  —  child  suddenly  coming  in  front  of  or  near 

machine 

420.  Children  in  street  —  climbing  on  machine 504 

421.  Confused  pedestrian  ^06 

422.  Workmen  in  street '^07 

423.  Driving  past  street  car  —  in  general 508 

424.  Driving  past  street  car  —  moving  street  car 511 

425.  Driving  past  street  car  —  statutory  and  municipal  i  oquirements  511 

426.  Driving  past  street  car  —  assisting  passenger  on  car 513 

427.  Driving  past  street  car  —  auto  on  wrong  side  of  street 514 

428.  Driving  past  street  car  —  liability  of  street  railway  company.  .  515 

429.  Driving  on  walk  or  place  reserved  for  pedestrians  —  in  general  516 

430.  Driving  on  walk  or  place  reserved  for  pedestrians  —  sidewalk.  517 

431.  Driving   on  walk   or   place  reserved   for   pedestrians  —  safety 

zone 519 

432.  Passing  pedestrian  walking  along  road 519 

433.  Motor  vehicle  on  wrong  side  of  street 521 

434.  Turning  corner    523 

435.  At  street  crossing  —  in  general 524 


Tablk  of  Contents.  >^xi 

PAGE 

SKCiK.x  43H.  At  street  crossing  _ unfavorable  weather  c-on.litions 527 

437.  At  street  crossing  —  view  o1)structP(l 3- 

438.  Lookout  for  pedestrians " 

439.  Avoidance  of  person  standing  in  street 0^ 

440.  Hudden  turning  or  backing  without  warning 5-1 

441.  Speed  and  control  of  automobile  —  control  in  general 5^^ 

442.  Speed  and  control  of  automobile  —  stopping 5^^ 

443  Speed  and  control  of  automobile  —  speed ^<^3 

444  Speed  and  control  of  automobile  —  speed  prescribetl  by  statute 

^  ,.  Dob 

or  ordinance _^„ 

445.  Speed  and  control  of  automobile  -  auto  turning  orncr Oo^ 

446.  Vehicle  left  standing  in  street ^^_ 

447.  Lights ,^^ 

448.  Signal  of  approach ^^^ 

449.  Towing   disabled   vehicle - 

;j4o 

450.  Pleading _ 

451.  Damages! 

452.  Function  of  jury 

CHAPTER  XVIII. 

CONTRIBUTORY  NEGLKiENrH  OF  PKDKSTRIANS. 

550 
Skction  453.  General  duty  of  pedestrian 

454.  As  dependent  on  surrounding  t•ir(•u.^^tances o^^ 

455.  Place  of  crossing  —  in  general 

456.  Place  of  crossing  -  crossing  street  at  other  than  usual  cross- 

boi 

mg _^^ 

457.  Place  ()i  crossing  —  walking  along  highway ^o" 

458.  Duty  to  look  for  approaching  automobiles  —  railroad  rule  —  to 

stop,  look  and  listen •  •  • 

459.  Dutv  to  look  for  approaching  mitomobiles  —  duty  to  look  be- 

.       ,  562 

fore  crossing  street 

460.  Duty  to  look  for  approaching  automobiles  —  looking  for  vehi- 

cles on  wrong  side  of  street • ^   ' 

461.  Dutv  to  look  for  approaching  automobiles  —  obstructed  view,  obh 

462.  DutV  to  look  for  approaching  automobiles  —  continuing  to  look  569 
463  Dut'v  to  look  for  approaching  automobiles  —  looking  back.  ...  5/1 
464.  Failure  to  see  approaching  machine  after  looking  — in  general  o/- 

465  Failure  to  see  approaching  machine  after  looking  —  view  ob- 

,    ,  5/4 

structed 

466  Failure  to  see  approaching  machine  after   looking  —  weather 

,.^.  5<o 

conditions 

467.  Avoidance  of  machine  which  has  been  seen  —  right   to   cross       ^  ^ 

street  in  front  of  approaching  vehicle 5.6 

468.  Avoidance  of  machine  which  has  been  seen  —  continual  obser-     ^__ 

vation  of  approaching  vehicle •      '^" 

469    Avoidance  of  machine  which  has  been  seen  -  miscalculation  of       ^^ 

,  S/i 

danger 

470.  Avoidance  of   machine   which   has   been   seen  —  statements   ot     ^  ^ 
companion  as  to  safety  in  crossing ^  ^ 


xxii  Table  of  Contents. 

PAGE 
Seotiok  471.  Reliance  on  propor  comluct   by  aiifomobilist  —  exorcise  of  due 

care  by  chauffeur 579 

472.  Reliance  on  proper  conduct  by  autoniobilist  —  excessive  speed,  581 

473.  Reliance  on  proper  conduct  by  autoiuobilist  -  -  obedience  to  law 

of  road   582 

474.  Reliance  on  proper  conduct  by  automobilist -- place  reserved 

for  pedestrian 583 

475.  Reliance  on  proper  conduct  by  automobilist  - —  person  passing 

on  or  off  street  ear 583 

476.  Stopping  in  street 587 

477.  Watching  auto  race 589 

478.  Children  —  in  general 589 

479.  Children  —  application  of  rules 591 

480.  Children  —  children  non  sui  juris 594 

481.  Persons  under  disability 595 

482.  Workmen  in  street  —  in  general 596 

483.  Workmen  in  street  —  violation  of  law  by  workman 597 

484.  Workmen  in  street  —  traffic  officer 597 

485.  Last  chance  doctrine 598 

486.  Acts  in  emergencies 602 

487.  Function  of  .iury 605 

CHAPTER  XIX. 

MISCELLANEOUS    TRAVELERS  —  CYCLISTS.    RIDERS.    ANIMALS  IN 

HIGHWAY. 

Section  488.  Relative  rights  of  cyclists  and  automobilists 608 

489.  Horseback  travelers  —  duty  of  machine  operators 610 

490.  Horseback  travelers — -contributory  negligence  of  rider 612 

491.  Use  of  highway  for  domestic  animals 613 

492.  Violation  of  law  of  road  —  in  general 616 

493.  Violation  of  law  of  road  —  meeting  and  passing  cyclist 617 

494.  Violation  of  law  of  road  —  overtaking  and  passing  cyclist ....  619 

495.  Violation  of  law  of  road  —  cwlist  overtaking  automobilist.  .  .  .  619 

496.  Violation  of  law  of  road  —  meeting  cyclist  after  overtaking 

other  vehicle  620 

497.  Violation  of  law  of  road  —  street  inter.-5ectiou 621 

498.  Violation  of  law  of  road  —  turning  corners 621 

499.  Violation  of  law  of  road  —  turning  or  backing  in  street 622 

500.  Lookout 623 

501.  Speed  and  control  of  auto 624 

502.  Warning  of  approach 626 

503.  Contributory  negligence  of  cyclist  —  in  general 626 

504.  Contributory  negligence  of  cyclist  —  statutory  requirement  as 

to  degree  of  care 628 

505.  Contributory  negligence  of  cyclist  —  proximate  cause 628 

506.  Contributory  negligence  of  cyclist  —  looking  for  approaching 

vehicles 629 

507.  Contributory  negligence  of  cyclist  —  care  in  looking 630 

508.  Contiibutory  negligence  of  cyclist  —  crossing  in  front  of  ob- 

served  auto    631 


Table  of  Contents.  xxiii 

PAGE 

Section  509.  Contributory  negligence  of  cyclist  —  spee<l  of  cyclist 632 

510.  Contributoiy  negligence  of  cyclist  —  violation  of  law  of  road .  633 

511.  Contributory  negligence  of  cyclist  —  waruin;t  of  approach...  634 

512.  Contributory  negligence  of  cyclist  —  reliance  on  dbservaiK-e  of 

law  of  automobilist 634 

513.  Contributory  negligence  of  cyclist -- last  clear  chance  doctrine  635 

514.  Contributory  negligenco  of  cyclist  —  acts  in  eincrgencies 630 

515.  Negligence  of  guest  of  cyclist 638 

516.  Function  of  jury 639 

CHAPTER  XX. 

FRIG  IITEN 1 NG  1 1  ORSE«. 

Sbotion  517.  In  general 641 

518.  Degree  of  care  to  avoid  frightening  horses 643 

519.  Auto  driver  not  an  insuroi 645 

520.  Notice  that  horses  take  fright 647 

521.  Proximate  cause 648 

532.  Horse  not  on  highway 650 

523.  Automobile  left  unattended  by  side  of  highway 650 

524.  Noise  —  usual  noise    650 

525.  Noise  —  unusual  uoLse 652 

526.  Noise  —  failure  to  sound  horn 654 

527.  Emission  of  smoke  or  vapor 655 

528.  Speed 656 

529.  Operating  auto  in  proximity  to  horse 657 

530.  Stopping  —  independently  of  statute 658 

531.  Stopping  —  discretion  as  to   stopping 660 

532.  Stopping  —  overtaking  and  passing  frightened  horse 662 

533.  Stopping  —  stopping  engine   662 

534.  Stopping  —  statutory  duty  to  stop  on  fright  of  horse 663 

535.  Stopping  —  stopping  in  front  of  horse  after  passing 665 

536.  Statute  requiring  stopping  on  signal  —  in  general 665 

537.  Statute  requiring  stopping  on  signal  —  discretion  as  to  stop- 

ping   667 

538.  Statute  requiring  stopping  on  signal  —  effect  of  failure  to  give 

signal 668 

539.  St«.tute  requiring  stopping  on  signal  —  signal  by  passenger. . .  668 

540.  Negligence  after  stop 669 

541.  Lights  on  machine 671 

542.  Contributory  negligence  —  general  duty  of  driver  of  carriage 

to  exercise  reasonable  care 671 

543.  Contributory  negligenco  —  leaving  horse  unattended 673 

544.  Contributory  negligence  —  nature  of  horse 674 

545.  Contributory  negligence  —  driving  frightened  horse  past  auto- 

mobile   675 

546.  Joint  wrong-doer  676 

547.  Pleading 676 

548.  Punitive  damages   677 

549.  Questions  for  jury 678 


xxiv  Table  of  Contents. 

CHAPTER  XXI. 

RAILROAD  CROSSINGS.  PAGE 

Section  550.  Coutiibutory  negligeuce  of  auto  driver,  m  general 680 

551.  Statute  requiring  ''  liigliest  "  degree  of  care  of  automoliilist. .  683 

552.  Distinction  between  automobilies  and  other  vehicles 684 

553.  Burden  of  proof  as  to  contributory  negligence  of  autoist 687 

554.  When  contributory  nogligsnce  not  a  bar 688 

555.  Care  of  taxicab  driver 690 

556.  Relative  rights  of  automobilist  and  railroad 691 

557.  Duty  to  look  and  listen  —  in  general 692 

558.  Duty  to  look  and  listen  —  place  of  looking  and  listening 696 

559.  Duty  to  look  and  listen  —  obstructed  view 699  • 

560.  Duty  to  look  and  listen  —  failure  to  observe  approaching  train, 

though  looking    701 

561.  Duty  to  look  and  listen  —  looking  by  passenger 704 

562.  Duty  to  look  and  listen  —  reliance  on  flagman 705 

563.  Duty  to  look  and  listen  —  reliance  on  open  gates. 706 

564.  Duty  to  look  and  listen  —  reliance  on  automatic  signals. 708 

565.  Duty  to  look  and  listen  —  reliance  on  signal  from  engineer.  ...  709 

566.  Duty  to  look  and  listen  —  running  into  train 711 

567.  Duty  to  stop  before  crossing  track  —  majority  rule 711 

568.  Duty  to  stop  before  crossing  track  —  minority  rule 714 

569.  Crossing  in  front  of  observed  train 717 

570.  Choice  of  crossings 719 

571.  Sounding  of  horn  by  automobilist 719 

572.  Speed  and  control 720 

573.  Violation  of  statute  regulating  automoljiles 722 

574.  Machine  stalled  on  track 723 

575.  Last  clear  chance 724 

576.  Acts  in  emergencies 726 

577.  Function  of  jury 728 

578.  Negligence  of  railroad  in  operation  of  train  —  inevitable  acci- 

dent  730 

579.  Negligence  of  railroad  in  operation  of  train  —  speed 731 

580.  Negligence  of  railroad  in  operation  of  train  —  warning 732 

581.  Negligence    of    railroad    in    operation    of    train  —  obstruction 

along  railroad   735 

582.  Negligence    of    railroad    in    operation    of     train  —  defective 

crossing 735 

583.  Negligence  of  railroad  in  operation  of  train  —  private  crossing  736 

584.  Negligence  of  railroad  in  operation  of  'train  —  permissive  use 

of  tracks  of  railroad  company 737 

CHAPTER  XXII. 

COLLISIONS  WITH   STREET   CARS. 
Section  585.  Relative  rights  of  street  cars  and  automobiles  —  at  intersect- 
ing streets   739 


586.  Relative    rights    of    streel     ears    and    automobiles  —  between 
crossings 


r43 


Table  of  Contents.  -^>^v 


PAGE 


SECTION  587.  Relative  rights  of  street  cars  an.l  automobiles  -  -  street  railway  _^^ 
compaiiv  not  an  insurer • '  • 

588.  Relative  ViRht«  of  .treet  ca,s  .n.l  auton.olnles  -  burden  of  _^^_ 
proof  as  to  noght-ence •  • •  •  '  ' 

.589.  Relative  rights  of  street  cars  and  automolnles  -  when  -on-  _^^_ 
tributorv  negligence  not  neces.sanly  a  bar.  .  .    •  •  •  •  • 

590.  Relative  Vights   of    street    cars   and    aut<.n,ob,le.  -  proxnnate 


747 

cause ■ -to 

591.  General  duty  of  automobilist  to  exercise  due  care _ 

592.  Looking  for  approaching  street  cars  -  m  general . ......  ..... 

59.x  Looking  for  approaching  street  cars  -  proper  place  for  look-  ^_^ 

594.  L^kmg  f «;  appr;..ch;ng'  st^reel  "ca,;  -  continuity  of  loo^ng^-  755 

595.  Looking  for  approaching  street  cars  -  ignorance  of  st.eet  cai  __^_ 

596.  L!2ng"  f  o;  'approachinV  '^tn-^i  "car^  ^-  backing  or  turning  in  __^^ 

597.  Looking  for  approaching  ..treet  cars  -  failure  to  see.  though  __^ 

looking V  ' ,'  •  '     .L 7^^ 

598.  Looking  for  approaching  street  cars  -  looking  to  rear -ob 

599.  Crossing  in  front  of  observed  car ^^^ 

600.  Driving  auto  along  track  —  in  general l^__ 

60L  Driving  auto  along  track  —  car  from  rear ^^'^ 

602    Driving  auto  along  track  —  car  in  front •  ;  •  • 

603.  Speed  and   control   of   automobile  -  approaching  intersecting  _^^_ 

streets ; y^g 

604.  Speed  and  control  of  automobile  —  stopping. •    ■  •  ■  •  .  •  • 

605    Speed  and  control  of  automobile  -  unfamibanty  with  brakes  .69 

606'.  Speed  and  control  of  automobile  -  automobile  running  against  _^^ 


street  car 


r69 


607.  Stopping  auto  near  tracK __^ 

608.  Turning  or  backing  auto  in  street. • ^_^ 

609.  Reliance  on  proper  care  by  street  railway ^^^ 

610.  Violation  of  regulation  by  autoist _^^ 

611.  Auto  stalled  on  tracks __g 

612.  Acts  in  emergencies __. 

613.  Last  clear  chance  doctrine _.^ 

614.  Function  of  jury ^^^^ 

615.  Negligence  of  railway  —  in  general _^^ 

616.  Negligence   of   railway  —  lookout _ 

617.  Negligence  of  railway  —  speed _  ^ 

618.  Negligence  of  railway  —  stopping,  if  necessary >_^_ 

619.  Negligence  of  railway  —  warning  of  approach '_-^^ 

620    Negligence  of  railway  —  private  crossings ^  _ 

621.  Liability  of  street  railway  company  to  its  passenger ^»_ 

623.  Liability  of  auto   driver 


xxvi  Table  of  Contents. 

CHAPTER  XXIII.  PAGE 

LIABILITY  FOR  ACT  OF  DRIVER;    MASTER  AND  SERVANT. 
Section  623.  Liability  does  not  aiise  from  mere  ownership  —  in  genoraL  . .     789 
624.  Liability   does  not  arise  from  mere  ownership  —  automobile 

not  an  inherently  dangerous  machine 791 

625    Liability  does  not  arise  from  mere  ownership  —  defective  auto- 

792 
mobile.  . '^" 

626.  Liability    does   not    arise    from    mere    ownership  —  statutory 

change  in  common  law  rule '^"^ 

627.  Liability  for  conduct  of  chauffeur  —  employment  alone  insuf- 

ficient to  charge  owner '^^^ 

628.  Liability   for   conduct  of   chauffeur  —  driver   must   be   acting 

within  scope  of  duty '^^ 

629  Liability  for  conduct  of  chauffeur  —  owner  riding  in  machine.  .  802 
630.  Liability  for  conduct  of  chauffeur  —  use  of  car  without  con- 

sent  of  owner ""'* 

6.31.  Liability  for  conduct  of  chauffeur  —  pi  ivate  use  by  chauffeur 

with  consent  of  owner •  •  •  •      806 

632    Liability    for    conduct    of    chauffeur-- variance    from    direct 

course. 8^9 

633.  Liability  for  conduct  of  chauffeur  —  returning  to  employment 

after  unlawful  divergence ^1^ 

634.  Liability  for  conduct  of  chauffeur  —  chauffeur  acting  under 

direction  of  owner's  family  or  guests 816 

635.  Liability  for  conduct  of  chauffeur  —  testing  machine 817 

636.  Liability  for  conduct  of  chauffeur  —  chauffeur  after  personal 

laundry °^' 

637.  Liability  for  conduct  of  chauffeur  —  chauffeur  taking  car  for 

meals 818 

638.  Liability    for    conduct    of    chauffeur  —  chauffeur    taking    pas- 

81 Q 
senger °^^ 

639.  Liability  for  conduct  of  chauffeur  —  chauffeur  permitting  an- 

other to  run  machine 820 

640.  Liability  for  conduct  of  chauff'eur  —  procurement  of  repairs 

to  machine  • "'sl 

641.  Liability  for  conduct   of   chauft'eur  —  chauffeur  furnished  by 

another 822 

642.  Liability  for  conduct  liy  cliauffeur  —  car  loaned  to  third  per- 

son  

64o.  Liability  for  conduct  of  chnufteur  —  car  and  driver  loaned. .  .      825 

644.  Liability   for   conduct   of   cluiuffeur  —  owner   letting   car    foi 

hire 827 

645.  Liability   for   conduct   of   chauffeur  —  independent   contractor 

having  possession  of  machine 830 

646.  Liability  for  conduct  of  chauffeur  —-  garage  keeper  or  bailee 

having  possession  of  automobile 831 

647.  Liability   for    conduct   of    chauffeur  —  seller 's    agent    accom- 

panying purchaser   83o 

648.  Liability    for    conduct    of    chauffeur  —  agent    trying    to    sell 

machine 833 


824 


Tabij",  of  Contexts.  xxvii 

« 

PAGB 
Section  (349.  Liability  fur  cuudiict  of  cluiufFcui- — school  givinj,'  iiir%t ruction.  834 
650.  Liability  for  conduct  of  cliaufFcur  —  chauffeur  toachinf;  opera- 
tion, of  automobile 835 

65L  Liability  for  conduct  of  cliautfeur -- driver  employed   to  tow 

automobile 836 

652.  Liability  for  conduct  of  chaufTeur  —  fellow  servants  of  chauf- 

feur   836 

653.  Liability  for  conduct  of  chauffeur  —  pleading 837 

654.  Liability   for   conduct    of   chauffeur  —  admissibility   of   state- 

ments of   driver 837 

655.  Liability  based  on  control  of  machine 838 

656.  Machine  driven  by  member  of   owner's  family  —  relation   of 

parent  and  child  does  not  determine  liability  of  owiier 839 

657.  Machine  driven  by  member  of   owner's   family  —  relation   of 

master  and  servant 841 

658.  Machine  driven,  by  member  of  owner's  family  —  u.>i'   without 

consent  of  owner 843 

659.  Machine  driven  by  member  of  ownier's  family  —  use  for  car- 

riage of  owner 's  family 844 

G60.  Machine  driven  by  member  of  owner 's  family  —  u.>e  for  pri- 
vate purposes  of  driver 846 

661.  Machine  driven  by  member  of  owner's  family  —  husband  and 

wife 851 

662.  Machine  driven  by  memluM-  of  owner's  family  —  immature  or 

incompetent  driver 853 

663.  Lialiility  of  corporations 854 

664.  Municipal  corporations 856 

665.  Liability  of  seller  of  automobile  for  act  of  servant 858 

666.  Liability  of  bailee " 859 

667.  Liability  of  passenger 861 

668.  Automobile   jointly    owned 861 

669.  Criminal  liability  for  acts  of  driver. 862 

670.  Ratification  of  serv'ant '»  act 863 

671.  Presumption  of  ownersiup  —  from  license  number 864 

672.  Presumption  of  ownership  —  from  name  on  macliine 865 

673.  Presumption  of  management  from  ownership  —  in  general...  865 

674.  Presumption    of    nianagemenl.    from    ownership  —  rebuttal    of 

presumption .'  871 

675.  Verdict  exonerating  chauffeur,  but  holding  owner. 873 

676.  Examination  of  owner  before  trial 874 

677.  Function  of  jury 874 

CHAPTER  XXIV. 

STATUS  OF  GUESTS  AND  PASSENGERS. 

Section  678.  Liability  of  automobilist  for  injuries  to  gues^t 877 

679.  Imputation  of  driver's  negligence  to  other  occupant  ^ — ^major- 

ity view    883 

680.  Imputation  of  driver's  negligence  to  other  occupant  —  minority 

view. 890 


^xxviii  Tabijp  of  Contents. 

PAGE 
Section  681.  Imputation  of  driver's  negligence  to  other  occupant  —  statu- 

torj'  change  in  doctrine  of  imputed  negligence 801 

682.  Imputation  of  driver's  negligence  to  other  occupant  —  Avhcn 

passenger  and  driver  are  engaged   in  common  purpose....      892 

683.  Imputation  of  driver's  negligence  to  other  occupant  —  control 

by  passenger  of  movement  of  machine 89.5 

684.  Imputation  of  driver's  negligence  to  other  occupant  —  master 

and  sei"\'ant   895 

685.  Imputation   of   driver's   negligence   to    other   occupant  —  hus- 

band and  wife S96 

686.  Imputation  of  driver's  negligence  to  other  occupant  —  parent 

and  child 897 

687.  Imputation  of   driver's   negligence   to    other    occupant  —  pas- 

senger for  hire 898 

688.  Contributory  negligence  of  passenger  —  in  general 899 

689.  Contributory  negligence  of  passenger  —  looking  for  dangers..  902 

690.  Contributory  negligence  of  passenger- — reliance  on  driver....  904 

691.  Contributory    negligence    of    passenger  —  riding    with    intoxi- 

cated driver   908 

692.  Contributory  negligence  of  passenger  —  failure  to  warn  driver 

of  dangers   909 

693.  Contributory    negligence    of    passenger  —  remaining    in    ma- 

chine       91 1 

694.  Contributory  negligence  of  passenger  —  ijermitting   driver   to 

run  at  excessive  speed 912 

695.  Contributory  negligence  of  passenger  —  defective  machine...      913 

CHAPTER  XXV. 

SAFETY  OF  ROADS   FOR  AUTOMOBILES. 
Section  696.  In  general 914 

697.  Municipalities    not    insurers    against   injuries    from    defective 

highways 917 

698.  Obstructions 917 

699.  Obstructions  placed  in  streets  by  others 919 

700.  Holes  or  excavations 920 

701.  Guarding 922 

702.  Slippery  suif ace    924 

703.  Width  of  road 925 

704.  Bridges 925 

705.  Proximate   cause    , 926 

706.  Knowledge  of  defect 928 

707.  Notice  of  injury 929 

708.  Liability  of  abutting  owners  and  others  for  defects  in  streets.  930 

709.  Joint  wrongdoers 931 

710.  Contrilnitory  negligence  of  traveler  —  in  general 932 

711.  Contributory  negligence  of  traveler  —  light  to  assume  safety 

of  highway 933 

712.  Contributory  negligence  of  traveler  —  violation  of   statute   or 

law  of  road 934 


Table  of  Contents.  xxix 

Section-  713.  Contributory  iicgiigence  of  traveler  —  assumption  of  danger.  .  .  935 

714.  Contributory  negligence  of  traveler  —  lookout 93o 

715.  Contributory  negligence  of  traveler  —  speed 937 

716.  Contrilnitory  negligence  of  traveler  —  negligence  of  passenger.  938 

CHAPTER  XXVI. 

MEASURE  OF  DAMAGES  FOR  INJURY  TO  AUTOMOBILE. 

^,.    ,  ,  940 

Section  71  / .  In   oeni>ral    

718.  Market   value    ■  ■ ^*J 

719.  Difference  between  value  before  and  after  injury 942 

720.  Cost  of   repairs ^ 

721.  Expenses  of  preserving  car  from  further  injury 946 

722.  Usable  value  for  period  of  repairs  —  in  general 946 

723.  Usable  value  for  period  of  repairs  —  rental  value 949 

724.  Payments  to  chauffeur  during  repairs 951 

CHAPTER  XXVII. 

CRIMINAL  OFFENSES. 
Section  725.  Criminal  responsibility  for  acts  of  cliauffeur  —  owner 952 

726.  Criminal   resposibility   for  acts   of   chauffeur  —  pa^ssenger 95o 

727.  Criminal   responsibility   for   acts   of   chauffeur  —  accessory   to 

v-iolation  of  law 9o 

728.  Speed  regulations  —  common  law  misdemeanor 956 

729.  Speed  regulations  —  power  of   State 95^ 

730.  Speed  regulations  —  violation    of    ordinance ■  •  •  958 

731.  Speed  regulations  —  establishment  of   signs  as   to  speed  lim- 

ited by  ordinance ^"^ 

732.  Speed  regulations  —  definiteness  of  statute 961 

733.  Speed  regulations  —  exceeding"  "  common  traveling  pace  ".  .  962 

734.  Speed  regulations  —  violation  not  malum  in  se 96- 

735.  Speed  regulations  —  intention ^ 963 

736.  Speed  regulations  —  ignorance  of  speed  limit ■  •  964 

737.  Speed  regulations  — exceptions    in    emergency    cases  — police 

and  fire  apparatus " ^_ 

738.  Speed  regulations  —  warning  autoists  of  speed  trap 90o 

739.  Speed  regulations  —  former  jeopardy    966 

740.  Speed  regulations  —  identification  of   offender 967 

741.  Speed  regidation*  —  information   or   indictment 96i 

742.  Speed  regulations  —  punishment 968 

743.  Speed  regulations  —  evidence  of  speed 969 

744.  Statutes  with  no  prescribed  limit  of  speed 969 

745.  Defending  speed  cases  —  in  general 9/^0 

746.  Defending  speed  cases  —  arrests 9/^1 

747.  Defending  speed  cases  —  extenuating  facts  in  defense 971 

748.  Defending  speed  cases  —  preparing  the  defense 972 

749.  Defending  speed  cases  —  making  tests 9( .:. 

750.  Defending  speed  cases  —  that  rate  of  speed  was  on  speedway 

where  permitted   '  ^ 

751.  Defending  speed  cases  —  identity  of  defendant 9-4 


XXX  Table  of  Contents. 

PAGE 

Section  752.  Defending  speed  cases  —  arrests  at  night 975 

753.  Defending  speed  cases  —  venue 975 

754.  Defending  speed  cases  —  evidence  of  peace  officers 975 

755.  Defending  speed  cases  —  evidence  of  speed 976 

756.  Defending  speed  cases  —  speedometer 978 

757.  Homicide  —  reckless  driving  as  murder 978 

758.  Homicide  —  negligent  or  illegal  driving  as  manslaughter 980 

759.  Homicide  —  unusual  speed    983 

760.  Homicide  —  racing  along  public  Ixighways 983 

761.  Homicide  —  accidental  killing    984 

762.  Homicide  —  death  of  passenger  in  motor  vehicle 985 

763.  Homicide  —  liability  of  owner 985 

764.  Homicide  —  burden  of  proof 985 

765.  Homicide  —  contributory  negligence  of  decedent  lu;  ii  defense.  986 

766.  Homicide  —  prior  reputation  of  chauffeur  for  care 987 

767.  Assault  and  battery 9^7 

768.  Larceny  or  theft  of  automobile 990 

769.  Using  machine  without  consent  of  owner 992 

770.  Failure  to  register  machine 995 

771.  Failure  of  chauffeur  to  have  license 996 

772.  Driving  machine  while  intoxicated 996 

773.  Violation  of  law  of  road 997 

774.  Failure  to  stop  on  signal •  ^98 

775.  Stopping  and  furnishing  identity  in  case  of  accident  —  consti- 

tutionality of  statute ^^" 

776.  Stopping  and  furnishing  identity  in  case  of  accident  —  intent.  1001 
777    Stopping  and  furnishing  identity  in  case  of  accident  —  burden 

of  proof   • 1002 

778.  Stopping  and  furnishing 'identity  in  case  of  accident  —  time  of 

report 1003 

779.  Stopping   and   furnishing   identity   in   case    of    accident  — no 

person  to  receive  report lOOo 

780.  Lights  on  machine 1004 

•    781.  Eemoval  of  manufacturer's  serial  number 1005 

782.  Reward  for  apprehension  of  offenders 1006 

CHAPTEK  XXVIII. 

MANUFACTURERS   OF   MOTOR   VEHICLES. 

Section  783.  Scope  of  chapter • 1007 

784.  Relation  with  dealers  and  salesmen -^  agency  defined 1008 

785.  Relation  with  dealers  and  salesmen  —  nature  of  contract  be- 

tween manufacturer  and  dealer 1008 

786.  Relation  with  dealer  and  salesman  —  mutuality  of  contract.  .  .   1009 

787.  Relation  with  dealers  and  salesmen  —  definiteness  of  order  for 

machines • 1010 

788.  Relation  with  dealers  and  salesmen  —  interstate  commerce 1011 

789.  Relation  with  dealers   and   salesmen  —  remedy  ^  of   dealer   for 

failure  of  manufacturer  to  perform  contract 1011 


Table  of  Contents.  xxxi 

PAGE 
Section  790.  Relation   with   dealers  ami    salesmen  -     recovery   by   dealer   of 

deposit 1013 

791.  Relation    with    dealers    and    salosineu  —  return    of    parts    to 

manufacturer 1014 

792.  Relation  with  dealers  and  salesmen  -     sales   by   manufacturer 

in  dealer 's  exclusive  territory 1015 

793.  Relation  with  dealers  and  salesmen  —  sales  and  authorized  by 

manufacturer 1016 

794.  Relation  with  dealers  and   salesmen  —  authority   of   agent  to 

bind  manufacturer  1016 

795.  Relation   with   dealers   and   salesmen — ratification   by   manu- 

facturer of  unauthorized  acts  of  agent 1017 

796.  Relation  with  dealers  and  salesmen  —  termination  of  contract.  1017 

797.  Relation  with  dealers  and  salesmen  —  dealer  and  sub-dealer..  1021 

798.  Relation  with  dealers  and  salesmen  —  fixing  price  for  sale  by 

dealer 1021 

799.  Relation  between  manufacturer  and  consumer  —  in  general..  1022 
SOO.  Relation   In'tweeu  manufacturer  and  consumer  —  liability   foi 

injury  from   defect 1023 

801.  Relation  between  manufacturer  and  consumer  —  duty  to  make 

repairs IO25 

802.  Relation  between  manufacturer  and  consumer  —  sharing  profits 

with  consumer 1025 

803.  Trade  marks 1026 

CHAPTEE  XXIX. 

INSURANCE. 

Section  804.  Fire  insurance  —  construction  of  policy J030 

805.  Fire  insurance  —  insurable  interest    1030 

806.  Fire  insurance  —  false   representatioiis    1030 

807.  Fire  insunuice  —  change   of   title 1032 

808.  Fire  insurance  —  incumbrance   on   property 103;i 

809.  Fire  insurance  —  private  garage  warranty 1033 

810.  Fire  insurance  —  safe-guarding  machine   1034 

811.  Fire  insurance  —  use  for  rent  or  hire 1035 

812.  Fire  insurance  —  determination  of  amount  of  loss 1036 

813.  Fire  insurance- — acceptance  of  repairs  in  lieu  of  money 10.36 

814.  Fire  insurance  —  valued  policy    1037 

815.  Collision  insurance  —  in  general    1037 

816.  Collision  insurance --  collision  with  stationary  objects 103S 

817.  Collision  insurance -- exception   for   damage   in   striking   por- 

tion of  road 10;>.i 

818.  Collision  insurance  —  exception  in  case  of  upset  of  machine..  1040 

819.  Collision  insurance  —  damage  while  in  garag( 1040 

820.  Collision  insurance  • —  amount   of   recovery 104 1 

821.  Collision  insurance  —  recovery  for  damage  against  third  per- 

son though  insured 1041 

822.  Collision  insurance  —  subrogation  of  insurer 1041 

823.  Indemnity  insurance  —  nature  and  validity  of  insurance 1042 


xxxii  Table  of  Contents. 

PAGE 
Section  824.  Indemnity  insurance  —  authoiity  of  .company  to  write 1042 

825.  Indemnity  insurance  —  stipulation    to    defend   "suits" 1043 

826.  Indemnity  insurance  —  assumption  of  defense  of  action 1043 

827.  Indemnity  insurance  —  indemnity  of  partners 1044 

828.  Indemnity  insurance  —  action   against   officer   of   in;.ui  ed   cor- 

poration    1044 

829.  Indemnity  insurance  —  age   of   driver 1045 

830.  Indemnity  insurance  —  change  of  use  of  machine 104(5 

831.  Indemnity  insurance  —  notice  to  insurer  of  accident 104G 

832.  Indemnity  insurance  —  failure  of   insured  to   co-operate   with 

insurer 1^* ' 

832a.  Indemnity    insurance  —  interference    with    negotiations    for 

compromise 1048 

833.  Indemnity  insurance  —  necessity  of  trial  of  action 104S 

834.  Indemnity  insurance  —  consent   of  insurer  to  settlement 1049 

835.  Indemnity  insurance  —  amount   of  recovery  by  assured 1050 

836.  Indemnity  insurance  —  evadence      of      insurance      in      action 

against  insured 1050 

837.  Indemnity  insurance-  —  action   by  injured   person  against  in- 


surance company 


1052 


838.  Theft  insurance  —  conversion  without  intent  to  commit  crime.  1053 

839.  Theft  insurance  —  larceny  by  trick  or  device 1055 

840.  Theft  insurance  —  by  persons  not  in  service  of  owner 1055 

841.  Theft  insurance  —  stealing  proceeds  of  sale  of  automobile 1056 

842.  Theft  insurance  —  sufficiency   of  proof   of   theft 1056 

843.  Theft  insurance  —  amount   of   damage 1057 

844.  Theft  isurance  —  subrogation  of  insurer 1058 

845.  Accident  insurance 1058 

CHAPTER  XXX. 

SALES  OF  MOTOR  VEHICLES. 
Section  846.  Scx^pe  of  chay^er 1060 

847.  Capacity  of  parties  to  sale  —  infants 1061 

848.  Capacity  of  parties  to  sale  —  agents 1062 

849.  Capacity  of  parties  to  sale  —  municipal  corporations 106;; 

850.  Capacity  of  parties  to  sale  —  private  corporations lOW 

851.  Delivery 1064 

852.  Validity  of  sale  —  violation  of  motor  vehicle  laws 1060 

853.  Validity  of  sale  —  machine  to  be  used  for  un'iawful  purpose.  .   1066 

854.  Validity  of  sale  —  statute  of  frauds 1067 

855.  Validity  of  sale  —  seller  not  owning  machine 1067 

856.  Fraud  and  deceit 1068 

857.  Warranties  —  in  general   1071 

858.  Warranties  —  caveat  emptor 1072 

859.  Warranties  —  "  seller's  talk  "    1073 

860.  Warranties  —  machine  sold  on  ' '  usual   warranty  " 1074 

861.  Warranties  —  guaranty  of  satisfaction 1074 

862.  Warranties  —  warranty  of  future  service 1075 

863.  Warranties  —  implied  warranty  of  fitness 1076 


Table  of  Contents.  xxxiii 

PAGE 
Six.'TiON  863.  Warranties  —  effect  of  express  contract  on  implied  warranty.   1077 

865.  Warranties  —  damages 107S 

866.  Warranties  —  parol  evidence  to  show   warranty 1080 

867.  Warranties  —  waiver  of  t)reach  of  warrant} 1081 

868.  Warranties  —  statements  of  agent 1082 

869.  Remedies   of   seller 1 082 

870.  Eeniedies   of   purchaser  —  in  general 1081 

871.  Remedies  of  purchaser  —  rescission  of  contract 1085 

872.  Remedies  of  purchaser  —  recoveiy  of  purchase  price lOHJt 

873.  Tax  on   sales 1090 

874.  Tax   on   dealers 1090 

CHAPTER  XXXI. 

LIENS. 

Section  875.   Repairs  —  in  general 109- 

876.  Repairs  —  filing    notice    of    lien 1094 

877.  Repairs  —  priority  of  lien 1095 

878.  Repairs  —  loss  of  lien  by  surrender  of  possession 1096 

879.  Repairs  —  loss  of  lien  by  excessive  demand 1097 

880.  Repairs  —  assignment   of   lien 1098 

881.  Storage 109S 

882.  Chattel  mortgages  —  in   general 1099 

883.  Chattel  mortgages  —  filing  or  recording 1101 

884.  Chattel   mortgages — recovery   by   mortgagor   for   injuries    to 

machine 1101 

885.  Conditional  sales  —  in  general 1102 

886.  Conditional  sales  —  filino-  of  instrument 1103 

887.  Conditional  sales  —  levy  on  interest  of  vendee *.  .  .  .  1103 

888.  Conditional    sales  —  right   of    vendee   to    maintain   action    f oi- 

injuries 1104 

889.  Conditional  sales  —  retaking   the  machine   by   vendor 1104 

890.  Lien  foj-  injuries  caused  by  machine 1 1 06 

CHAPTER  XXXII. 

EVIDENCE. 

Section  891.  .Judicial  notice  —  nature  of  aut(»niobih» IIOS 

892.  .Judicial  notice  — -  law  of  the  road 11 09 

893.  Judicial  notice  —  municipal  ordinances 1101* 

894.  Presumptions 1 1  li» 

895.  Real  evidence  —  parts  of  vehicle 1 1  lo 

896.  Real  evidence  —  photogrnphs    1111 

897.  Relevancy  - —  in  general    1 1 1 1 

898.  Relevancy  —  conduct  of  accused 1112 

899.  Relevancy  —  arrest   of   autoTnobilist 111:'. 

900  Relevancy  —  prior  conviction 1 1 1  •'• 

901.  Relevancy  —  injuries  as  evidence  of  force  of  collision 1114 

902.  Relevancy  —  discharge  of  chauffeur  after  accident 1 1  H 

903.  Relevancy —  proof  of  "mental  state  of  i)arty .  .  1 1 14 

904.  Relevancv  —  caie  in  selection  of  nn)t())-  vehicle 111.! 


xxxiv  Table  of  Contexts. 

PAGE 

Section  905.  Kelevaiicy  —  wheel  tracks  in  liighway 1115 

906    Admissions  and  declarations  —  admissions  >iy  owuor  of  liabil- 
ity   1115 

907.  Admissions    and    declarations  —  admissions    by    agent    of    de- 

fendant   1116 

908.  Admissions  and  declarations  —  res  gestae 1116 

909.  Admissions  and  declarations  —  declarations  of  suffering 1117 

910.  Conclusions  of  witnesses ' 1117 

911.  Opinions  —  value 1118 

912.  Opinions  —  safety  of  highway 1120 

913.  Opinions  —  competency  of  driver 1121 

914.  Opinious  —  defects   in   nuichinc 1121 

915.  Opinious  —  matter   of   collision 1121 

916.  Opinions  —  noise    of    machine 1121 

917.  Opinions  —  identification  of  machine  from  track 1121 

918.  Opinions —  distance  in  which  object  can  be  seen 1122 

919.  Opinions  —  distance  in  which  machine  may  be  stopped 1122 

920.  Proof  of  speed  of  vehicle  —  opinion  of  driver 1123 

921.  Proof  of  speed  of  vehicle  —  opinion  of  ob.server 1124 

922.  Proof  of  speed  of  vehicle  —  opinion  of  passenger 1126 

923.  Proof  of  speed  of  vehicle  —  qualification  of  witnesses 1127 

924.  Proof  of  speed  of  vehicle  —  foundation   for    opinion 1129 

925.  Proof  of  speed  of  vehicle  —  characterization  of  speed 1129 

926.  Proof  of  speed  of  vehicle  —  estimate  of  .speed  from  track...  1131 

927.  Proof  of  speed  of  vehicle  —  noise  of  machine 1132 

928.  Proof  of  speed  of  vehicle  —  conflict  between  opinion  and  sur- 

rounding   circumstances    1132 

929.  Proof  of  speed  of  vehicle  —  speed  at  one  place  as  evidence  of 

speed   at   another 1133 

930.  Proof  of  speed  of  vehicle  —  experiments 1134 

931.  Proof  of  speed  of  vehicle  —  photo  —  speed  —  recorder 1134 

932.  Proof  of  speed  of  vehicle  —  speedometer 1135 

933.  Proof  of  speed  of  vehicle  —  evidence  under  English  law 1136 

934.  Bes  inter  alios  acta  —  negligence  on  other  occasions 1136 

935.  Ses  inter  alios  acta  —  care  after  accident 1138 

936.  Bes  inter  alios  acta  —  defects  in  other  machines 1138 

937.  Bes  inter  alios  acta  —  habits 1139 

938.  Bes  inter  alios  acta  —  competency  of  driver 1139 

CHAPTER  XXXIII. 

FORFEITURE  OF  VEHICLES  VIOLATING  LAW. 

Section  939.  Introductory 1141 

940.  Constitutionality  of  forfeitures 1141 

941.  Statutes  authorizing  forfeiture 1142 

942.  General  constniction  of  statutes 1143 

943.  Illegality  of  use  of  vehicle 1143 

944.  Protection  of  liens 1144 

,  945.  Rights  of  ' '  innocent  ' '  owner 1148 

946.  Burden  of  proof  as  to  innocence  of  claimant 1150 

947.  Procedure ' •  •  1151 


THE  LAW  OF  AUTOMOBILES 


SIXTH  EDITION 


CHAPTER  I. 

DEFINITIONS  AND  GENERAL  CONSIDERATIONS. 

Section     1.  Automobile  defined. 

2.  Auto. 

3.  Car. 

4.  Motor  and  motoring. 

5.  Joy  riding. 

6.  Automobile  lino. 

7.  Automobile  as  a  stage  coach. 

8.  Automobile  as  a  vehicle. 

9.  Automobile  as  a  carriage. 

10  Automobile  as  a  pleasure  carriage. 
11.  Automobile  as  a  wagon. 
V  12.  Automobile  as  an  appurtenance. 

13.  Automobile  as  a  tool  or  implement  of  trade. 

14.  E.xtrinsic  evidence  of  meaning  of   terms. 

15.  Legislative  definitions. 

16.  Traction  engine  as  automobile. 

17.  Bicycle  as  a  vehicle. 

18.  Motorcycle  as  a  motor  vehicle. 

19.  Motorcycle  as  a  carriage. 

20.  Automobilist. 

21.  O^vner. 

22.  Riding  and  driving. 

23.  Automobible  parts  and  accessories. 

24.  Highways. 

25.  Roads. 

26.  Streets. 

27.  Intersecting  streets. 

Sec.  1.  Automobile  defined. 

The  term  automobile  is  the  generic  name  which  has  been 
adopted  by  popular  approval  for  all  forms  of  self-propelling 
vehicles  for  use  upon  highways  and  streets  for  general  freight 
and  passenger  service.  This  definition  should  not  include  such 
self-propelling  machines  as  steam  road  rollers  or  traction 
engines  designed  for  hauling  loaded  trucks  or  vans  in  trains. 


2  The  Law  of  Automobiles. 

nor  such  vehicles  as  require  tracks  for  operation,^  but  does  in- 
clude motor  trucks.^^ 


1.  "  Automabile  "  defined. — ^The  New 
International  Encyclopedia,  vol.  II,  pp. 
271,  273. 

A  hybrid  adjective — substantive 
(from  Greek  auto,  stem  of  autos, 
"self,"  and  Latin  mobilis,  "mo\'able" ) , 
adopted  as  a  generic  term  for  self-pro- 
pelled vehicles  adapted  to  run  and  be 
steered  on  common  roads  and  to  carry 
either  articles  or  passengers  other  than 
exclusively  for  their  own  use  or  guid- 
ance. The  word  is  quite  commonly  aib- 
breviated  to  "auto"  simply;  while  a 
devotee  of  the  new  mode  of  locomotion 
is  very  frequently  styled  an  "autoist." 
It  is  sometimes  em.ployed  also  in  its 
original  adjective  of  "self -movable"  to 
form  self-explaining  compounds,  suoh 
as  "automobile  boat,"  and  the  like. 
Int.  Motor  Cyc,  p.  37. 

Primarily  the  word  means  a  vehi- 
cle designed  mainly  for  transportation 
of  persons  on  highways,  equipped  with 
an  internal  coomibustion,  hydrocarbon 
vapor  engine,  which  furnishes  the  mo- 
tive power  and  forms  a  structural  por- 
tion of  the  vehicle.  Secondarily,  it  is 
used  as  sjTionymous  with  "motor  vehi- 
cle," denoting  a  vehicle  moved  by  in- 
animate power  of  any  description,  gen-' 
erated  or  stored  within  it,  and  intended 
for  the  transportation  of  either  goods 
or  persons  on  common  highways. 
Americana. 

Traction  engine  included  under  New 
Hampshire  law. —  Emerson  Troy 
Granite  Oo.  v.  Pearson,  74  N.  H.  22, 
64  Atl.  582. 

"  An  automobile  is  not  a  work  of  art, 
nor  a  machine  about  which  there  can 
be  any  very  peculiar  fancy  or  taste,  but 
it  is  not  a  common,  gross  thing,  like  a 
road  wagon  or  an  ox  cart."  Walker  v. 
Brout  Bros.  Automobile  Co.,  124  Mo. 
App.  628,  642,  102  S.  W.  25. 

Automobilism. —  The  science  which 
treats  of  automobiles  and  their  struc- 


ture, operation  and  applications,  and 
of  other  matters  pertaining  directly 
and  indirectly  thereto.  Int.  Motor 
Cyc,  p.  45. 

Washing  automobile — domestic  use 
of  water. —  Water  supplied  and  used  by 
a.  man  for  -Avasliing  a  motor  car  and 
for  other  purposes  in  connection  there- 
with, the  motor  car  being  used  by  him 
for  the  purpose  of  his  profession  or 
the  business  of  a  physician  and  sur- 
geon, is  water  supplied  for  domestic 
purposes  within  the  meaning  of  Eng- 
lish WatenAx>rks  Law.  Harrogate  Cor- 
poration v.  McKay,  2  L.  Rep.  K.  B. 
Div.   1907. 

Automobiles  as  household  effects. — 
(See  HiUhouse  v.  United  States,  152 
Fed.  163,  81  0.  O.  A.  415.  In  this  case 
a  decision  was  rendered  by  the  United 
States  lOircuit  Court  of  Appeals  on 
January  14,  1909,  holding  that  Ameri- 
can owners  of  foreign  touring  cars  re- 
turning to  this  country  must  pay  duty 
upon  their  machines.  The  court's  de- 
cision reverses  the  judgment  of  the 
lower  courts  and  the  action  of  the  gen- 
eral appraisers.  It  was  rendered  in  a 
case  involving  the  importation  of  an 
automobile  which  had  been  repaired 
abroad.  The  practice  had  been  to  ad- 
mit the  automobiles  of  returning  tour- 
ists free  of  duty  as  household  effects. 
The  decision  held  that  an  automobile 
is  not  a  household  effect  within  the 
meaning  of  the  law,  and  that  for  so 
much  of  the  machine  as  was  a  new' 
manufacture  and  had  been  used  abroad 
for  the  period  required  duty  should  be 
exacted,  but  not  so  much  as  had  been 
used  for  the  requisite  time.  It  was 
held  in  a  latter  case  in  the  same  court 
that  it  would  be  an  unreasonable  ex- 
tension of  the  proposition  here  stated 
to  hold  that  importations  dutiable  at 
some  particular  rate  as  completed  ar- 
ticles may  be  constructively  separated 


Definitioins  and  General  Considerations.  3 

The  iixeaning  of  the  word  automobile  is,  containing  means 
of  propulsion  within  itself;  self-propelling;  as  automobile  oar 
—  an  automobile  vehicle  or  mechanism.^  The  automobile  has 
been  said  to  mean,  "All  motor  traction  vehicles  capable  of 
being  propelled  on  ordinary  roads.  Specifically  horseless  car- 
riages."^ And  it  has  been  defined  as  ''a  vehicle  for  the  car- 
riage of  passengers  or  freight  propelled  by  its  own  motor."  * 
In  one  case,  the  court  speaks  of  motors  and  automobiles  as  the 
only  words  which  represent  the  fashionable  locomotives  of  the 
day.^  The  term  ''motor  vehicles"  is  sufficiently  comprehen- 
sive to  include  automobiles,^  even  Fords.'' 


Sec.  2.  Auto. 

The  term  *'auto"  is  an  ajbbreviation  of  the  word  automo- 
bile, used  as  a  prefix  with  the  meaning  of  self-moving,  self- 
propelling;  as  an  autocar,  an  autocarriage,  an  autotruck,  an 
automobile  car,  carriage,  truck,  etc.,^  and  is  one  which  is  fre- 
quently used  in  referring  to  such  vehicles. 


for  duty  purposes  into  parts  subject  to 
different  classifications.  So  when  an 
importer  imports  incomplete  cars  and 
tires  separately  by  the  same  vessel  and 
entered  at  the  custom  house  at  the  same 
time,  the  parts  are  dutiable  as  a  whole 
and  not  as  separate  entities.  United 
States  V.  Auto  Import  Co.,  168  Fed. 
242,  93  C.  C.  A.  456.  And  in  another 
later  case,  under  this  same  section  504. 
it  is  decided  that  by  the  use  of  the 
•words  "similar  household  effects"  after 
the  words  "books,  libraries,  usual  and 
reasonable  furniture,"  Congress  in- 
tended to  do  away  with  the  exemption 
of  household  effects  generally  and  to 
restrict  it  to  such  as  should  be  like 
books,  libraries,  or  household  furniture 
and  that  automobiles  cannot  be  said 
to  be  similar  to  either  of  these.  United 
States  V.  Grace  &  Co.,  166  Fed.  748,  92 
C.  C.  A.  536. 

la  Bethlehem  Motors  Corp.  v. 
Flynt,  178  N.  C.  399,  100  S.  E.  693. 

2.  Means  of  propulsion  within  itself. 
—Web.  Int.  Diet.,  Supp.,  p.  19. 


The  term  means  '•self-propelling; 
self-moving;  applied  especially  to 
motor  vehicles,  such  as  carriages  and 
cycles  of  those  types  usually  or  for- 
merly propelled  by  horses  or  men.  An 
autocar  or  horseless  carriage."  Stand- 
ard Diet.     Addenda. 

3.  See  English's  Law  Diet.,  p.  78. 
This  definition  was  approved  in  Dio- 
cese of  Trenton  v.  Toman,  74  N.  J.  Eq. 
70(2,  70  Atl.  606. 

4.  Bouvier's  Law  Diet.  (Ed.  1914), 
p.  294. 

5.  Aerators  Limited  v.  Tollit,  86  L. 
T.  (N.  S.)  (Eng.)  651,  50  W.  R.  584, 
71  L.  J.  Oh.  727,   (1902)   2  Oh.  319. 

6.  People  V.  Surace  (111.),  129  N.  E. 
504;  Schier  v.  State,  96  Ohio.  245,  117 
X.  K.  229. 

7.  People  V.  Falkovitch.  280  111.  321. 
117  N.  E.  398. 

8.  Web.  Int.  Diet..  Supp.,  p.  19. 
Auto  truck. —  It  is  said  that  an  auto 

truck  is  a  self-propelling  or  self-mov- 
ing truck  adapted  for  hea\y  grades. 
Standard    Diet.      Addenda.      The    term 


4  The  Law  of  Automobiles. 

Sec.  3.  Car. 

The  term  "car"  is  a  common  and  popular  expression  desig- 
nating the  automobile,  and  when  used  in  connection  with  other 
words  of  a  written  instrument,  for  example,  which  make  it 
apparent  what  is  referred  to,  there  can  be  no  question  as  to 
the  interpretation.  This  frequent  and  generally  accepted  use 
of  the  word  has  made  its  application  to  the  automobile  correct 
and  the  courts  are  bound  to  take  judicial  notice  of  the  custom. 
The  terms  ''machine"  and  "motor  car"  are  also  frequently 
heard.^ 

Sec.  4.  Motor  and  motoring. 

The  term  "motor"  is  commonly  used  to  designate  the  auto- 
mobile as  a  whole,  and  the  word  "motoring"  is  also  in  com- 
mon use  as  meaning  operating  or  driving  a  motor  vehicle. 
However,  unless  the  contrary  appears,  the  term  "motor"  may 
have  a  more  limited  application.  Thus  this  word  used  in  a 
statute  empowering  street  railways,  with  the  consent  of  the 
municipal  authorities,  to  use  electric  or  chemical  motors  as  a 
propelling  power  of  their  cars,  has  been  construed  to  mean 
the  motion-producing  contrivance  of  the  car,  and  not  to  em- 
brace the  entire  car,  though  the  word  is  sometimes  loosely 
used  to  designate  a  whole  car.^"* 

Sec.  5.  Joy  riding. 

"When  two  or  more  persons  voluntarily  drive  or  ride  an 
automobile  upon  a  public  highway  at  a  dangerously  high  rate 
of  speed  merely  for  the  purpose  of  enjoying  the  exhilarating 

is  more  accurately  applied  to  automo-  10.  State   v.    Inhabitants  of   City   of 

biles  used  for  commercial  purposes  and  Trenton,  54  K.  J.  Law   (25  Vroom)   92, 

the  hauling  of  heavy  loads,  and  is  one  33  Atl.  381. 

whioh   is  frequently   used   in   referring  The  word  "  motor  "  means  a  machine 

to  such  vehicles.  for    transforming    natural    energy    in 

9.  Car. — A  general  term  for  a  vehicle  various    forms    into    mechanical    work, 

of  a  type  which,  when  horse  drawn,  is  the  term  in  the  modern  sense  embrac- 

called   a  "carrage."     Int.   Motor  Cyc,  ing   windmills,  wat«r-wheels,   and   tur- 

p    97  bines,    steam   engines,   and   steam    tur- 

An  autocar  may  be  said  to  be  an  bines,  the  various  kinds  of  gas  engines, 
automobile  vehicle  especially  for  street  comipressed-air  motors,  petroleum  mo- 
travel.     Standard  Diet.     Addenda.  tors,   electric  motors,  etc.     Steam,  y>^t 


Definitions  and  General  Considerations.  5 

• 

and  pleasurable  sensations  incident  to  the  swirl  and  dash  of 
rapid  transit,  they  may  properly  be  said  to  be  engaged  in  joy 
riding.  Such  joy  riders  not  only  assume  the  risks  of  danger 
attendant  upon  the  sudden  and  violent  movements  of  the  car, 
but  also  such  as  arise  from  the  inability  of  the  driver,  when 
traveling  at  a  high  rate  of  speed,  to  make  short  quick  stops 
to  avoid  collisions,  or  defects  in  the  street,  or  direct  the  car 
at  bends  or  curves  in  the  road  so  as  to  keep  in  the  traveled 
way."" 

Sec.  6.  Automobile  line. 

''Automobile  line,"  ''stage  line,"  "railroad  line"  are  ex- 
pressions which  are  ordinarily  understood  to  mean  a  regular 
line  of  vehicles  for  public  use  operated  between  distant  points, 
or  between  different  cities,  and  have  been  construed  as  not 
including  hacks,  stages,  and  automobiles  which  merely  operate 
from  point  to  point  in  one  city  for  the  transportation  of  the 
public.^^ 

The  term  "automobile  line,"  however,  owing  to  the  fact  of 
the  introduction  of  the  "jitney"  service  in  many  cities,  for  the 
carriage  of  passengers  over  certain  designated  routes  and  be- 
tween specified  points  within  municipal  limits  may,  it  would 
seem,  be  properly  used  in  such  cases. 

Sec.  7.  Automobile  as  a  stage  coach. 

An  automobile  used  in  the  place  of  a  stage  coach  for  the  car- 
riage of  mails,  freight  or  passengers,  has  been  held  to  be  a 
"stage  coach"  within  the  meaning  of  a  statute  regulating  toll 
roads  and  prescribing  the  rates  of  toll  to  be  charged  for  the 
use  of  turnpikes  by  "vehicles,"  "pleasure  carriages  or 
hackney  coaches,"  "stage  coaches"  and  "traction  or  other 
engines."    It  is  immaterial  that  the  automobile  was  unknown 

air,  gas,  and  petroleum  motors  together  an     automobile     (Webster     Int.     Diet, 

constitute  the  group  of  thermic  motors,  Snpp. ). 

because   in  all  of  them  the  source  of  11.  Winston's     Adm'r     v.     City     of 

energy     is     heat.       The     Encyclopedia  Henderson,    179    Ky.    220,    200    S.    W. 

Americana,  vol.  X.  330. 

An  antomotor  is  a  self-propelled  ma-  12.  Commonwealth  v.  Walton,  31  Ky. 

chine    (Standard   Diet.    Addenda),   and  L.  Rep.  916,  104  S.  W.  323. 


6  The  Law  of  Automobiles. 

at  the  time  of  the  passage  of  the  act  as  it  is  not  the  model  or 
name  of  the  vehicles  but  the  purpose  for  which  it  is  used  which 
fixes  the  toll  charge." 


Sec.  8.  Automobile  as  a  vehicle. 

A  vehicle  may  be  defined  as  "a  carriage  moving  on  land, 
either  on  wheels  or  runners ;  a  conveyance ;  that  which  is  used 
as  an  instrument  of  conveyance  or  communication. ' '  An  auto- 
mobile is  clearly  a  ''vehicle"  as  so  defined." 

The  term  "vehicle"  is  expressly  defined  in  some  statutory 
enactments  so  as  to  include  motor  vehicles.^^  Thus,  it  has  been 
held  that  an  ordinance  requiring  the  licensing  of  any  "hackney 
coach,  cab  or  other  vehicle  for  the  conveyance  of  passengers, 
for  hire  from  place  to  place  within  the  limits  of  the  city"  ap- 
plied to  taxicabs  engaged  in  the  business  of  conveying  pas- 
sengers for  hire,  it  being  the  business  of  public  conveyance  in 
"vehicles"  that  was  subject  to  the  supervision  of  the  city, 
without  regard  to  the  motive  power  used  in  propelling  the 
vehicle.i^    Similarly  it  has  been  held  that  an  automobile  was 


13.  Burton  v.  Monticello  and  Burn- 
side  Turnpike  Co.,  16Z  Ky.  787,  173 
S.  W.  144. 

14.  Alabama. — See  Davis  v.  Pet- 
rinovich,  112  Ala.  654,  21  So.  344,  36 
L.  R.  A.  615;  Mills  v.  Court  of  Com'rs, 
85  iSo.  564. 

District  of  Columbia. — Grassenheimer 
V.  District  of  Columbia,  26  App.  Cas. 
(D.  C.)  557;  compare  Washington 
Electric  Vehicle  Transfer  Co.,  19  App. 
Cas.   (D.  C.)   462. 

lotixi. — Lames  v.  Armstrong,  162 
Iowa,  327,  144  N.  W.  1,  49  L.  R.  A. 
(N.  S.)    691n. 

Kentucky. — City  of  Henderson  v. 
Lockett,  157  Ky.  366,   163   S.  W.   199. 

Massaeh'uaetta. — Foster  v.  Curtis,  213 
Mass.  79,  99  N.  E.  961,  Ann.  Cas.  1913 
E.  1116. 

The  automobile  is  a  vehicle  in  com- 
mon use  for  transporting  both  persons 
and  merchandise  upon  the  public  ways, 
and    its   use    is    regulated   by   statute. 


Baker  v.  City  of  Fall  River,  187  Mass. 
53,  72  N".  E.  336. 

Automobile  is  a  vehicle. — An  automo- 
bile is  a  '"vehicle"  witiiin  the  meaning 
of  a  statute  using  that  term.  Gassen- 
heimer  v.  Dist.  of  Columbia,  26  App. 
Cas.  (D.  C.)  557.  But  see  Washing- 
ton Electric  Vehicle  Transfer  Co.  v. 
Dist.  of  Columbia,  19  App.  Cas,  (D.  C.) 
462. 

15.  iSterling  v.  Bowling  Green,  5  O. 
C.  (N.  S.)  217,  16  Cir.  Dec.  581.  See 
also,  Gen.  Stat.   Conn.   1902,  see.   2038. 

16.  State  v.  Dunklee.  76  N.  H.  439, 
84  Atl.  40,  Ann.  Cas.  1915  B.  754. 
The  court  said,  per  Walker,  J.:  "The 
validity  of  the  ordinance  as  applied  to 
the  business  of  transporting  passengers 
in  oabs  or  hackney  coaches  is  not  ques- 
tioned, nor  is  it  contended  that  the  use 
of  taxicabs  as  a  public  means  of  con- 
\cyance  does  not  require  for  practical 
purposes  the  same  super^-ision  or  r^u- 
lation  by  the  city  as  the  use  of  Lacks 


Definitions  and  General  Considerations.  7 

included  in  the  application  of  a  statute  providing  that :  * '  The 
driver  of  a  carriage  or  other  vehicle  traveling  in  the  same 
direction  shall  drive  to  the  left  of  the  middle  of  the  travelled 
part  of  a  bridge  or  way."  ^"^  x\nd  an  exemption  law  covering 
a  "vehicle"  has  been  deemed  to  include  an  automobile.^^  But 
exemption  laws  applying  to  vehicles  which  may  be  drawn  by 
one  or  two  horses,  do  not  include  motor  vehicles. ^^ 


Sec.  9.  Automobile  as  a  carriag-e. 

Plainly,  an  automobile  is  within  the  meaning  of  the  term 
"carriage,"  and  it  is  so  held  by  the  courts  under  some  circum- 
stances.-''  Hence,  in  construing  a  covenant  in  a  deed  reserving 
a  strip  of  land  for  a  carriageway,  it  has  been  held  that  an 


in  the  same  business.  The  evident  pur- 
pose of  the  ordinance,  which  was  en- 
acted in  1894  by  virtue  of  authority 
granted  to  the  city  by  section  10,  c.  50, 
Public  Statutes,  was  to  regulate  ami 
supervise  the  business  of  public  car- 
riers of  passengers  upon  the  streets  of 
the  city,  for  the  convenience  and  safety 
of  the  public.  The  license  is  required 
when  one  engages  in  that  business,  an<I 
not  when  he  uses  a  hack,  or  a  taxicab, 
or  other  vehicle  for  his  own  accommo- 
dation. The  particular  name  or  desig- 
nation of  the  vehicle  is  not  important, 
but  the  characte^r  of  the  business  in 
whioh  it  is  used  is  ijoportant,  and  de- 
termines the  question  whetlier  a  license 
is  required  under  the  ordinance.  Tn 
other  words,  the  ordinance  does  not 
purport  to  regulate  or  supervise  tlio 
mechanism  of  vehicles  that  are  alloweil 
to  use  the  streets,  or  to  authorize  the 
mayor  and  aldermen  to  determine  tlie 
kind  of  motive  poNver  that  may  be  used 
in  the  propulsion  of  carriages  upon 
the  public  liighways.  It  is  only  the 
business  of  jmblic  conveyance  in  vehi- 
cles of  some  kind  that  is  subject  to  the 
supervision  of  the  city." 

17.  Foster  v.  Curtis,  213  Mass.  79, 
99  N.  E.  961,  Ann.  Cas.  1913  E.  1116, 
Wherein    it    is   said   that:      "A   vehicle 


is  a  means  of  conveyance  and  the  term 
has  not  been  restricted  to  horsedrawn 
carriages,  but  includes  bicycles,  motor- 
cycles, automobile^,  or  a  street  car." 

Street  car  as  a  vehicle. — A  statute 
uiving  the  right  of  way  to  vehicles 
conning  from  the  right  has  no  applica- 
tion to  street  cars.  Reed  v.  Public 
Service  Ry.  Co.,  89  N".  J.  L.  431,  99 
Atl.   100. 

18.  Lames  v.  Armstrong,  163  Iowa, 
■S27,  144  N.  W.  1,  49  L.  R.  A.  (N.  S.) 
Oillii.  See  also.  Hart  v.  MoClellan 
(Towa),   174  N.  W.   691. 

19.  Bra^vn  Laundry  &  Cleaning  Co. 
V.  Cameron  (Cal.  App. ),  179  Pac.  525. 
S(^e  also.  Prater  v.  Reichman,  135  Tenn. 
48,5.   187  S.   W.   305. 

20.  United  States. — Patten  v.  Stur- 
geon, 214  Fed.  65,  130  C.  0.  A.  505. 

Massachusetts, — Baker  v.  City  of 
Fall  River,  187  Mass.  53,  72  N".  E.  336. 
Compare  Doherty  v.  Town  of  Ayer,  197 
Mass.  241,  83  N".  E.  677,  14  L.  R.  A. 
(N.  S.)    816n. 

•  VciP  Jerseif. — 'Diocese   of   Trenton   v. 
'Ionian.  74  N".  J.  Eq.   702.  70  Atl.   606. 

Pennsylvania. —  Commonwealth  v. 
Hawkins,  14  Pa.  Dist.  R.  592;  Scran- 
ton  V.  Laurel  Turnpike  Co.,  14  Luz. 
I-ieg.  Rep.  97. 

Texas. — Hanuuond    v.    Pickett    (Tex. 


8  The  Law  of  Automobiles. 

automobile  is  a  carriage.^^  So,  too,  under  a  statute  exempting; 
a  carriage  from  levy  under  an  execution,  it  has  been  held  that 
an  automobile  is  exempt.^-  But  difficulty  arises  with  reference 
to  the  construction  of  particular  statutes  using  the  word  "car- 
riage," and  particularly  is  this  so  when  the  statute  in  ques- 
tion was  enacted  before  the  popular  use  of  motor  vehicles. 
Thus,  it  has  been  held  that,  under  an  old  statute  requiring 
towns  to  keep  their  roads  and  highways  in  reasonably  safe 
repair  and  condition  for  the  safety  of  carriages,  the  duty  of 
the  town  was  not  extended  to  automobiles.^  And,  in  constru- 
ing a  statute  providing  that  ''whoever  *  *  *  with  intent  to 
cheat  or  defraud  the  owner  thereof,  *  *  *  refuses  to  pay  for 
the  use  of  a  horse  or  carriage,  the  lawful  hack  or  carriage 
fare  established  therefor  by  any  city  or  town  shall  be  pun- 
ished" by  fine  or  imprisonment,  or  both,  it  was  held  that  auto- 
mobiles were  not  included.^*  So,  too,  a  statutory  requirement 
that  a  forerunner  must  precede  a  carriage,  vehicle  or  engine 
propelled  by  steam  has  been  held  to  have  no  application  to  an 
automobile  propelled  by  steam.^ 

Oiv.  App.),  158  S.  W.  174;   Peevehouse  whose  operation   is  similar  to  that  of 

V.  Smith    (Tex.  Civ.  App.),  152  S.  W.  loeomotive  engines  on  railroads.  While 

1196.  such   a   vehicle   may  be   called   a   car- 

'   21.  Diocese  of  Trenton  v.  Toman.  74  riage  in  the  broad  sense  that  it  is  used 

N.  J.  Eq.  702,  70  Atl.  606.  to  carry  persons  and  property,  it  is  not 

22.  Hammond  v.  Pickett  (Tex.  Civ.  commonly  referred  to  as  a  carriage, 
App.),  158  S.  W.  174;  Peevehouse  v.  but  is  distinguished  from  carriages  by 
Smith  (Tex.  Civ.  App.),  152  S.  W.  anotlier  name  to  designate  a  vehicle  of 
1196.     See  also,  Parker  v.  Sweet   (Tex.  an    entirely    different   character." 

Civ.  App.),  127  S.  W.  881.     Compare  25.  Automobile  not  a  carriage  or  ve- 

Matter  of  Wilder,  221  Fed.  476;  Oro^vn  hide.— In  the  state  of  New  York  there 

Laundry   &    Cleaning   Co.   v.    Cameron  is  a  law  which  makes  it  necessary  for 

(Cal.  App.),  179  Pac.  525.  an    owner    of    a    vehicle   propelled    by 

23.  Doherty  v.  Town  of  Ayer,  197  steam  to  send  ahead  of  the  vehicle  a 
Mass.  241,  83  N.  E.  677,  14  L.  R.  A.  person  of  mature  age,  at  least  one- 
(N.  S.)  816n.  Compare  Baker  v.  Fall  eighth  of  a  mile  in  ajivance,  who  shall 
River,  187  Mass.  53,  72  N.  E.  336.  notify    and    warn   persons   of    the   ap- 

24.  Commonwealth  v.  Goldman,  20J5  proach  of  the  vehicle.  This  law  would 
Mass.  400,  91  N.  E.  392,  wherein  it  was  seem  to  apply  to  an  automobile  pro- 
said:  "It  is  certain  that  when  this  pelled  by  steam,  and,  it  might  be  sug- 
statute  was  originally  enacted,  the  leg-  gested  tiiat  if  the  prosecuting  authori- 
islature,  in  using  the  word  'carriage'  ties  wished  to  do  so  the  owners  and 
had  no  thought  of  a  vehicle  made  up  drivers  of  automobiles  propelled  by 
in  large  part  of  complicated  machinery,  steam  could  .  be  prosecuted  under  the 
and    propelled   by   a    powerful    engine.  provisions    of    this    statute.      Such    a 


Definitions  and  Gener.vi.  Considerations.  9 

Sec.  10.  Automobile  as  a  pleasure  carriage. 

''A  pleasure  carriage  is  one  for  the  more  easy,  convenient, 
and  comfortable  transportation  of  persons," -''  and  the  term 
^'pleasure  carriage,"  as  used  in  an  act  establishing  a  turn- 
pike, includes  a  one-horse  wagon  with  a  spring  seat  and 
painted  sides,  which  is  not  used  for  farming  purposes  or  for 
carrying  goods.-"  The  automobile,  being  a  ''pleasure  car- 
riage," may  use  a  toll  road  or  turnpike  upon  paying  reason- 
able fees  for  the  privilege.^ 


Sec.  11.  Automobile  as  a  wagon. 

It  has  been  held  that  an  automoViile  is  not  a  ''wagon"  within 
the  meaning  of  statutes  passed  prior  to  the  use  of  motor 
vehicles.  Thus,  it  has  been  held  that  an  automobile  was  not 
exempt  as  a  wagon.-^  And  an  act  for  the  forfeiture  of 
"wagons"  used  in  introducing  liquor  into  Indian  countries, 
has  been  held  inapplicable  to  automobiles  so  used.^'' 


\iew,  however,  is  erroneous,  for  it  has 
been  expressly  held  in  Nason  v.  West, 
31  Misc.  R.  (N.  Y.)  583,  65  N.  Y. 
Suippl.  651,  that  the  provisions  of  the 
liighway  law,  section  155,  and  of  the 
Penal  Code,  section  640,  subdivision  11 
do  not  apply  to  .  .  .  "automobiles, 
but  are  directed  against  tlie  heavier 
engines;  and  the  requirement  that  a 
forerunner  must  precede  the  steam  car- 
riage would  have  no  value,  and  has  no 
application."'  The  New  York  statute 
is  as  follows:  "The  owner  of  a  car- 
riage, vehicle,  or  engine,  propelled  by 
steam,  his  servant  or  agent,  shall  not 
allow,  permit  or  use  the  same  to  pass 
over,  through  or  upon  any  public  high- 
way or  street,  except  upon  railroad 
tracks,  unless  such  owners,  or  their 
agents  or  servants,  shall  send  before 
the  same  a  person  of  mature  age  at 
least  one-eighth  of  a  mile  in  advance, 
who  shall  notify  and  warn  persons 
traveling    or    using    sueli    highway    or 


street,  with  horses  or  other  domestic 
animals,  of  the  approach  of  such  car- 
riage, vehicle,  or  engine;  and  at  night 
such  person  shall  carry  a  red  light,  ex- 
cept in  incorporated  villages  and  cities. 
This  section  shall  not  apply  to  any 
carriage  or  motor  vehicle  propelled  by 
siteam  developing  less  than  twenty-five 
horse  {WAver,  other  than  a  .steam  trac- 
tion engine." 

26.  Brendon  v.  War  ley,  8  Misc.  (N. 
Y.)    253,  SB  N.  Y.  Suppl.  557. 

27.  Moss  V.  Moore,  18  Johns.  (N. 
V.)    128. 

28.  Scranton  v.  Laurel  Eun  Turn-' 
pike  Co.,  14  Luz.  Leg.  Reg.  Rep.  97. 
See  also,  section  52,  as  to  the  right  to 
use  toll  roads. 

29.  Prater  v.  Riechman.  135  Tenn. 
485,   187  S.  W.  305. 

30.  Uinited  States  v.  One  Automo- 
bile, 237  Fed.  891.  And  see  section 
fi41. 


10  The  Law  of  Automobiles. 

Sec.  12.  Automobile  as  an  appurtenance. 

An  automobile  is  not  an  ' '  appurtenance ' '  within  the  mean- 
ing of  a  statute  authorizing  police  officers,  in  case  of  a  viola- 
tion of  the  liquor  laAVS,  to  seize  the  ''liquor,  bars,  furniture, 
fixtures,  vessels,  and  appurtenances  thereto  belonging. "  ^^ 
Other  statutory  provisions  may  give  greater  power  over  auto- 
mobiles used  in  the  unlawful  traffic  of  liquor.'" 

Sec.  13.  Automobile  as  a  tool  or  implement  of  trade. 

An  automobile  is  not  a  ''tool  or  implement  of  trade"  within 
the  meaning  of  homestead  laws  exempting  such  articles.^' 

Sec.  14.  Extrinsic  evidence  of  meaning  of  terms. 

Extrinsic  evidence  as  to  the  meaning  of  the  various  terms 
employed  to  designate  the  automobile  would  be  admissible  as 
explanatory  of  the  language  of  any  particular  instrument  or 
writing.  In  pleadings,  however,  especially  in  criminal  pro- 
ceedings, particular  care  should  be  exercised  in  using  the 
proper  and  correct  terms,  especially  where  the  definitions  are 
to  be  found  in  a  statute,  which  should  be  followed  in  the  lan- 
guage of  the  act.^* 

Sec.  15.  Legislative  definitions. 

Fearing  that  disputes  in  the  future  might  arise  concerning 
the  meaning  of  the  terms  employed  in  automobile  legislation 

SI.  One  Oadillac  Automoibile  v.  State  stein  v.  Higginbotham   (Oa.),  9G  S.  E. 

(Okla.),  172  Pac.  62;  Lebrecht  v.  State  866;  Phillips  v.  Stapleton,  23  Ga.  App. 

(Okla.),    172    Pac.    65;    State   v.    One  303,  97  S.  E,  «85;  Martin  v.  English, 

Packard  Automobile   (Okla.),  172  Pac.  23  Ga.  App.  484,  98  S.  E.  504;  Nesmith 

66;    One    Moon    Automobile    v.    State  v.  Martin,   149  Ga.   27,   98   S.   E.   551; 

(Okla.),    172    Pac.    66;    One    Hudson  State  v.   Ralph,   184   Iowa,  28,   168  N. 

Super-six  Automobile  v.  State   (Okla.),  W.  258. 

3  73  Pac.  1136;  State  v.  One  Ford  Au-  33.  Eastern  Mfg.  Co.  v.  Thomas,  82 

tomiobile    (Okla.),   174  Pac.  488;   Bus-  S.  'Oar.   509,  64  S.   E.  401.     See  also, 

Be>'   V.    State    (Okla.),    175    Pac.   226;  Hart  v.  McClellan    (Iowa),  174  N.  W. 

Cooper  V.  State  ex  rel.  Hardy  (Okla.),  691. 

175     Pac.     551;     Crossland    v.     State  34.  "Judges   have   the   general  cog- 

(Okla.),  176  Pac.  944;  First  Nat.  Bank  nizance  of  other  jMiople  as  to  the  terms 

of  Roff  V.  State  (Okla.),  178  Pac.  670.  relating    to    the    use   of    automobiles." 

And  see  section  941.  Chamberlayne's    Modern    T^w    of    Evi- 

32.  See  U.  S.  v.  Mincey    (C.  C.  A.),  denco,  sec.  775. 
254   Fed.   287,   5   A.   L.   R.   211;    Bern- 


Definitions  and  General  Considerations.  11 

to  designate  the  automobile,  in  many  of  the  States  the  terms 
"motor  vehicle,"  "automobile,"  "motor  car,"  and  "motor 
cycle,"  have  been  expressly  defined  by  the  legislatures.  Thus 
it  is  commonly  provided  that  the  term  "motor  vehicle"  shall 
include  all  vehicles  propelled  by  any  power  other  than  mus- 
cular, except  road  rollers,  fire  engines,  traction  engines,  and 
such  vehicles  as  rmi  only  upon  rails  or  tracks.  Cars  of  elec- 
tric and  steam  railways  are  specifically  excepted  from  the 
operation  of  the  statutes  and  so  are  bicycles,  tricycles,  or  such 
other  vehicles  propelled  exclusively,  or  in  part,  by  muscular 
pedal  power.  The  term  ' '  motor  vehicle ' '  as  used  in  legislation 
means  motor  vehicles  having  more  than  two  wheels  ordinarily. 
Automobile  fire  engines  and  such  self-propelling  vehicles  as 
are  used  neither  for  the  conveyance  of  persons  for  hire, 
pleasure,  or  business,  nor  for  the  transportation  of  freight 
are  excepted  from  the  provisions  of  some  of  the  enactments. 
The  term  "machine"  is  also  sometimes  used  in  connection 
with  other  words  to  designate  the  automobile.^ 

The  expression  "motor  car"  in  the  English  Motor  Car  Act 
of  1903,  means  the  same  as  the  expression  "light  locomotive" 
in  the  principal  act  as  amended  by  the  1903  act,  except  that, 
for  the  purpose  of  the  provisions  of  the  law  of  1903  with  re- 
spect to  the  registration  of  motor  cars,  the  term  "motor  car" 
does  not  include  a  vehicle  drawn  by  an  automobile.^^ 

Sec.  16.  Tra,ction  engine  as  automobile. 

A  traction  engine  has  been  held  to  be  an  automobile  within 
the  meaning  and  construction  of  an  automobile  law  providing 
that  the  terms  "automobile"  and  "motor  cycle"  shall  include 
all  vehicles  propelled  by  other  than  muscular  power,  except 
railroad  and  railway  cars  and  motor  vehicles  running  only 

35.  Machine. — An  assemblage  of  in-  in  ■which  such  point  tends  to  move  i« 
ter-related  movable  parts,  forming  an  the  "direction  of  the  power;"  the  re- 
appliance  for  transmitting  and  modi-  distance  to  be  overcome,  the  "weight;" 
fjing  forces  and  the  motion  produced  and  that  part  of  the  machine  immedi- 
by  them.  A  force  employed  to  move  ately  applied  to  the  resistance,  the 
a  machine  is  a  "motor."  The  moving  "working  point."  Int.  Motor  Cyc.  p. 
force     in     a    machine     is    called     the  895. 

"powder."     The   place  of   its  appliance  36.  See    sec.     20,    subd.     (1).    Eng. 

is  the  "point  of  application:"  the  lino  Motor  Oar  Act   1903. 


12 


The  Law  of  Automobiles. 


lipoli  rails  of  tracks  and  road  rollers.''  Traction  engines  are 
iisualty  excluded  from  the  definitions  of  the  terms  "automo- 
bile" and  "motor  vehicle,"  but  in  the  act  referred  to  this  was 
apparently  overlooked. 

Sec.  17.  Bicycle  as  a  vehicle. 

The  term  "vehicle,"  as  used  in  a  statute,  is  generally  con- 
strued to  include  a  bicycle,^^  but  a  bicycle  is  not  generally  to 
be  classed  as  a  "motor  vehicle."  ^^^ 

Sec.  18.  Motorcycle  as  a  motor  vehicle. 

If  a  bicycle  is  considered  a  ' '  vehicle, "  "^  a  motorcycle  should 
be  considered  a  "motor  vehicle."  And  the  courts  take  this 
view.*^  Thus,  it  has  been  held  that  a  "motor  cycle"  is  a 
"vehicle  of  like  character"  with  an  automobile  as  that  term 


37.  Emerson  Troy  Granite  Co.  v. 
Pearson,  74  X.  H.  32,  64  Atl.  582. 

38.  Alabama. — ^Davis  v.  Petrinovich, 
112  Ala.  564,  21  So.  344,  36  L.  E.  A. 
615. 

Indiana. — Mercer  v.  Corbin,  117  Ind. 
450,  20  N.  E.  132,  134,  3  L.  R.  A.  221. 
10  Am.  St.  Rep.  76 ;  Holland  v.  Bartch, 
120  In<l.  46,  22  N.  E.  83,  85,  16  Am. 
St.  Rep.  307. 

Iowa. — iRoberts  v.  Parker,  117  Iowa, 
389,  90  N.  W.  744,  57  L.  R.  A.  764,  94 
Am.  St.  Rep.  316. 

MassacJmsetts. — Foster  v.  Curtis, 
213  Ma.^.  79,  99  N.  E.  961,  Ann.  Cas. 
1913  E.  1116. 

Michigan. — 'Myers  v.  Hinds,  110 
Mich.  300,  68  N.  W.  156,  157,  33  L. 
R.  A.  356,  64  Am,  St.  Rep.  345. 

Minnesota.— THovason  v.  Dodge,  58 
Minn.  555,  60  N.  W.  545,  546,  28  L. 
R.  A.  608,  49  Am.  St.  Rep.  533. 

■North   Dakota. — Gagnier   v.    City    of 
Fargo,  11  N.  D.  73,  88  N.  D.  1030,  1031, 
95  Am.  St.  Rep.  705. 
'■■■  Oklahoma.. — Tulsa  Ice  Co.  v.  Wilkes, 
54  Okla.  519,  153  Pac.  1169. 

Pennsylvania. — Lacy  v.  Winn,  4  Pa. 
Dist.  Rep.  409,  412.    : 

Rhode   Island. — State   v.   Collins,    16 


R.  L  371,  17  Atl.  131,  3  L.  R.  A. 
394n. 

Texas. — 'Laredo  Electric  &  Ry.  Co. 
V.  Hamilton,  23  Tex.  Civ.  App.  480,  56 
S.   W.   998,   1000. 

Virginia. — Jones  v.  City  of  Wil- 
liamsburg, 97  Va.  722,  34  S.  E.  883, 
47  L.  R.  A.   294.  •• 

Canada. — Reg.  v.  .Juston,  24  Ont. 
(Canada)    327. 

38a.  Dice  v.  .Johnson  (Iowa),  175  N. 
W.   38. 

39.  See  section  17. 

40.  People  v.  Smith,  156  Mich.  173, 
120  N.  W.  581,  16  Ann.  Cas.  607,  21 
L.  R.  A.    (N.  S.)   41n. 

England.— The  term  "nwtor  car"  in- 
cludes a  motor  bicycle.  Webster  v. 
Perry   (1914),  1  K.  B,  51. 

Motor  cycle. — A  two-wheeled  or 
sometimes  three  or  four-wheeled  cycle 
driven  by  si,  motor  and  usually  fur- 
nished with  pedals.  The  motor  drives 
the  wheel  by  belt,  chain  or  propeller 
shaft,  or  even  directly  by  spur-wheels, 
and  is  usually  started  by  the  pedals 
cr  by  a  crank.  There  is  usually  but 
cwie  speed,  but  sometimes  two  or  three. 
Motor  cycles  carry  but  one  person,  the 
driver,    although    some  makes   produce 


Definitions  and  General  Consideratioxs 


13 


is  used  in  a  statute  regulating  ''the  running  of  automobiles, 
locomobiles  and  other  vehicles  and  conveyances  of  like  char- 
acter." "  Again,  in  construing  a  statute  limiting  the  rate  of 
speed  at  which  an  ' '  automobile,  or  any  other  conveyance  of  a 
similar  type  or  kind"  may  be  driven  and  imposing  certain 
other  duties  upon  the  driver  thereof,  it  was  thought  that  a 
motor  cycle  comes  within  the  meaning  of  the  words  ''or  other 
conveyance  of  a  similar  type  or  kind."  ^- 


Sec.  19.  Motorcycle  as  a  carriage. 

In  England  it  has  been  decided  that  a  motor  bicycle  is  a 
"carriage"  for  which  a  license  is  required  within  the  mean- 


arrangements  for  carrying  another  on 
an  auxiliary  framing,  or  in  a  forward 
seat  converting  the  motor  cycle  into  a 
tricycle.  When  furnished  with  four 
wheels  it  becomes  a  quadricycle  or 
"quad."     Int.  Motor  Cyc,  p.  326. 

A  boy's  sled  is  not  "a  motor  vehicle. 
Perrill  v.  Virginia  Brewing  Co. 
(Minn.),  153  N.  W.  136. 

41.  Bonds  V.  State,  16  Ga.  App.  401. 
'85  S.  E.  629,  631.  It  was  said  by  the 
court  in  this  case:  ''The  danger  to 
ethers  which  arises  from  the  use  of  an 
automobile  or  vehicle  of  like  character 
depends  in  part  upon  the  rapid  rate 
of  speed  at  which  such  vehicles  or- 
dinarily travel,  or  of  Avhich  they  are 
at  least  generally  capable,  the  noise 
usually  accompanying  their  operation, 
which  is  calculate<l  to  frighten  horses 
or  other  animals  traveling  along  the 
public  highways,  and  the  difficulty  with 
which  they  may  be  guided  and  con- 
trolled when  running  at  a  high  rate 
of  speed,  so  as  to  avoid  collisions  with 
persons  or  teams  on  the  highways.  It 
is  a  matter  of  common  knowledge  that 
a  motor  cycle  propelled  by  gasolene  is 
capable  of  as  high  or  a  higher  rate  of 
speed  than  may  be'  attained  by  a  four- 
wheeled  automobile;  and  it  is  equally 
well-known  that  a  motor  cycle  is  even 
more   noisv    and    is    a    more    alarniinc: 


object    to    country-bred    domestic    ani- 
mals than  is  a  larger  type  of  automo- 
bile.     We    may    easily    conclude    that 
since  the  primary  purpose  of  the  leg- 
islature was  to  protect  pedestrians  and 
others  on  the  highways,  a  motor  cycle 
is  a  vehicle  'of  like  character'  witli  an 
automobile,  so  far  as  the  act  of   1910 
is   concerned,    as  the   use   of    a    motor 
cycle  on  the  public   highways  without 
check  or  regulation  would  bring  about 
or    produce    the    identical    dangerous 
situations    and    possibilities    that    the 
use    of     the    four-wheeled    automobile 
might    produce.     It   is   immaterial,    so 
far  as  frightening  a  horse  on  the  road- 
way   is    concerned,    whether    the    self- 
I'roiTellcd  machine  which  approaches  at 
an  unlawful  rate  of  speed,  wrapped  in 
a  cloud  of  smoke,  em^itting  and  accom- 
panied by  the  vile  smell  of  exploding 
gasolene,  runs  on  two  wheels  or  four, 
for    it    may    not    be    imagined    that    a 
horse   which    would    take    fright    at    a 
four-wheeled     vehicle     would     not     be 
equally  frightened  at  tlie  too  rapid  ap- 
proach of  a  two-wheeled  vehicle  of  like 
character    so    far   as    its   capacity    for 
rapid    movement,    its    noise,    and    its 
smell  are  concerned." 

42.   Dunken>crger    v.    McFerren,    149 
111.  App.  630. 


14  The  Law  of  Automobiles. 

ing  of  the  Customs  and  Inland  Revenue  Act  of  1888,  as  being 
a  carriage  dra^\m  or  propelled  upon  a  road  by  mechanical 
power."'  But  it  has  been  held  that  a  bicycle  is  not  a  "car- 
riage" within  the  meaning  of  a  state  statute  requiring  high- 
ways to  be  kept  reasonably  safe  for  "carriages."^* 

Sec.  20.  Automobilist. 

An  automobilist  may  be  said  to  be  one  who  rides  in,  or 
drives  an  automobile,"^  and  may  include  either  an  owner, 
licensee,  chauffeur  or  driver,  provided  he  is  familiar  with  the 
operation  of  a  car. 

Sec.  21.  Owner. 

The  word  "owner"  is  defined  as  "The  person  in  whom  is 
vested  the  ownership,  dominion,  or  title  of  property :  proprie- 
tor :"  ""^  "He  who  has  dominion  of  a  thing,  real  or  personal, 
corporeal  or  incorporeal,  which  he  has  a  right  to  enjoy  and 
do  with  as  he  pleases,—  even  to  spoil  or  destroy  it,  as  far  as 
the  law  permits  unless  he  be  prevented  by  some  agreement  or 
covenant  which  restrains  his  right."  "' 

These  definitions  may  be  said  to  state  in  a  general  way  the 
meaning  of  the  word  owner.  The  question,  however,  arises 
whether  one  who  has  purchased  property  mider  a  conditional 
sale  agreement  by  which  title  is  reserved  in  the  seller  may  be 
said  to  he  the  owner.  In  two  cases  in  Canada  —  in  which  this 
question  was  considered  it  was  held  that  the  purchaser  was 
the  owner  mthin  the  meaning  of  a  statute  respecting  the  lia- 
bility of  the  "owner"  of  an  automobile  for  personal  injuries 
sustained  by  the  mismanagement  of  the  car  while  under  his 
control."^     In  the  Appellate  Court  it  was  said,  "The  word 

43.  O'Donoglme  v.  Moon,  90  Law  T.       ture  and  meclianisni  of  an  automobile 
{N.  S.)    843,  68  J.  P.  349.  and   who  is   experienced   in   driving   it. 

A  bicycle  may  be  considered  a  car-      Int.  Motor  Cyc.„  p.  45. 
riage.— Taylor  v.  Goodwin,  4  Q.  B.  2i28.  46.  Black's    Law    Diet.,    2d    Ed.,    p. 

44.  Richardson      v.      Danvers,  ■    176       865. 

Mass.  413,  57  N,  E.  688,  50  L.  R.  A.  47.  Bouiver's  La\y  Diet.    (Ed.  1914), 

127,  79  Ann.  St.  Rep.  330.  p.  2437. 

45.  AutomobUist.  —  Standard      Diet.  48.  Wynne  v.   Dalby,    16  Dom.   Law 
Addenda.  I^eP-    ^^^'   affirming    Wynne  v,   Dalby, 

A  person  conversant  with  the  struc-       13  Dom.   Law  Rep.   569,  29  Ont.   Law 


Definitions  and  General  Considerations.  15 

'owner'  is  an  elastic  term,  and  the  meaning  which  nmst  be 
given  to  it  in  a  statutory  enactment  depends  very  much  upon 
the  object  the  enactment  is  designed  to  serve."  And  in  line 
with  this  the  court  below  remarked:  "The  legislators  in- 
tended to  reach  the  person  who,  having  the  control  and  man- 
agement of  the  motor  vehicle,  and  having  an  interest  such  as 
that  of  a  bona  fide  purchaser,  is  concerned  in  securing  a  proper 
driver  or  operator,  and  who  should,  under  the  intention  of 
the  Act,  be  responsible  for  the  acts  of  the  person  to  whom,  as 
servant,  employee,  or  agent,  he  intrusts  its  operation.  In  the 
absence  of  an  express  interpretation  of  the  word  owner,  and 
especially  in  view  of  what  I  take  to  be  the  object  of  passing 
sec.  19,  of  the  Act,  I  can  give  no  other  meaning  to  the  word 
than  that  in  ordinary  use  and  as  defined  above.  If  the  legis- 
lators had  intended  it  to  have  a  wider  or  different  meaning, 
they  would  no  doubt  have  said  so." 

In  a  recent  case  in  Alabama  it  is  also  decided  that  the  ex- 
pression "owners  or  custodians"  does  not  extend  to  a  mere 
servant  or  a  person  having  only  temporary  control  of  an 
automobile  under  permission  from  the  owner."^^  Under  a 
statute  making  "the  owner  of  a  motor  vehicle  liable  for  any 
injury  occasioned  by  the  negligent  operation  by  any  person 
of  such  motor  vehicle,"  the  word  "owner"  has  been  held  not 
to  include  a  person  who  may  be  merely  either  mediately  or 
immediately  in  possession  of  the  vehicle  but  to  refer  to  the 
real  proprietor  only.^'^ 

Sec.  22.  Riding  and  driving. 

The  words  "ride"  and  "drive"  are  not  confined  to  animals. 
They  are  not  limited  in  any  manner  whatsoever.    Anything 

Rep.  62,  -t  Ont.  W.  N.  1330.     See  also,  this  effect  to  be  unconstitutional  in  that 

section  888,  as  to  right  of  conditional  it  rendered  the   owner  of  an  automo- 

vendee  to   maintain   an   action    for   in  l>ile    liable   for   negligent   operation   of 

juries  to  the  machine.  the   car   by   any   person   who   obtained 

49.  Armstrong    v.    Sellers,    182    Ala.  possession    of    it   without    his    consent 

582    62  So.  28.  a"^  without  fault  on  his  part  such  as 

^  50.  Daugherty  v.  Tliomas,  174  Mich.  mere  trespassers  and  was  therefore  un- 

371,    140  N.   W.    615,  Ann.   Oas.    1915  constitutional   as   depri\-ing  the  o^^-ner 

A     1163,   45   L.    R.    A.    (N.    S.)    699n,  of  his  property  without  due  process  of 

holdino  'the    ].rovision    of    the    law    to  la.w.     See  also,  Mitchell  v.  Van  Kenlen 


16  The  Law  of  Automobiles. 

capable  of  being  ridden  or  driven  comes  within  the  purvie\\' 
of  those  terms.  They  are  apt  words  in  the  case  of  bicycles, 
motor  cycles  or  automobiles,  when  ridden  or  driven." 

Sec.  23.  Automobile  parts  and  accessories. 

Definitions  of  automobile  iDarts  and  accessories  may  be  of 
great  importance  in  the  construction  and  interpretation  of 
contracts.    What  is  and  what  is  not  included  within  the  mean- 
ing of  certain  terms  used  by  parties  may  be  the  subject  of 
dispute.    For  example,  an  automobile  body  is  ordered  from  a 
manufacturer  or  dealer;  what  is  the  purchaser  entitled  to  re- 
ceive?   Take  also  the  purchase  of  an  automobile.    What  goes 
with  it  for  the  price  named?    Are  lamps,  searchlights,  tools, 
speedometer,  clock,  windshield,  etc.,  to  go  with  it,  or  are  all 
or  some  of  these  articles  to  be  treated  as  accessories  and  en- 
tailing extra  expense?    So  far  as  lamps  are  concerned,  it  may 
be  said  that  the  automobile  may  be  expected  by  the  purchaser 
to  be  legally  equipped  for  operation  on  the  public  highways, 
but  this  does  not  necessarily  include  extra  searchlights.    So 
also  a  horn  or  proper  signal  or  warning  device  goes  with  the 
sale  of  an  automobile  without  express  mention.    These  may 
be  said  to  come  properly  Avithin  the  meaning  of  the  term  auto- 
mobile or  other  word  used  in  the  contract  of  purchase.  Chains, 
however,  to  prevent  skidding,  a  speedometer  and  a  clock,  might 
not  ordinarily  be  included.     Custom  and  usage  in  the  trade 
would  control,  of  course,  in  the  absence  of  express  contractual 
provisions.    Robes,  goggles,  clocks,  speedometers,  chains  and 
similar  accessories  are  not  parts  of  an  automobile,  though 
quite  necessary  in  the  use  of  motor  vehicles.^^ 

&   Winchester   Lumber    Co.,    175   Mioh.  A  gasolene  engine  is  an   internal  com- 

75,   140  N.   W.   973.  bustion  engine  in  which  the  fuel  used 

51.  State  V.  Smith,  29  R.  I.  245,  69  is  an  inflammable  vapor  formed  by  a 
Atl.  1061;  State  v.  Thurston,  28  R.  I.  mixture  of  gasolene  and  air.  Int. 
265,   66  Atl.   580.  :Motor  Cyc,  pp.   177  and  178. 

52.  Engine.— A  piece  of  meclianisni  Carburetter. — An  apparatus  in  which 
used  to  convert  heat,  or  some  other  is  effected  the  mixing  of  the  fuel  nec- 
form  of  energy,  into  mechanical  work;  essary  for  the  operation  of  internal 
in  other  words,  a  machine  for  the  de-  combustion  motors.  Int.  Motor  Cyc-; 
velopment  of  power  from  some  source  p.  98. 

of  energy,  such   as  coal,  gas,  oil,  etc.  Chassis.— As  applied  to  a  motor  car, 


Definitions  and  General  Considerations. 


17 


Sec.  24.  Highways. 

Ways  are  either  public  or  private.  A  way  open  to  all  people 
is  a  public  highway.  It  will  be  noted  that  all  the  automobile 
regulations  apply  only  when  an  automobile  is  operated  on 
public  avenues  of  travel.  To  drive  a  motor  vehicle  on  a  pri- 
vate way,  it  is  not  necessary  to  register  the  machine,  nor  need 
any  specific  statutory  speed  limit  be  complied  with.  The  term 
highway  is  the  generic  name  for  all  kinds  of  public  ways,  in- 
cluding county  and  township  roads,  streets  and  alleys,  turn- 
pikes and  plank  roads,  railroads  and  tramways,  bridges  and 
ferries,  canals  and  navigable  rivers.  Every  public  thorough- 
fare is  a  highway .^^  Thus,  in  one  case,  it  was  said:  "It  is 
not  the  amount  of  travel  upon  a  highway  which  distinguishes 
it  as  a  public  instead  of  a  private  road.  A  private  road  might 
have  the  larger  amount.  It  is  the  right  to  travel  upon  it  by 
all  the  world,  and  not  the  exercise  of  the  right  which  makes 


the  term  "ohassis"  means  the  rect- 
angular metal  framework  thereof,  as 
distinguished  from  its  body  and  seats, 
but  including  its  accessories  for  pro- 
pulsion, as  the  tanks,  motor,  generator, 
gear,  springs,  axles,  wheels,  tiros,  fan, 
and  general  running  gear.  Kansas 
City  Auto  School  Co.  v.  Holcker,  etc., 
Mfg.  Co.    (Mo.   Ajpp.),   182  S.  W.    759. 

The  frame  is  that  part  of  a  motor  ve- 
hicle which  supports  the  carriage  body, 
motor,  and  transmission,  and  to  which, 
beneath,  are  attached  tlie  wheel  axles. 
Int.  Motor  Cyc,  p.  197. 

Transmission-gear.  —  The  gearing 
through  which  the  power  from  the 
motor  in  an  automobile  is  transmitted 
to  the  roar  axle.  Int.  Motor  Cj'c,  p. 
477. 

Automobile  engine  not  a  brake.— 
Wilmott  V.  Southwell.  L.  T.  Rep.,  vol. 
XXV,  No.  2,  p.  22,  Oct.  27,  1908. 

53.  Schier  v.  State,  96  Ohio,  245, 
117  N.  E.  229;  Elliott  on  Roads  and 
Streets   (3d  Ed.),  pp.  1,  2. 

For  other  definitions  of  highway,  see 
the  following  cases: 

.4r/>n«,sa«. — 'Arkansas     River     Packet 


Co.  V.  Sorrels,  50  Ark.  460,  8  S.  W. 
C83. 

Connecticut. — 'Laufer  v.  Bridgeport 
Traction  Co.,  68  Conn.  475,  37  Atl. 
379,  37  L.  R.  A.  533. 

Georgia. — Hines  v.  Wilson  (Ga. 
App.),   102  E.  646. 

Indiayia. — Wild  v.  Deig,  43  Ind.  455, 
13  Am.  Rep.  399. 

Massachusetts. —  Commonwealth  v. 
Inhabitants  of  Newbury,  3  Pick.  51. 

Minnesota. —  Northwestern  Tele- 
phone Exch.  Oo.  V.  Minneapolis,  81 
Minn.  140,  86  N.  W.  69,  53  L.  R.  A. 
17. 

Missouri. — Jenkins  v.  Chicago  &  A. 
R.  Co.,  27  Mo.  App.  578. 

North  Carolina. — State  v.  Cowan,  29 
N.  C.  239. 

Oklahoma. —  Southern  Kansas  Rail- 
way Co.  V.  Oklahoma  City,  12  Okla.  82, 
69   Pac.   1050. 

South  Carolina. — Heyward  v.  Chis- 
olm,  11  Rich.  L.  253. 

Wisconsin. — Town  of  Randall  v. 
Rovelstad,  105  Wis.  410,  SI  N.  W.  819. 

Canada.— mdeout  v.  Hewlett,  12  E. 
L.  R.  527. 


18  The  Law  of  Automobiles. 

it  a  public  highway."^*  The  term,  "public  highway,"  while 
it  may  be  construed  in  a  limited  isense  as  meaning  a  way  for 
general  travel  which  is  wholly  public,  yet  in  a  general  and 
broader  sense  it  may  be  construed  as  including  toll  roads,  since 
in  this  sense  it  includes  every  common  way  for  travel  by  per- 
sons on  foot  or  in  vehicles  rightfully  used  on  highways,  which 
the  public  have  the  right  to  use  either  conditionally  or  uncon- 
ditionally, and  in  construing  this  term  it  is  decided  that  as 
used  in  a  general  law  it  should  be  regarded  as  having  been 
used  by  the  legislature  in  its  general  sense  unless  there  is 
some  efficient  reason  for  believing  it  was  used  in  the  limited 
sense.  So  in  one  state  it  has  been  declared  that  a  general  law, 
regulating  the  operation  of  automobiles  upon  public  high- 
ways in  the  interest  of  public  safety  rather  suggests  the  use 
of  the  term  in  the  general  than  the  particular  sense,  since  the 
danger  of  personal  injury  is  quite  as  great  and  immunity 
therefrom  is  ciuite  as  important  to  travelers  on  the  one  as  the 
other.^^ 

And  ways  originally  laid  out  as  public  highways  still  retain 
their  character  as  public  highways  though  the  park  commis- 
sioners in  any  city  or  town  where  such  ways  exist  have  ac- 
quired or  have  been  vested  with  jurisdiction  and  control  over 
them.  So  in  Massachusetts  it  was  decided  that  Commonwealth 
Avenue  in  the  Brighton  district  in  Boston  was  a  public  high- 
way within  the  meaning  of  the  words  as  used  in  an  order  of 
the  Massachusetts  highway  commission  requiring  an  automo- 
bile operated  on  a  public  highway  to  display  its  registered 

Destruction  of  sign  posts. — Wilfully  In  a  particular  statute,  the  expres- 
dftfacing,  injuring,  or  destroying  any  sion  "public  highway  of  this  state," 
mile  post,  index  board,  sign  post,  may  be  construed  as  meaning  a  public 
bridge,  or  causeway  constitutes  a  mis-  road  outside  of  a  city.  Oity  of  Wind- 
demeanor,  even  though  the  sign  or  sor  v.  Bast  (Mo.  App.),  199  S.  W.  722. 
post,  as  the  case  may  be,  was  erected  54.  Matter  of  Mayor  of  New  York, 
by  private  individuals.  Pullman  v.  135  N.  Y.  253,  260,  31  N.  E.  1033,  31 
State,  88  Ala.  190,  7  So.  148.  Am.  St.  Rep.  825. 

A  bridge  may  be  a  public  highway.  55.  Weirich   v.    State,    140  Wis.    98, 

City   of   Baraboo  v.    Dwyer,    166   Wis.  121  N.  W.   652,  22  L.  R.  A.    (N.  S.) 

373,  165  N.  W.  297.  1221,    17    Ann.    C^s.    802.      See    also, 

A  schoolyard  is  not  a  highway.  Coll-  Scranton  v.  Laurel  Run  Turnpike  Co., 

yer  v.  MoAuley   (Canada),  46  D.  L,  R.  225  Pa.  St.  82,  73  Atl.  1063. 
140. 


Definitions  and  General  Considerations.  19 

number  thereon  in  a  certain  manner.^  Under  a  statute  giving 
redress  to  one  injured  by  the  negligent  operation  of  an  auto- 
mobile upon  or  across  ''public  highways,  walks,  streets,  ave- 
nues, alleys,  or  places  much  used  for  travel,  "^^  the  phrase 
"places  much  used  for  travel"  is  to  be  construed  as  covering 
all  other  places  which  might  not  be  covered  by  the  specific 
words  employed,  and  where  a  driveway  was  constantly  used 
both  by  vehicles  and  pedestrians,  there  was  held  to  be  no  error 
in  requiring  the  jury  to  find  that  it  was  a  public  highway  gen- 
erally used  for  public  travel,  it  not  being  necessary  for  them 
to  find  that  it  was  much  used  for  that  purpose.^ 

Sec.  25.  Roads. 

A  road  is  a  passage  ground  appropriated  to  public  travel. 
The  word  "road"  cannot,  however,  be  said  to  be  one  of  uni- 
form meaning ;  it  has  been  variously  defined,  and  is  often  en- 
larged or  restricted  by  the  language  with  which  it  is  asso- 
ciated. The  meaning  of  the  word  in  statutes  is  ascertainable 
from  the  context  and  purpose  of  the  particular  legislative  en- 
actment in  which  it  is  found.^^ 

Sec.  26.  Streets. 

A  street  is  a  road  or  public  way  in  a  city,  town,  or  village. 
A  way  over  land  set  apart  for  public  travel  in  a  town  or  city 
is  a  street,  no  matter  by  what  name  it  may  be  called;  it  is  the 
purpose  for  which  it  is  laid  out  and  the  use  made  of  it  that 
determines  its  character.    As  the  way  is  common  and  free  to 

56.  Conunonwealth  v.  Butler,  204  "  and  ia  designed  for  the  use  of  ve- 
Mass.  11,  90  N.  E.  360,  hides." 

57.  See  Mo.  Rev.  St.  1909,  §  8523.  Pent   roads.— The   term  "highway," 

58.  Hodges  v.  Ghambers,  171  Mo.  in  the  Vermont  Rev.  St.,  sections  3178, 
App.  563,  154  S.  W.  429.  See  also,  3179,  relieving  owners  of  land  from  the 
Denny  v.  Randall  {Mo.  App.),  202  S.  duty  of  maintaining  fences  on  the  aides 
W.  602.  of  the  highways,  does  not  include  pent 

59.  Elliott  on  Roads  and  Streets  roads.  Carpenter  v.  Oook,  67  Vt.  102, 
(3  Ed.),  pp.  10.  11.  30  Atl.   998,   999;    French   v.   Holt,   53 

Roadway  is  defined  in  the  ordinances  Vt.  364;  Wolcott  v.  Whitcomb,  40  Vt. 
for  the  city  of  New  York  as  "that  por-  40,  41;  Bridgman  v.  Town  of  Hard- 
tion  of  any  street  which  is  included  be-  wick,  31  Atl.  33,  34,  67  Vt.  132. 
tween  the   curbs   or  curb-lines  thereof      Contra,   see    Town    of   Whitingham    v. 

Bowen,  22  Vt.  317. 


20  The  Law  of  Automobiles. 

all  people,  it  is  a  highway,  and  it  is  proper  to  affirm  that  all 
streets  are  highways,  although  not  all  highways  are  streets. 
Streets  resemble,  in  many  particulars,  ordinary  public  roads, 
but  there  are,  nevertheless,  very  important  differences  be- 
tween the  two  classes  of  public  ways.  The  purpose  for  which 
they  are  established  is  primarily  the  same,  that  of  public 
travel,  but  many  uses  may  properly  be  made  of  streets  which 
cannot  rightfully  be  made  of  ordinary  suburban  roads.  The 
rights  of  the  public  are  much  greater  in  streets  than  in  the 
roads  of  the  rural  districts,  and  the  methods  of  regulating 
their  use,  improvement,  and  repair  are  materially  different. 
Where  a  statute  uses  the  term  street,  and  does  so  with  refer- 
ence to  a  town  or  city,  and  there  are  no  limiting  or  explana- 
tory words,  it  must  be  taken  to  mean  a  street  in  the  true  sense 
of  the  term.  It  is  sometimes  necessary  to  discriminate  be- 
tween the  genus  highways  and  the  species  streets,  but  when 
the  species  is  designated  there  seldom  can  be  any  difficulty  in 
determining  what  class  of  public  ways  is  intended,  although 
it  will  not  do  to  conclude,  in  all  cases  where  the  term  high- 
ways is  employed,  that  streets  are  included.'^" 

Under  statutes  regulating  the  operation  of  motor  vehicles, 
the  term  ^'highways"  has  been  construed  as  including 
''streets"  in  incorporated  villages  and  cities.^^  In  many  of 
the  automobile  acts  passed  by  the  various  states,  the  terms 
public  highways,  ways,  streets,  and  other  terms  pertaining 
to  highwaj^s  have  been  defined. 

60.  Elliott  on  Koads  and  Streets  (3d  used  for  public  travel,  and  a  public 
Ed.),  pip.  21,  et  seq.  highway  cannot  pass  through  a  city  or 

61.  Ware  v.  Lamar,  16  Ga.  App.  560,  town  without  running  over  a  street. 
S5  S.  E.  824;  Forgy  v.  Rutledge,  167  When  a  puiblic  highway  reaches  the 
Ky.  182,  180  S.  W.  90;  Burns  v.  Ken-  corporate  boundary  of  a  city  or  town 
dall,  96  S.  C.  385,  80  S.  E.  621.  and  connects  with  a  street  thereof,  in 

"In  view  of  the  language  of  the  act,  passing  through  the  city  or  toivn,  from 
we  are  of  opinion  that  by  the  use  of  such  point  of  connection,  it  becomes  a 
the  words  'public  highway'  the  legis-  street  of  the  municipality  and  subject 
lature  intended  to  include  a  street,  to  its  authority,  and  continues  a  street 
where  the  public  highway  is  spoken  of  and  subject  to  such  authority,  until 
as  being  within  the  corporate  limits  of  some  other  part  of  the  coi-porate  bound- 
a  city  or  town.  A  public  highway  is  ary  of  the  city  or  town  is  reached,  be- 
not  necessarily  a  street,  but  a  street  is  yond  which  it  again  becomes  a  public 
necessarily    a   public   highway,   because  highway   other  than   a   street.     It  may 


Definitions  and  Genkrai.  Considerations. 


21 


Sec.  27.  Intersecting  streets. 

A  statute  regulating  the  operating  of  motor  vehicles  at 
''intersecting  streets"  has  been  construed  to  apply  to  the 
situation  where  one  street  enters  into  another,  but  does  not 
cross  it.*'^  A  contrary  conclusion,  however,  has  been  reached 
as  to  this  question.^  But  the  passage  of  a  path  across  a  high- 
way and  common  does  not  make  an  intersection  of  highways.^* 
But  the  intersection  of  two  municipal  streets  is  an  "intersec- 
tion of  highways. "  ''^ 


further  be  remurked  that,  whenever  tlic 
words  'public  liighway'  appear  in  the 
act,  they  are  immediately  preceded  by 
the  word  'any,'  the  use  of  which  is  evi- 
dently to  indicate  that  anii  kind  of  a 
highway  lawfully  dedicated  to  public 
use,  whether  it  be  a  state  road,  county 
road,  street,  or  alley,  is  a  'public  high- 
way' in  the  meaning-  of  the  act."  Fo^cr^• 
V.  Rutledge,  167  Ky.  1S2,  ISO  S.  W.  90. 
62.  Lawrence  v.  Goodwill  (Cal. 
A;pp.),  186  Pac.  781;  Buckey  v.  White 
(Md.),  Ill  Atl.  777;  Wales  v.  Harper. 
17  W.  L.  R.  (Canada)  623.  And  see 
Manly  V.  Abernathy,  167  N.  Car.  220. 
83  S.  E.  34.3,  wherein  it  was  said: 
"We  are  clearly  of  the  opinion  that  the 
legislature  intended  to  use  the  word  in 
the  sense  of  'joining'  or  'touching,'  or 


cominjj;  in  contact  with  or  'entering 
into,'  and  did  not  intend  that  the  word 
'intersect'  should  (be  so  restricted  in  its 
meaning  as  not  to  protect  [icdestrians 
and  other  persons  using  a  public  street, 
at  a  point  or  space  where  another 
street  comes  into  it,  although  it  does 
not  cross  it.  We  should  therefore  give 
the  word  its  l)roadcr  meaning,  whicn 
will  include  all  space  made  by  tlie  junc- 
tion of  streets,  where  accidents  are  just 
as  likely  to  occur,  as  where  the  two 
streets  cross  each  other." 

63.  Sullivan  v.  Chauvenet  (Mo.),  222 
S.  W.  750. 

64.  Aiken  v. 
Atl.   330. 

65.  Moye    v. 
049,  93  S.  E. 


Metcalf,  92  Vt.  57,  102 

Reddick,    20   Ga.    A  pp. 
:r,6. 


22  The  Law  of  Automobiles. 

CHAPTER  II. 

HISTORICAL. 

Section  28.  Automobile  vehicle  of  modern  times. 

29.  Development  of  motor  carriage. 

30.  Growth  of  law. 

31.  Law  keeps  up  with  improvement  and  progress. 

32.  Highways  open  to  new  uses. 

33.  Tendencies  in  legislation. 

34.  Tendencies  in  judicial  decisions. 

Sec.  28.  Automobile  vehicle  of  modern  times. 

The  automobile  is  decidedly  a  vehicle  of  modern  times.    In 
1899  there  were  but  few  automobiles  in  existence  in  the  United 
States,  while  at  the  present  time  there  are  thousands  of  motor 
cars  and  the  number  is  increasing  from  year  to  year.    The 
modern  automobile  is  a  development  of  comparatively  recent 
date,  but  its  inception  dates  back  to  the  early  days  of  the  steam 
engine.    In  1680  Sir  Isaac  Newton  proposed  a  steam  carriage 
to  be  propelled  by  the  reactive  effect  of  a  jet  of  steam  issuing 
from  a  nozzle  at  the  rear  of  the  vehicle.    In  1790  Nathan  Read 
patented  and  constructed  a  model  steam  carriage  in  which 
two  steam  cylinders  operated  racks  running  in  pinions  on  the 
driving   shaft.     In   1769-1770   Nicholas   Joseph    Cugnot,    a 
Frenchman,  built  two  steam  carriages.    The  larger  of  these  is 
still  preserved  in  Paris,  and  was  designed  for  the  transporta- 
tion of  artillery.    Murdock,  an  assistant  of  James  Watt,  con- 
structed a  model  carriage  operated  by  a  grasshopper  engine, 
and  in  1786  Oliver  Evans,  of  the  United  States,  suggested  the 
use  of  steam  road  wagons  to  the  Lancaster  Turnpike  Com- 
pany of  Maryland.    In  1802  Richard  Trevitluck  built  a  steam 
carriage,  which  was   exhibited  in  London,  and  which  was 
driven  ninety  miles  from  Camborne,  where  it  was  built,  to 
London.     This  carriage  brings  us  to  the  notable  period  of 
steam-coach  construction  in  England,  which  lasted  until  1836. 
From  this  time  we  have  experienced  periods  of  development 
of  the  automobile  until  it  is  in  its  present  shape.^ 

1.  New    International    Eneyelopedia,  vol.  II,  pp.   271,  272. 


Historical.  23 

Sec.  29.  Development  of  motor  cairiage. 

The  successful  displacement  ol'  animal  jiower  by  mechanical 
devices  is  an  old  problem.  The  early  records  of  achievement 
in  this  direction  were  so  fragamentary  and  imperfect  that  the 
earliest  conception  of  the  idea  is  mysteriously  hidden  in  the 
past.  The  application  of  the  force  of  steam  for  propulsion  on 
sea  and  land  was  anticii>ated  by  Roger  Bacon  when  he  wrote : 
**  We  will  be  able  to  construct  machines  which  will  propel  large 
ships  with  greater  speed  than  a  whole  garrison  of  rowers,  and 
which  will  need  only  one  pilot  to  direct  them ;  we  will  l>e  able 
to  propel  carriages  mth  incredible  speed  without  the  assist- 
ance of  any  animal;  and  we  will  be  able  to  make  machines 
which  by  means  of  wings  will  enable  us  to  fly  into  the  air  like 
birds. "  ^ 

Sec.  30.  Growth  of  law. 

To  study  automobile  legislation  and  the  decisions  of  the 
courts  concerning  motor  vehicles,  one  does  not  have  to  wad'e 
through  centuries  of  musty  reports,  though  such  a  process 
often  is  necessary  in  looking  up  a  rule  or  principle  of  law 
applicable  to  the  automobile  or  its  operation  on  the  public 
streets  and  highways.  The  legislative  enactment  and  judicial 
decisions  in  the  United  States  do  not  extend  far  back.  In 
England,  however,  Parliament  has  for  some  time  regulated 
the  operation  of  steam  carriages  and  the  act  passed  in  1896 
was  the  parent  of  the  amendatory  act  passed  in  1903,  known 
as  the  ''Motor  Car  Act  of  1903."  In  the  United  States  in 
1899  there  were  practically  no  cases  decided  concerning  motor 
cars  in  the  law  reports,  but  from  that  time  on  until  the  present 
the  increase  of  legislation  and  judicial  decisions  is  very 
noticeable  and  marked;  so  that  the  conclusion  is  warranted 
that  there  has  commenced  a  branch  of  the  law  which  vdW  de- 
vote much  attention  to  the  twentieth  century  conveyance.^ 

2.  Roger  Bacon's  writings. —  The  En-  bile  driving  shows  us  that  the  regula- 
cyclepedia  Americana,  vol.  I.  tion  of  automobiling  started  with  few 

3.  See  Law   Notes,    vol.    IX,   No.    8,  lestrietions,     and     has    gradually     in 
147.  creased,  until  there  are  now  many  and 

Critical  legislative  period. — The  his-       numerous  regulations  in  various  states. 
tory  of  legislation  controlling  automo-       Wc    have   arrived    at    the    point    where 


24 


The  Law  of  Automobiles. 


Sec.  31.  Law  keeps  up  with  improvement  and  progress. 

**In  all  human  activities  the  law  keeps  up  with  improve- 
ment and  progress  brought  about  by  discovery  and  invention, 
and,  in  respect  to  highways,  if  the  introduction  of  a  new  con- 
trivance for  transportation  purposes,  conducted  with  due  care, 
is  met  with  inconvenience  and  even  incidental  injury  to  those 
using  ordinary  modes,  there  can  be  no  recovery,  provided  the 


there  must  be  a  turn  in  tlie  tide,  cither 
in  one  way  or  the  other,  calling  forth 
either  an  increase  or  a  decrease  in  the 
control  over  the  subject.  Particularly 
unfortunate  is  it  that  at  this  critical 
period  the  industry  and  automobilists 
should  be  face  to  face  with  many  ex- 
amples of  reckless  driving,  disregard 
for  the  public  safety,  and  a  disposition 
of  even  automobilists  themselves  to  in- 
cite the  speed  mania. 

The  daily  newspapers  arc  editorially 
advocating  further  restrictions.  The 
railroads  are  devising  means  and  ways 
of  protecting  automobilists  against 
their  own  recklessness. 

The  automobile  associations  have 
manifested  a  desire  and  overeagerness 
to  stop  reckless  driving  and  to  comply 
with  the  sipirit  of  the  automobile 
laws.  Meetings  have  been  held  between 
representatives  of  these  organizations 
and  county  officials  to  devise  ways  and 
means  for  preventing  disastrous  and 
reckless  driving.  C^minittees  of  public 
safety  have  been  appointed  by  certain 
cluibs  and  statements  have  been  issued 
to  the  public  asserting  the  position 
which  the  automobilists  take  against 
speeding.  All  this  has  had  a  tendency 
to  some  extent  to  restore  confidence  in 
the  public;  but  actions  s;peak  louder 
than  words.  Nothing  material  has 
been  accomplished,  and  to-day  a  more 
critical  situation  has  never  faced  au- 
tomobiledom  and  the  public. 

It  is  utterly  impossible  to  legislate 
evil  out  of  existence.  Accidents  can- 
not be  prevented  by  laws,  neither  can 
evil  conduct.     Conduct  may,  to  a  more 


or  less  extent,  be  regulated  by  statu- 
tory control,  if  the  penalties  are 
severe  enough  to  provoke  respect  in  the 
minds  of  those  who  would  disobey  the 
law.  Various  men  throughout  the 
country  have  suggested  ways  and 
means  for  doing  away  with  evils  con- 
nected with  automdbiling.  Very  com- 
prehensive laws  have  been  enacted, 
notably  the  one  in  the  State  of  New 
Jersey,  which,  it  must  be  confessed,  is 
as  good  a  law  as  any  for  all  concerned, 
with  the  exception,  perhaps,  of  its 
revenue  features.  The  courts  have  in 
one  or  two  rare  instances  given  a  jail 
sentence  to  drivers  who  have  been 
guilty  of  speeding  under  aggravating 
circumstances,  but  it  must  he  noted 
that  there  has  been  no  decrease  in  the 
evil. 

The  time  has  com©  for  automobilists 
themselves  to  take  active  steps  in  or- 
der to  protect  automobiling.  Instead 
of  asking  special  favors,  for  more  leni- 
ent regulations  and  for  the  privilege  of 
holding  illegal  speed  contests  on  the 
public  highways,  they  should  be  spend- 
ing their  time  devising  a  method  to  re- 
gain the  respect  which  they  should 
have  in  the  minds  of  the  public,  and  to 
protect  themselves  against  the  evils 
which  are  now  known  to  exist.  Auto- 
mobilists should  be  just  as  eager  to 
have  a  violator  of  the  law  prosecuted 
and  punished  as  the  public  officials  are, 
and  it  would  seem  that  the  proper, 
method  to  get  at  this  is  for  automo- 
bilists themselves  to  maintain  a  prose; 
cuting  department  which  will  be  en 
ergetie  and  actjtve. 


Historical.  25 

contrivance  is  compatible  with  the  general  use  and  safety  of 
the  road."  ^ 


Sec.  32.  Highways  open  to  new  uses. 

When  the  highway  is  not  restricted  in  its  dedication  to  some 
particular  mode  or  use,  it  is  open  to  all  suitable  methods ;  and 
it  cannot  be  assumed  that  these  will  be  the  same  from  age  to 
age,  or  that  new  means  of  making  the  way  useful  must  be  ex- 
cluded merely  because  their  introduction  may  tend  to  the  in- 
convenience or  even  to  the  injury  of  those  who  continue  to 
use  the  road  after  the  same  manner  as  formerly.  A  highway 
established  for  the  general  benefit  of  passage  and  traffic  must 
admit  of  new  methods  of  use  whenever  it  is  found  that  the 
general  benefit  requires  them.' 

Sec.  33.  Tendencies  in  legislation. 

The  automobile  legislation  in  the  United  States  was  origin- 
ally framed  upon  the  theory  of  regulation,  in  so  far  as  regis- 
tration requirements  Avere  concerned.  In  some  of  the  States 
there  has  been  a  disposition  to  exact  revenue  from  automo- 
bilists  under  the  licensing  power  of  the  government.  The 
revenue  features  of  the  automobile  laws,  so  far  as  they  inter- 
fere with  the  right  of  transit  from  State  to  State,  are  clearly 

4.  Indiana  Springs  Co.  v.  Brown,  165  28  L.  R.  A.  310;  Carli  v.  Stillwater  St. 
Ind.  465,  74  N.  E.  615,  1  L.  R.  A.  (K  Ry.  &  Transfer  Co.,  28  .Minu.  373,  10 
S.)    238,  6  Ann.  Cas.  656.  X.  W.  205,  41  Arn.  Rep.  290. 

5.  Illinois. — People  v.  Marshall  Field  .A'ew  York. — Xason  v.  West,  31  Misc. 
&  Co.,  266  111.  609,  107  N.  E.  864.  583,  65  N".  Y.  Supp.  651. 

Indiana. — Indiana     Springs     Co.     v.  Penn^sylvania. — Lockhart  v.  Craig  St. 

Brown,   165  Ind.  465,   74  N.  E.  615,   1  Ry,  Co.,  139  Pa.  St.  419.  21  Atl.  26,  3 

L.  R.  A.  (N.  S.)  238,  6  Ann.  Cos.  656.  Am.  Eleo.  Cas.  314. 

Mclntyre  v.  Ornor,  166  Ind.  57,  76  N.  Any     method     of.    travel     may     be 

E.   750,  4  L.  R.   A.    (N.   S.)    1130,  117  adoiptcd   by   iiulividual   members  of  the 

Am.  St.  Rep.  359,  8  Ann.  Cas.  1087.  public  which  is  an  ordinary  method  of 

Maine. — Towhr    v.    ]Morse,     103     ile.  locomotion    or    even    an    extraordinary 

250,  69  Atl.  1044.  method,  if  it  is  not  of  itself  calculated 

Michigan. — Macomber   v.  Nichols,   34  to  prevent  a  reasonably  safe  use  of  the 

Mich.  212,  S2  Am,  Rep.  522.  streets  by  others.     Chicago  v.  Banker, 

Minnesota. — Carter    v.    Xortluvestern  112  111.  App.  94. 
Tel.  Exeh..  GO  Minn.  539.  63  N.  W.  Ill, 


26  The  Law  of  Automobiles. 

unauthorized,  since  the  police  powers  of  the  States  do  not 
permit  of  such  taxation.^ 

The  New  York  motor  vehicle  law  of  1904  has  been  widely 
copied  throughout  the  Union.  This  statute  has,  however, 
proven  to  be  inadequate  and  has  since  been  amended. 

Effort  has  been  made  to  persuade  Congress  to  enact  a  Fed- 
eral automobile  registration  law  on  the  theory  that  interstate 
travel  for  pleasure  constitutes  interstate  commerce.  This  has 
failed.  It  is  doubted  that  interstate  automobile  travel  con- 
stitutes interstate  commerce,  but  it  is  suggested  that  such  a 
measure  might  be  within  the  domain  of  Congress  if  framed 
upon  the  theory  of  protecting  the  interstate  commerce  actually 
carried  on  over  interstate  highways. 

One  of  the  developments  in  motor  vehicle  legislation  has 
been  the  appearance  of  a  movement  to  have  enacted  uniform 
automobile  laws  in  the  various  States.  Such  lawis  would 
greatly  facilitate  interstate  touring  and  commercial  travel, 
but  it  seems  hardly  possible  to  have  many  States  enact  the 
same  kind  of  a  motor  vehicle  law  since  conditions  are  different 
in  the  different  jurisdictions.  Moreover,  the  registration  or 
license  fees  adequate  for  one  State  would  under  certain  con- 
ditions, due  to  the  number  of  automobiles  and  the  location  of 
the  State,  be  insufficient  for  another  State.  Precise  uniformity 
in  automobile  legislation  throughout  the  United  States  does 
not,  however,  at  the  present  time  seem  reasonably  probable. 

Sec.  34.  Tendencies  in  judicial  decisions. 

That  the  courts  reflect  public  sentiment  is  well-known.  This 
is  as  it  should  be,  provided  no-  positive  rule  of  law  is  warped 
or  violated,  since  public  sentiment  is  most  always  right 
However,  the  courts  should  not  blind  their  eyes  to  reason, 
and,  merely  because  there  happens  to  be  some  local  and  tem- 
porary public  agitation  concerning  the  automobile  due  to  an 
automobile  collision,  for  example,  manifest  the  slightest  pre- 
judice against  the  automobilist.  All  the  courts  of  the  United 
States  before  whom  the  question  as  to  whether  the  automo- 
bile is  an  agency  dangerous  per  se,  have  emphatically  held  that 

6.  Orandall  v.  Nevada,   6  WaU.    (U.  S.)   35,  18  L.  Ed.  745. 


Historical.  27 

it  is  not  per  se  dangerous.  The  Appellate  Division  of  the 
Supreme  Court  of  Neiv  York  has  declared  that  the  automobile 
is  no  more  dangerous  per  se  than  a  carriage.  The  sound 
judicial  tendency  has  been  to  enlarge  the  motorist's  rights 
consistent  mth  the  safety  of  the  public.^ 

7,  See  sections  36,  37,  as  to  dangerous  iiatuip  of  automobile. 


28  The  Law  of  Automobiles. 

CHAPTER  III. 

NATURE  AND  STATUS  OF  AUTOMOBILE. 

Section  35.  Automobile  not  merely  a  machine. 

36.  Automobile  as  a  dangerous  machine. 

37.  Not  dangerous  per  se. 

38.  Adverse  judicial  statements. 

39.  Status  of  automobilist. 

40.  Motive  power  as  affecting  status. 

41.  Comparison  of  automobiles  and  horse-drawn  vehicles. 

42.  Advantages  over  animal-drawn  vehicles. 

43.  Tendency  to  frighten  horses. 

44.  Automobiles  as  carriers. 

45.  As  a  tool  or  implement  of  trade.  • 

Sec.  35.  Automobile  not  merely  a  machine. 

The  automobile  is  something  more  than  a  mere  machine. 
The  mechanical  part  of  the  motor  vehicle  is  only  a  substitute 
for  animal  power.  Aside  from  its  novel  method  of  propulsion 
and  guidance,  the  automobile  is  not  substantially  different 
from  any  other  ordinary  vehicle  which  travels  on  the  public 
ways.  However,  it  possesses  many  characteristics  which  take 
it  out  of  the  category  of  the  older  means  of  transportation,  as 
will  be  seen  later  on.  As  has  been  said  before,  it  is  a  carriage, 
and  a  vehicle,  and  not  only  is  it  a  most  efficient  means  of  trans- 
portation, but  it  constitutes  a  most  useful  mode  of  road  travel- 
ing either  for  pleasure  or  profit.  It  is  hardly  necessary  to 
mention  that  an  automobile  is  personal  property,  and  the  fact 
that  it  is  property,  affords  to  the  owner  the  protection  of  con- 
stitutional provisions,  both  State  and  Federal,  relating  to 
taxation  and  interstate  transit.^ 

1.  Not  a  machine  merely. — See  Baker  very  peculii>  r  fancy  or  ta§te,  but  it  is 

V.  City  of  Fall  Eiver,  187  Mass.  53,  72  not  a  common,  gross  thing,  like  a  road 

N.  E.  336.  M'agon  or  an  ox  cart."    The  decision  in 

Not  a  work  of  art. — The  nature   of  I  his  case  had  to  do  with  the  rights  of 

an    automobile  was    considered   in   the  r.    purchaser  of   an   automobile,   where 

case  of  Walker  v.  Grout  Bros.  Automo-  the  manufacturer  agreed  that  the  au- 

bile  Co.,  124  Mo.  App.  628,  102  S.  W.  tomobile    would    be    "satisfactory"    to 

25,  and  the  court  says:     "An  automo-  Ihe  purchaser.     Tlie  court  held  that  in 

bile  is  not  a  work  of  art,  nor  a  ma-  case  the    purchaser   is  dissatisfied   un- 

ohine    about    which    there   ca,n    be    any  der    such    an    agreement,    the    machine 


Nature  and  Status  of  Automobile. 


29 


Sec.  36.  Automobile  as  a  dangerous  machine. 

It  is  believed  to  be  a  common  opinion  among  many  that  the 
automobile  constitutes  a  dangerous  machine,  and  that  the 
operation  of  the  motor  vehicle  on  the  public  thoroughfares  is 
necessarily  hazardous.  This  is  a  mistaken  view.  The  motor 
carriage  is  not  to  be  classed  with  railroads,  which,  owing  to 
their  peculiar  and  dangerous  character,  are  subject  to  legis- 
lation imposing  many  obligations  on  them  which  attach  to  no 

others. " 

Certainly  a  motor  vehicle  is  not  a  machine  of  danger  when 
controlled  by  an  intelligent,  prudent  driver.  The  hazard  in 
many  cases  to  which  the  safety  of  the  public  may  be  exposed, 
results  from  the  personal  part  played  in  motoring,  rather  than 
from  the  nature  of  the  vehicle.^    So  it  is  declared  not  to  be  an 


may  be  returned  and  the  price  re- 
covered back,  no  matter  of  the  pur- 
cJiaser's  dissatisfaction  is  unreasonable 
or  groundless. 

The  right  of  transit  tlirough  each 
State  with  every  species  of  property 
known  to  the  Ck)nstitution  of  the 
United  States,  and  recognized  by  that 
paramount  law,  is  secured  by  that  in- 
strument to  each  citizen,  and  does  not 
depend  upon  the  uncertain  and  change- 
abla  ground  of  mere  comity.  Ex  parte 
Archy,  9  Cal.  147.  The  following  cases 
are  cited  by  the  court:  Lydia  v.  Ea.n- 
kin,  2  A.  K.  Marsh.  (Ky.)  820;  Wil- 
lard  V.  People,  4  Scam.  (111.)  461; 
Julia  V.  McKinney,  3  Mo.  272.  The 
principal  case  cit«d  here  is  in  line  with 
the  decision  in  Crandall  v.  Nevada,  6 
Wall.  (U.  S.)  35,  IS  L.  Ed.  745.  The 
bearing  which  these  decisions  have  on 
the  right  of  the  Federal  government  to 
regulate  interstate  automobile  travel  is 
of  the  utmost  importance.  Interstate 
transit  can  no  more  be  taxed  tlian  in- 
terstate commerce. 

Replevin. —  To  maintain  an  action  of 
replevin  for  an  automobile,  sole  o^vn- 
ership  in  the  plaintiff  is  not  essential, 
because  he  may  recover,  though  not  the 
sole  o^vner,  as  against  a  stranger  hav- 


ing neither  title  nor  right  of  posses- 
sion, if  he  has  an  interest  and  is  en- 
titled to  possession  of  the  maehinc. 
Thus,  in  certain  cases  a  tenant  in  com- 
mon may  maintain  an  action  in  his 
cwn  name  to  recover  possession  of  per- 
sonal property  from  a  stranger,  in  the 
absence  of  special  circumstances  going 
to  show  the  necessity  of  any  other 
party  plaintiff.  Swenson  v.  Wells,  140 
Wis.  316,  122  N.  W.  724. 

2.  Jones  v.  Hoge,  47  Wash.  663,  92 
Pac.  433,  125  Am.  St.  Rep.  915,  14  L. 
R.  A.  (X.  S.)-216.  See  also  Baldwin 
on  American  Railroad  I>aw,  p.  217. 
And  see  sections  414,  624. 

Text  criticized. — In  Southern  Cotton 
Oil  Co.  V.  Anderson  (Fla.),  86  So.  629, 
the  statement  in  the  text  was  severely 
criticized.  It  is  sufficient  rebuttal  to 
state  that  the  conclusion  reached  in 
that  decision  is  contrary  to  the  rule 
established  by  the  courts  of  last  re- 
sort in  practically  every  other  state. 

Automobile  is  not  a  nuisance.— Gas - 
kins  V.  Hancock,  156  X.  C.  56.  72  X. 
E.  SO. 

3.  Karpeles  v.  City  Ice  Delivery  Co , 
19S  Ala.  552,  73  So.  642;  I^ewis  v. 
Amorous,  3  Ga.  App.  50,  59  S.  E.  338. 
"While  automobiles  may  not  be  classed 


30 


The  Law  of  Automobiles. 


agency  so  dangerous  as  to  render  the  owner  liable  for  in- 
juries to  travelers  on  the  highway  inflicted  thereby  while 
being  driven  by  another,  irrespective  of  the  relation  of  master 
and  servant  or  agency  as  between  the  driver  and  the  owner." 
So  in  the  case  of  an  owner  of  an  automobile  for  hire  it  is 
held  that  such  a  vehicle  is  not  of  itself  so  dangerous  as  to  re- 
quire the  owner,  before  entrusting  another  with  its  custody, 
to  test  and  ascertain  the  competency  and  skill  of  the  customer. 
When  the  car  is  not  defective  so  as  to  render  it  incapable  of 
control  or  a  source  of  special  danger  a  situation  similar  to 
that  presented  where  a  liver}- -stable  keeper  who  wilfully  lets 
for  hire  an  animal  he  knoAvs  to  be  vicious  and  dangerous,  does 


as  per  se  dangerous  instrumentalities, 
yet  because  of  their  speed  and  weight 
they  may  suddenly  become  exceedingly 
dangerous  by  negligent  or  ineflScient 
use."  Anderson  v.  Southern  Cotton  Oil 
Co.,  73  Fla.  432,  74  So.  975. 

Motor  car  is  not  an  outlaw. — Mar- 
shall V.  Gowans,  20  Ont.  W.  R.  37,  42, 
3  Ont.  W.  N.  69. 

4.  Alabama. — Parker  v.  Wilson,  179 
Ala  361,  60  So.  150,  43  L.  R.  A.  (N. 
S.)  87. 

Georgia. — Fielder  v.  Davison,  139 
Ga.  509,  77  S.  E.  618. 

Indiana. — Premier  Motor  Mfg.  Co.  t. 
Tilford,  61  Ind.  App.  164,  111  N.  E. 
645;  Martin  v.  Lilly,  188  Ind.  139,  121 
N.  E.  443. 

Kansas. — Zeeb  v.  Bahnmaier,  103 
Kans.  599,  176  Pac.  326,  2  A.  L.  E. 
883. 

Kentucky. — "The  rule  of  law  applic- 
able to  the  care  and  protection  of 
dangerous  instrumentalities  does  not 
apply.  That  rule  requires  the  master 
to  exercise  a  proper  degree  of  care  to 
guard,  control  and  protect  dangerous 
instrumentalities  owned  or  operated  by 
him  and  to  respond  in  damages  for  an 
injury  incurred  by  reason  of  the  im- 
proper use  of  such  an  instrumentality 
by  a  servant  though  not  then  engaged 
in  the  performance  of  his  duties.    The 


inineiple  on  which  liability  is  founded 
in  such  cases  is  the  failure  of  the  mas- 
ter properly  to  keep  %vithin  his  control 
yuoh  dangeix>us  agencies.  Manifestly, 
an  automobile  which  becomes  danger- 
ous only  when  negligently  operated 
cannot  properly  be  placed  in  the  same 
category  with  locomotives,  dynamite, 
and  ferocious  animals.  Consequently 
the  courts  have  generally  rejected  this 
ground  of  liability."  Tyler  v.  Steph- 
an's  Adm'r,  163  Ky.  770,  174  S.  W. 
790. 

Mississippi. — ^Woods  v.  Clements,  113 
Miss.  720,  74  So.  422. 

Ifeic  Jersey. — Brunhoelzl  v.  Brandes, 
90  N.  J.  L.  31,  100  Atl.  163. 

New  York. — iSchultz  v.  Marrison,  91 
Misc.  248,  154  N.  Y.  Supp.  257. 

North   Carolina. — 'Linville  v.  Nissen, 
162  N.  Car.  95,  77  S.  E.  1096. 

Tennessee. — Core  v.  Resha,  204  S.  W. 
1149. 

Texas. — Allen  v.  Brand    (Civ.  App.), 
168  S.  W.  35. 

[JfaTi.— McFarlane    v.     Winters,     47 
Utah,  598,  155  Pac.  437. 

Washington. — .Jones  v.  Hoge,  47 
Wash.  663,  92  Pac  433,  125  Am.  St. 
Rep.  915,  14  L.  R.  A.  (N.  S)  216; 
Birch  v.  Abercrombie,  74  Wash.  486, 
133  Pac.  120,  135  Pac.  821. 
And  see  section  623,  et  seq. 


Nature  and  Status  of  Automobile. 


31 


not  exist.  The  situation  rather  is  similar  to  that  of  one  who 
hires  a  horse  or  team  and  the  same  rule  of  liability  applies  in 
the  case  of  an  injury  caused  by  negligence  either  in  the  care 
or  management  of  either  instrumentality.^ 

It  is  evident,  therefore,  that  it  is  generally  the  manner  of 
driving  the  vehicle,  and  that  alone,  which  threatens  the  safety 
of  the  public.  The  ability  immediately  to  stop,  its  quick  re- 
sponse to  guidance,  its  unconfined  sphere  of  action,  would 
tend  to  make  the  automobile  one  of  the  least  dangerous  of 
conveyances.*'    A  different  situation,  however,  is  presented  in 


5.  Neubrand  v.  Kraft,  169  Iowa,  444, 
151  N.  W.  455,  457,  Judge  Weaver 
said  in  this  case:  "It  is  next  said 
that  an  automobile  is  of  such  char- 
acter that  while  perhaps,  not  per  se  a 
dangerous  instrument,  it  may  easily 
become  such,  and  the  owner  is  there- 
fore Ibound  to  the  exercise  of  greater 
care  than  would  be  required  were  there 
less  danger  in  its  operation.  There  is 
more  or  less  danger  in  the  use  of  ve- 
hicles of  any  kind.  The  motor  cycle, 
the  bicycle,  the  stage  coach,  the  ordin- 
ary carriage  drawn  by  horses,  all  have 
their  possibilities  of  peril,  and  there 
is  room  for  difference  of  opinion  con- 
cerning the  various  degrees  of  danger 
to  be  apprehended  therefrom.  The 
great  body  of  those  who  use  the  vari- 
ous instrumentalities  of  travel  are  per- 
sons of  ordinary  prudence,  while  the 
incompetent  or  negligent  is  the  excep- 
tion. The  fact  that  here  and  there  a 
driver  carelessly  or  recklessly  converts 
his  vehicle  into  an  engine  of  injury  or 
destruction  to  others  is  not  a  sufficient 
reason  for  requiring  the  owner  of  such 
vehicles  for  hire  to  test  and  ascertain 
the  competency  and  skill  of  every  cus- 
tomer before  intrusting  him  with  the 
custody  of  a  car.  Nor  is  there  any 
likeness,  as  counsel  seems  to  think,  be- 
tween this  ease  and  that  of  the  livery 
stable  keeper  who  willfully  lets  for 
hire  an  animal  he  knows  to  be  vicious 
or  (lamjerous.     If  the  car  in  this  case 


was  defective  in  some  respect  which 
rendered  it  incapable  of  control  or 
made  it  a  source  of  special  danger, 
and  defendants  had  allowed  it  to  go 
out  in  that  condition  and  thereby 
plaintiff  had  been  injured,  a  very  dif- 
ferent question  would  be  presented. 
But  so  far  as  shown  the  car  was  in 
perfect  condition,  and  the  sole  cause  of 
plaintiff's  injury  was  the  carelessness 
or  forgetfulness  of  Kraft  who,  in  an 
emergency,  threw  a  lever  the  .  wrong 
way,  thereby  causing  a  sudden  acceler- 
ation of  speed  instead  of  checking  it 
as  he  intended.  Had  he  been  driving 
a  hired  team  and  in  some  way  had 
heedlessly  got  the  reins  crossed  in  his 
hands,  thereby  running  over  and  in- 
juring the  plaintiff,  counsel  would 
hardly  advise  his  client  that  the  owner 
of  the  outfit  was  liable  in  damages  for 
the  hirer's  negligence.  The  fact  that 
the  vehicle  in  this  case  happens  to 
have  been  an  auto  car  instead  of  a 
horse  and  buggy  or  a  coach  and  four 
calls  for  the  application  of  no  differ- 
ent rule." 

6.  Mclntyre  v.  Orner,  166  Ind.  57, 
76  N.  E.  750,  4  L.  R.  A.  (N.  S.)  1130, 
117  Am.  St.  Rep.  359,  8  Ann.  Cas. 
1087.  See  Yale  Law  Journal,  Dec., 
1905. 

"  The  danger  of  rapidly  moving  ma- 
chinery calls  for  the  exercise  of  care 
on  the  part  of  its  owner  to  avoid  dam- 
age  to    persons   lawfully   near  it.  .  .  . 


32 


The  Law  of  Automobiles. 


the  case  of  an  automobile  which,  by  reason  of  some  defect,  is 
not  thus  subject  to  the  control  and  guidance  of  the  driver  and 
of  which  defect  he  or  the  owner  for  whom  he  is  acting  in 
operating  the  machine  has  knowledge.  So  where  a  car  was 
in  such  a  condition  that  it  ran  at  full  speed,  which  it  was  im- 
possible to  lessen  or  regulate,  it  was  held  that  it  was  a  danger- 
ous instrumentality  when  operated  upon  a  highway  which 
other  parties  were  using.^    And  an  automobile  with  defective 


To  the  person  injured,  however,  such 
machinery  is  suggestive  of  danger,  and 
he  must  exercise  remarkable  care  ac- 
cordingly. And  disregard  of  such 
dinger  ...  is  contributory  negli- 
gence sufficient  to  bar  recovery.  2 
Jaggard  on  Torts,  862.  863. 

A   motor    car,    like    a    carriage    and 
pair,  is  in  itself  harmless  enough;  but 
if  the  caniage  is  driven  in  a  crowded 
thoroughfare  at  the  utmost  speed  that 
can   be  got   out   of  the   two   horses,   it 
becomes   to  all  intents  as  c'angerous  a 
vehicle,  and  as  much  an  instrximent  of 
terror,  as  a  motor  car  would  be  when 
driven    without    any    cont;ideration    or 
regard  for  the  safety  of  the  persons  in 
the    thoroughfare.      'I'he    gravamen    of 
tlie  indictmei.t  against  motorists   as   a 
class  is  that  a  large  proportion  of  the 
individuals       composing       that       class 
habitually     drive     their     motor     cars, 
whether  intentionally  or  inadvertently, 
with  a  total  disregard  for  the  safety  or 
comfort    of    other    persons    using    the 
road.      That   such    an   evil    exists    and 
that  active  means  should   be  t^ken      J 
secure     its     immediate     diminution 
suppression    cannot     l;e     denied.       llie 
proper    adjustment    of    the    respective 
rights  of  persons  owning  and  traveling 
in  motor  cars  and  of  persons  lawfully 
using   the   highivays   and   public   roads 
is  the  serious  problem  calling  for  solu- 
tion.    These  two  sections  of  the  public 
each  have  definite  legal  rights,  thougli 
there   seems   to   be    as  yet   a  very    in- 
definite   concej  t'on    of    the    nature    of 
such  rights.     Tlie  Justice  of  the  Peace, 


vol.   LXIX,  No.   o»,  p.   458. 

"  A  car  with  a  defective  brake  is  not 
such  an  immediately  dangerous  instru- 
ment as  to  render  a  railroad  company 
liable  to  any  one  injured  thereby,  in 
the  absence  of  contract  or  other  rela- 
tion."    2  Jaggard  on  Torts,  859. 

A  bicycle  is  in  itself  an  innocent  ve- 
hicle. It  is  entitled  to  the  rights  of 
tlie  road  (but  not  of  the  sidewalk) 
equally  with  a  carriage  or  other  ve- 
hicle; and,  if  it  is  going  at  such  a  rate 
of  speed  as  to  frighten  horses,  there  is 
liaWlity  on  the  part  of  t>e  ri'er  only 
when  his  want  of  care  can  ile  shown. 
Carriages  and  other  vehicles  drawn  by 
horsss  become  dangerous  because  of 
the  motion  given  to  them,  and  because 
cf  the  tendency  of  horses  to  run  away 
an!  otherwise  do  damage.  2  Jaggard 
on  Torts,  8-59. 

No  more  dangerous  than  horse  and 
carriage. — Cunningham  v.  Castle,  127 
App  Div.  (N.  Y.)  580,  111  N.  Y. 
Suppl  . '>^"^,/. 
yh  fex&s  Co.  V.  Veloz  (Tex.  Civ. 
iJ2  ^pp.),  162  S.  W.  377,  wherein  it  was 
'^said:  "The  mere  fact  that  an  auto- 
mobile is  in  a  bad  state  of  repair,  cer- 
tainly does  not  render  it  a  dangerous 
instrumentality,  but  this  was  not  the 
case  made  by  the  petition.  The  peti- 
tion in  addition  to  averring  that  the 
car  was  in  a  bad  state  of  repair, 
averred  that  this  condition  rendered  it 
unmanageable  and  uncontrollable  and 
caused  the  same  to  run  at  a  rapid  and 
excessive  rate  of  speed,  and  it  occurs 
to  us  that   a  car   in  such   a   condition 


Nature  and  Status  of  Automobile.  33 

wheels  may  be  classed  as  a  dangerous  ins trimien tali ty/^  So, 
too,  a  heavy  automobile  driven  by  a  small  boy  or  a  careless  or 
incompetent  driver  may  be  a  dangerous  menace  to  other 
travelers.^ 

Sec.  37.  Not  dangler ous  per  se. 

That  the  courts  have  refused  to  stamp  the  automobile  as  an 
inherently  dangerous  machine,  should  be  stated  at  the  outset. 
To  use  legal  phraseology,  the  motor  vehicle  is  not  considered 
in  law  as  dangerous  per  se.  The  fact  that  it  has  been  judicially 
established  that  the  automobile  is  not  inherently  dangerous, 
is  of  the  greatest  importance  to  automobilists  and  the  auto- 
mobile industry  of  the  United  States,  since  a  limit  has  now 
been  placed  upon  the  character  of  motor  vehicle  legislation 
which  may  constitutionally  be  enacted. 

The  Court  of  Appeals  of  Georgia  ^^  says,  concerning  the 
dangerous  character  of  automobiles:  ''It  is  insisted  in  the 
argument  that  automobiles  are  to  be  classed  with  ferocious 
animals,  and  that  the  law  relating  to  the  duty  of  the  owners 
of  such  animals  is  to  be  applied.  It  is  not  the  ferocity  of  the 
automobile  that  is  to  be  feared,  but  the  ferocity  of  those  who 

that  its  speed  cannut  be  regulated  and  away  when  properly  directed,  but  may 

its  course  controlled  is  one  of  the  most  do  all   of  these  Avhen  managed  by  an 

dangerous  instrumentalities  that  could  inexperienced,   incomp«tent,  or  reckless 

be    placed    upon    the    public    highway.  driver.     When   in  the  control  of  such 

This  being  the  case  made  by  the  sec-  a   one   it   becomes   an   exceedingly  de- 

ond  count  in  the  petition,  we  overrule  structive   agency   as    the  daily   toll   of 

the  first  assignment."  lives  and  the  many  injuries  to  persons 

8.  MacPherson  v.  Buic'  ACotor  Co.,  chronicled  by  the  newspapers  attest. 
217  N.  Y.  38:2,  111  N.  E.  lOt^^ert  ^'irm-  If  the  owner  of  such  agency  con.sent  to 
ing  160  N".  Y.  A  pp.  Div.  35,  145  rts  '  -  turn  it  over  to  the  control  of  an  incom- 
Sxipp.   462.                                                    ho  petent  or  reckless  chauffeur  he  is  not 

9.  Gardiner  v.  Soloman,  200  Ala.  deprived  of  any  legal  right  by  holding 
115,  75  So.  621;  Daily  v.  Maxwell,  him  liahle  for  its  negligent  operation 
153  Mo.  App.  415,  133  S.  W.  351;  when  in  such  control  and  a  greater  de- 
Schultz  v.  Marrison,  91  Misc.  (X.  Y.)  gree  of  safety  to  the  general  public  is 
248,  154  N".  Y.  Supp.  257;  Allen  v.  likely  to  follow.'  Stapletou  v.  Inde- 
Brand  (Tex.  Civ.  App.),  168  S.  W.  35.  pendent  Brewing  Co.,  198  (Mich.)  170, 
"It  is  true  that  the  automobile  has  be-  164  N.  W.  520,  L.  R.  A.  lOlS  A  916. 
come  so  perfected  that  it  may  not  be  .\nd  see  section  662. 

classed  as   a  'dangerous   instrumental-  10.  Lewis    v.   Amorous,    3    Ga.    App. 

ity'    when    intelligently   managed.      It       .")0,  59  S.  E.  338. 
will    not    shy.    balk,    back   up,    or    run 


34  The  Law  of  Automobiles. 

drive  them.  Until  human  agency  interferes  they  are  usually 
harmless.  While  by  reason  of  the  rate  of  pay  allotted  to  the 
judges  of  this  State,  few,  if  any,  have  ever  owned  one  of  these 
machines,  yet  some  of  them  have  occasionally  ridden  in  them, 
thereby  acquiring  some  knowledge  of  them;  and  we  have, 
therefore,  found  out  that  there  are  times  when  these  machines 
not  only  lack  ferocity,  but  assume  such  an  indisposition  to  go 
that  it  taxes  the  limit  of  human  ingenuity  to  make  them  move 
at  all.  They  are  not  to  be  classed  with  bad  dogs,  vicious  bulls, 
evil-disposed  mules,  and  the  like." 

The  Supreme  Court  of  WasJiington^^  says,  concerning  the 
automobile's  legal  status:  "We  do  not  believe  that  the  auto- 
mobile can  be  placed  in  the  same  category  as  locomotives,  gun- 
powder, dynamite,  and  similarly  dangerous  machines  and 
agencies.  It  is  true  that  the  operation  of  these  machines  is 
attended  with  some  dangers  not  conunon  to  the  use  of  ordinary 
vehicles,  and  Ave  believe,  and  have  already  held,  that  those 
who  operate  these  machines  must  be  held  to  that  degree  of 
care  Avhich  is  commensurate  with  the  dangers  naturally  inci- 
dent to  their  use." 

The  courts  of  the  various  States  of  the  United  States  have 
been  very  free  in  discussing  the  motor  car's  position  in  the 
law,  but  the  two  cases  above  quoted  are  among  the  leading 
and  most  important  of  all  the  legal  decisions  concerning  the 
automobile  or  its  operation.  Another  leading  case  is  that  of 
Cunningham  v.  Castle,  decided  by  the  Appellate  Division  of 
the  Supreme  Court  of  New  Yorh^  which  held  that  the  auto- 
mobile is  not  a  dangerous  device.  It  is  an  ordinary  vehicle  of 
pleasure  and  business.  It  is  no  more  dangerous  than  a  team 
of  horses  and  a  carriage,  or  a  gun,  or  a  sailboat,  or  a  motor 
launch.  And  a  similar  view  is  expressed  by  the  court  in  a 
later  case  in  New  Yorh}^ 

And  in  a  case  in  Wisconsin  it  was  held  that  an  automobile 
is  not  inherently  or  per  se  a  dangerous  machine  so  as  to  ren- 

11.  Jones  V.  Hoge,  47  Wash.  663,  92  12.  127  App.  Div.   (N.  Y.)    580,  111 

Pac.  433,  14  L.  R.  A.   (N.  S.)  216,  125       N.  Y.  Suppl.  1057. 

Am.  St.  Rep.  915.  13.  Vincent    v.    Seymour,    131    App. 

Div.  (N.  Y.)  200,  115  N.  Y.  Suppl.  600. 


Nature  and  Status  of  Automobile.  35 

der  its  owner  liable  on  that  ground  alone  for  injuries  result- 
ing from  its  use."  In  this  connection  the  court  said:  "We 
discover  nothing  in  the  construction,  operation  and  use  of  the 
automobile  requiring  that  it  be  placed  in  the  category  with  the 
locomotive,  ferocious  animals,  dynamite  and  «other  dangerous 
contrivances  and  agencies.  When  properly  handled  and  used 
automobiles  are  as  readily  and  effectually  regulated  and  con- 
trolled as  other  vehicles  in  common  use,  and  when  so  used 
they  are  reasonably  free  from  danger.  The  dangers  incident 
to  their  use  as  motor  vehicles  are  commonly  the  result  of  the 
negligent  and  reckless  conduct  of  those  in  charge  of  and 
operating  them,  and  do  not  inhere  in  the  construction  and  use 
of  the  vehicles.  It  is  well-known  that  the}''  are  being  devoted 
to  and  used  for  the  purpose  of  traffic  and  as  conveyances  for 
the  pleasure  and  convenience  of  all  classes  of  person's  and 
without  menace  to  the  safety  of  those  using  them  or  to  others 
upon  the  same  highway  when  they  are  operated  with  reason- 
able care.  The  defendant  cannot,  therefore,  be  held  liable 
upon  the  ground  that  the  automobile  is  a  dangerous  contriv- 
ance." 

And,  in  the  case  of  Mclntyre  v.  Orner,^^  the  Supreme  Court 
of  Indiana  says:  "There  is  nothing  dangerous  in  the  use  of 
an  automobile  when  managed  by  an  intelligent  and  prudent 
driver.  Its  guidance,  its  speed,  and  its  noise  are  all  subject  to 
quick  and  easy  regulation,  and  under  the  control  of  a  compe- 
tent and  considerate  manager  it  is  as  harmless,  or  may  soon 
become  as  harmless,  on  the  road,  as  other  vehicles  in  common 
use.  It  is  the  manner  of  driving  an  automobile  «n  the  high- 
way, too  often  indulged  in  hj  thoughtless  pleasure  seekers  and 
for  the  exploitation  of  a  machine,  that  constitutes  a  menace  to 
public  safety." 

And  in  a  case  in  New  Hampshire  it  is  said:  "There  is 
nothing  inherently  dangerous  in  an  automobile,  any  more 
than  about  an  axe.  Both  are  harmless  so  long  as  no  one  at- 
tempts to  use  them,  and  both  are  likely  to  injure  those  who 

14.  Steffen  v.  McNaughton,  142  Wis.  15.  106  Ind.  57,  76  N.  E.  7.50,  4  L.  R. 

49,  124  N.  W.  1016,  26  L.  E.  A.  (N.  S.)        A.  (N.  S.)  1130,  117  Am.  St.  Rep.  359, 
382,  19  Ann.  Cas.  1227.  8  Ann.  Cas.   1087. 


36 


The  Law  of  Automobiles. 


come  in  contact  with  them  when  they  are  used  for  the  purpose 
for  which  they  were  intended.  "^^ 

These  views  are  also  endorsed  in  other  later  decisions/^  so 
that  the  status  of  the  automohile  as  a  machine  which  is  not 
dangerous  per  se  may  be  regarded  as  settled. 


Sec.  38.  Adverse  judicial  statements. 

Adverse  judicial  statements  have  sometimes  been  made  by 
the  courts  when  considering  the  dangerous  nature  of  motor 


16.  Danforth  v.  Fisher,  75  N.  H.  Ill, 
71  Atl.  535,  21  L.  R.  A.  (N.  S.)  93,  139 
Am.  St.  Rep.  670. 

17.  Alabama.- — Parker  v.  Wilson,  179 
Ala.  361,  60  So.  150,  42  L.  R.  A.  (N.  S.) 
87;  Karpeles  v.  City  Ice  Delivery  Co., 
198  Ala.  iio,  73  So.  642. 

Florida. — Anderson  v.  Southern  Cot- 
ton Oil  Co.,  73  Fla.  432,  74  So.  975. 

Georgia. — Fielder  v.  Davidson,  139 
Ga.  509,  77  S.  E.  618. 

Indiana. — "Automobiles  are  not  to 
be  regarded  in  the  same  category  with 
locomotives,  ferocious  animals,  dyna- 
mite, and  other  dangerous  contrivances 
and  agencies. ' '  Priemer  Motor  Mfg.  Co. 
v.  Tilford,  61  Ind.  App.  164,  111  X.  E. 
645. 

Iowa. — Landry  v.  Overson,  174  N.  W. 
255. 

Kentucky. — Tyler  v.  Stephen 's 
Adm'r,  163  Ky.  770,  174  S.  W.  790. 

Michigan. — Hartley  v.  Miller,  165 
Mich.  115,  130  N.  W.  336,  33  L.  R.  A. 
(N.  S.)  81;  Brinkman  V.  Zuckerman,  192 
Mich.  624,  159  N.  W.  316;  Stapleton  v. 
Independent  Brewing  Co.,  198  Mich. 
170,  164  N.  W.  520,  L.  R.  A.  1918  A. 
916. 

Mississippi. — Woods  v.  Clements,  113 
Miss.  720,  74  So.  422. 

Missouri. — ' '  The  automobile  is  not  of 
itself  a  necessarily  dangerous  agency, 
like  an  animal  ferae  naturae,  so  that  it 
cannot  lawfully  be  driven  on  a  highway, 
nor  is  it  a  Juggernaut,  purposely  con- 
structed to  crush  out  the  lives  of  men. 


but  by  reason  of  its  great  weight  and 
power  which  it  may  be  propelled  it  be- 
comes exceedingly  dangerous  to  the 
lives  and  limbs  of  others  on  the  high- 
ways and  to  the  driver  and  occupants  of 
the  car,  unless  the  highest  care  and 
caution  is  used  by  the  driver,"  Jack- 
son V.  Southwestern  Bell  Telep.  Co., 
(Mo.)    219  S.  W.  655. 

Neio  Jersey. — Brunhoelzl  v.  Brandes, 
90  N.  J.  L.  31,  100  Atl.  163. 

New  YorTc. — Towers  v.  Errington,  78 
Misc.  297,  138  N.  Y.  Suppl.  119. 

North  Carolina. — Lineville  v.  Nissen, 
162  N.  C.  95,  77  S.  E.  1096. 

Tennessee. — Core  v.  Resha,  204  S.  W. 
1149. 

Texas. — Texas  Co.  v.  Veloz  (Civ. 
App.),  162  S.  W.  377;  Allen  v.  Brand 
(Civ.  App.),  186  S.  W.  35. 

Washington.— ^'  Am  automobile  is  not 
necessarily  a  dangerous  device.  It  is 
an  ordinary  vehicle  of  pleasure  and 
business.  It  is  no  more  dangerous  per 
se  than  a  team  of  horses  and  a  carriage, 
or  a  gun,  or  a  sailboat,  or  a  motor 
launch.  It  is  not  to  be  classed  with 
what  are  commonly  called  'dangerous 
instrumentalities,'  such  as  ferocious 
animals,  dynamite,  gunpowder,  and 
other  inherently  dangerous  contrivances 
or  agencies.  While  more  nearly  ap- 
proximating a  locomotive,  the  ordinary 
automobile  differs  materially  therefrom. 
It  is  not  an  article  or  a  machine  of  an 
inherently  dangerous  nature.  Alone 
and  of  itself  it  will  not  move,  explode, 


Nature  and  Status  of  Automobile. 


vehicles.^^  Thus,  the  Supreme  Court  of  Illinois  has  held  that 
it  is  a  matter  of  common  knowledge  that  an  automobile  is  likely 
to  frighten  horses.  It  is  propelled  by  a  power  within  itself, 
is  of  unusual  shape,  is  capable  of  a  high  rate  of  speed,  and 
produces  a  puffing  noise  when  in  motion.  All  this  makes  such 
a  horseless  vehicle  a  source  of  danger  to  pedestrians  and  per- 
sons traveling  on  the  highway  in  vehicles  drawn  by  horses.^' 
And  the  Supreme  Judicial  Court  of  Massachusetts  has  de- 
clared that  automobiles  are  capable  of  being  driven,  and  are 
apt  to  be  driven,  at  such  a  high  rate  of  speed,  and  when  not 
properly  driven  are  so  dangerous  as  to  make  some  regulation 
necessary  for  the  safety  of  other  persons  on  the  public  ways.^'' 
So,  too,  in  a  case  in  Kentitcky  it  is  said:  ''An  automobile 
is  nearly  as  deadly  as,  and  much  more  dangerous  than,  a  street 
car  or  even  a  railroad  car.  These  are  propelled  along  fixed 
rails,  and  all  that  the  traveling  public  has  to  do  to  be  safe  is 
to  keep  off  the  tracks ;  but  the  automobile,  with  nearly  as  much 
weight  and  more  rapidity,  can  be  turned  as  easily  as  can  an 


or  do  any  iujuiy  to  any  one."  "Walters 
V.  City  of  Seattle,  97  Wash.  657,  167 
Pac.   124. 

18.  McFern  v.  Gardner,  121  Mo.  App. 
1,  97  S.  W.  972;  Hall  v.  Compton,  130 
Mo.  App.  675,  108  S.  W.  1122;  In- 
graham  V.  Storkamore,  G3  Misc.  (N.  Y.) 
114,  118  N.  Y.  Supp.  399;  Moore  v. 
Reddie,  103  Wash.  386,  174  Pac.  648. 
But  see  correction  made  by  opinion  on 
rehearing  in  Moore  v.  Roddic,  106 
Wash.  548,  180  Pac.  879.  See  also  Wil- 
liams V.  Rapcr,  139  Ga.  811,  78  S.  E. 
253. 

19.  Christy  v.  Elliot,  216  111.  31,  1  L. 
R.  A.  (N.  S.)  215,  74  N.  E.  1035,  3 
Ann.  Cas.  487,  108  Am.  St.  Rep.  196. 
And  see  chapter  XX  as  to  frightening 
horses. 

20.  Commonwealth  v.  Boyd,  188 
Mass.   79,  74  N.  E.  255. 

In  Commonwealth  v.  Kingsbury,  199 
Mass.  542,  85  N.  E.  848,  the  Supreme 
Judicial  Court  of  Massachusetts,  in 
holding  that  the  regulation  of  the  use 
of  automobiles  on  particular  roads,  oven 


to  their  complete  exclusion  therefrom, 
is  within  the  police  power,  with  a  view 
to  the  safety  of  the  public,  says: 
"Automobiles  are  vehicles  of  great 
speed  and  power  whose  appearance  is 
frightful  to  most  horses  that  are  un- 
accustomed to  them.  The  use  of  them 
introduces  a  new  element  of  danger  to 
ordinary  travelers  on  the  highways,  as 
well  as  to  those  riding  in  the  automo- 
biles. In  order  to  protect  the  public 
great  care  should  be  exercised  in  the  use 
of  them.  Statutory  regulation  of  their 
speed  while  running  on  the  highways 
are  reasonable  and  proper  for  the  pro- 
motion of  the  safety  of  the  public.  It 
is  the  duty  of  the  legislature,  in  the  ex- 
ercise of  the  police  power,  to  consider 
the  risks  that  arise  from  the  use  of  in- 
ventions applying  the  forces  of  nature 
in  previously  unknown  ways.  The  gen- 
eral principal  is  too  familiar  to  need 
discussion.  It  has  been  applied  to  auto- 
mobiles in  the  different  States  with  the 
approval  of  the  courts." 


38  The  Law  of  Automobiles. 

individual,  and  for  this  reason  is  far  more  dangerous  to  the 
traveling  public  than  either  the  street  car  or  the  railway- 
train. "  21 

As  a  general  proposition,  however,  the  condemnation  of  the 
courts  is  directed  to  the  careless  driving  of  automobiles  rather 
than  to  the  machines  themselves.  But  it  may  be  forcibly 
argued  that  an  automobile  is  more  dangerous  than  a  street 
car,  because  the  latter  travels  on  a  fixed  track  and  is  thus 
more  easily  avoided  by  other  travelers.^^  Likewise,  it  is  proper 
to  consider  it  more  dangerous  than  other  vehicles.^^* 

Thus,  it  was  said  in  South  Carolina,  in  discussing  a  statute 
which  imposed  a  lien  on  automobiles  for  injuries  occasioned 
thereby:  "Motor  vehicles  are  a  new  and  comparatively  a 
modern  means  of  locomotion.  They  are  unquestionably  dan- 
gerous, and  can  and  do  destroy  property,  kill  and  maim  people 
as  much  as  locomotives  and  engines  and  cars  on  railroad 
tracks.  The  only  difference  being  that  railways  are  operated 
on  tracks  owned  by  them  where  no  one  else  has  the  right  as 
a  matter  of  right  to  travel,  and  motor  vehicles  are  operated 
on  highways  where  the  public  generally  has  the  right  to  travel. 
The  railroads  are  generally  able  to  respond  in  damages  for 
any  damages  wilfully  and  negligently  inflicted  by  them."^^ 

Sec.  39.  Status  of  automobilist. 

How  is  the  automobilist  considered  by  the  courts?  it  may- 
be asked.  Is  he  to  be  looked  upon  invariably  as  a  speed 
maniac'?  A  violator  of  the  rights  of  the  people  on  the  public 
highways?  After  being  convicted  of  speeding,  a  criminal? 
As  between  the  inanimate  chattel,  the  automobile,  and  the 
automobilist,  the  latter  constitutes  a  more  appropriate  sub- 
ject of  legal  regulation.  "It  is  the  manner  of  driving  an  auto- 
mobile on  the  highway,  too  often  indulged  in  by  thoughtless 
pleasure  seekers  and  for  the  exploitation  of  a  machine,  that 

21.  Weil  V.  Kreutzer,   134  Ky.   563,       Cir.  Ct.  531. 

121  S.  W.  471,  24  L.  R.  A.  (N.  S.)  557n.  22a.  State  v.  Goldstone,  (Minn.)  175 

See  also,  CoUett  v.  Standard  Oil  Co.,  N.  W.  892. 

186  Ky.  142,  216  S.  W.  356.  23.  Merchants'  &  Planter's  Bank  v. 

22.  Chittenden  v.  Columbus,  26  Ohio  Brigman,  lO€  S.  Car.  362,  91  S.  E.  332. 


Nature  and  Status  of  Automobile.  39 

constitutes  a  menace  to  public  safety,"  says  the  Supreme 
Court  of  Indiana.^*  ''Until  human  agency  intervenes  they  are 
usually  harmless,"  says  the  Court  of  Appeals  of  Georgia?-'^ 
So  in  a  case  in  Canada  it  was  said :  "^^^lile  it  is  quite  true  a 
motor  is  not  an  outlaw,  it  must  also  be  borne  in  mind  that  the 
driver  is  not  the  lord  of  the  highway,  but  a  man  in  charge  of 
a  dangerous  thing,  and  so  called  upon  to  exercise  the  greatest 
care  in  its  operation."^® 

Sec.  40.  Motive  power  as  affecting  status. 

There  is  no  vehicle  operated  in  the  public  streets  and  high- 
ways that  bears  much  similarity  to  the  automobile.  The 
bicycle,  it  is  true,  occupies  a  unique  position  when  compared 
with  the  older  vehicles,  but  the  motor  carriage  occupies  a 
position  and  status  of  its  own.  The  motor  car's  freedom  of 
navigation,  speed,  control,  power,  purpose,  and  the  existence 
or  non-existence  of  noise  in  running  necessarily  stamps  the 
automobile  with  a  status  different  from  that  attached  to  other 
vehicles.  Especially  is  this  true  in  reference  to  the  motive 
power  and  its  application.  In  animal-drawn  vehicles  the 
power  is  from  the  front.  The  vehicle  is  drawn.  In  automo- 
biles the  power  is  generally  applied  from  the  carriage,  and 
the  vehicle  is  in  fact  pushed  along. 

Sec.  41.  Comparison  of  automobiles  and  hprse-drawn  vehicles. 
In  Watts  V.  Stroudsburg  Passenger  Railway  Company," 
the  court  compares  automobiles  and  horse-drawn  vehicles  as 
follows:  The  use  and  operation  of  the  ordinary  vehicle 
drawn  by  a  horse,  or  horses,  has  been  known  for  so  many 
years  that  every  man  is  charged  with  knowledge  as  to  the 
movement  of  such  and  the  ordinary  speed,  and,  therefore,  a 
horse  or  horses  and  wagon  happening  to  be  on  the  track  of  an 
electric  railway,  the  motomian  on  an  electric  car  is  bound  by 
the  knowledge  of  how  fast  the  horse,  or  horses,  can,  or  will, 

24.  Mclntyre  v.  Onier,   166  Ind.   57,       59  S.  E.  340. 

76  N.  E.  750,  4  L.  B.  A.   (N.  S.)  1130,  26.  Fisher  v.  Murphy,  20  Ont.  W.  R. 

117  Am.  St.  Rep.  359,  8  Ann.  Cas.  1087.       201,  3  Ont.  W.  X.   150. 

25.  Lewis  v.  Amorous,  3  Ga.  App.  50,  27.  34  Penn.  Co.  Ct.  Rep.  377. 


40  The  Law  of  Automobiles. 

ordinarily  travel,  and  he  must  operate  and  control  liis  car 
with  that  fact  taken  into  consideration.  The  movement  of  an 
automobile  has  no  such  certainty.  The  movement  of  the 
ordinary  horse  is  from  a  slow  walk  to  about  two  miles  an  hour 
to  a  trot  or  pace  of  probably  from  six  to  ten  miles  an  hour, 
the  latter  speed  very  rarely,  however,  being  reached  Avhen  a 
horse  is  traveling  between  the  tracks  of  an  electric  railway 
company.  The  speed  or  movement  of  an  automobile  is  any- 
where from  a  few  miles  an  hour  to  anywhere  between  twelve 
and  thirty  or  more  miles  an  hour.  It  is  within  common  ex- 
jperienee  that  they  glide  off  and  on  tracks,  run  behind  electric 
icars  and  then  turn  off  the  track,  run  around  the  cars  and  run 
on  the  track  again  and  easily  keep  ahead  of  a  car  moving  at 
an  ordinary  speed,  when  occasion  requires,  they  easily  move 
at  a  rate  of  speed  Avhich  the  trolley  does  not  often  obtain. 
■The  ordinary  man  knows  that  it  is  not  easy  for  a  person  to 
get  out  of  an  electric  railway  track  with  a  horse  and  wagon, 
por  can  it  be  accomplished,  ordinarily,  quickly.  The  horse 
cannot  move  fast  over  the  tracks,  and  the  wheels  of  the  wagon 
are  apt  to  slide ;  and  it  is  also  within  the  common  knowledge 
,of  people  living  in  communities  where  automobiles  are  used 
,that  they  can  easily  turn  in  and  out  of  electric  railway  tracks 
and  do  it  quickly. 

Sec.  42.  Advantages  over  animal-drawn  vehicles. 

The  advantages  of  the  automobile  over  animal-drawn  vehi- 
cles are  too  numerous  to  mention  in  a  work  of  this  nature. 
However,  there  are  one  or  two  advantageous  points  in  the 
motor  vehicle's  favor  which  should  be  mentioned.  We  have 
seen  that  there  is  an  alleged  element  of  danger  in  the  opera- 
tion of  the  horseless  carriage.  Aside  from  this,  however, 
every  other  characteristic  of  the  automobile  is  decidedly  in  its 
favor.  It  leaves  no  filth  in  the  streets.  It  is  the  most  sanitary 
.vehicle  that  travels  on  the  public  ways.  There  certainly  can 
.never  be  any  police  regulation  of  the  motor  car's  operation  on 
account  of  filth,  excepting  the  regulation  of  the  emission  of 
.smoke.  Automobiles  occupy  less  space  on  the  streets  and 
Jiighways  than  horse-drawn  vehicles.    The  superiority  of  the 


Nature  axd  Status  of  Automobile.  41 

automobile  in  these  matters  needs  no  further  discussion  to  be 
convincing. 

Sec.  43.  Tendency  to  frighten  horses. 

That  the  automobile  has  a  tendency  to  frighten  horses  un- 
accustomed to  its  appearance  must  be  conceded.  This  has 
been  one  of  the  worst  obstacles  to  motoring  and  driving,  and 
has  been  the  cause  of  much  litigation.  However,  horses  are 
fast  being  educated  to  the  sight  of  the  automobile,  and  when 
the  horses  generally  are  no  longer  frightened  at  its  appear- 
ance the  legislative  regulation  concerning  the  meeting  of 
horses  and  automobiles  on  the  road  will  be  no  longer  needed 
and  without  reason.  As  said  by  the  Supreme  Court  of  Cali- 
fornia: "Of  course,  if  the  use  of  automobiles  gradually  be- 
comes more  common,  there  may  come  a  time  when  an  ordinance 
like  the  one  here  in  question  [the  ordinance  prohibited  motor- 
ing at  night  on  country  roads]  would  be  unreasonable.  As 
country  horses  are  frequently  driven  into  cities  and  towns, 
many  of  them  mil  gradually  become  accustomed  to  the  sight 
of  automobiles,  and  the  danger  of  their  use  on  country  roads 
will  be  less."  -^ 

In  connection  witli  tliis  subject  it  is  of  interest  to  note  what 
has  been  said  by  the  Appellate  Division  of  the  Supreme  Court 
of  New  York:  "Since  the  automobile  has  come  into  use  upon 
our  streets  and  highways  these  accidents  [resulting  from 
frightening  horses]  have  been  common,  and  actions  to  recover 
damages  resulting  therefrom  have  been  frequent.  These  ma- 
chines may  be  used  on  the  public  highways,  but  horses  will 
also  continue  to  be  used  for  a  fime  at  least.  Both  may  be 
equally  used  as  motive  power  in  public  travel.  Some  horses 
are  frightened  when  they  meet  these  machines,  and  it  is  the 
duty  of  persons  running  the  machines  to  exercise  reasonable 
care  to  avoid  accident  when  horses  become  frightened.  It  is 
not  pleasant  to  be  obliged  to  slow  down  these  rapid-running 
machines  to  accommodate  j^^i'sons  driving  or  riding  slow 
country  horses  that  do  not  readily  become  accustomed  to  the 

28.  Ex  parte  Berry,  147  Cal.  523,  82  Pac.  44.      Antl  pee  (•liai)ter  XX,  as  to  the 
liability  for   frightening  horses. 


42  The  Law  of  Automobiles. 

innovation.  It  is  more  agreeable  to  send  the  machine  along, 
and  let  the  horse  get  on  as  best  he  may,  but  it  is  well  to  under- 
stand, if  this  course  is  adopted  and  accident  and  injury  re- 
sult, that  the  automobile  owner  may  be  called  upon  to  respond 
in  damages  for  such  injuries.  "^^ 

In  another  icase,^*^  the  court,  discussing  'the  relative  rights  of 
automobilists  and  the  drivers  of  horses,  said:  ''Being  heavy, 
powerful,  fast  and  noisy,  motors  cars,  if  carelessly  handled 
are  as  terrifying  as  they  are  dangerous.  A  reasonably  con- 
siderate person  in  the  situation  of  defendant  would  have 
•anticipated  the  danger  to  the  safety  of  the  occupants  of  the 
•buggy  in  running  his  car  headlong  in  such  close  proximity  to 
•the  horse.  The  possession  of  a  i  powerful  and  dangerous 
vehicle,  instead  of  giving  defendant  any  right  of  might,  im- 
posed on  him  the  duty  'of  employing  care  commensurate  to  the 
•risk  of  danger  to  others  endangered  by  the  presence  of  his 
vehicle  on  the  public  thoroughfare. ' ' 

Sec.  44.  Automobiles  as  carriers. 

An  automobile  may  be  used  as  a  common  carrier,  a  private 
■carrier,  or  a  personal  private  conveyance.  Public  motor 
vehicles,  such  as  sight-seeing  cars,  taxicabs,  and  others  Which 
are  employed  in  carrying  all  persons  applying  for  transpor- 
tation, come  within  the  definition  that  a  common  carrier  of 
passengers  is  one  who  undertakes  for  hire  to  carry  all  per- 
sons who  may  apply  for  passage.^^ 

A  corporation  authorized  by  its  charter  to  carry  passengers 
and  goods  by  automobiles,  taxicabs  and  other  vehicles,  but 
not  to  exercise  any  of  the  poVers  of  a  public  service  corpora- 
tion, and  which  does  such  business,  including  the  carrying  of 
passengers  to  and  from  railroad  teraiinals  and  hotels  under 
contract  therewith,  and  also  does  a  garage  business  with  indi- 
viduals, may  be  classed  as  a  common  carrier.^* 

29.  Murphy  v.  Wait,  102  N.  Y.  App.  A.  798,  29  Am.  St.  Rep.  &27.     And  see 
Div.  121,  92  N.  Y.  Suppl.  253.  .sections  131-134. 

30.  Hall  V.   Compton,   130  Mo.   App.  32.  Terminal    Taxicab    Co.    v.    Kutz, 
675,  108  S.  W.  1122.  241  U.  S.  252,  36  S.  Ct.  583,  modifying 

SI.  Gillingham  v.  Ohio  River  R.  Co.,       43   App.   D.  C.   120. 
35  W.  Va.  588,  14  S.  E.  243,  14  L.  R. 


Nature  and  Status  of  Automobil?:.  43 

But  to  constitute  one  a  common  carrier  it  is  necessary  that 
he  should  hold  himself  out  as  one.  A  carrier  of  passengers 
who  undertakes  to  carry  all  persons  who  apply  to  him  for 
transportation  is  engaged  in  a  public  employment,  and  is  a 
public  or  common  carrier  of  passengers.  ''A  common  car- 
rier of  passengers,"  says  Judge  Thompson,  *'is  one  who  un- 
dertakes for  hire  to  carry  all  persons  indefinitely  who  may 
apply  for  passage."  In  a  case  in  Massachusetts  where  an 
action  was  brought  to  recover  for  an  injury  to  one  while  a 
passenger  of  a  sight-seeing  automobile  carrying  about  twenty- 
five  persons,  it  appeared  that  the  owner  had  a  regular  stand 
from  which  the  automobile  started  and  that  the  business  was 
publicly  advertised  by  the  placing  of  tickets  for  the  trips  for 
Bale  at  different  places  in  the  city.  As  to  the  questions  of  the 
degree  of  care  required  and  whether  such  owner  was  a  com- 
mon carrier,  the  court  said:  "It  is  apparent  that  this  busi- 
ness much  more  resembled  a  public  than  a  private  carriage 
of  passengers,  and  whether,  in  a  strictly  technical  sense,  the 
defendant  could  be  regarded  as  a  conmion  carrier  of  passen- 
gers or  not,  we  are  of  opinion  that  she  was  bound  to  use  rea- 
sonable care  according  to  the  nature  of  the  contract,  and  that 
in  view  of  the  nature  of  the  business  and  the  peril  to  life  and 
limb  of  the  passengers  likely  to  arise  from  an  accident,  this 
reasonable  care  should  be  defined  as  the  highest  degree  of 
"Care  consistent  with  the  proper  transaction  of  the  business. ' '  ^ 

Sec.  45.  As  a  tool  or  implement  of  trade. 

It  has  been  thought  that  an  automobile  was  not  a  ''tool"  or 
''implement  of  trade"  within  the  meaning  of  laws  exempting 
such  articles  from  levy  or  attachment.^*  But  a  contrary  con- 
clusion has  been  reached  in  another  State  as  to  the  exemption 
of  an  automobile  as  an  "implement."'^ 

33.  HindB  v.   Steere,  209  Mass.  442,  85.  Wickham  v.  Traders  State  Bank, 
95  N.  E.  844.  95  Kans.  657,  149  Pac.  433.     See  also 

34.  Eastern  Mfg.  Co.  v.  Thomas,  68  Wickham    v.    Traders    State    Bank,    96 
S.  Car.  509,  64  S.  E.  401.  Kans.  350,  150  Pac.  513. 


44  The  Law  of  Automobiles. 

CHAPTER  IV. 

GENERAL  RIGHT  TO  USE  HIGHWAYS. 

Section  4G.  General  purposes  of  streets  and  highways. 

47.  New  means  of  transportation. 

48.  Right  of  automobilist  to  use  highways. 

49.  Equal  rights  of  automobilists  and  otlier  travelers. 

50.  No  superior  rights  for  automobilists. 

51.  Ferries  and  vessels, 

52.  Toll  roads. 

53.  Exclusion  of  non-residents. 

54.  Automobile  racing. 

55.  Setting  aside  highways  for  speed  contests. 

Sec.  46.  General  purposes  of  streets  and  hig^hways. 

Primarily,  the  general  purpose  of  streets  and  highways  is 
that  of  travel,  either  on  foot  by  a  pedestrian  or  in  a  vehicle 
propelled  by  animal  or  other  power.  The  members  of  the 
piiiblic  have  a  right  to  use  the  public  avenues  for  the  purpose 
of  travel  and  the  transportation  of  property.  It  is  improper 
to  say  that  the  driver  of  horses  has  rights  in  the  road  superior 
to  the  driver  of  an  automobile.  Both  have  the  right  to  use  the 
easement,  and  each  is  equally  restricted  in  the  exercise  of  his 
rights  by  the  corresponding  rights  of  the  other.^  Public  high- 
ways are  intended  for  the  use  of  travelers,  and  they  are  en- 
titled to  use  the  same  unobstructed  in  any  unusual  manner.^ 
So,  it  is  said  in  a  recent  case  in  Illinois: ,  ''The  customary  or 
usual  and  ordinary  use  of  a  street  is  for  travel  from  one  point 
to  another,  both  along  and  across  it.  The  use  of  a  street  by 
an  automobile  when  operated  with  due  care  and  caution  and 
not  in  violation  of  State  or  municipal  police  regulations,  would 
be  deemed  a  proper  and  lawful  one."^  In  this  connection  it 
may  also  be  said  that  laws  regulating  the  operation  of  motor 
vehicles  upon  the  public  highways  generally  contemplate  the 
use  of  such  highw^ays  for  any  lawful  purpose.* 

1.  Indiana  Springs  Co.  v.  Brown,  165       Ind.   5S5,   84   N.   E.   145,  23   L.  R.   A. 
Ind.  465,  74  N.  E.  615,  G  Ann.  Cas.  656,        (N.  S.)  946. 

1  L.  R.  A.   (N.  S.)  238.     And  see  sec-  3.  Jenkins  v.  Goodall,   183  111.  App. 

tion  49,  633,  637. 

2.  Ft.  Wayne  Cooperage  Co.  v.  Page  4.  Fitzsimnions    v.    Snyder,    181    111. 
(Ind.  App.),  82  N.  E.  83,  affirmed  170  App.  70. 


General  Right  to  Use  Highway.  45 

Sec.  47.  New  means  of  transportation. 

That  the  purposes  of  the  public  ways  contemplate  new  and 
improved  means  of  transportation  there  can  be  no  doubt. 
Travelers  are  not  confined  to  horses  and  ordinary  carriages. 
Animal  or  muscular  power  has  no  exclusive  or  superior  rights 
on  the  piiblic  avenues  of  travel.  The  use  to  which  the  public 
thoroughfare  may  be  put  comprehends  all  modern  means  of 
carrying,  including  the  electric  street  railroad  and  the  auto- 
mobile. Judge  Cooley  in  1876  said:  "Persons  nnaking  use 
of  horses  as  the  means  of  travel  by  the  highways  have  no 
rights  therein  superior  to  those  a\Oio  make  use  of  the  ways  in 
other  modes.  It  is  true  that  locomotion  upon  the  public  roads 
has  hitherto  been  chiefly  by  means  of  horses  and  similar  ani- 
mals, but  persons  using  them  have  no  prescriptive  rights,  and 
are  entitled  to  the  same  reasonable  use  of  the  ways  Avhich 
they  must  accord  to  all  others.  Improved  methods  of  locomo- 
tion are  perfectly  admissible,  if  any  shall  be  discovered,  and 
they  cannot  be  excluded  from  the  existing  public  roads,  pro- 
vided their  use  is  consistent  with  the  present  methods.  .  .  . 
When  the  highway  is  not  restricted  in  its  dedication  to  some 
particular  mode  of  use,  it  is  open  to  all  suitable  methods,  and 
it  cannot  be  assumed  that  these  Avill  be  the  same  from  age  to 
age,  or  that  new  means  of  making  the  way  useful  must  be  ex- 
cluded merely  because  their  introduction  may  tend  to  the  in- 
convenience or  even  to  the  injury  of  those  who  continue  to 
use  the  road  after  the  same  manner  as  formerly.  A  highway 
established  for  the  general  benefit  of  passage  and  traffic  must 
admit  of  new  methods  wherever  it  is  found  that  the  general 
benefit  requires  them."  ^  The  Supreme  Court  of  Illinois  has 
expressed  itself  as  follows :  ' '  To  say  that  a  new  mode  of  pas- 
sage shall  be  banished  from  the  streets,  no  matter  how  much 
the  general  good  may  require  it,  simply  because  streets  were 
not  so  used  in  the  days  of  Blackstone,  would  hardly  comport 

5.  Macomber   v.    Nicholas,    34    Mich.  conditions  arising  from  the  progress  of 

217,  22  Am.  Rep.  522.  invention  and  discovery.     The  ordinary 

"With    respect    to    the    methods    of  highway  is  open  to  all  suitable  methods 

travel  and  transportation   on  the  high-  of  use."     Towle  v.  Morse,  103  Me.  250, 

way,  as  in  all  other  spheres  of  action,  68  Atl.  1044. 
the  law  seeks  to  adapt  itself  to  the  new 


46  The  Law  of  Automobiles. 

with  the  advancement  and  enlightenment  of  the  present  age. ' '  ^ 
And  in  a  late  case  in  the  same  State  the  court  declares  that : 
"Public  rights  do  not  depend  upon  the  methods  of  travel 
recognized  at  the  time  the  streets  were  opened  or  such  public 
uses  as  have  been  sanctioned  by  long  continued  custom  and 
acquiescence.  The  use  of  the  streets  must  be  extended  to  meet 
the  new  needs  of  locomotion."  ^ 

Equivalent  viewS  have  been  stated  in  Minnesota,  in  the  fol- 
lowing language :  "If  there  is  any  one  fact  established  in  the 
history  of  society  and  of  the  law  itself,  it  is  that  the  mode  of 
exercising  this  (highway)  easement  is  expansive,  developing, 
and  growing  as  civilization  advances.  In  the  most  primitive 
state  of  society  the  conception  of  a  highway  was  merely  a 
footpath;  in  a  slightly  more  advanced  state  it  included  the 
idea  of  a  way  for  pack  animals ;  and  next  a  way  for  vehicles 
drawn  by  animals ;  constituting  respectively  the  iter,  the  actus, 
and  the  via  of  the  Romans.  And  thus  the  methods  of  using 
the  public  highways  expanded  with  the  growth  of  civilization 
until  to-day  our  urban  highways  are  devoted  to  a  variety  of 
uses  not  known  in  former  times,  and  never  dreamed  of  by  the 
owners  of  the  soil  when  the  public  easement  was  acquired. 
Hence  it  has  become  settled  law  that  the  public  easement  is 
not  limited  to  the  particular  methods  of  use  in  vogue  when  the 
easement  was  acquired,  but  includes  all  new  and  improved 
methods,  the  utility  and  general  convenience  of  which  may 
afterwards  be  discovered  and  developed  in  aid  of  the  general 
purpose  for  which  highways  are  designed. ' '  ^ 

And  the  same  principle  is  announced  by  the  Supreme  Court 
of  Indiana,  which  says:  "In  all  human  activities  the  law 
keeps  up  with  improvement  and  progress  brought  about  by 
discovery  and  invention,  and,  in  respect  to  highways,  if  the 
introduction  of  a  new  contrivance  for  transportation  purposes, 
conducted  with  due  care,  is  made  with  inconvenience  and  even 
incidental  injury  to  those  using  ordinary  modes,  there  can 
be  no  recovery  provided  the  contrivance  is  compatible  with 

6.  Moses  V.  Pittsburgh,  etc.  R.  Co.,  21       v.  Banker,  112  111.  App.  64. 

111.   515.  8.  Cater   v.   Northwestern    Telephone 

7.  People  V.  Field  &  Co.,  266  111.  609,  Exchange  Co.,  60  Minn.  539,  63  N.  W. 
618,  107  N.  E.  864.     See  also,  Chicago       111,  28  L.  R.  A.  310,  51  Am.  Eep.  543. 


General  Right  to  Use  Highway, 


47 


the  general  use  and  safety  of  the  road.  It  is,  therefore,  the 
adaptation  and  use,  rather  than  the  form  or  kind  of  contriv- 
ance, that  concerns  the  courts."  ^  In  other  jurisdictions,  simi- 
lar views  have  been  announced.^** 


9.  Indiana  Springs  Co.  v.  Bro\vii,  165 
Ind.  465,  74  N.  E.  615,  6  Ann.  Gas.  656, 
1  L.  R.  A.  (N.  S.)  238n. 

10.  "It  is  true  that  locomotion  upon 
the  public  roads  has  hitherto  been 
chiefly  by  means  of  horses  and  similar 
animals;  but  persons  using  them  have 
no  prescriptive  rights,  and  are  entitled 
only  to  the  same  reasonable  use  of  the 
ways  which  they  must  accord  to  all 
others.  Improved  methods  of  locomo- 
tion are  perfectly  admissible  if  any 
shall  be  discovered,  and  they  cannot  be 
excluded  from  the  existing  public  roads, 
provided  their  use  is  consistent  with  the 
present  methods.  A  highway  is  a  pub- 
lic way  for  the  use  of  the  public  in 
general  for  passage  and  traffic,  without 
distinction."  Patton-Worsham  Drug 
Co.  V.  Dreenon,  104  Tex.  62,  133  S.  W. 
871.  Automobiles  are  now  recognized 
as  legitimate  means  of  conveyance  on 
the  public  highway.  The  fact  that 
horses  unaccustomed  to  see  them  are 
likely  to  be  frightened  by  their  unusual 
sound  and  appearance  has  not  been 
deemed  sufficient  reason  for  prohibiting 
their  use,  but  it  is  an  element  in  the 
question  of  due  care  on  the  part  of  the 
drivers  of  both  horses  and  motor  cars 
and  a  consideration  to  be  entertained  in 
determining  whether  such  care  has  been 
exercised  to  avoid  accident  and  injury 
in  the  exigencies  of  the  particular  situa- 
tion." Towle  v.  Morse,  103  Me.  250, 
68  Atl.  1044.  See  also  Birmingham  Ry. 
L.  &  P.  Co.  V.  Smyer,  181  Ala.  121,  132, 
61  So.  354,  wherein  it  was  said : 
' '  Lands  once  taken  for,  or  dedicated  as, 
public  streets  are  taken  for  all  time 
for  the  purpose  of  providing  a  means 
of  passage  common  to  all  the  people, 
and  may  be  rightfully  used  in  any  way 
that  will  best  serve  this  purpose.     The 


public  thus  acquire  the  right  of  passage 
over  every  part  of  it,  from  side  to  side, 
and  from  end  to  end.  They  acquire  the 
right  to  use  it,  not  only  by  the  means 
of  vehicles  then  in  use,  but  also  by 
other  means  and  vehicles  which  science 
and  the  improvement  of  the  age  may  in- 
vent or  discover,  to  meet  the  needs  of 
the  ever-increasing  population,  or  which 
may  become  necessary  or  expedient,  pro- 
vided such  vehicles  or  modes  do  not  ex- 
clude the  proper  use  by  other  modes  or 
kinds  of  vehicles.  Any  use  of  the 
street  for  public  travel,  which  is  within 
the  limits  of  the  public  easement, 
whether  it  be  by  old  or  new  methods, 
provided  it  does  not  tend  to  destroy  the 
street  as  a  means  of  passage  and  travel 
common  to  all,  is  lawful  and  permis- 
sible." 

The  employment  of  an  automobile  on 
a  highway  as  a  means  of  transportation 
is  a  lawful  use  of  the  road;  and  if  it 
results  in  injury  to  one  traveling  by  an- 
other mode  the  driver  of  the  machine 
cannot  be  held  liable  for  the  injury,  un- 
less it  be  made  to  appear  that  he  used 
the  machine  at  a  time  or  in  a  manner  or 
under  circumstances  inconsistent  with  a 
proper  regard  for  the  rights  of  others. 
Mclntyre  v.  Orner,  166  Ind.  56,  76  N. 
E.  750,  4  L.  R.  A.  (N.  S.)  1130,  8  Ann. 
Cas.  1087. 

The  easement  of  a  highway  embraces 
all  travel  not  prohibited  by  law  on  foot, 
in  carriages,  omnibuses,  stages,  sleighs, 
or  other  vehicles,  as  the  wants  and 
habits  of  the  public  demand.  The  right 
of  the  public  in  the  highway  consists  in 
the  privilege  of  passage  and  such  privi- 
leges as  are  annexed  as  incidents  by 
usage  or  custom,  as  the  right  to  make 
sewers  and  drains  and  lay  gas  and  water 
pipes.    It  can  hardly  be  questioned  that 


48 


The  Law  of  Automobiles. 


Sec.  48.  Right  of  automobilist  to  use  highways. 

Considering  the  automobile  as  merely  a  new  means  of 
transportation,^^  it  is  clear  that,  in  the  absence  of  peculiar 
regulations  or  unusual  circumstances,  an  automobilist  has  a 
right  to  use  the  public  highways  for  the  propulsion  of  his 
machine,  and  numerous  decisions  sustain  this  right.^^  This 
right  is  subject  to  the  general  obligation  of  all  travelers  to 
exercise  reasonable  care  to  avoid  injury  to  others,  and  to  obey 


the  primary  and  fundamental  purpose 
of  a  public  highway,  street,  or  alley,  is 
to  accommodate  the  public  travel,  to 
afford  citizens  and  strangers  an  oppor- 
tunity to  pass  and  repass  on  foot  or  in 
vehicles  with  such  movable  property  as 
they  may  have  occasion  to  transport, 
and  every  man  has  a  right  to  use  on  the 
road  a  conveyance  of  his  own  at  will, 
subject  to  such  proper  regulation  as 
may  be  prescribed  by  authority.  The 
easement  for  public  travel  is  not  to  be 
limited  to  the  particular  modes  of  travel 
in  use  at  the  time  the  easement  was  ac- 
quired, but  extends  to  and  includes  all 
such  new  and  improved  methods  of 
travel,  the  utility  and  general  con- 
venience of  which  may  be  afterwards 
discovered  or  developed,  as  are  in  aid 
of  the  identical  use  for  which  the  street 
was  acquired.  Carli  v.  Stillwater  St. 
Ey.  &  Transfer  Co.,  10  N.  W.  205,  28 
Minn,  373,  41  Am.  St.  Rep.  290. 

11.  See  section  47. 

12.  Arkansas. — Russ  v.  Strickland, 
130  Ark.  406,  197  S.  W.  709. 

Delaware. — Simeone  v.  Lindsay,  6 
Penn.  (Del.)  224,  63  Atl.  778;  Brown 
V.  City  of  Wilmington,  4  Boyee  (Del.) 
492,  90  Atl.  44.  "A  public  highway 
is  open  in  all  its  length  and  breadth  to 
the  reasonable,  common  and  equal  use 
of  the  people  on  foot  or  in  vehicles. 
The  owner  of  an  automobile  has  the 
same  right  as  the  owners  of  other  ve- 
hicles to  use  the  highways,  and  like 
them  he  must  exercise  reasonable  care 
and  caution  for  the  safety  of  others.    A 


traveler  on  foot  has  the  same  right  to 
the  use  of  the  public  highways  as  an 
automobile  or  any  other  vehicle.  On 
using  such  highway  all  persons  are 
bound  to  the  exercise  of  reasonable  care 
to  prevent  accidents.  Such  care  must 
be  in  proportion  to  the  danger  in  each 
case.  Where  one  undertakes  to  pass  an- 
other on  the  highway,  going  in  the  same 
direction,  he  must  take  reasonable  care 
to  exercise  that  right  so  as  not  to  in- 
jure another,  and  would  be  liable  for 
all  consequences  resulting  from  negli- 
gence on  his  part.  It  is  the  duty  of  a 
person  operating  an  automobile  .  .  . 
upon  the  public  highway  to  use  reason- 
able care  in  its  operation,  to  move  it  at 
a  rate  of  speed  reasonable  under  the 
circumstances,  and  cause  it  to  slow  up 
or  stop,  if  need  be,  when  danger  is  im- 
minent, and  could  by  the  exercise  of 
reasonable  care  be  seen  or  known  in 
time  to  avoid  the  accident.  There  is  a 
like  duty  of  exercising  reasonable  care 
on  the  part  of  the  person  traveling  on 
foot.  The  person  having  the  manage- 
ment of  the  automobile  and  the  traveler 
on  foot  are  required  to  use  such  reason- 
able care,  circumspection,  prudence  and 
discretion  as  the  circumstances  require, 
an  increase  of  care  being  required  where 
there  is  increase  of  danger.  Both  are 
bound  to  the  reasonable  use  of  all  their 
senses  for  the  prevention  of  accident, 
and  the  exercise  of  all  such  reasonable 
caution  as  ordinarily  careful  and  pru- 
dent persons  would  exercise  under  like 
circumstances.    The  more  dangerous  the 


General  Right  to  Use  of  Highway. 


49 


all  valid  regulations  governing  the  conduct  of  travelers.^^  But, 
it  is  not  negligence  as  a  matter  of  law  to  use  an  automobile 
on  a  public  highway."  The  fact  that  motor  vehicles  may  be 
novel  and  unusual  in  appearance,  and  for  that  reason  are 
likely  'to  frighten  horses  who  are  unaccustomed  to  see  them, 
is  no  reason  why  the  courts  should  adopt  a  view  for  the  pro- 
hibition of  such  machines.^^    In  the  absence  of  statute  a  muni- 


character  of  the  vehicle  or  machine,  and 
the  greater  its  liability  to  do  injury  to 
others,  the  greater  the  degree  of  care 
and  caution  required  in  its  use  and 
operation."  Simeone  v.  Lindsay,  6 
Penn.   (Del.)   224,  63  Atl.  778. 

Illinois.— Christy  v.  Elliott,  216  111. 
31,  1  L.  R.  A.  (N.  S.)  124,  74  N.  E. 
1035,  3  Ann.  Cas.  487. 

Indiana. — Brinkraan  v.  Pacholke,  41 
Ind.  App.  6G2,  84  N.  E.  762 ;  Harker  v. 
Gruhl,  62  Ind.  App.  177,  111  N.  E.  457. 
"It  can  no  longer  be  questioned  that 
the  use  of  automobiles  or  motor  ears, 
such  as  the  one  here  in  question,  upon 
streets  and  other  public  highways,  is 
lawful.  Such  vehicles  furnish  a  con- 
venient and  useful  mode  of  travel  and 
transportation  not  incompatible  with 
the  proper  use  of  the  highway  by 
others;  but  in  consequence  of  the  great 
speed  with  which  they  may  be  run,  their 
size  and  general  appearance,  the  noises 
made  in  their  use,  the  infrequency  of 
their  use  in  particular  localities,  and 
the  circumstances  of  the  particular  oc- 
casions of  their  use,  commensurate  care, 
skill  and  diligence  must  be  required  of 
the  person  employing  such  means  of 
transportation.  The  general  rule  ap- 
plies that  he  must  so  use  his  own  as 
not  to  injure  another.  Automobiles 
may  be  used  with  safety  to  the  other 
users  of  the  highway,  and  in  their 
proper  use  upon  the  highways  their 
owners  have  equal  rights  with  the  users 
of  other  vehicles  properly  upon  the 
highw^ay. "  Brinkman  v.  Pacholke,  41 
Ind.  App.  662,  84  N.  E.  762. 

Kentucky. — Cumberland      Telep.      & 


Teleg.  Co.  v.  Yeiser,  141  Ky.  15,  131  S. 
W.  1049,  31  L.  R.  A.  (N.  S.)  1137n. 

Maine. — "With  respect  to  the  meth- 
ods of  travel  and  transportation  on  the 
highway,  as  in  all  other  spheres  of  ac- 
tion, the  law  seeks  to  adapt  itself  to 
the  new  conditions  arising  from  the 
progress  of  invention  and  discovery. 
The  ordinary  highway  is  open  to  all 
suitable  methods  of  use."  Towle  v. 
Morse,  103  Me.  250,  68  Atl.  1044. 

Maryland. — Fletcher  v.  Dixon,  107 
Md.   420,   68  Atl.   875. 

Missouri. — Hall  v.  Compton,  130  Mo. 
App.  675,  108  S.  W.  1122;  White  v. 
Metropolitan  St.  Ry.  Co.,  195  Mo.  App. 
310,  191  S.  W.  1122. 

Pennsylvania. — Brown  v.  Chambers, 
65  Pa.  Super.  Ct.  373. 

Texas. — Patton-Worsham  Drug  Co.  v. 
Drennon,  104  Tex.  62,  133  S.  W.  871. 

Wisconsin. — W^eber  v.  Swallow,  136 
Wis.  46,  116  N.  W.  844. 

13.  See  section  277,  et  seq.,  as  to 
obligation  to  exercise  care. 

14.  Indiana  Springs  Co.  v.  Brown, 
165  Ind.  465,  74  N.  E.  615,  6  Ann.  Cas. 
656,  1  L.  R.  A.  (N.  S.)  238n;  O'Don- 
nell  v.  O'Neil,  130  Mo.  App.  360,  109 
S.  W.  815. 

15.  See  chapter  XX,  as  to  liability 
for  frightening  horses. 

Indiana  Springs  Co.  v.  Brown,  165 
Ind.  465,  74  N.  E.  615,  616,  1  L.  R.  A. 
(N.  S.)  238,  6  Ann.  Cas.  656,  where  it 
was  said:  "In  all  human  activities  the 
law  keeps  up  with  improvement  and 
progress  brought  about  by  discovery 
and  invention,  and,  in  respect  to  high- 
ways, if  the  introduction  of  a  new  con- 


50 


The  Law  of  Automobiles. 


cipality  cannot  forbid  the  use  of  heavy  trucks,  nor  can  it  re- 
cover for  the  injuries  caused  to  the  roads  by  reason  their  use 
in  a  reasonable  manner.^^^  In  some  States  the  right  of  cyclists 
and  automobilists  to  use  the  highways  is  expressly  affirmed 
by  statutory  enactments.^*^  To  a  considerable  extent,  how- 
ever, statutes  and  municipal  ordinances  may  limit  travel  by 
motor  vehicle  along  the  highways.  Thus,  they  may  set  aside 
certain  streets  or  highways  and  forbid  such  travel  on  them, 
or  they  may  limit  motor  vehicle  traffic  to  certain  hours  of  the 
daj'^.  These  questions  are  treated  in  other  places  in  this 
work." 


Sec.  49.  Equal  rights  of  automobilists  and  other  travelers. 

The  general  rule  is  that  all  travelers  have  equal  and  recipro- 
cal rights  to  the  use  of  the  public  highways.  That  is,  the 
right  of  an  automobilist  to  run  his  machine  along  the  high- 
ways is  equal  to  that  of  other  travelers,^^  whether  such  other 


trivance  for  transportation  purposes, 
conducted  with  due  care,  is  met  with  in- 
convenience and  even  incidental  injury 
to  those  using  ordinary  modes,  there 
can  be  no  recovery,  provided  the  con- 
trivance is  compatible  with  the  general 
use  and  safety  of  the  road.  It  is, 
therefore,  the  adaptation  and  use, 
rather  than  the  form  or  kind  of  con- 
veyance, that  concerns  the  courts.  It  is 
improper  to  say  that  the  driver  of  the 
horse  has  rights  in  the  road  superior  to 
the  driver  of  the  automobile.  Both 
have  the  right  to  use  the  easement,  and 
each  is  equally  restricted  in  the  exer- 
cise of  his  rights  by  the  corresponding 
rights  of  the  other.  Each  is  required 
to  regulate  his  own  use  by  the  observ- 
ance of  ordinary  care  and  caution  to 
avoid  receiving  injury  as  well  as  in- 
•flicting  injury  upon  the  other."  See 
also  Murphy  v.  Wait  (N.  Y.),  102  App. 
Div.   121,  92  N.  Y.  Suppl.  253. 

15a.  Sumner  County  v.  Interurban 
Transp.  Co.,  141  Tenn.  493,  213  S.  W. 
412,  5  A.  L.  R.  765. 

16.  Brinkman    v.    Pacholke,    41    Ind. 


App.  662,  84  N.  E.  762;  House  v. 
Cramer,  134  Iowa,  374,  112  N.  W.  3,  13 
Ann.  Cas.  461,  10  L.  R.  A.  (N.  S.)  655; 
Stanton  v.  Western  Macaroni  Mfg.  Co. 
(Utah),  174  Pac.  821;  Sutter  v.  Mil- 
waukee Board  of  Fire  Underwriters,  164 
Wis.  532,  166  N.  W.  57. 

17.  See  sections  56-82,  231,  232. 

18.  United  States. — Lane  v.  Sargent, 
217  Fed.  237. 

Califorma. — Bidwell  v.  Los  Angeles 
&  S.  D.  Ry.  Co.,  169  Cal.  780,  148  Pac. 
197;  Mayer  v.  Anderson  (Cal.  App.), 
173  Pac.   174. 

Connecticut. — Upton  v.  Windham,  75 
Conn.  288,  53  Atl.  660. 

Delaware. — Simeone  v.  Lindsay,  6 
Penn.  224,  63  Atl.  778 ;  Grier  v.  Samuel, 
4  Boyce,  106,  86  Atl.  209;  Brown  v. 
City  of  Wilmington,  4  Boyce,  492,  90 
Atl.  44. 

Florida. — Farnsworth  v.  Tampa  Elec- 
tric Co.,  62  Fla.  166,  57  So.  223. 

Georgia. — Shore  v.  Ferguson,  142  Ga. 
657,  83  S.  E.  518;  Central  of  Ga.  Ry. 
Co.  V.  Larsen,  19  Ga.  App.  413,  91  S. 
E.  517. 


General  Right  to  Use  of  Highway. 


51 


traveler  shall  proceed  on  foot  or  by  an  animal-drawn  vehicle, 
or  by  some  other  means  of  conveyance.'^  At  the  same  time  he 
must  recognize  the  equal  rights  of  the  other  travelers  and 


Illinois. ^Smiley  v.  East  St.  Louis 
&  S.  Ry.  Co.,  256  111.  482,  100  N.  E. 
157;  Christy  v.  EUiott,  216  111.  31,  1 
L.  R.  A.  (N.  S.)  215,  74  N.  E.  1035,  3 
Ann.  Cas.  487,  108  Am.  St.  Rep.  196; 
Traeger  v.  Wasson,  163  111.  App.  572; 
Wortman  v.  Trot,  202  111.  App.  528. 

Jndiajia.— Indiana  Spring  Co.  v. 
BrowTi,  165  Ind.  465.  74  N.  E.  615,  1 
L.  R.  A.  (N.  S.)  238,  6  Ann.  Cas.  656; 
Luther  v.  State,  177  Ind.  619,  98  N.  E. 
640;  Brinkman  v.  Pacholke,  41  Ind. 
App.  662,  84  N.  E.  762;  East  v.  Ana- 
burn,  47  Ind.  App.  530,  94  N.  E.  895 ; 
Elgin  Dairy  Co.  v.  Sh|ppard  (Ind. 
App.),  103  N.  E.  433;  Harker  v.  Gruhl, 
62  Ind.  App.  177,  111  N.  E.  457. 

Iowa. — House  v.  Cramer,  134  Iowa, 
374,  112  N.  W.  3,  13  Ann.  Cas.  461,  10 
L.  R.  A.  (N.  S.)  655;  Delfs  v.  Dunsheo, 
143  Iowa,  381,  122  N.  W.  236;  Simmons 
V.  Lewis,  146  Iowa  316,  125  N.  W.  194; 
Rolfs  V.  Munins,179  Iowa,  1223,  162  N. 
W.   783. 

Eentuoky.—Shinkle  v.  Cullough,  116 
Ky.  960,  77  S.  W.  196;  Cumberland 
Telep.  &  Teleg.  Go.  v.  Yeiser,  141  Ky. 
15,  131  S.  W.  1049,  31  L.  R.  A.  (N.  S.) 
1137n.  "It  is  true,  as  we  have  said, 
that  in  a  general  sense  the  pedestrian 
and  the  automobilist  have  equal  rights 
in  streets  that  are  set  apart  for  the  uso 
of  vehicles  as  well  as  the  accommoda- 
tion of  foot  travelers,  and  each  has 
rights  that  the  other  is  bound  to  re- 
spect, and  it  is  also  true  that  the  auto- 
mobile must  use  only  the  carriage  way 
of  the  street,  while  the  pedestrian,  ex- 
cept at  street  crossings,  uses  generally 
only  the  sidewalk.  But  the  pedestrian, 
in  the  use  of  the  street  at  a  regular 
crossing,  has  the  same  right  to  its  use 
as  vehicles,  and  is  under  no  legal  duty 
to  give  way  to  automobiles.  Tlie  auto- 
mobile can  go  around  him  as  well  as  he 


pan  go  around  it.  It  can  get  out  of  the 
way  of  the  pedestrian  about  as  easily 
and  quickly  as  he  can  get  out  of  its 
way,  although  it  is  usually  the  case,  and 
rightfully  so,  that  the  pedestrian  en- 
deavors to  keep  out  of  the  way  of  ve- 
hicles at  street  crossings;  but  if  he 
does  not,  this  does  not  excuse  the  driver 
of  that  vehicle  who  runs  him  down,  un- 
less it  be  that  the  driver  was  free  from 
negligence,  and  the  pedestrian  by  his 
own  want  of  care  was  to  blame  for  the 
collision."  Weidner  v.  Otter,  171  Ky. 
167,  188  S.  AV.  335, 

Lonisiana. — Shields  v.  Fairchild,  130 
La.  648,  58  So.  497. 

Minnesota. — Carson  v,  Turrish,  140 
Minn.  445,  168  N.  W.  349. 

Missouri.— O'BomaeW  v.  O'Neil,  130 
Mo.  App.  360,  109  S.  W.  815;  Hall  v. 
Compton,  130  Mo.  App.  675,  108  S.  W. 
1122;  Young  v.  Bacon  (Mo.  App.),  183 
S.  W.  1079 ;  Moenaeh  v.  Crawford,  187 
S.  W.  879;  White  v.  Metropolitan  St. 
Ry.  Co.,  195  Mo.  App.  310,  191  S.  W. 
1122;  Carradine  v.  Ford,  195  Mo.  App. 
684,  187  S.  W.  285. 

Neio  Hampshire. — Gilbert  v.  Burque, 
72  N.  H.  521,  57  Atl.  97. 

Xetv  Jersey. — Pool  v.  Brown,  89  N. 
J.  Law,   314,  98  Atl.   262. 

New  York. — Towner  v.  Brooklyn 
Heigthts  R.  Co.,  44  App.  Div.  628,  60 
N.  Y.  Suppl.  289;  Clark  v.  Woop,  159 
App.  Div.  437,  144  N.  Y.  Suppl.  595; 
Ebling  Brewing  Co.  v.  Linch,  80  Misc. 
517,  141  N.  Y.  Suppl.  480;  Miller  v. 
New  York  Taxicab  Co.,  120  N.  Y.  Suppl. 
899. 

Ofc/a/iomo.— White  v.  Rukes,  56  Okla. 
476,  155  Pac.  1184. 

Pennsylvania. — Borough  of  Apple- 
wold  V.  Dosch,  239  Pa.  St.  479,  86  Atl. 
1070,  Ann.  Cas.  1914  D.  481;  Silberman 
V.  Huyette,  22  Montg.  Co.  L.  Rep.  (Pa.) 


52 


The  Law  of  Automobiles. 


must  exercise  due  care  to  avoid  injury  to  them.^^  Statutory- 
or  municipal  regulations,  or  the  general  duty  to  exercise  rea- 
sonable care,  may,  as  a  practical  proposition,  detract  from 
the  theory  of  equal  rights  at  particular  places,  such  as  inter- 
secting streets,^^  railroad  crossings,-^  or  other  places  where 
greater  precautions  are  generally  required  for  the  avoidance 
of  injuries. 

Sec.  50.  No  superior  rights  for  automobilists. 

Although  automobiles  may  be  said  to  possess  an  equal  right 
to  use  the  public  highways  and  roads  after  compliance  with 
the  requirements  of  the  law,  such  as  pertain  to  registration, 
licensing,  equipment,  etc.,  nevertheless  they  possess  no 
superior  right  of  way  over  other  travelers.^^ 

The  driver  of  a  motor  vehicle  is  bound  to  operate  his  ma- 


39;  Brown  v.  Chambers,  65  Pa.  Super. 
Ct.  373.  "An  owner  of  an  automobile 
has  as  much  right  to  the  highway  as  the 
driver  of  a  horse  and  carriage.  If  a 
horse  cannot  be  driven  past  a  vehicle  or 
car  properlj"^  managed,  the  driver 
should  keep  him  off  the  highway  or 
submit  to  the  consequences."  Silber- 
man  v.  Huyette,  22  Montg.  Co.  L.  Rep. 
(Pa.)  39. 

Tennessee. — Coco  Cola  Bottling 
Works  V.  Brown,  139  Teun.  640,  202  S. 
W.   926. 

Vermont. — Aiken  v.  Metcalf,  90  Vt. 
196,  97  Atl.  669. 

Virginia. — Core  v.  Wilhelm,  98  S.  E. 

Washington. — Minor  v.  Stevens,  65 
Wash.  423,  118  Pac.  313;  Locke  v. 
Green,  100  Wash.  397,  171  Pac.  245. 

Wi^cx)nsin. — Weber  v.  Swallow,  136 
Wis.  46,  116  N.  W.  844. 

Bicycles  have  equal  rights  on  the 
public  ways.  Holland  v.  Bartch,  120 
Ind.  46,  22  N.  E.  83,  16  Am.  St.  Rep. 
317;  Lacey  v.  Winn  (Com.  PI.),  3  Pa. 
Dist.  Rep.  811;  Lacey  v.  Winn  (Com. 
PI.),  4  Pa.  Dist.  Rep.  409.  A  bicycle 
being  a  vehicle,  riding  one  in  the  usual 


manner  on  a  public  highway  is  not  un- 
lawful. Thompson  v.  Dodge,  58  Minn. 
555,  60  N.  W.  545,  28  L.  R,  A.  608. 

19.  While  vehicles  and  pedestrians 
have  equal  rights  upon  the  highway  it 
is  said  that  this  can  only  be  so  when 
conditions  are  equal.  Gagnon  v.  Robi- 
taille,  16  R.  L.  N.  S.  235. 

20.  See  section  276,  et  seq. 

21.  See  sections  261-262,  394,  435; 
497. 

22.  See  section  550,  et  seq. 

23.  Arkansas. — Butler  v.  Cabe,  116 
Ark.  16,  171  S.  W.  1190. 

Georgia. — O'Dowd  v.  Newham,  13  Ga. 
App.  220,  80  S.  E.  36. 

Illinois. — Graham  v.  Hagaman,  270 
111.  52,  110  N.  E.  337;  Kerchner  v. 
Davis,  183  111.  App.  600. 

Indiana. — East  v.  Amburn,  47  Ind. 
App.  530,  94  N.  E.  895. 

Missouri. — Carradine  v.  Ford,  195 
Mo.  App.  684,  187  S.  W.  285. 

Nebraska.— Tj^er  v.  Hoover,  92  Neb. 
221,  138  N.  W.  128. 

New  York. — Lorenz  v.  Tisdale,  127 
N.  Y.  App.  Div.  433,  111  N.  Y.  Suppl. 
173. 


General  Right  to  Use  of  Highway.  53 

chine  with  reasonable  care  and  with  due  consideration  to  the 
rights  of  footmen  or  other  travelers  having  an  equal  right  to 
the  use  of  the  way.^^  As  was  said  in  oue  case,^  "The  more 
fact  that  automobiles  are  run  ])y  motor  power  and  may  be 
operated  at  a  dangerous  and  liigli  rate  of  speed  gives  them  no 
superior  rights  on  the  highway  over  other  vehicles,  any  more 
so  than  would  the  fact  that  one  is  driving  a  race  horse  give 
such  driver  superior  rights  on  the  highway  over  his  less  for- 
tunate neighbor  who  is  pursuing  his  journey  behind  a  slower 
horse." 

Sec.  51.  Ferries  and  vessels. 

While  dealing  with  the  right  of  automobiles  to  use  the  pub- 
lic highways,  it  is  of  interest  to  consider  the  motor  vehicle's 
right  on  ferries,  which  are  in  the  nature  of  highways,  and  are 
generally  a  continuation  thereof.  The  Revised  Statutes  of 
the  United  States  prohibiting  passenger  steamers  to  carry  as 
freight  certain  articles,  including  petroleum  products  or  other 
like  explosive  fluids,  except  in  certain  cases  and  nnder  certaiii 
conditions,  was  amended  by  the  Act  of  Feb.  21,  1901,  ch.  386, 
31  Stat,  at  L.  799,  U.  S.  Comp.  Stat.  1901,  p.  3050,  which  pro- 
vided that:  "Nothing  in  the  foregoing  or  follo'\\dng  sections 
of  this  act  shall  prohibit  the  transportation  by  steam  vessels 
of  gasolene  or  any  of  the  products  of  petroleum  when  carried 
by  motor  vehicles  (commonly  known  as  automobiles)  using 
the  same  as  a  source  of  motive  power:  Provided,  however, 
that  all  fire,  if  any,  in  such  vehicles  or  automobiles  be  extin- 
guished before  entering  the  said  vessel  and  the  same  be  not 
relighted  until  after  said  vehicle  shall  have  left  the  same 
.  . .  ."  Under  this  statutory  provision  it  was  held  that  gaso- 
lene contained  in  the  tank  of  an  automobile  being  transported 
on  a  steam  vessel  was  carried  as  freight  wdthin  the  meaning 
of  the  statute,  that  an  automobile  in  which  the  motive  power 
Avas  generated  by  passing  an  electric  spark  through  a  com- 
pressed mixture  of  gasolene  and  air  in  the  cylinder,  causing 
intermittent  explosions,  carried  a  fire  while  the  vehicle  was 

a4.  See  sections  277-282.  110  N.  E.   337.  affirminfr  ISO  111.  App. 

.25.  Graham  v.  iragaman,  :2T0  111.  2r.2.       fi.-?!. 


54  The  Law  of  Automobiles. 

under  motion  from  its  own  motive  power ;  and  that  the  carry- 
ing by  a  steam  ferry-boat  of  such  a  vehicle,  which  was  run  on 
and  off  the  boat  under  its  own  power,  was  a  violation  of  the 
statute.^^ 

In  1905  Congress  amended  the  existing  law  by  enacting  that 
**  Nothing  in  the  foregoing  or  following  sections  of  this  Act 
shall  prohibit  the  transportation  by  steam  vessels  of  gasolene 
or  any  of  the  products  of  petroleum  when  carried  by  motor 
vehicles  (commonly  known  as  automobiles)  using  the  same  as 
a  source  of  motive  power :  Provided,  however,  That  all  fire, 
if  any,  in  such  vehicles  or  automobiles  be  extinguished  inune- 
diately  after  entering  the  said  vessel,  and  that  the  same  be 
not  relighted  until  immediately  before  said  vehicle  shall  leave 
th6  vessel :  Provided  further,  That  any  owner,  master,  agent, 
or  other  person  having  charge  of  passenger  steam  vessels  shall 
have  the  right  to  refuse  to  transport  automobile  vehicles,  the 
tanks  of  which  contain  gasolene,  naphtha,  or  other  dangerous 
burning  fluids. "  ^^  It  will  be  seen  that  Congress  relieved,  by 
this  amendment,  steam  vessels  from  the  penalty  which  they 
were  subjected  to  under  the  old  law  as  construed  by  the  de- 
cision mentioned  above.  However,  as  the  law  now  stands, 
**any  owner,  master,  agent,  or  other  person  having  charge  of 
passenger  steam  vessels  shall  have  the  right  to  refuse  to 
transport  automobile  vehicles"  carrying  gasolene,  naphtha, 
or  other  dangerous  burning  fluids. 

Sec.  52.  Toll  roads. 

A  decision  of  much  importance  to  automobilists  handed 
down  by  the  Supreme  Court  of  New  York,  held  that  a  certain 
toll  bridge  company  possessed  no  legal  right  to  charge  tolls 
for  automobiles.  The  charter  of  this  company  enumerated 
specifically  the  classes  of  vehicles  for  the  passage  of  which 
tolls  could  be  collected;  it  made  no  mention  of  automobiles. 
The  importance  of  this  decision  is  due  to  the  fact  that  there 
are  many  other  toll  bridges  throughout  the  United  States 

26.  The  Texas,  134  Fed.  909.  Feb.   18,  1905,  c.  586,  as  amended  by 

27.  See  33  Stat,  at  L.,  part  2,  p.  720,  Act  March  3,  1905,  c.  1457,  §  8,  as 
4  TT.  S.  Comp.  St.  1913,  §  8242;  U.  S.  amended  by  Act  May  28,  1906,  c.  2565, 
Rev.   St.,   §   4472,  as  amended  by  Act  as  amended  by  Act  Jan.  24,  1913,  c.  10. 


General  Right  to  Use  of  Highway.  55 

which  possess  similar  charters,  and  must  therefore  permit 
automobiles  to  pass  over  their  bridges  toll  free.  However, 
if  the  charter  of  such  a  corporation  expressly  authorizes  the 
company  to  charge  tolls  for  certain  classes  of  vehicles  men- 
tioned, and  in  enumerating  the  list  uses  the  phrase  ''any  other 
vehicle,"  then  the  automobile  might  be  held  to  pay  toll. 

The  principle  of  law  governing  the  subject  of  exacting  auto- 
mobile tolls  is  that  a  corporation  which  is  given  valuable 
privileges  from  the  State  possesses  only  those  powers  which 
are  expressly  granted  or  conferred  by  necessary  implication 
from  the  charter,  provisions.  Justice  Spencer,  of  the  New 
York  Supreme  Court,  in  making  the  decision  here  referred  to, 
says:  ''The  company's  right  to  exact  tolls  is  confined  to  the 
animals  and  vehicles  specified  in  the  act  conferring  the  fran- 
chise. All  other  animals  and  vehicles  must  be  presumed  to 
have  the  right  to  cross  free.  The  fact  that  automobiles  were 
not  known  at  the  time  of  the  passage  of  the  act  makes  no  dif- 
ference, for  the  reason  that  defendants,  by  accepting  the  fran- 
chise in  consideration  for  the  right  to  collect  the  tolls  stipu- 
lated for,  assumed  the  duty  and  responsibility  of  building  and 
maintaining  a  bridge  that  would  meet  the  reasonable  require- 
ments of  all  travelers  on  the  public  highway,  including  vehi- 
cles and  animals  then  in  common  use  by  travelers,  and  also 
such  as  might  thereafter  come  into  common  use.  Its  power 
to  collect  toll  is  derived  from  the  provisions  of  the  franchise. 
It  stipulated  for  no  other  or  further  right,  and  may  not  exact 
toll  except  as  therein  provided.  If  it  deems  it  necessary  to 
require  payment  of  tolls  from  others  it  must  apply  to  the 
Legislature  for  authority  so  to  do.  Its  power  must  be  strictly 
construed. " '^^    The  decision  in  Neiv  York  has  been  followed 

28.  Mallory  v.  Saratoga  Lake  Bridge  Assault    on    toll    gate    keeper.~Evi- 

Cc,   53  Misc.    (N.  Y.)    446,   104  N.  Y.  dence,   although   contradictod,   that   the 

Suppl.  1025.  defendants  approached   a  toll   gate   in 

New  York  statute. — ^Since  the  above  an  automobile,  and  when  toll  was  de- 
decision  the  legislature  of  New  York  manded  choked  the  keeper,  rushed  their 
passed  an  enabling  act  allowing  toll  niachino  through  the  gate  and  injuTod 
bridges  to  charge  reasonable  tolls  for  the  keeper's  wife,  and  that  thoy  had 
automobiles,  but  no  more  than  is  previously  driven  through  a  number  of 
charged  for  other  vehicles.  See  L.  toll  gates  at  a  high  rate  of  speed  with- 
1907    ch.  127.  out  paying  toll,  is  sufficient  to  warrant 


56  The  Law  of  Automobiles. 

in  Vennont^^  but  a  contrary  conclusion  has  been  reached  in 
New  JerseyP^ 

In  a  case  in  Pennsylvania  the  right  of  a  turnpike  company 
to  prohibit  the  use  of  the  turnpike  road  to  automobiles  was 
considered.  In  that  case  the  court,  after  referring  to  the  acts 
under  which  it  was  incorporated  and  the  power  conferred 
upon  it,  decided  that  the  turnpike  company's  road  was  a  pub- 
lic highway  and  that  an  automobile  was  Avithin  the  term 
*' other  carriage  of  burden  or  pleasure,"  within  the  laws  of 
that  State,  as  to  the  use  of  highways  and  turnpike  roads  by 
such  vehicles,  and  that  the  company  could  not  refuse  to  grant 
the  right  to  an  automobile  to  use  its  road  and  that  a  peremp- 
tory writ  of  mandamus  would  issue,  compelling  it  to  perform 
the  duties  prayed  for  in  the  petition.^**  A  petition  for  a  writ 
of  mandamus  commanding  a  turnpike  company  to  allow  the 
petitioner,  while  operating  and  using  his  automobile,  the  right 
and  privilege  of  passing  over  and  upon  its  turnpike  road, 
upon  his  paying  the  tolls  established  by  law  for  the  passage 
of  vehicles  of  similar  weight  and  width  of  tires  over  turnpike 
roads  of  the  commonwealth  of  Pennsylvania,  must  aver  that 
the  petitioner  has  complied  with  all  the  requirements  of  the 
provisions  of  the  State  Automobile  Act.'^ 

a  verdict  of  guilty  of  assault.     In  such  to  furnisli  the  principal  moans  of  heavy 

a  case  a  demand  by  the  keeper  for  a  transportation.     To  say  that  the  legig- 

higher  rate  of  toll  than  was  legal  did  lature   of   181-4  foresaw  the   advent  of 

not     justify     the     assault.       Common-  the  automobile  or  any  other  mechanical 

wealth  V.  Rider,  29  Pa.  Super.  Ct.  621.  carriage,  and  intended  to  provide  for  it 

29.  Peru  Turnpike  Co.  v.  Peru,  91  Vt.  in  this  charter,  would  be  to  ascribe  to 

295,  100  Atl.  679,  wherein  it  was  said:  its  members  a  prophetic  vision  that  even 

"The  legislature  failed  to  provide  for  those    wise    and    far-seeing   men    could 

the    unforeseen    condition    which    has  not  possess.     If  they  had,  it  is  fair  to 

arisen.    That  this  condition  was  unfore-  assume  that  they  would  have  added  a 

seen  does  not  admit  of  doubt.    It  must  general  clause  to  the  charter  to  mani- 

be  remembered  that  we  are  not  dealing  fest  their  purpose." 

with  a  situation  existing  more  than  a  29a.  Proprietors  of  Cornish  Bridge  v. 

hundred  years  ago.     Steam  as  a  means  Fitts   (N.  H.),  107  Atl.  626. 

of  transportation  was  yet  in  the  experi-  30.  Scranton  v.  Laurel  Run  Turnpike 

mental  stage;  petroleum  products  were  Co.,  225  Pa.  St.  82,  73  Atl.  1063. 

unknown ;  railroads  were  unprojected  in  31.  Bertles  v.  The  Laurel  Run  Turn- 

the  state,  and  none  was  chartered  until  pike  Co.,  15  Pa.  Dist.  Rep.  94. 
years  afterwards;  canals  were  expected 


General  Right  to  Use  Highway.  57 

Sec.  53.  Exclusion  of  non-residents. 

As  to  the  exclusion  of  non-resident  motorists  from  the  pub- 
lic ways,  there  is  no  authority  or  power  in  the  State  to  do 
this,  on  the  ground  of  non-residence,  and  the  States  have  no 
power  to  place  greater  restrictions  or  burdens  on  non-resident 
automobilists  than  those  imposed  on  their  own  citizens.  Such 
action  on  the  part  of  a  State  would  violate  the  Federal  Con- 
stitution. However,  the  State  maj'  compel  non-residents  to 
comply  with  the  regulations  controlling  residents.  No  dis- 
crimination is  created  in  such  a  case,  as  all  are  treated  alike.^- 

Sec.  54.  Automobile  racing. 

Under  the  common  law,  the  racing  of  vehicles  upon  the  high- 
ways was  a  misdemeanor.^^  But,  though  the  racing  of  automo- 
biles upon  a  public  highway  is  illegal,  a  spectator  who  is  in- 
jured thereby  cannot  recover  for  injuries  from  the  munici- 
pality wrongfully  permitting  the  race."^  On  the  other  hand, 
one  using  the  highway  for  purposes  of  travel  might  be  per- 
mitted to  recover  for  the  damages  he  has  sustained  through 
the  wrongful  use  of  the  road.^^  Where  two  or  more  automo- 
bilists are  unlawfully  or  negligently  racing  on  the  highway, 
and  a  traveler  is  struck  by  one  of  the  machines,  he  may  have 
his  action  against  either  one  or  against  both  jointly,  for  they 
are  jointly  and  severally  liable.^'^  A  municipality  which  dedi- 
cates a  street  to  such  a  hazardous  use  as  automobile  racing 

32.  See   sections   64,    114,   115.  Kans.  653,  171  Pac.  G34. 

33.  Section  728.  Liability  of  Fair  for  injuries  received 

34.  Rose  V.  Gypsum  City  (Kans.),  by  spectator  of  race  on  fair  grounds. 
179  Pac.  348;  Bogart  v.  City  of  New  Jerrell  v.  Ilarrisburg  Assoc,  215  111. 
York,  200  N.  Y.  379.  93  N.  E.  937.  App.  273;   Arnold  v.  State,   163  N.  Y. 

A  spectator  at  an  automobile  contest  App.  Div.  253,  148  N.  Y.  Suppl.  479. 

alleged   to    have    been    injured   by   de-  Seo  also  Ross  v.  State,  186  N.  Y.  App. 

fendant's  negligence  in  operating  the  Div.  156,  173  N.  Y.  Suppl.  656.     As  to 

car  which  it  had  entered  in  the   race  liability  of  driver  of  one  of  racing  cars, 

held  guilty  of  contributory  negligence  see  Mankin  v.  Bartley,  266  Fed.  466. 

as  a  matter  of  law.     Baldwin  v.  Loco-  35.  See  Bogart  v.  City  of  New  York, 

mobile  Co.,   143   N.   Y.  App.   Div.   599,  200  N.  Y.  379,  93  N.  E.  937. 

128  N.  Y.  Suppl.  429.  36.  Reader  v.  Otis    (Minn.),  ISO  N. 

Contributory      negligence      of     boy  W.  117;  Thomas  v.  Rasmusson  (Neb.), 

watching   auto   race  on   fair  ground. —  184  N.  W.  104;  De  Carvalho  v.  Brun- 

Scott  v.  Kansas  State  Fair  Assoc,  102  ner,  223  N.  Y.  284.  119  X.  E.  .36.^. 


58  The  Law  of  Automobiles. 

cannot  be  said  to  keep  it ' '  reasonably  safe ' '  for  travel.^'  And, 
when  a  city  or  village  is  sued  for  injuries  occasioned  through 
unlawful  racing  in  the  street,  it  has  been  held  that  it  cannot 
defend  on  the  ground  that  the  acts  of  officials  permitting  the 
race  were  unauthorized.^^  A  contrary  view,  however,  has 
been  sustained  on  this  question.^^  If  racing  on  a  public  high- 
way is  absolutely  illegal  and  unauthorized,  it  would  seem  that 
the  proper  rule  should  be  that  an  automobilist  would  do  so 
at  his  peril.^''  But  it  has  been  held  that  the  mere  fact  of  rac- 
ing is  not,  of  itself,  sufficient  to  charge  the  driver  with 
negligence.*^ 

Sec.  55.  Setting  aside  highways  for  speed  contests. 

Under  a  law  in  New  York  regulating  the  speed  of  motor 
vehicles *2  it  was  provided  that  local  authorities  may  ''set 
aside  for  a  given  time  a  specified  public  highway  for  speed 
tests  or  races,  to  be  conducted  under  proper  restrictions  for 
the  safety  of  the  public."  In  construing  this  act  it  was  de- 
cided that  the  power  to  grant  or  withhold  the  necessary  con- 
sents thereto,  which  carries  with  it  the  right  to  impose  condi- 
tions, was  given  to  the  local  authorities  whose  districts  would 

37.  Burnett  V.  City  of  Greenville,  106       streets,  is  to  admit  the   wrong." 

8.  Car.  255,  91  S.  E.  203.  39.  Rose    v.    Gypsum    City    (Kans.), 

38.  Burnett  v.  City  of  Greenville,  106       179  Pac.  348. 

S.   Car.   255,  91  S.   E.   203,   wherein   it  40.  Brown  v.  Thayer,  212  Mass.  392, 

was  said:     "It  is  suggested  by  the  city  99  N.  E.  237. 

that  the  dedication  of  the  public  ways  41.  Johnson  v.   Reliance  Automobile 

to  automobile  racing  lay  wholly  outside  Co.,  23  Cal.  App.  222,  137  Pac.  603. 

the  powers  of  the  corporation,  for  which  ' '  Race. '  '—The    word    ' '  race ' '     has 

act  the  corporation  is  not  liable.     That  been  construed  as  referring  to  a  pre- 

is  another  way  of  saying  the  corpora-  arranged   contest,   not  to   an  enhanced 

tion    is    liable    if    the    authorities    act  speed  of  a  machine  when  trying  to  keep 

within   the    law,    and  is   not    liable,  if  another  car  from  passing.     Canning  v. 

the    authorities    act    without    the    law.  Wood,  44  D.  L.  R.  (Canada)  525,  52  N. 

The  prime  duty  of  any  city  is  to  keep  S.  R.  452. 

its  streets  clear  for  the  public  travel.  Defects  in  highway.— It  has  been  held 

The   incumbrance    of    the    streets    with  that  one  taking  part  in  a  race  does  not. 

automobiles  running  at  a  dangerous  rate  assume   latent  defects  in  the  highway, 

of  speed,  just  for  practice,  is  a  viola-  National    Veliicle    Co.    v.    Kellum,    184 

tion  of   that  prime   duty.      To   answer  Ind.  457,  109  N.  E.  196. 

that  the  mayor  and  council  had  no  au-  42.  Laws  of  1904,  ch.  538,  §  3,  subd. 

thority  to  authorize  such  a  use  of  the  6;  Laws  1909,  ch.  30,  §  296. 


Gknkrai-  Right  to  Use  Highway.  59 

be  injured  by  the  wear  and  tear  of  the  machines  and  perhaps 
benefited  by  the  commercial  advantages  from  the  race.  And 
it  was  held  that  the  State  Engineer  and  Surveyor  had  no  au- 
thority, by  virtue  of  the  powers  conferred  on  him/"'  to  pro- 
hibit the  use  of  said  highways  or  to  recover  for  damages 
thereto  occasioned  by  such  a  race.  And  where  such  official 
sought  to  enforce  a  rule  that  where  the  consent  of  the  local 
authorities  had  been  so  obtained  there  should  be  deposited 
with  him  a  certain  sum  for  each  mile  to  be  raced  over  for  each 
day  of  said  race  as  a  prerequisite  to  the  right  to  hold  the  race, 
it  w^as  decided  that  such  action  was  clearly  illegal,  as  his  con- 
sent to  the  race  taking  place  was  not  necessary  and  he  had 
no  authority  to  promulgate  the  rules.^^ 

43.  Laws   1898,  ch.   ITS,  as  amended  44.  Morrell   v.    Skene,   64   Misc.    (N. 

in  1907.  Y.)   185,  119  N.  Y.  Suppl.  28. 


60  The  Law  of  Automobiles.  • 

CHAPTER  V. 

STATUTORY  REGULATION  OF  MOTOR  VEHICLES. 

Section  56.  Scope  of  chapter. 

57.  General  power  of  regulation. 

58.  Regulatory  power  lodged  in  legislature. 

59.  Purpose  of  acts. 

60.  Title  and  form  of  statute 

61.  Due  process  of  law. 

62.  Discrimination  between  motorists  and  other  persons. 

63.  Discrimination  between  owners  of  different  machines — between  dif- 

ferent motor  vehicles. 
64  Discrimination  between  owners  of  different  machines — non-residents. 

65.  Discrimination  between  owners  of  different  machines— aliens. 

66.  Certainty  of  enactment. 

67.  Repeal  of  statutes. 

68.  Construction  of  regulation. 

Sec.  56.  Scope  of  chapter. 

In  tliis  chapter  arc  discussed  the  general  principles  relating 
to  the  regulation  of  motor  vehicles,  together  with  a  discussion 
of  certain  specific  regulations.  Generally,  the  construction 
and  effect  of  particular  regulations  are  treated  in  other  parts 
of  this  work.  Thus,  in  other  places  will  be  found  a  discussion 
of  particular  regulations  such  as  pertain  to  the  registration 
and  licensing,^  speed,^  and  lighting^  of  vehicles,  the  law  of 
the  road,*  the  regulation  of  jitneys,^  taxicabs,  and  other  car- 
riage for  hire.*'  So,  too,  matters  governing  the  conduct  of 
garagekeepers ''  and  chauffeurs,^  will  be  found  covered  in  the 
chapters  on  those  subjects.  Also,  various  matters  in  relation 
to  the  enforcement  of  regulations  by  means  of  criminal  prose- 
cutions, together  with  a  discussion  of  some  of  the  penal 
offenses  involved,  are  to  be  found  in  another  chapter.®  And 
the  probative  effect  of  a  violation  of  a  valid  regulation,  as  it 
bears  on  the  issue  of  negligence,  is  reserved  for  a  subsequent 

1.  Sections  92-128.  5.  Sections  130-173. 

2.  Sections  230,   306-324.  6.  Section  132,  et  seq. 

3.  Sections  344-348.  7.  Sections  195-200. 

4.  Sections  236,     241-275,  371-394,           8.  Sections  220-222. 
492-499.  9.  Chaptrjr  XXVII. 


Statutory  Regulation  of  Motor  Vehicles. 


61 


chapter.i*^  The  powers  of  Congress,^^  and  of  municipal 
bodies,^2  ^re  also  discussed  in  other  chapters.  In  short,  at 
this  place,  it  is  intended  to  discuss  the  matters  which  pertain 
to  regulation  in  general,  as  distinguished  from  the  construc- 
tion and  effect  of  particular  regulatory  measures. 

Sec.  57.  General  power  of  reflation. 

It  is,  of  course,  true  that  automobilists  have  the  right  to 
use  the  public  highways  for  purposes  of  pleasure  or  business,^^ 
but  this  right  is  not  so  sacred  that  it  is  beyond  the  control  of 
the  State  and  municipal  divisions.  On  the  contrary,  there  is 
no  dissent  from  the  general  rule  that  the  Legislature,  by 
virtue  of  its  police  power,  may  make  regulations  governing 
the  conduct  of  the  owners  and  drivers  of  motor  vehicles.^' 
A  regulation  must  be  enacted  in  a  constitutional  manner.  That 


10.  Sections  297-302. 

11.  Sections  83-91. 

12.  Sections  69-82. 

13.  Section  48. 

14.  United  States.— Hendnck  v.  State 
of  Maryland,  35  S.  Ct.  140;  Kane  v. 
State  of  New  Jersey,  242  U.  S.  160,  37 
S.  Ct.  30. 

California. — Ex  parte  Berry,  147  Cal. 
523,  82  Pac.  44 ;  Ex  parte  Schuler,  167 
Cal.  282,  139  Pac.  685;  Ex  parte  Lee, 
28  Cal.  App.  719,  153  Pac.  992;  Ex 
parte  Smith,  26  Cal.  App.  116,  146  Pac. 
82;  Ex  parte  Smith,  33  Cal.  App.  161, 
164  Pac.  618. 

EentucTcy. — Newport  v.  Merkel  Bros. 
Co.,  156  Ky.  580,  161  S.  W.  549 ;  Smith 
V.  Commonwealth,  175  Ky.  286,  194  S. 
W.  367. 

Maine. — State  v.  Mayo,  106  Me.  62, 
75  Atl.  295,  26  L.  R.  A.  (N.  S.)  502,  20 
Ann.  Cas.  512;  State  v.  Phillips,  107 
Me.   249,  78  Atl.   283. 

Maryland. — Swann  v.  City  of  Balti- 
more, 132  Md.  256,  103  Atl.  441. 

Massachusetts. — Commonwealth  v. 
Kingsbury,  199  Mass.  542,  85  N.  E.  848, 
127  Am.  St.  Rep.  513;  Commonwealth 


V.   Slocum,   230   Mass.    180,   119   N.   E. 
687. 

Michigan. — Johnson  v.  Sargent,  168 
Mich.  444,  138  N.  W.  468;  Jasmowski 
V.  Board  of  Assessors  of  City  of  De- 
troit,  191   Mich.   287,   157   N.   W.   891. 

Minnesota. — Schaar  v.  Comforth,  128 
Minn.  460,  151  N.  W.  275. 

Missouri. — Ex  parte  Kneedler,  243 
Mo.  632,  147  S.  W.  983,  Ann.  Cas.  1913 
C.  923 ;  Hall  v.  Compton,  130  Mo.  App. 
675,  108  S.  W.  1122;  City  of  St.  Louis 
V.  Hammond,  199  S.  W.  411. 

Nebraska.— SchnUz  v.  State,  88  Neb. 
613,  130  N.  W.  972,  34  L.  R.  A.  (N.  S.) 
243. 

Neiu  Jersey.— Vfest  v.  Asbury  Park, 
89  N.  J.  L.  402,  99  Atl.  190 

New  YorJc. — Mcintosh  v.  Johnson, 
211  N.  Y.  265,  105  N.  E.  416;  People  v. 
MacWilliams,  91  App.  Div.  176,  84  N. 
Y.  Suppl.  357;  Strauss  v.  Enright,  105 
Misc.   367. 

0/iio.— State  v.  Schaeffer,  96  Ohio, 
215,  117  N.  E.  220;  City  of  Fremont  v. 
Keating,  96  Ohio  St.  468,  US  N.  E. 
114. 

Ok'lahoma.—Ex  parte  Mayes,  167 
Pac.  749. 


62 


The  Law  of  Automobiles. 


is,  it  must  be  in  the  required  form  with  respect  to  its  title/" 
and  constitutional  requirements  with  reference  to  the  wording 
or  separation  of  provisions  must  be  obeyed. 


Sec.  58.  Regfulatory  power  lodged  in  legislature. 

The  control  of  the  highways  is,  in  the  first  instance,  lodged 
in  the  Legislature  of  the  State.^^  This  control  may  be  exer- 
cised by  the  Legislature  by  the  enactment  of  statutes  govern- 
ing the  powers  and  liabilities  of  automobilists.    Or,  the  law 


South  Carolina. — Lillard  v.  Melton, 
103  8.  Car.  10,  87  S.  E.  421;  Mer- 
chants' &  Planter's  Bank  v.  Brigman, 
106  S.  Car.  362,  91  S.  E.  332. 

"The  legislature  has  the  inherent  po- 
lice power  to  pass  any  law  it  judges  fit 
for  the  protection  and  welfare  of  its 
people  in  traveling  over  the  public 
highways  of  the  State,  and  it  is  a  matter 
within  the  discretion  of  the  legisla- 
ture of  the  State  to  determine  what  in- 
terests the  public  requires,  and  to  adopt 
Bueh  measures  and  means  as  are  reason- 
ably necessary  for  the  protection  of 
such  interests,  and  to  make  reasonably 
safe  the  traveling  public.  As  long  as 
the  legislature  acts  in  relation  to  the 
police  power  vested  in  it  as  the  law- 
making power,  it  is  not  for  the  court  to 
vacate  their  action  upon  constitutional 
grounds,  or  to  say  whether  the  meas- 
ure is  wise  or  unwise.  The  legislature 
by  passing  the  act  judged  the  measure 
to  be  reasonable  and  wise.  The  public 
generally  has  the  right  to  use  the  high- 
ways of  the  State  and  travel  over  the 
same — afoot,  horseback,  in  vehicles,  and 
motor  vehicles."  Merchants'  &  Plant- 
er's Bank  v.  Brigman,  106  S.  Car.  362, 
91   S.   E.   332. 

Texas. — Peters  v.  City  of  San  An- 
tonio (Civ.  App.),  195  S.  W.  989. 

"The  cases  with  unanimity  decide 
that  the  legislatures  of  states  have  full 
and  complete  control  over  the  highways, 
streets  and  alleys,  and  that  such  con- 
trol may  be  delegated  to  municipalities. 


and  it  follows  from  such  complete  con- 
trol that  the  use  of  the  streets  for  the 
prosecution  of  any  private  business  may 
be  wholly  denied,  or  granted  with  such 
provisions  and  regulations  as  may  be 
deemed  proper  by  the  municipality. 
When  a  franchise  is  granted,  during  its 
existence  unreasonable  and  oppressive 
regulations  might  form  the  ground  of 
complaint;  and,  when  a  vested  right  is 
regulated,  the  reasonableness  of  the 
regulation  could  undoubtedly  be  made 
the  subject  of  judicial  investigation. 
But,  when  a  privilege  to  which  a  party 
has  no  right  has  been  given  and  which 
is  granted  for  an  indefinite  time  and 
which  can  be  terminated  at  any  time  by 
the  granting  power,  we  fail  to  under- 
stand how  the  reasonableness  of  such 
regulations  can  be  made  the  basis  of  an 
attack."  Peters  v.  City  of  San  An- 
tonio (Tex.  Civ.  App.),  195  S.  W.  989. 

West  Virginia. — Ex  parte  Dickey,  76 
W.  Va.  576,  85  S.  E.  781 ;  Beck  v.  Cox, 
77  W.  Va.  442,  87  S.  E.  492. 

Canada. — A  province  of  Canada  has 
power  to  regulate  the  use  of  motor  ve- 
hicles upon  the  highways  within  it.  Mat- 
ter of  Rogers,  7  E.  L.  R.  (Canada)  212. 

15.  Section  60. 

16.  Western  Union  Teleg.  Co.  v.  Hop- 
kins, 160  Cal.  116,  116  Pac.  567;  Ex 
parte  Smith,  26  Cal.  App.  116,  146  Pac. 
82;  State  ex  rel.  Lunig  v.  Johnson,  71 
Fla.  363,  72  So.  477 ;  Peters  v.  City  of 
San  Antonio  (Tex.  Civ.  App.),  195  S. 
W.  989. 


Statutoiiy  Regulation  of  Motok  \''ehicles.  63 

makers  may  delegate  some  of  their  powers  to  municipal  divi- 
sions of  the  State,  such  as  counties,  cities,  villages,  towns, 
etc.^'  But  the  Legislature,  after  a  delegation  of  certain 
powers,  is  not  precluded  from  further  action  in  the  matter, 
but  it  may  by  appropriate  legislation  repeal  the  delegation 
and  resume  control  of  the  subject.^^  The  situation  is,  of 
course,  somewhat  different  when  the  authority  of  a  municipal 
division  is  protected  by  the  Constitution  of  the  State.  In  such 
a  case,  a  law  abridging  the  power  of  the  municipality  might 
be  unconstitutional.^^  Thus,  where  the  Constitution  provides 
in  effect  that  the  Legislature  shall  have  no  power  to  impose 
taxes  upon  counties  or  upon  the  inhabitants  thereof,  for 
county  purposes,  but  shall  empower  the  county  authorities  to 
impose  taxes  for  such  purposes,  the  State  cannot  impose  a 
license  tax  on  automobiles  for  the  construction  and  repair  of 
county  roads.^" 

Sec.  59.  Purpose  of  acts. 

Several  different  purposes  are  subserved  through  the  enact- 
ment of  regulations.  The  principal  purpose  is  the  safety  of 
other  travelers.^^  But  regulations  may  be  said  to  have  been 
enacted  in  the  interest  of  uniformity  in  the  regulation  of  the 
machines.^2  That  is,  it  is  in  the  interest  of  automobilists  that 
they  encounter  similar  regulations  in  the  various  villages  and 

17.  Section   70.  ex  rel.  Lunig  v.  Johnson,  71  Fla.  363, 

18.  State  ex  rel.  Lunig  v.  Johnson,  71  72  So.  477.  And  See  also  section  72. 
Fla.  363,  72  So.  477;  Anderson  v.  Went-  19.  Ex  parte  Schuler,  167  Cal.  282, 
worth,  75  Fla.  300,  78  So.  265;  People  139  Pac.  685;  People  v.  McGraw,  184 
V.  Braun,  100  Misc.  (N.  Y.)  343,  166  Mich.  233,  150  N.  W.  836;  City  of  Fre- 
N.  Y.  Suppl.  708 ;  Ex  parte  Shaw  mont  v.  Keating,  96  Ohio  St.  468,  118 
(Okla.),  157  Pac.  900.  N.  E.  114;  Kalich  v.  Knapp,  73  Oreg. 

"There  is  nothing  in  our  constitution  558,  145  Pac.  22. 

that  prohibits  the  legislature  from  en-  20.  Ex  parte  Schuler,   167   Cal.  282, 

acting  a  statute  taking  away  from  the  139  Pac.  685.     See  also  Ex  parte  Shaw 

boards    of    county    commissioners,    not  (Okla.),  157  Pac.  900. 

only  a  part,  but  the  whole,  of  their  su-  21.  Elsbery  v.  State,  12  Ga.  App.  86, 

pervision   and   control   of   public  roads  76  S.  E.  779 ;  City  of  St.  Louis  v.  Ham- 

and  bridges,   and  lodging  such   powers  mond   (Mo.),  199   S.  W.  411;   State  v. 

elsewhere,  since  the  control  of  all  gen-  Schaeflfer,  96  Ohio,  215,  117  N.  E.  220. 

eral   public   highways  is  vested   in   the  22.  Dozier  v.   Woods,   190  Ala.   279, 

state  absolutely  without  any  constitu-  67  So.   283;   Ex  parte  Smith,   26  Cal. 

tional  limitations  or  restrictions.     State  App.  116,  146  Pac.  82;  People  t.  Sar- 


64 


The  Law  of  Automobiles. 


cities  througli  which  they  may  pass,  and  regulations  may  be 
designed  to  this  end  and  to  the  prohibition  of  various  drastic 
requirements  by  municipal  corporations.^*  Or,  to  a  certain 
extent,  they  may  be  designed  to  afford  revenue  or  to  reim- 
burse municipalities  for  the  injuries  to  the  highways  which 
are  occasioned  by  motor  vehicles.-^ 


gent,  254  111.  514,  98>  N.  E.  959;  City 
of  Barbaroo  v.  Dwyer,  166  Wis.  372, 
165  N.  W.  297. 

23.  People  v.  Sargent,  254  III.  514,  98 
N.  E.  959 ;  People  ex  rel.  Hainer  v. 
Keeper  of  Prison,  121  N.  Y.  App.  Div. 
645,  106  N.  Y.  Suppl.  314,  affirmed  190 
N.  Y.  315,  83  N.  E.  44;  City  of  Bara- 
boo  V.  Dwyer,  166  Wis.  372,  165  N.  W. 
297.  "The  invention,  development  and 
use  of  the  automobile  introduced  an  en- 
tirely new  element  and  revolutionized 
travel  upon  all  the  highways  of  the 
State.  The  operation  of  these  motor 
vehicles  at  exceedingly  high  rates  of 
speed  introduced  a  new  element  of 
danger  for  all  those  who  enter  upon  the 
public  highways.  Negligence  in  the 
operation  of  motor  vehicles  involves 
great  danger  to  the  lives  and  property 
of  others  lawfully  using  the  highways. 
In  former  times,  vehicles  drawn  by 
horses  or  oxen  moved  at  a  comparatively 
low  rate  of  speed,  and  even  in  cases  of  a 
runaway,  others  upon  the  highway  but 
infrequently  had  difficulty  in  avoiding 
injury  or  danger.  When  vehicles  so 
drawn  were  negligently  managed,  and 
injured  the  person  or  property  of 
others,  there  was  usually  but  little  dif- 
ficulty in  locating  the  person  responsible 
for  the  injury.  Such  vehicles  did  not 
usually  travel  long  distances  and  the 
person  responsible  for  the  injury  in- 
flicted by  thf.m  could  usually  be  found 
somewhere  within  the  region  where  the 
cause  of  action  arose.  The  modern  ve- 
hicle drawn  by  an  engine,  is  capable  of 
traversing  the  State  from  one  end  to 
the  other  within  a  single  day.  Such  ve- 
liicles  make  journeys  far  distant  from 
the  residence  of  the  person  responsible 


for  negligence  in  their  operation,  thus 
making  it  difficult  for  the  person  in- 
jured in  person  or  property,  to  even 
ascertain  the  identity  of  the  person  re- 
sponsible for  his  injuries,  and  still 
more  difficult  for  him  to  obtain  redress, 
in  case  he  has  to  follow  the  negligent 
operator  of  the  engine  to  some  distant 
part  of  the  State.  These  considerations 
led,  in  earlier  years,  following  the  in- 
troduction of  this  class  of  traffic,  to  the 
adoption  of  stringent  police  regulations 
with  regard  to  the  running  of  motor 
vehicles  on  the  highways  of  numerous 
municipalities  of  the  commonwealth. 
Each  municipality  had  its  own  code  of 
regulations,  and  the  numerous  codes 
greatly  varied.  Some  of  the  require- 
ments were  perhaps  unreasonable.  The 
operator  of  an  automobile  could  form 
no  idea  from  reading  the  rules  of  one 
municipality  what  new  regulations  he 
might  have  to  observe  when  he  crossed 
the  line  into  the  jurisdiction  of  some 
municipal  neighbor.  This  was  the  con- 
dition of  affairs  when  the  legislature 
of  the  State  assumed  the  duty,  in  the 
exercise  of  the  supreme  police  power 
with  which  it  was  vested,  to  establish 
uniform  regulation  with  regard  to  this 
matter  and  limit  the  power  of  local  au- 
thorities to  the  ordaining  of  regulations 
which  were  not  inconsistent  with  the 
uniform  code.  The  act  of  April  27th, 
1909  (P.  L.  265),  is  the  final  expression 
of  the  legislative  will  upon  this  subject 
and  supersedes  all  prior  legislation  in- 
consistent therewith."  Garrett  v. 
Turner,  47  Pa,  Super.  Ct.  128,  affirmed 
235  Pa.  St.  383,  84  Atl.  354, 

24.  Ex   parte    Smith,    26    Cal.    App. 
116,  146  Pac.  82;  State  v.  Ingalls,  18 


Statutory  Regulation  of  Motor  Vehicles. 


65 


Sec.  60.  Title  and  form  of  statute. 

In  the  enactment  of  motor  vehicle  laws,  as  well  as  other  stat- 
utes, constitutional  provisions  relative  to  the  title,  form  and 
manner  of  enactment  of  laws,  must  receive  compliance.  Other- 
wise, the  proposed  law  will  fail  to  become  effective,  though 
the  subject  matter  is  within  the  legislative  power.  Thus,  con- 
stitutional provisions  in  some  States  require  that  a  proposed 
statute  shall  comprise  but  one  subject  or  that  the  subject  shall 
be  expressed  in  the  title  to  the  act.=^  A  requirement  of  a  State 
constitution  that  no  law  shall  contain  more  than  one  subject, 
is  not  offended  by  an  act  which  regulates  the  operation  of 
motor  vehicles  and  also  provides  for  the  payment  of  license 
fees.^s  ^nd  an  act  entitled  as  being  an  act  for  the  regulation 
licensing  and  governing  of  motor  vehicles,  is  not  invalid  be- 
cause it  also  provides  for  the  disposition  of  license  fees  re- 
ceived under  the  act.^^  And  a  statute  making  the  speed  of  a 
motor  vehicle  at  a  prohibited  rate  prima  facie  evidence  of 
negligence  in  case  of  an  injury  to  another  traveler,  is  held  to 


N.  Mex.  211,  133  Pae.  1177;  Common- 
wealth ex  rel.  Bell  v.  Powell,  249  Pa. 
St.  144,  94  Atl.  746. 

25.  Title  of  municipal  ordinances. — 
A  constitutional  requirement  relative  to 
the  title  of  acts,  may  not  apply  to 
municipal  ordinances.  Craddock  v. 
City  of  Antonio  (Tex.  Civ.  App.),  198 
e.  W.  634. 

26.  Jasmowski  v.  Board  of  Assessors 
of  City  of  Detroit,  191  Mich.  287,  157 
N.  W.  891.  See  also,  Wilson  v.  State 
(Tenn.),  224  S.  W.  168. 

27.  Smith  v.  Commonwealth,  175  Ky. 
286,  194  S.  W,  367.  See  also  People  v. 
Sargent,  254  111.  514,  98  N.  E.  959. 

Pennsylvania  statute. — A  statute  of 
Pennsylvania  providing  for  registration, 
licensing,  and  disposition  of  the  fees, 
is  germane  to  the  subject  to  the  regula- 
tion of  motor  vehicles,  which  is  ex- 
pressed in  the  title  of  the  act,  and  is 
not  in  violation   of  u  provi.'sion   of  the 


Constitution  forbidding  bills,  except 
general  appropriation  bills,  from  con- 
taining more  than  one  subject  which 
shall  be  clearly  expressed  in  the  title. 
Nor  is  a  provision  of  such  a  law  pro- 
viding for  the  use  of  such  moneys  in 
the  maintenance  of  State  highways  of- 
fensive to  a  constitutional  requirement 
providing  that  the  general  appropria- 
tion bills  shall  embrace  nothing  but  ap- 
propriations for  the  ordinary  expense 
of  the  executive,  legislative  and  judicial 
departments,  interest  on  public  debt 
and  for  public  schools,  and  that  all 
other  appropriations  shall  be  made  by 
separate  bills,  each  embracing  but  one 
subject;  for  such  a  constitutional  pro- 
vision is  intended  to  apply  only  to  bien- 
nial appropriations  from  general  reve- 
nues and  not  to  a  fund  created  for  a 
special  purpose  to  which  it  is  dedicated. 
Commonwealth  ex  rcl.  Bell,  249  Pa.  St. 
144,  04   Atl.   746. 


66  The  Law  of  Automobiles. 

be  within  the  title  of  a  motor  vehicle  statute  for  ''regulating 
the  use  and  speed"  of  motor  vehicles.^^ 

Sec.  61.  Due  process  of  law. 

The  objection  is  frequently  made  to  motor  vehicle  regula- 
tions that  they  take  property  without  due  process  of  law.  Inas- 
much as  they  are  based  on  the  police  power  of  the  State,  the 
objection  must  generally  fail.^^  But  an  act  rendering  the 
owner  of  a  motor  vehicle  liable  for  the  negligent  operation 
thereof  by  one  who  takes  the  machine  without  his  consent, 
such  as  a  mere  trespasser,  is  deemed  violative  of  the  consti- 
tutional protection.^*'  On  the  other  hand,  it  has  been  held  that 
an  act  creating  a  lien  on  a  motor  vehicle  for  injuries  occasioned 
by  its  negligent  operation  and  giving  such  lien  priority  next 
to  State  and  county  taxes,  is  within  the  legislative  power.^^ 

Sec.  62.  Discrimination  between  motorists  and  other  persons. 

As  a  general  proposition,  it  is  not  an  unjustifiable  discrimi- 
nation or  special  legislation  to  enact  a  law  regulating  the  use 
of  motor  vehicles  on  the  public  highways,  though  other  vehicles 
using  the  way  are  unaffected  or  less  affected  thereby .^^.  Per- 
sons who  own,  use  or  operate  automobiles  may  very  properly 
be  classed  together  and  made  subject  to  legislation  which, 
though  distinctive,  is  appropriate  to  them,  provided  the  legis- 

28.  Hartje   v.    Moxley,   235    111.    164,       Atl.  354. 

85  N.  E.  216.  '  •  The    constitutional    requirement    is 

29.  See  section  57.  that  laws,  upon  the  subjects  discrimi- 

30.  Daugherty  v.  Thomas,  174  Mich.  nated  by  the  section  of  the  Constitu- 
371,  140  N.  W.  615,  45  L.  R.  A.  (N.  S.)  tion  in  question,  shall  be  general,  not 
699,  Ann.  Cas.  1915  A.  1163.  local  or  special,  and  uniformity  of  re- 

31.  Merchants'  &  Planters'  Bank  v.  suit  is  only  one  of  the  judicial  tests 
Brigman,  106  S.  Car.  362,  91  S.  E.  332.  applied   to  laws  for  the  determination 

32.  Hudgens  v.  State,  15  Ala.  App.  of  their  character  as  to  generality.  A 
156,  72  So.  605 ;  Westf  alls,  etc.,  Express  law  may  by  classification  or  otherwise 
Co.  V.  City  of  Chicago,  280  111.  318,  117  produce  some  diversion  of  result  and 
N.  E.  439 ;  State  v.  Lawrence,  108  Miss.  yet  be  general,  but  where  tlie  classifica- 
291,  66  So.  745 ;  City  of  St.  Louis  v.  tion  is  based  on  genuine  distinctions, 
Hammond  (Mo.),  199  S.  W.  411;  State  its  expediency  is  for  legislative  de- 
V,  Ingalls,  18  N.  Mex.  211,  135  Pac.  termination."  Garrett  v.  Turner,  47 
1177;  Garrett  v.  Turner,  47  Pa.  Super.  Pa.  Super.  Ct.  128,  affirmed  235  Pa.  St. 
Ct.   128,   affirmed   235   Pa.   St.    383,   84  383,  84  Atl.   354. 


Statutory  Regulation  of  Motor  Vehicles. 


67 


lation  applies  to  all  within  the  class  and  affects  them  all 
alike.^^  Thus,  an  act  regulating  the  speed  of  automobiles  is 
not  unconstitutional  as  class  legislation.^*  And  a  regulation 
which  fixes  a  speed  limit  and  which  by  its  terms  includes  all 
vehicles,  is  not  subject  to  the  objection  that  it  is  discrimina- 
tory and  special  legislation  because  the  limit  is  fixed  so  high 
that  only  motor  vehicles  can  violate  it.^^  So,  too,  a  provision 
of  a  motor  vehicle  law  which  makes  excessive  speed  prima 
facie  evidence  of  negligence,  is  not  invalid  on  the  theory  that 
it  gives  one  injured  by  an  automobile  a  special  advantage  in 
a  suit  for  his  injuries.^^    And  a  regulation  may  be  effective 


33.  Garrett  v.  Turner,  235  Pa.  St. 
383,  84  All.  354. 

"Motor  vehicles  have  been  classified 
separately  from  horse-drawn  vehicles 
and  have  been  the  subject  of  separate 
legislation  ever  since  they  came  into 
general  use.  Their  departure,  in  char- 
acter, use,  and  speed  from  liorse-drawn 
vehicles  has  been  so  great  as  to  justify 
such  classification,  even  though  there  is 
some  similarity  in  weight,  length,  and 
use  between  the  motor  trucks  and  the 
kind  of  horse-drawn  vehicles  employed 
by  public  cartmen  for  commercial  pur- 
poses. Motor  trucks,  traveling  for 
longer  distances  in  shorter  time,  are 
more  dangerous  because  of  greater 
speed  and  the  heavier  loads  carried,  and 
courts  can  take  judicial  knowledge  that 
they  do  more  damage  to  the  surface  of 
the  streets  ami  therefore  might  very 
reasonably  be  required  to  pay  a  greater 
tax  than  a  horse-drawn  vehicle.  The 
question  of  reasonable  classification  is 
primarily  for  the  legislative  branch  of 
the  government,  and  only  becomes  a  ju- 
dicial question  when  such  legislative  ac- 
tion is  clearly  unreasonable.  The  legis- 
lature may  classify  persons  or  objects 
for  the  purpose  of  legislative  regula- 
tion and  control,  provided  such  classi- 
fication is  not  an  arbitrary  one  and  is 
based  upon  some  substantial  diflferencc 
bearing  proper  relations  fb  the  classifi- 
cation."  Westfalls,  etc.,  Express  Co.  v. 


City  of  Chicago,  280  III.  318,  117  N.  E. 
439. 

34.  Christy  v.  Elliott,  316  111.  31,  (4 
X.  E.  1035,  1  L.  R.  A.  (N.  S.)  215,  3 
Ann.  Cas.  487,  108  Am.  St.  Rep.  196; 
City  of  St.  Louis  v.  Hammond  (Mo.), 
199  S.  W.  411. 

35.  Ex  parte  Snowden,  12  Cal.  App. 
521.   107   Pac.   724. 

36.  Hartje  v.  Moxley,  235  111.  164,  85 
X.  E.  216,  wherein  it  was  said:  "It  is 
also  urged  that  section  16,  supra,  •vio- 
lates section  23  of  article  4  of  the  Con- 
stitution of  the  State  in  that  it  is 
special  legislation,  for  the  reason  that 
it  confers  upon  persons  who  claim  to 
have  been  injured  by  a  moving  automo- 
bile a  peculiar  advantage  in  the  trial 
of  a  case  t<i  recover  damages  resulting 
from  the  injury,  by  application  of  a 
rule  of  evidence  not  applicable  where 
the  injury  results  from  negligently 
moving  a  vehicle  not  included  in  the 
Motor  Vehicle  Law.  The  classification 
is  made  primarily  to  govern  those  oper- 
ating motor  vehicles  and  prevent  in- 
juries to  persons  and  property  conse- 
quent upon  their  negligent  use.  The  ve- 
hicles covered  by  the  act  are  of  such  a 
character  as  that  they  properly  form  a 
class  to  which,  alone,  legislation  may 
apply.  Under  the  construction  which 
we  have  above  placed  upon  this  section 
it  is  not  the  subject  of  constitutional 
objection. ' ' 


68  The  Law  of  Automobiles. 

which  applies  to  bicycles  and  not  to  other  silently  moving 
vehicles.^^  And  a  higher  license  fee  may  be  charged  against 
the  drivers  of  motor  vehicles  than  is  imposed  against  animal- 
drawn  vehicles.^^ 

Sec.  63.  Discrimination  between  owners  of  different  machines 
—  between  different  motor  vehicles. 
A  statute  which  imposes  different  obligations  on  the  owners 
of  motor  vehicles  of  different  sizes  and  weights  does  not 
necessarily  create  an  unlawful  discrimination.  A  classifica- 
tion of  motor  vehicles,  and  the  imposition  of  different  bur- 
dens on  those  of  different  classes,  is  proper,  if  the  classifica- 
tion is  made  on  a  reasonable  basis  and  is  applicable,  without 
discrimination,  to  all  similarly  situated.^  Thus,  the  license 
fees  for  different  machines  are  generally  graded  according 
to  their  horse  power.'*''  Or  license  fees  may  be  graduated 
according  to  the  seating  capacity  of  the  machine.'*^  Or  the 
owners  of  commercial  trucks  or  vehicles  used  for  hire  may 
be  required  to  pay  a  higher  or  lower  license  fee  than  is  charged 
against  the  owners  of  pleasure  automobiles.*^  And  a  different 
classification  may  be  given  to  the  manufacturers  of  automo- 
biles than  is  given  to  individual  users.*^  And  a  regulation 
may  be  sustained  which  exacts  a  fee  of  ten  dollars  for  busi- 

37.  City  of  Des  Moines  v.  Keller,  116       E.  421.     See  also  section  111. 

Iowa,  648,  88  N.  W.   827.  41.  Mark  v.  District  of  Columbia,  37 

38.  Westfalls,  etc.,  Express  Co.  v.  App.  D.  C.  563,  37  L.  E.  A.  (N.  S.) 
City  of  Chicago,  280  111.  318,  117  N.  E.  440;  State  v.  Amos,  76  Fla.  26,  79  So. 
439.    See  also  sections  109-115.  433. 

39.  Parkv.  City  of  Duhith.  134  Minn.  42.  Smith  v.  State,  130  Md.  482,  100 
296,  159  N.  W.  627.  Atl.  778. 

40.  Ex  parte  Sehuler,  167  Cal.  282,  "Business  trucks  and  ordinary  auto- 
139  Pac.  685 ;  State  v.  Amos,  76  Fla.  26,  mobiles  are  unlike  in  their  use.  The  use 
79  So.  433;  Lillard  v.  Melton,  103  S.  of  the  latter  over  greater  area,  and 
Car.  10,  87  S.  E.  421.  during  a  larger  portion  of  the  day,  and 

"The  apportionment  on   a  basis   of  with  greater  speed,  might  well  appeal 

horse  power  has  a  direct  and  natural  re-  to   the   council   as  justifying   a   higher 

lation  to  the  privilege  granted,  the  use  tax."      Park  v.    City    of    Duluth,    134 

of  the  highway,   and  since  the   license  Minn.   296,   159   N.   W.   627.      See   also 

relates   to   all  persons  in   a  class,   and  section  112. 

operates    uniformly    upon    all    therein,  43.  Jasmowski  v.  Board  of  Assessors 

there   is  no  unlawful  discrimination.  '  of  City,  of  Detroit,  191  Mich.  287,  157 

Lillard  v.  Melton,  103  S.  Car.  10.  87  a.  N.  W.  891. 


Statutory  Regulation  of  Motor  Vehicles.  69 

ness  trucks  and  fifty  cents  per  horse  power  for  other  ma- 
chines/^ And  motor  vehicles  owned  by  a  city  and  operated 
for  the  i)olice  and  fire  departments  thereof,  may  be  exempted 
from  the  payment  of  license  fees  without  giving  ground  for 
a  complaint  of  discrimination.^^ 

Sec.  64.  Discrimination  between  owners  of  different  machines 

—  non-residents. 

The  fact  that  a  license  fee  may  be  required  of  a  resident  of 
a  State  for  the  right  to  operate  a  motor  vehicle  on  the  public 
highways  and  that  none  may  be  required  of  a  non-resident 
while  he  is  temporarily  within  the  State,  is  not  an  unlawful 
discrimination  which  vitiates  the  regulation.^*^  But  regula- 
tions msij,  to  a  certain  extent,  be  enacted  which  will  apply  to 
non-residents  as  well  as  residents.^'' 

Sec.  65.  Discrimination  between  owners  of  diiferent  machines 

—  aliens. 

To  a  limited  extent,  citizenship  may  properly  be  the  basis 
for  classification,  and  a  regulation  prohibiting  the  issuance 
of  licenses  to  aliens  for  the  carriage  of  persons  for  hire,  has 
been  sustained.^^ 

Sec.  66.  Certainty  of  enactment. 

Regulations  forbidding  an  *' unreasonable "  rate  of  speed 
for  motor  vehicles  are  generally  sustained  as  proper  legis- 
lative enactments.^^  But  in  a  few  States  it  may  be  held  that  a 
motor  vehicle  regulation  which  forbids  the  operation  of  motor 
vehicles  at  a  speed  which  is  '* improper"  or  ''unreasonable" 
may  be  open  to  the  objection  that  it  is  too  indefinite  and  un- 

44.  Park  v.  City  of  Duluth,  134  Minn.  E.  421.     See  also  sections  114,  115. 

296,  159  N.  W.  627.  47.  Kane  v.  State  of  New  Jersey,  242 

46.  State   v.   Collins,    94  Wash.   310,  U.  S.  160,  37  8.  Ct.  30. 

162  Pac.  556.    Sec  also  Ex  parte  Snow-  48.  Norin  v.  Nunan  (N.  J.),  103  Atl. 

den,  12  Cal.  App.  521,  107  Pac.  724.  378. 

46.  Ex  parte   Schuler,   167  Cal.   282,  49.  Ex  parte  Daiiich  (Cal.),  192  Pac. 

139  Pac.  685;  Park  v.  City  of  Duluth,  442;  People  v.  Beak,  291  111.  449,  126 

134  Minn.  296,  159  N.  W.  627;   State  N.  E.  201;  State  v.  Schaeffer,  96  Ohio 

V.  Lawrence,  108  Miss.  291,  66  So.  745;  215,  117  N.  E.  220.     See  also  Rex  v. 

Lillard  v.  Melton,  103  S.  Car.  10,  87  S.  Welle,  91  L.  T.  (Eng.)  98. 


70  The  Law  of  Automobiles. 

certain  to  be  enforced  in  a  criminal  prosecution  for  an  alleged 
violation  thereof .^"^  But,  though  ineffective  in  a  criminal  case, 
it  may  be  held  to  furnish  a  rule  of  conduct  so  that  due  force 
may  be  given  to  it  in  civil  actions  for  injuries  received  through 
the  excessive  speed  of  the  automobilist.  And  it  has  been  held 
that  a  statute,  which  by  two  sections  limits  the  rate  of  speed 
of  an  automobile  or  motor  vehicle  to  a  certain  number  of  miles 
per  hour  upon  public  roads,  streets  or  driveways,  is  not  void 
for  uncertainty,  because  it  provides  in  another  section  that 
"no  person  in  charge  of  an  automobile  or  motor  vehicle  on 
any  public  road,  street  or  driveway  shall  drive  the  same  at 
any  speed  greater  than  is  reasonable  and  proper,  having  re- 
gard to  the  traffic  and  use  of  the  public  road,  street  or  drive- 
way by  others,  or  so  as  to  endanger  the  life  and  limb  of  any 
person  thereon.  In  construing  such  a  statute  it  is  said  that 
the  latter  section  was  enacted  for  a  wise  purpose,  and,  under 
the  general  rule  of  law  that  "you  must  so  use  your  own  as 
not  to  injure  the  rights  of  others  or  the  public  right,"  it  is  to 
be  regarded  as  a  limitation  upon  the  speed  rates  mentioned  in 
the  previous  sections.^^ 

A  statute  requiring  the  driver  or  operator  of  a  vehicle  on 
a  public  highway  to  drive  or  operate  such  vehicle  in  a  careful 
manner  with  due  regard  for  the  safety  and  convenience  of 
pedestrians,  is  too  indefinite  to  form  the  basis  of  a  criminal 
prosecution.^^^ 

Sec.  67.  Repeal  of  statutes. 

Under  its  power  of  regulation  of  motor  vehicles,  the  Legis- 
lature, after  passing  a  statute  on  the  subject,  may,  as  a  gen- 
eral proposition,  repeal  such  act  and  enact  a  different  regula- 
tion. It  is  the  general  rule  that,  unless  a  contrary  intention 
is  indicated,  a  statute  of  special  or  limited  application  is  not 
deemed  repealed  by  a  statute  which  is  of  general  application. 
But  a  special  act  may  be  deemed  repealed  by  a  general  one, 
when  it  is  apparent  that  the  general  act  is  intended  to  fur- 

50.  See  section  732.  51a.  Russell  v.  State  (Tex.  Cr.),  ZZ9 

51.  Byrd  v.  State,  59  Tex.  Cr.   513,       S.  W.  566. 
129  S.  W.  620. 


Statutory  Regulation  of  Motor  Vehicles.  71 

nish  the  only  rule  on  the  subject  or  is  intended  as  a  consolida- 
tion of  various  special  laws.  Thus,  a  statute  regulating  the 
use  of  motor  vehicles  in  a  particular  county  may  be  repealed 
by  a  motor  vehicle  act  of  general  application,  though  the 
latter  does  not  mention  the  special  statute.^^  One  prosecuted 
under  a  regulation  at  the  time  of  its  repeal  must  be  discharged 
where  the  repealing  act  contains  no  saving  clause  as  to  pend- 
ing prosecutions.^^ 

Sec.  68.  Construction  of  reflations. 

A  statute  creating  a  criminal  offense  is  entitled  to  a  strict 
construction  so  that  the  application  of  the  act  will  not  be  ex- 
tended beyond  the  clear  intention  of  the  law  makers.^^  But, 
nevertheless,  the  guiding  principle  in  the  interpretation  of 
statutes  is  the  ascertainment  of  the  legislative  intent,  and  a 
statute  should  not  receive  such  a  narrow  construction  as  to 
exclude  those  acts  intended  to  be  included  within  its  applica- 
tion.^ A  connnon  sense  interpretation  must  be  given  to  a 
statute,^^  considering  the  whole  statute  in  construing  a  part 
thereof.^'  In  construing  a  motor  vehicle  law,  the  court  should 
give  force  and  effect  to  every  part  of  it  to  carry  out  the  in- 

52.  Jones  v.  Stokes,  145  Ga.  745,  89  cardiual  rule  to  be  applied  by  the  court: 

S.  E.  1078,  wherein  it  was  said:     "The  and  therefore,  in  the  absence  of  an  ex- 

raere  enactment  by  the  legislature  of  a  press  repeal,  if  it  be  apparent  that  the 

general  statute  upon   a  subject-matter  legislature   intended,   in  a   given  case, 

dealt  with  in  a  formerly  passed  parti-  that   the   later   general   statute   should 

cular  statute  will  not  alone  repeal  the  supplant  the  particular  one,  the  courts 

latter.    Ordinarily,  unless  the  provisions  will  construe  the  subsequently  enacted 

of  the  general  statute  expressly  provide  general  law  as  having  that  effect. ' ' 

that  it  shall  have  the  effect  of  repeal-  53.  Ex  parte  Wright,  82  Tex.  Cr.  247, 

ing     a    previously     passed     particular  199  S.  W.  486. 

statute  dealing  with  the  same  subject-  54.  Patterson  v.  State,  16  Ala.  App. 

matter,  or  unless  the  general  statute  by  483,  79  So.  157. 

its  t^rms  necessarily  embraces  those  of  55.  State  v.  Amos,  76  Fla.  26,  79  So. 

the  other,  or  there  is  an  irreconcilable  433;  State  v.  Goodwin,  169  Ind.  265,  82 

conflict  between  the  provisions  of   the  N.  E.  459. 

two,  the  subsequently  enacted  general  56.  State    v.    Pfeifer,    96    Kan.    791, 

statute  will  not  supersede  the  particular  153  Pac.  552. 

one.    However,  this  being  a  rule  of  con-  57.  Patterson  v.  State,  16  Ala.  App. 

struction  in  such  cases  as  in  all  others.  483,  79  So.  157. 
the   intention   of  the  legislature  is  the 


72 


The  Law  of  Automobiles. 


tent  of  the  Legislature,  if  possible,  such  intent  to  be  ascer- 
tained from  the  language  in  its  plain  and  natural  meaning.^ 


58.  State  v.  Amos,  76  Fla.  26,  79  So. 
433.  ' '  In  construing  a  statute  it  is  the 
duty  of  the  court  to  give  force  and 
effect  to  every  part  of  it  to  carry  out 
the  intent  of  the  legislature,  if  possible. 
"WBere  the  language  is  clear  the  intent 
is  ascertained  from  the  language  of  the 
act  itself,  and  it  is  the  duty  of  the 
court  to  give  to  the  language  used  its 
plain  and  natural  meaning,  for  the 
legislature  is  presumed  to  mean  what  it 
has  plainly  expressed,  and  there  is  no 
field  for  construction.  If  the  act  con- 
tains contradictory  provisions,  the  courts 
will  endeavor  to  so  construe  it  as  to 
give  force  and  effect  to  the  entire  act 


and  harmonize  it,  if  possible,  and,  fail- 
ing in  this,  they  seek  light  from  other 
sources.  Where  the  language  is  plain 
and  unequivocal,  the  courts  must  follow 
it  implicitly,  but,  where  it  is  doubtful 
or  ambiguous,  it  is  the  duty  of  the  court 
to  remove  the  doubt  by  deciding  it,  and, 
■when  the  court  has  given  its  decision, 
the  point  can  no  longer  be  considered 
doubtful.  .  .  .  They  should  not, 
however,  adopt  an  arbitrary  conclusion 
as  to  what  was  the  intention  of  the  leg- 
islature, if  there  is  any  way  in  which 
that  may  be  ascertained."  State  v. 
Amos,  76  Fla.  26,  79  So.  433. 


Municipal  Regulations.  To 


CHAPTER  VI. 

MUNICIPAL  REGULATIONS. 

Section  69.  Scope  of  chapter 

70.  Municipal  power  in  general — power  delegated  from  state. 

71.  Municipal  power  in  general — police  power  of  regulation. 

72.  Municipal  power  in  general — abrogation  of  municipal  powers. 

73.  Municipal  power  in  general — Park  Commissioners. 

74.  Regulations  must  not  conflict  with  Constitution — in  general. 

75.  Regulations  must  not  conflict   with  Constitution — discrimination  be- 

tween motorists  and  other  travelers. 
70.  Regulations  must  not  conflict  with  Constitution — discrimination  be- 
tween motor  vehicles. 

77.  Regulations  must  not  conflict  witli  State  law. 

78.  Regulations  must  be  reasonable. 

79.  Manner  of  enactment. 

80.  Application  of  regulation  beyond  municipal  limits. 

81.  Punishment  for  violation  of  ordinance. 
82  Proof  of  ordinance. 


Sec.  69.  Scope  of  chapter. 

This  chapter  is  intended  to  cover  the  power  of  municipal 
divisions  to  make  regulations  with  respect  to  the  operation  of 
motor  vehicles  along  the  public  highways.  The  powers  of 
Congress  ^  and  of  State  legislative  bodies,^  are  treated  in  other 
chapters.  The  validity  and  application  of  particular  regula- 
tions is  not  discussed  in  this  chapter,  but  resort  to  other  parts 
of  the  work  is  to  be  made  for  a  detailed  discussion  of  such 
subjects  as  registration  and  licensing,^  jitneys,  taxicabs,'' 
chauffeurs,^  garages,^  the  law  of  the  road,'  criminal  prosecu- 
tions,^ and  various  other  matters  of  lesser  importance.^  So, 
too,  the  probative  effect  of  a  violation  of  a  municipal  ordin- 
ance on  the  issue  of  negligence  in  a  particular  case,  is  dis- 
cussed in  another  chapter.^*^ 

1.  See  chapter  VII.  6.  See  chapter  XI. 

2.  See  chapter  V.  7.  See  chapter  XIV. 

3.  See  chapter  VIII.  8.  See  chapter  XXVII. 

4.  See  chapter  IX.  9.  See  chapter  XIII. 

5.  See  chapter  XII.  10.  See  sections  297-302. 


74  The  Law  of  Automobiles. 

Sec.  70.  Municipal  power  in  general  —  power  delegated  from 
State. 
Control  over  the  streets  and  highways  within  a  State  is 
primarily  lodged  in  the  legislative  body  of  the  State,  to  be 
exercised  directly  by  such  body  or  to  be  delegated  by  it  to 
municipal  divisions  of  the  State."  Of  course,  constitutional 
prohibitions  in  various  States  may  abridge  the  power  of  the 
Legislature,  but,  in  the  absence  of  such  prohibitions,  it  may 
give  or  withhold  to  the  municipal  divisions  such  power  over 
the  control  of  motor  vehicles  as  seems  wise  to  the  law 
makers.^  A  municipal  corporation  possesses  such  legislative 
power  only,  as  has  been  delegated  to  it  by  the  Legislature,  and 
the  authority  to  pass  a  particular  ordinance  must  be  found  in 
its  charter  or  in  general  laws  pertaining  to  the  powers  of 
municipal  divisions.^^  If  conditions  are  annexed  to  the  power 
of  municipalities,  compliance  therewith  must  be  made  before 
the  municipal  regulation  can  be  sustained."  Municipal 
powers,  however,  may  be  either  express  or  implied.  A  proper 
police  regulation,  duly  and  legally  passed  by  a  municipal  cor- 
poration, is  entitled  to  as  much  respect,  and  is  as  much  a  legal 
regulation  within  the  limits  of  the  municipality,  as  a  police 
regulation  passed  by  the  Legislature.^^ 

Sec.  71.  Municipal  power  in  general  —  police  power  of  regu- 
lation. 

Though  the  power  of  a  municipality  to  regulate  the  streets 
within  its  limits  is  one  which  is  first  lodged  in  the  Legislature 
and  the  municipality  has  only  a  delegated  power  in  respect 

11.  Section  58.  also,  Zaekary  v.  Morris,  78  Fla.  316,  82 

12.  Kalich  v.  Knapp,   73  Oreg.   558,      So.  830. 

142  Pac.   594,    145   Pac.   22;   Peters  v.  13.  Chicago  v.  Kluever,  257  111.  317, 

City  of  San  Antonio  (Tex.  Civ.  App.),  100  N.   E.   917;    Heartt  v.  Village   of 

195  S.  W.  989.  Downer's  Grover,  278  111.  92,  115  N.  E. 

County  commissioners. —  The  legisla-  869. 

ture  may  delegate  to  a  court  of  county  14.  Town   of  Decatur  v.  Gould,   185 

commissioners  of  a  certain  county  the  Iowa  203,  170  N.  W.  449. 

authority  to  make  and  promulgate  rules  15.  People    v.    Morosini,    N.    Y.    L. 

and  regulations,  the  violation  of  which  Journ.,   April    18,   1918;   Sehell  v,  Du- 

constitutes     crime.       State    v.     Straw-  Bois.  94  Ohio,  93,  113  N.  E.  664. 
bridge    (Ala.  App.),   76  So.  479.     See 


Municipal  Regulations. 


75 


thereto,^^  it  may  be  said,  as  a  proposition  of  practical  experi- 
ence, that,  upon  the  creation  of  a  municipality,  it  receives  the 
police  power  of  regulating  the  traffic  along  its  streets.^'  Thus, 
it  is  the  general  rule  that  a  municipality,  subject  to  constitu- 
tional^^ and  statutory  ^^  limitations,  and  subject  to  the  re- 
quirement that  its  ordinances  be  reasonablCj^o  has,  by  virtue 
of  its  general  police  power,  the  right  to  regulate  the  use  of 
the  streets  by  motor  vehicles.^^     A  provision  of  a  general 


16.  Section  70. 

17.  "Municipal  corporations  in  this 
State  have  always  exercised  the  police 
power  by  making  regulations  necessary 
for  the  protection  of  the  safety,  health 
and  morals  of  society,  and  every  ordi- 
nance for  that  purpose  which  has  been 
found  reasonable  and  not  in  violation 
of  any  constitutional  restriction  has 
been  sustained  as  strictly  within  the 
legitimate  exercise  of  the  power." 
Chicago  V.  Kluever,  257  111.  317,  100  N. 
E.  917. 

18.  Sections    74-76. 

19.  Section  77. 

20.  Section  78. 

21.  United  States.— Fifth  Ave.  Coach 
Co.  V.  New  York  City,  221  U.  S.  467, 
31  S.  Ct.  709. 

Alabama. — ^Watts  v.  Montgomery  Tr. 
Co.,  175  Ala.  102,  57  So.  471 ;  Adler  v. 
Martin,  179  Ala.  97,  59  So.  597;  City 
of  Montgomery  v.  Orpheum  Taxi  Co., 
82  So.  117;  State  v.  Strawbridge  (Ala. 
App.),  76  So.  479.  "A  municipality 
would  not  doubt  have  the  right,  under 
its  police  power,  to  regulate  the  travel 
upon  its  streets  so  as  to  prevent  con- 
gestion and  collision,  and  could  there- 
by protect  all  persons  using  the  streets, 
including  street  cars. ' '  Watts  v.  Mont- 
gomery Tr.  Co.,  175  Ala.  102,  57  So. 
471. 

California.— Ex  parte  Berry,  147  Cal. 
52,  82  Pac.  44 ;  Ex  parte  Smith,  36  Cal. 
App.  116,  146  Pac.  82;  Pemberton  v. 
Amy  (Cal.  App.),  183  Pac.  356,  af- 
firmed 182  Pac.  964  ;  Ham  v.  Los  An- 
geles County  (Cal.  App.),  189  Pac.  462. 


Georff in. -'Cohunhu!-.  R.  Co.  v.  Waller, 
12  Ga.  App.  674,  78  S.  E.  52;  Sanders 
V.  City  of  Atlanta,  147  Ga.  819,  95  S. 
P:.   (59.5. 

IIH)iou<i. — Harder'?  Storage  &  Van 
Co.  v.  Chicago,  235  111.  58,  85  N.  E. 
245;  Chicago  v.  Kluever,  257  HI.  317, 
100  X.  E.  917;  Chicago  v.  Shaw  Liv- 
ery Co.,  258  111.  409,  101  N.  W.  588; 
Johnson  Oil  Refining  Co.  v.  Galesburg. 
etc..  Power  Co.,  200  111.  App.  392 ;  Slade 
V.  City  of  Chicago,  1  111.  Cir.  Ct.  Eep. 
.)20. 

Indiana. — Kersey  v.  Ti-ire  Haut*.  161 
Ind.  471,  68  N.  E.  1027. 

Iowa. — Pilgrim  v.  Brown,  168  Iowa, 
177,  150  N.  W.  1 ;  Pugh  v.  City  of  Dea 
Moines,  176  Iowa  593,  156  N.  W.  892. 

Kansas. — Dresser  v.  City  of  Wichita, 
96  Kans.  820,  153  Pac.  1194. 

Kentucky. — Commonwealth  v.  Nolan, 
189  Ky.  34,  224  S.  W.  506. 

3/flMie.— State  V.  Mayo,  106  Me.  62, 
75  Atl.  295,  20  Ann.  Cas.  512,  26  L.  B. 
A.   (N.  S.)   502n. 

Maryland.— ^v^ii-nxi  v.  City  of  Balti- 
more, 132  Md.  256,  103  Atl.  441. 

Massachusetts. — Commonwealth  v. 
Crowninshield,  187  Mass.  221,  72  N.  E. 
963;  Commonwealth  v.  Slocum,  235 
Mass.  180,  119  N.  E.  687. 

Jf{cftti7an.— People  v.  McGraw,  184 
Mich.  233,  150  N.  W.  836;  Brennan  v. 
Connolly,  207  Mich.  25,  173  N.  W.  511. 
Minnesota. — State  v.  Larrabee,  104 
Minn.  37,  115  N.  W.  948;  City  of 
Duluth  V.  East«rly,  115  Minn.  64,  131 
N.  W,  791 ;  Park  v.  City  of  Duluth,  134 
Minn.  296,  159  N.  W.  627. 


76 


The  Law  of  Automobiles, 


statute  authorizing  cities  to  make  and  enforce  all  necessary 
police  ordinances,  may  be  construed  as  a  grant  of  police  power 
to  cities  and  authorizes  them  to  make  and  enforce  reasonable 
police  regulations  for  the  operation  of  motor  vehicles.- 

Sec.  72.  Municipal  power  in  generaJ  —  abrogation  of  munici- 
pal powers. 

The  regulatory  power  over  public  highways  is  lodged  in  the 
Legislature.-^    This  function  may  be  exercised  directly  by  the 


Missouri. — Eoper  v.  Greenspon,  272 
Mo.  288,  198  S.  W.  1107,  L.  R.  A.  1918, 
D.  126 ;  City  of  St.  Louis  v.  Hammond, 
199  S.  W.  411;  Young  v.  Dunlap,  195 
Mo.  App.  119,  190  S.  W.  1041;  City  of 
Windsor  v.  Bast  (Mo.  App.),  199  S. 
W.  722. 

Nebraska. — Christensen  v.  Tate,  87 
Neb.  848,  128  N.  W.  632. 

New  Jersey. — Fonaler  v.  Atlantic 
City,  70  N.  J.  L.  125,  56  Atl.  119;  West 
V.  City  of  Asbury  Park,  89  N.  J.  L.  402. 
99  Atl.  190. 

New  YorTc. — Mcintosh  v.  Johnson, 
211  N.  Y.  265,  105  N.  E.  416;  People 
V.  Untennyer,  153  App.  Div.  176,  138 
N.  Y.  Suppl.  334;  People  v.  Milne,  86 
Misc.  417,  149  N.  Y.  Suppl.  283;  Ma- 
aon-Seanian  Tranap.  Co.  v.  Mitchel,  89 
Misc.  230,  153  N.  Y.  Suppl.  461;  People 
V.  Fitzgerald,  101  Misc.  (N.  Y.)  695. 
168  N.  Y.  Suppl.  930 ;  People  v.  Dwyer. 
136  N.  Y.  Suppl.  148;  People  v.  Bell, 
148  N.  Y.  Suppl.  753;  People  v.  Moro- 
sini,  N.  Y.  L.  .Tourn.,  April  18,  1918. 

Ohio. — Schell  v.  DuBois,  94  Ohio,  93. 
113  N.  E.  664.  "Nothing  is  more 
firmly  established  than  that  of  the  State 
and  municipal  authorities,  in  the  exer- 
cise of  the  police  power,  may  make  all 
such  provisions  as  may  be  reasonably 
necessary  and  appropriate  for  the  pro- 
tection of  the  public  health  •  and 
safety."  Schell  v.  DuBois,  94  Ohio, 
93,  113  N.  E.  664. 

Oregon. — Kellaher  v.  Portland,  57 
Oreg.  575,  112  Pac.  1076;  Kalich  v. 
Kuapp,    73    Oreg.    558,    145    Pac.    22; 


Everart  v.  Fischer,  75  Oreg.  316,  145 
Pac.  33. 

Pennsylvania. — Jitney  Bus  Assoc,  of 
Wilkesbarre  v.  Wilkesbarre,  256  Pa. 
St.  462,  100  Atl.  954;  Radnor  Tp.  v. 
Bell,  27  Pa.  Super.  Ct.   1. 

Texas. — Peters  v.  City  of  San  An- 
tonio (Civ.  App.),  195  S.  W.  989; 
Craddock  v.  City  of  San  Antonio  (Civ. 
App.),  198  S.  W.  634;  City  of  Dallas  v. 
Gill  (Civ.  App.),  199  S.  W.  1144;  Ex 
parte  Parr,  82  Tex.  Cr.  525,  200  S.  W. 
404. 

Vermont. — State  v.  Jarvis,  89  Vt.  239, 
95  Atl.   541. 

Washington. — City  of  Seattle  v. 
King,  74  Wash.  277,  133  Pac.  442; 
Seattle  Taxicab  &  Tr.  Co.  v.  Seattle,  86 
Wash.  594,  150  Pac.  1134;  State  ex  rel. 
Shafer  v.  City  of  Spokane,  109  Wash. 
360.   186  Pac.   864. 

West  Virginia.— Beck  v.  Cox,  77  W. 
Va.  442,  87  S.  E.  492. 

Wisconsin. — Eiehman  v.  Buchheit, 
128  Wis.  385,  107  N.  W.  325,  8  Ann. 
Cas.  435 ;  City  of  Oshkosh  v.  Camp- 
bell, 151  Wis.  567,  139  N.  W.  316; 
Sutter  v.  Milwaukee  Board  of  Fire  Un- 
derwriters, 164  Wis.  532,  166  N.  W.  57. 

Fenders  on  trucks.— A  city  ordinance 
requiring  fenders  on  certain  trucks  has 
been  sustained.  Consumers  Co.  v.  City 
of  Chicago,  20S  111.  App.  203. 

22.  Chicago  v.  Kluever,  257  111.  317, 
100  N.  E,  917;  City  of  Windsor  v. 
Bast  (Mo.  App.),  199  S.  W.  722. 

23.  Fx  parte  Smith,  26  Cal.  App.  116, 
146  Pac.  82.    See  also  section  58. 


Municipal  Regulations.  77 

State  through  the  passage  of  statutes  prescribing  the  use  of 
the  public  highways,  or  the  Legislature  may  delegate  the 
power  of  regulation  to  municipalities/^  But  the  legislative 
power  is  not  forever  lost  by  a  delegation  of  some  part  thereof 
to  a  municipal  corporation,  but  it  may  resume  its  absolute 
control  over  the  subject,  unless  constitutional  provisions  ob- 
struct the  free  use  of  the  legislative  power.-^  In  a  few  juris- 
dictions, however,  the  rights  of  municipal  corporations  are 
constitutionally  protected  against  the  assaults  of  the  Legis- 
lature.^°  The  Legislature,  as  a  general  proposition,  may  abro- 
gate the  power  under  which  the  municipality  passed  regula- 
tions.-^ Or  it  may  pass  statutes  which  are  inconsistent  with 
regulations  already  enacted  by  municipal  bodies  and  hence 
strike  down  such  inferior  regulations,  for  municipal  ordin- 
ances are  ineffective  Avhen  they  are  in  conflict  with  State  stat- 
utes.-^ But  statutes  forbidding  the  regulation  of  motor 
vehicles  by  municipal  corjDorations  are  construed  as  not  to 
prohibit  the  passage  of  rules  of  the  road  prescribing  the 
course  of  traffic  along  city  streets.-^  The  mere  fact  that  the 
State,  in  the  exercise  of  its  police  power,  has  made  certain 
regulations,  does  not  prohibit  a  municipality  from  legislating 
with  reference  to  the  subject;  and,  so  long  as  there  is  no  con- 
flict between  the  two  and  the  municipal  regulations  are  rea- 
sonable and  harmonious  with  the  Constitution,  l)oth  will 
stand.^^    Of  course,  if  a  State  statute  expressly  forbids  muni- 

24.  Section  70.  27.  State  v.  Scheidler,  91  Conn.  234, 

25.  Ex  parte  Smith,  26  Cal.  App.  116,  99  Atl.  492 ;  Ayres  v.  City  of  Chicago, 
146  Pac.  82;  Heartt  v.  Village  of  239  111.  237,  87  X.  E.  1073;  Hiler  v. 
Downers  Grove,  278  111.  92,  115  N.  E.  City  of  Oxford,  112  Miss.  22.  72  So. 
869;  People  v.  Braun,  100  Misc.  343,  837;  People  ex  rel.  Hainer  y.  Keeper  of 
166  N.  Y.  Suppl.  708;  City  of  Seattle  Prison,  121  N.  Y.  App.  Div.  645,  106  N. 
V.  Eothweiler,  101  Wash.  680,  172  Pac.  Y.  Suppl.  314,  affirmed  190  K  Y.  315, 
825;  City  of  Muskogee  v.  Wilkins  83  N.  E.  44;  Peck  v.  O'Gilvic,  13  R.  L. 
(Okla.),  175  Pac.  497.  X.  S.  (Canada)  54,  31  Qncb.  S.  C.  227. 

26.  City  of  Montgomery  v.  Orpheuni  28.  Section    77. 

Taxi  Co.   (Ala.),  82  So.  117;  People  v.  29.  Commouwoalth    v.    Xewhall,    20.=) 

McGraw,    184    Mich.    233,    150    N.    W.  Mass.    344,    91    X.    E.    206;    Kelly    v. 

836;   City  of   Fremont  v.  Keating,   96  James,  37  S.  Dak.  272,  157  N.  W.  990; 

Ohio  St.  468,  118  N.  E.  114;  Kalich  v.  Beck  v.  Cox,  77  W.  Va.  442,  87  S.  E. 

Knapp,  73  Oreg.  558,  142  Pac.  594,  145  492. 

Pac.  22.     See  also  Muther  v.  Capps,  38  30.  Ex  parte  Snowden,  12  Cal.  App. 

Cal.  App.  721,  177  Pac.  882.  521,  107  Pac.  724;  Bruce  r.  Ryan,  138 


78  The  Law  of  Automobiles. 

cipalities  from  passing  ordinances  relative  to  a  certain  sub- 
ject, and  such  statute  survives  the  test  of  constitutionality, 
there  can  be  no  dispute  about  the  lack  of  municipal  power  in 
respect  to  that  particular  subject.^^ 

Sec.  73.  Municipal  power  in  general  —  Park  Commissioners. 

In  some  cases,  statutory  provisions  will  be  found  delegat- 
ing to  park  commissioners  or  equivalent  officers  having  charge 
of  parks  the  power  to  make  regulations  for  the  use  of  high- 
ways through  the  parks.  The  Legislature  may  authorize  the 
appointment  of  such  commissioners  and  invest  them  with  au- 
thority in  such  matters.^^  Thus,  it  has  been  held  that  the  park 
commissioners  may  be  authorized  to  limit  the  rate  of  speed 
of  motor  vehicles  along  roads  within  their  jurisdiction."^  And 
a  statute  empowering  park  commissioners  to  restrict  certain 
highways  to  the  use  of  horse  and  light  carriages  and  to  ex- 
clude therefrom  other  vehicles,  such  as  bicycles  and  motor 
vehicles,  has  been  sustained.^*  And  they  may  in  some  cases 
regulate  the  course  of  traffic  within  the  boundaries  of  parks.^^* 
Or  they  may  have  the  power  to  license  the  use  of  buses.^" 
Regulations  made  by  park  commissioners,  as  well  as  those  en- 
acted by  municipal  legislative  bodies,  must  be  reasonable  and 
must  not  conflict  with  the  Constitution  or  statutes.^°  If  the 
park  commissioners  do  not  exercise  their  authority  in  the 

Minn.  264,  164  N.  W.  982;  Freeman  v.  A.    245;    Commonwealth    v.    Tyler.    199 

Green    (Mo.   App.),    186    S.   W.    1166;  Mass.  490,  8n  N.  E.  569. 

Kolankiew'iz  v.  Burke,  91  N.  J.  L.  567,  33.  Commonwealth   v.   Crowninshield, 

103  Atl.  249;  People  v.  Fitzgerald,  101  18T  Mass.  221,  72  N.  E.  963,  68  L.  R. 

Misc.   (N.   Y.)    695,   168   K  Y.  Suppl.  A.   245;    Commonwealth   v.   Tyler,    199 

930;    City  of   Fremont  v.   Keating,   96  Mass.    490,    85    N.    E.    569,      See    also 

Ohio  St.  468.   118  N.  E.   114;  City  of  People  v.  Lloyd,  178  HI.  App.  66. 

Spokane  v.  Knight,  101  Wash.  656,  172  34.  People     ex     rel.     Cavanaugh     v. 

Pae.  823;  City  of  Seattle  v.  Eothweiler,  Waldo,  72  Misc.    (N.  Y.)    416,  131  N. 

101   Wash.   680,   172   Pac.   825.  Y.   Suppl.   307. 

31.  Anderson  v.  Wentworth,  75  Fla.  34a.  Hedges  v.  Mitchell  (Colo.),  194 
300,  78  So.   265;   Heartt  v.  Village  of  Pac.  620. 

Downers  Grove,  278  111.  92,  115  N.  E.  34b.  People  ex  rel.  Hoyne  v.  Chicago 

869;    City    of    Seattle    v.    Rothweiler,  Motor  Bus  Co.  (111.),  129  N.  E.  114. 

101  Wash.  680,  172  Pac.  825.  35.  Commonwealth  v.   Crowninshield. 

32.  Commonwealth  v.   Crowninshield,  187  Mass.  221,  72  K  E.  963. 
187  Mass.  221,  73  N.  E.  963,  68  L.  R. 


Municipal  Regulations.  79 

matter,  the  general  regulations  promulgated  by  the  Legis- 
lature may  apply.^^ 

Sec.  74.  Regulations  must  not  conflict  with  Constitution  —  in 
general. 
Municipal  regulations,  to  be  effective,  not  only  must  be 
reasonable,^  and  in  harmony  with  State  statutes,^^  but  must 
not  offend  any  constitutional  provision.  In  particular,  a  muni- 
cipal regulation  must  not  take  property  without  due  process 
of  law,  deprive  persons  of  the  equal  protection  of  the  law,^* 
or  impair  the  obligation  of  a  contract.^^  But  the  constitu- 
tionality of  regulations  pertaining  to  the  use  of  motor  vehi- 
cles and  their  accessories  is  generally  sustained.^^  Thus,  a 
regulation  forbidding  the  issuance  of  a  garage  permit  for  the 
storage  of  inflammable  oils  within  fifty  feet  of  a  school  build- 
ing, is  not  an  unreasonable  interference  with  the  rights  of  a 
garage  keeper,  but  is  a  fair,  reasonable,  and  appropriate  exer- 
cise of  the  police  power,  and  the  fact  that  the  garage  in  ques- 
tion was  used  as  such  for  a  number  of  years  prior  to  the  en- 
actment of  the  regulation  does  not  affect  the  validity  or  pre- 
vent the  enforcement  thereof.^^ 

36.  Rockett  v.  Philadelphia,  256  Pa.  41.  California. — Ex  parte  Berry,  147 
St.   347,   100  Atl.   826.  Cal.  52,  82  Pac.  44. 

37.  Section  78.  Georgia. — Sanders  v.  City  of  Atlanta, 

38.  Section  77.  147  Ga.  819,  95  S.  E.  695. 

39.  Requiring  obedience  to  directions  Maine. — State  v.  Mayo,  106  Me.  62, 
of  traffic  officers.— A  municipal  ordi-  75  Atl.  295,  20  Ann.  Cas.  512,  26  L.  R. 
nanco    which    requires    the    drivers    of  A.   (N.  S.)   502n. 

motor  vehicles  to  comply  with  all  di-  Missouri. — Young  v.  Dunlap,  195  Mo. 

rections    of    police    officers,    is    invalid.  App.  119,  190  S.  W.  1041;  City  of  St. 

City  of  St.  Louis  v.  Allen,  275  Mo.  501,  Louis  v.  Hammond,  199  S.  W.  411.    . 

204  S.  W.  1083.  Neiv  Jersey. — West  v.   Asbury  Park, 

40.  See   Peters   v.    City   of   San    An-  S9  N.  J.  L.  402,  99  Atl.  190. 

tonio  (Tex.  Civ.  App.),  195  S.  W.  989.  Nciv    York. — Mason-Seaman    Transp. 

Advertising.— A  municipal  rcf^ulation  Co.  v.  Mitchel,  89  Misc.  230,  153  X.  Y. 

prohibiting  advertising  on  certain  mo-  Suppl.  461. 

tor  buses,  held  not  to  impair  the  con-  Texas. — Peters   v.   City   of   San   An- 

tract  rights  of  the  corporation  operat-  tonio     (Civ.    App.),    195    S.    W.    989; 

ing  the  buses.    Fifth  Ave.  Coach  Co.  v.  Craddock  v.  City  of  San  Antonio  (Civ. 

New  York  City,  221  U.  S.  467,  31  S.  Ct.  App.),  198  S.  W.  634. 

709.  42.  Mcintosh  v.  Johnson,  211   N.  Y. 

265.    105   X.  E.  416. 


80  The  Law  of  Automobiles. 

Sec.  75.  Regulations  must  not  conflict  with  Constitution  —  dis- 
crimination between  motorists  and  other  travelers. 

It  is  recognized  that  a  motor  vehicle  is  a  different  and  a 
more  dangerous  means  of  conveyance  than  are  other  vehicles 
along  the  highway,  and  hence  a  municipal  ordinance  which 
regulates  motor  vehicles  is  not  necessarily  invalid  because  it 
does  not  apply  to  other  forms  of  transportation.'^    And,  on 
the  other  hand,  a  regulation  relative  to  vehicles  on  city  streets 
may  be  valid,  although  automobiles  are  excluded  from  the 
operation  thereof.^*    An  ordinance  which  prohibits  a  speed  in 
excess  of  a  prescribed  rate,  is  not  invalid  because  street  cars 
are  permitted  to  go  faster.*^     So,  too,  an  ordinance  which 
fixes  a  speed  limit,  is  not  special  or  class  legislation  because 
the  speed  is  fixed  so  high  that  only  motor  vehicles  can  violate 
the  regulation."^    And  an  ordinance  prohibiting  advertising 
on  vehicles  on  certain  streets  is  not  unconstitutional,  because 
the  signs  of  owners  can  be  displayed  on  business  wagons  or 
because  companies  using  other  methods  of  transportation  may 
display  advertising  signs.*'^ 

Sec.  76.  Regulations  must  not  conflict  with  Constitution  —  dis- 
crimination between  motor  vehicles. 

For  some  purposes  different  kinds  of  motor  vehicles  may 
be  classed  and  a  more  onerous  obligation  placed  on  one  ma- 
chine than  on  others.  For  example,  there  is  no  objection  to 
an  ordinance  imposing  license  fees  on  motor  vehicles,  merely 
because  the  vehicles  are  classified  according  to  their  horse 
power,  or  according  to  their  use  as  pleasure  or  business  cars, 
and  different  fees  are  placed  on  different  classes.*^    So,  too, 

43.  Fifth    Ave.    Coach    Co.    v.    New       471,  68  N.  E.  1027. 

York  City,  221  U.  S.  467,  31  S.  Ct.  709 ;  45.  Chittenden  v.  Columbus,  26  Ohio 

Westfalls,  etc.,  Express  Co.  v.  City  of  Cir.  Rep.   531. 

Chicago,  280  111.   318,   117  N.  E.  439;  46.  Ex  parte  Snowden,  12  Cal.  App. 

Slade  V.  City  of  Chicago,  1  111.  Cir.  Ct.  521,  107  Pac.  724. 

Rep.     520 ;     Commonwealth    v.    Nolan  47.  Fifth  Ave.  Coach  Co.  v.  New  York 

(Ky.),    224    S.    W.    506;    City    of    St.  City,  221  U.  S.  467,  31  S.  Ct.  709. 

Louis  V.  Hammond    (Mo.),   199  S.  W.  48.  Westfalls,    etc.,    Express    Co.    v. 

411;    City    of   Windsor   v.    Bast    (Mo.  City  of  Chicago,  280  111.  318,  117  N.  E. 

App.),  199  S.  W.  722.  439;  Park, v.  City  of  Duluth,  134  Minn. 

44.  Kersey  v.  Terre  Haute,  161  Ind.  296,  159  N.  W.  627;  West  v.  City  of 


Municipal  Kegulatioxs.  81 

a  license  fee  may  be  required  of  a  resident  of  a  municipality, 
and  at  the  same  time  one  who  is  a  non-resident  and  is  tem- 
porarily within  the  municipality  may  be  excused  from  such 
obligation.*^  And  aliens  may  be  denied  the  right  to  transport 
passengers  for  hire  in  motor  vehicles  within  the  boundaries  of 
a  municipality.^**  And  an  ordinance  wliich  makes  speed  limi- 
tations for  the  use  of  its  streets  by  vehicles,  but  which  ex- 
cepts vehicles  operated  by  the  police  and  tire  departments,  is 
not  by  reason  of  such  exception  invalid.^^  But  a  rule  which 
permits  pleasure  vehicles  of  a  certain  weight  on  a  highway, 
but  excludes  business  vehicles  of  the  same  w^eight,  may  be 
invalid.^^ 

An  ordinance  requiring  fenders  to  be  placed  at  the  front  of 
trucks  of  a  carrying  capacity  of  1,500  pounds  or  more,  has 
been  thought  discrimnatory.^^* 

Sec.  77.  Relations  must  not  conflict  with  State  law. 

The  i^ower  of  a  municipal  corporation  to  enact  regulations 
is  derived  from  the  State  Legislature  and  is  subject  to  such 
statutes  as  may  be  passed.  In  case  of  a  conflict  between  a 
regulation  of  the  State  and  one  of  a  municipality,  the  muni- 
cipal regulation  is  ineffective.  Hence,  a  regulation  relative 
to  the  use  of  the  municipal  highways  by  motor  vehicles  is  in- 
valid if  it  is  in  conflict  with  a  statute  enacted  by  the  Legis- 
lature.^   A  conflict  which  results  in  the  striking  down  of  an 

Asbury  Park,  89  N.  J.  L.  402,  99  Atl.  52a.  Consumers'  Co.  v.  City  of  Chi- 

190;    Kellaher   v.    Portland,    57    Oreg.  cage  (111.),  131  N.  E.  628. 

575,  112  Pac.  1^76.     See  also  sections  53.  California. — Ex  parte  Smith,   2G 

111,  112.  Cal.  App.  116,  146  Pac.  82. 

49.  Heartt  v.  Village  of  Downer's  Illinois. — City  of  Chicago  v.  Klucver, 
Grove,  278  111.  92,  115  N.  E.  869;  Park  257  111.  317,  100  N.  E.  917;  Lincoln  v. 
V.  City  of  Duluth,  134  Minn.  296,  159  Dehner,  26S  111.  175,  108  N.  E.  991; 
N.  W.  627.  See  also  Pegg  v.  Columbus,  Chicago  v.  Francis,  262  HI.  331,  104  N. 
80  Ohio  St.  367,  89  N.  E.  14.  See  also  E.  662;  Heartt  v.  Village  of  Downer's 
section  114.  Grove,  278  111.  92,  115  jST.  E.  369. 

50.  Norin  v.  Xunan  (N.  J.),  103  Atl.  Massachusetts.— Commonwealth  v. 
378.  Newhall.  205  Mass.  344,  91  N.  E.  206. 

51.  Ex  parte  Snowden,  12  Cal.  App.  See    also    Commonwealth    v.    Crownin- 
521,   107  Pac.   724.     See  also  Devin  v.  shield,  187  Mass.  221,  72  N.  E.  963. 
Chicago,  172  111.  App.  246.  Minnesota.— Fa-Tk  v.  City  of  Duluth, 

52.  Clausen  v.  DeMedina,  82  N.  J.  L.  134  Minn.  296,  159  K  "W.  627. 

491,  81  Atl.  924.  New    YorTc. — People    v.    Braum,    100 

6 


82 


The  Law  of  Automobiles. 


ordinance  may  arise  by  a  statute  passed  either  before  or  after 
the  adoption  of  the  ordinance;  for  a  subsequent  statute  has 
the  effect  of  annuling  a  municipal  ordinance  from  the  time  of 
its  passage.^*.  One  purpose  of  general  motor  vehicle  laws  in 
some  States  has  been  to  make  uniform  regulations  through- 
out the  State  and  to  avoid  different  regulations  in  different 
localities.^^    The  practice  of  leaving  the  matter  for  local  regu- 


Misc.    (N.   Y.)    343,   166  N.   Y.   Suppl. 
708. 

West  Virginia. — State  ex  rel.  Con- 
stanzo  V.  Eobinson,  104  S.  E.  473. 

Wisconsin. — City  of  Oshkosh  v. 
Campbell,  151  Wis.  567,  139  N.  W.  316; 
City  of  Baraboo  v.  Dwyer,  166  Wis. 
372,  165  N.  W.  297. 

Texas.— See  Craddock  v.  City  of  An- 
tonio (Civ.  App.),  198  S.  W.  634. 

Freeholder's  charter. — ^In  case  an  or- 
dinance adopted  by  a  city  ha^ng  a 
freeholder's  charter  and  applying  to  a 
municipal  matter  conflicts  with  a  State 
statute,  it  may  be  that  the  ordinance 
will  prevail.  Ea;  parte,  Daniels,  (Cal.), 
19a  Pac.  442.  Muther  v.  Capps,  38  Cal. 
A-pp.  721,  177  Pac.  882;  Helmer  v.  Su- 
perior Ct.  (Cal.  App.),  191  Pac.  1001. 

54.  Ex  parte  Smith,  26  Cal.  App. 
116,  146  Pac.  82;  Swann  v.  City  of 
Baltimore,  132  Md.  256,  103  Atl.  441; 
People  v.  Braum,  100  Misc.  (N.  Y.) 
343,  166  N.  Y.  Suppl.  708. 

Ordinance  not  revived  by  repeal  of 
statute. — An  ordinance  of  the  city  of 
Columbus  to  license  and  regulate  the 
use  of  the  streets  of  the  city  by  per- 
sons who  used  vehicles  thereon,  in  so 
far  as  it  applied  to  motor  vehicles,  was 
annuled  by  the  statute  of  1906  (98  O. 
L.  320)  and  was  not  revived  by  the  re- 
peal of  the  act  by  the  act  passed  in 
1908  (99  O.  L.  538)).  Frisbie  v.  City 
of  Columbus,  80  Ohio  St.  686,  89  N.  E. 
92. 

55.  Ex  parte  Smith,  26  Cal.  App.  116, 
146  Pac.  82 ;  People  v.  Hayes,  66  Misc. 
606,    124    N.   Y.    Suppl.   417;    City   of 


Baraboo   v.   Dwyer,    160   Wis.    372,    165 
N.  W.   297. 

The  New  York   Motor  Vehicle   Law 
was   passed  really  in   the  interests   of 
motorists.      The   various   rules,    regula- 
tious  and  ordinances  in  the  many  vil- 
lages and  cities  of  the  State  upon  the 
various  subjects  of  licenses,  speed,  and 
penalties  were  so  numerous,  conflicting 
and  confusing   that   the   persons   inter- 
ested in   the  subject  appealed  to  and 
succeeded  in  having  passed  by  the  legis- 
lature   a    general    act    under    which    a 
motorist  in  any  part  of  the  State  would 
know  exactly  what  his  restrictions  and 
his    liabilities    were,    and    the    act    ex- 
pressly  repealed   all   ordinances,   rules, 
or  regulations  theretofore  in  effect,  and 
permitted    local    authorities    to    there- 
after pass  ordinances,  rules,  or  regula- 
tions in  regard  to  the  speed  of  motor 
vehicles  on  the  public  highway  only  un- 
der   thi-ee    express    conditions:      First, 
that  such  ordinances,   rules,  or  regula- 
tions  should  fix  the  same  speed  limita- 
tions for  all  other  vehicles ;  second,  that 
the  local  authorities  should  have  placed 
conspicuously  on  each  main  public  high- 
way, where  crossed  by  the  city  or  village 
line,  and  on  every  main  highway,  where 
the  rate  of  speed  changes,  signs  of  suf- 
ficient size  to  be  easily  readable,  show- 
ing the  rate  of   speed  permitted;   and 
third,   that   such   ordinances  should   fix 
the  penalties  for  violation  thereof  simi- 
lar to  and  no  greater  than  those  fixed 
by  the  local  authorities  for  violations  of 
the  speed  regulations  for  all  other  ve- 
hicles.   People  ex  rel.  Hainer  v.  Keeper 


Municipal  Regulations.  83 

lation  witli  the  result  that  each  locality  has  regulations  of  its 
own,  is  more  or  less  oppressive  to  tourists,  for  they  are  bound 
to  take  notice  of  the  regulations  of  every  city  or  village.  If 
the  statute  in  question  is  contrary  to  the  State  or  Federal 
constitution,  the  municipal  ordinance  will,  of  course,  be  effec- 
tive."^'' When  the  State  has  adopted  a  system  for  the  regis- 
tration of  motor  vehicles  and  for  the  payment  of  license  fees 
for  the  use  of  the  highways,  and  forbids  the  imposition  of 
further  taxes  on  motor  vehicles  or  the  requirement  of  further 
licenses,  municipal  regulations  relative  to  registration  and 
licensing  are  ineffective.^"  A  statute  giving  the  owners  of 
motorcycles  the  same  rights  on  the  public  streets  as  other 
persons,  does  not  interfere  with  the  right  of  a  municipality  to 
adopt  a  rule  giving  a  fire  patrol  a  right  of  way  when  going  to 
or  returning  from  a  fire.^  So,  too,  statutes  forbidding  the 
regulation  of  motor  vehicles  by  municipal  corporations  do  not 
generally  forbid  ordinances  prescribing  the  law  of  the  road,^^ 
or  prohibiting  obstructions,'^'*  but  may  preclude  speed  ordi- 
nances.®^ 

And  an  ordinance  prohibiting  the  use  of  motor  vehicles  in 
such  a  manner  as  to  jDermit  the  escape  of  any  noxious  smoke, 
gas,  steam  or  other  offensive  odors  or  so  as  to  discharge  any 

of  the  Prison.  121  N.  Y.  App.  Div.  645,  lines  is  not  in  conflict  with  State  regia- 

106  N.  Y.  Suppl.  314,  affirmed  190  N.  Y.  tration  and  licensing  system.    Ex  parte 

;n5,  83  N.  E.  44.  Parr,  82  Te«.  Co.  525,  200  S.  W.  404. 

56.  City  of  Montgomery  v.  Orpheum  58.  Sutter  v.  Milwaukee  Board  of 
Taxi  Co.  (Ala.),  82  So.  117;  Helmer  v.  Fire  Underwriters,  164  Wis.  532,  166 
Superior    Ct.     (Cal.    App.),    191    Pac.  N.  W.  57. 

1001;    People    v.    McGraw,    184    Mich.  59.  Seager  v.   Foster,    185   Iowa   32, 

233,  150  N.  W.  836.     See  also  sections  169  N.  W.  681;  Commonwealth  v.  New- 

74-76.  hall,    205    Mass.    344,    91    N.    E.    206; 

57.  Barrett  v.  New  York,  189  Fed.  Bruce  v.  Ryan,  138  Minn.  264,  164  N. 
268;  Lincoln  v.  Dehner,  268  111.  175,  W.  982;  Freeman  v.  Green  (Mo.  App.), 
108  N.  E.  991;  Frisbee  v.  City  of  Co-  186  S.  W.  1166;  Kolankiewiz  v.  Burke, 
lumbus,  80  Ohio  St.  686,  89  N.  E,  92.  91  N.  J.  L.  567,  103  Atl.  249;  Kelley 
But  see  Park  v.  City  of  Duluth,  134  v.  James,  37  S.  Dak.  272,  157  N.  W. 
Minn.   296,   159  N.  W.   627.     See  also  990.    And  see  section  236. 

section  99.  60.  Beck  v.  Cox,  77  W.  Va.  442,   87 

Vehicles   for  hire.— Wlien   the    State  S.  E.  492. 

statute    expressly   permits    the    munici-  61.  City    of    Seattle    v.    Rothweiler, 

pality   to    impose    license    fees    on    the  101  Wash.   680,  172  Pac.  825;   City  of 

owners  of  automobiles  used  for  hire,  a  Baraboo  v.  Dwyer,  166  Wis.  372,  165  N. 

regulation  of  a  municipality  along  such  W.  297. 


84  The  Law  of  Automobiles. 

embers,  oil  or  residue  from  the  fuel  used,  will  not  generally 
conflict  with.  State  statutes  relative  to  motor  vehicle  opera- 
tion.^^ And  a  municipal  regulation  jDrohibiting  a  rate  of  speed 
which  is  somewhat  in  excess  of  that  forbidden  by  statute  and 
making  a  violation  of  the  ordinance  a  misdemeanor,  is  not 
necessarily  in  conflict  with  the  statute.*^  So,  too,  a  statute 
fixing  a  general  rate  for  the  State  is  not  deemed  in  conflict 
with  a  municipal  regulation  making  a  lower  maximum  at  cer- 
tain dangerous  places  within  the  municipality,  such  as  street 
intersections,  dangerous  curves,  etc."  But  a  municipal  ordi- 
nance which  assumes  to  permit  within  the  municipal  limits  a 
rate  of  speed  greater  than  that  allowed  by  statute,  is  in- 
valid.^^  "Where  both  the  State  statute  and  the  municipal  ordi- 
nance are  effective,  one  offending  both  regulations  ma}'  be 
prosecuted  under  either,  but  two  separate  judgments  of  con- 
viction may  not  be  rendered  against  him.^^ 

Sec.  78.  Regulations  must  be  reasonable. 

The  test  of  reasonableness  is  to  be  applied  to  municipal 
ordinances  before  they  will  be  enforced  by  the  courts ;  and,  if 
they  are  found  to  be  unreasonable,  they  are  ineffective.^''  The 
right  of  the  driver  of  the  automobile  to  use  the  public  thor- 

62.  Chicago  v.  Shaw  Livery  Co.,  258  272  Mo.  288,  198  S.  W.  1107,  L.  R.  A. 
111.  409,  101  N.  E.  588.  1918,  D.  126;  City  of  Windsor  v.  Bast 

63.  Ex  parte  Snowden,  12  Cal.  App.  (Mo.  App.),  199  S.  W.  722.  See  also 
521,  107  Pac.  724;  Ham  v.  Los  Angeles  People  v.  Fitzgerald,  101  Misc.  (N.  Y.) 
County  (Cal.  App.),  189  Pac.  462.     See  695,  168  N.  Y.  Suppl.  930. 

also  Hood  &  Wlieeler  Furniture  Co.  v.  65.  Ex  parte  Smith,  26  Cal.  App.  116, 

Royal,  200  Ala.  607,  76  So.  965.  146  Pac.  82. 

In  Nebraska  it  has  been  held  that  the  66.  People   v.    Fitzgerald,    101  Misc. 

law  gives  cities  of  the  second  class  con-  (N.  Y.)  695,  168  N.  Y.  Suppl.  930. 

trol  of  their  streets  and  that  an  ordi-  67. 'Chicago  v.  Shaw  Livery  Co.,  258 

nance  regulating  the  speed  of  motor  ve-  111.  409,  101  N.  E.  588 ;  Wasson  v.  City 

hides  will  not  be   held   to   be   in   con-  of  Greenville  (Miss.),  86  So.  450;  City 

flict  with  a  statute  on  the  subject,  un-  of  Windsor  v.  Bast  (Mo.  App.),  199  S. 

less  it   appears  that   the   limitation   of  W.  722;  Pegg  v.  Columbus,  80  Ohio  St. 

speed  is  such   as   to   prohibit  the   free  367,  89  N.  E.  14  ;  Schell  v.  DuBois,  94 

use    of    the    streets    by    such    vehicles.  Ohio  93,  113  N.  E.  664;  Royal  Indem- 

Christenscn  v.   Tate,   87   Neb.   848,  128  nity  Co.  v.  Schwartz   (Tex.  Civ.  App.), 

N.  W.  632.  172  S.  W.  581.   See  also  State  v.  Jarvis, 

64.  Brennan   v.    Connolly,    207    Mich.  89  Vt.  239,  95  Atl.  541. 
35,  173  N.  W.  511;  Roper  v.  Greenspon, 


Municipal  Regulations.  85 

oiighfare  must  be  recognized  and  not  unreasonably  interfered 
with,  but  the  rights  of  pedestrians  and  others  must  l>e  equally 
respected.^^  Whether  a  given  ordinance  is  reasonable,  is  a 
question  for  the  court,  not  for  the  jury,*'^  and  the  courts  will 
not  declare  an  ordinance  unreasonable,  unless  it  clearly  ap- 
pears to  be  so.'^*'  Thus,  it  was  said  in  one  case,"^  "AVhether 
any  particular  ordinance  is  reasonable  for  the  purpose  for 
which  it  is  enacted  is  in  the  first  instance  a  question  to  be 
determined  by  the  municipal  authorities.  Wlien  they  have 
acted  and  the  ordinance  has  been  passed  it  is  presumptively 
valid,  and  before  a  court  would  be  justified  in  holding  it  in- 
valid its  unreasonableness  must  be  clearly  made  to  appear. 
AVhile  it  is  true  that  municipal  ordinances,  to  be  valid,  must  be 
reasonable,  the  presumption  is  in  favor  of  their  validity,  and 
it  is  incumbent  upon  any  one  seeking  to  have  them  set  aside 
as  unreasonable,  to  point  out  or  show  affirmatively  wherein 
the  unreasonableness  consists." 

With  reference  to  the  speed  of  motor  vehicles,  it  has  been 
said  that,  unless  it  should  appear  that  the  rate  of  speed  pre- 
scribed is  such  as  to  render  it  impossible  for  the  machine  to 
be  propelled,  the  limitation  vdW  not  be  held  to  be  so  unreason- 
able as  to  make  the  ordinance  void."^^  An  ordinance  fixing  a 
speed  at  six  miles  an  hour  on  city  streets  between  crossings 
and  four  miles  an  hour  at  crossings  is  not  necessarily  unrea- 
sonable.'^^ And  an  ordinance  prohibiting  a  speed  in  excess  of 
three  miles  an  hour  has  been  sustained.'^^  In  fact,  under  cer- 
tain circumstances,  such  as  Avhen  an  automobilist  is  passing  a 
street  car  receiving  or  discharging  passengers,  regulations 
may  require  that  the  automobile  be  brought  to  a  complete 
stop."^^ 

68.  Schell  V.  DuBois,  94  Ohio  93,  113  71.  Chicago  v.  Shaw  Livery  Co.,  253 
N.  E.  664.  111.  409,  101  N.  E.  5S8. 

69.  Columbus    R.    Co.   v.   Waller,    12  72.  Columbus    R.   Co.    v.    Waller,    12 
Ga.  App.  674,  78  S.  E.  52.  Ga.  App.  674,  78  S.  E.  52. 

70.  City   of   St.   Louis   v.   Hammond  73.  Eichman    v.    Buchheit,    128    Wis. 
(Mo.),  199  S.  W.  411;  City  of  Windsor  385,  107  N.  W.  325,  8  Ann.  Cas.  435. 
V.  Bast  (Mo.  App.),  199  S.  W.  722;  Ex  74.  Columbus  R.  Co.  v.  Waller.  12  Ga. 
parte  Parr,  82  Tex.  Cr.  525,  200  S.  W.  App.  674,  78  S.  E.  52. 

404.  75.  Schell  v.  DuBois,  94  Ohio  93,  113 

X.  E.  664.    See  also  section  425. 


S6  The  Law  of  Automobiles. 

There  are  circumstances  under  Avhicli  an  ordinance  appear- 
ing unreasonable  on  its  face  may  be  justified,  as,  for  example, 
where  a  city  having  the  power  to  exclude  certain  types  of 
motor  vehicles  from  certain  streets,  does  so  in  an  indirect 
manner  by  prescribing  an  excessive  license  fee  for  the  use  of 
those  streets.  The  fact  that  the  fee  is  so  unreasonable  as  to 
exclude  the  vehicles  from  the  streets  does  not  invalidate  the 
ordinance,  for  the  municipality  having  the  power  of  exclusion 
may  attach  such  conditions  as  it  sees  fit  to  the  use  of  the 
streets."^^  But,  if  there  is  no  sound  reason  or  basis  for  for- 
bidding certain  vehicular  traffic  on  certain  streets,  the  ordi- 
nance may  be  invalid.'"  An  ordinance  may  be  deemed  un- 
reasonable if  it  attempts  to  regulate  the  use  of  vehicles  at 
places  other  than  streets  and  alleys.''* 

Sec.  79.  Manner  of  enactment. 

Constitutional  and  statutory  requirements  for  the  enact- 
ment of  municipal  ordinances  must  be  obeyed,  or  the  enforce- 
ment of  the  ordinance  will  be  doubtful.  The  passage  of  an 
ordinance  for  the  regulation  of  jitneys,  however,  is  not  the 
granting  of  a  franchise,  and  such  an  ordinance  need  not  go 
through  the  special  form  which  is  prescribed  in  many  States 
for  the  grant  of  a  franchise.'^®  Requirements  as  to  the  post- 
ing and  publishing  of  the  proposed  ordinance  must  receive 
compliance  before  it  becomes  effective.  And,  if  the  law  re- 
quires that  a  proposed  ordinance  be  entitled  in  a  certain 
manner,  the  absence  of  a  proper  title  may  render  the  ordi- 
nance void.^  In  some  jurisdictions,  statutes  permit  muni- 
cipalities to  enact  certain  speed  limits  for  motor  vehicles 
within  their  limits,  but  require  the  establishment  of  a  sign  at 
the  limits  as  a  warning  to  travelers  of  the  limit  to  be  enforced 

76.  Dresser  v.  City  of  Wichita,  96  80.  A  constitutional  provision  rela- 
Kans  820,  153  Pac.  1194.  tive  to  the  title  of  proposed  laws  will 

77.  Curry  v.  Osborne,  76  Fla.  39,  79  not  necessarily  apply  to  municipal  ordi- 
So.  293,  6  A.  L.  R.  108.  nances.     Craddock  v.  City  of  San  Au- 

78.  Royal  Indemnity  Co.  v.  Schwartz  tonio  fTex.  Civ.  App.),  198  S.  W.  634. 
(Tex.  Civ.  App.),  172  S.  W.  581.  The  title  is  sufficient  if  it  shows  the 

79.  City  of  Dallas  v.  Gill  (Tex.  Civ.  general  character  of  the  ordinance. 
App.),  199  S.  W.  1144.  White  v.  Turnor  (Wash),  105  Pac.  240. 


Municipal  Regulations.  87 

within  the  municipality.^^  Under  such  statutes,  if  the  muni- 
cipal authorities  have  failed  to  erect  the  proper  sign,  they 
cannot  enforce  a  limit  lower  than  that  prescribed  by  the  gen- 
eral State  law.  But  the  legislature  need  not  require  muni- 
cipalities to  establish  such  signs,  and  municipal  ordinances 
will  be  sustained,  if  all  the  statutory  requirements  receive 
compliance,  though  no  warning  of  the  limit  is  given  to  travel- 
ers.^- Where,  in  a  prosecution  for  operating  an  automobile 
at  a  speed  in  excess  of  that  prescril)ed  by  the  by-laws  of  a 
tow^l,  it  was  agreed  that  such  by-laws  were  "duly  estab- 
lished," such  stipulation  was  deemed  to  admit  that  they  were 
advertised  and  posted  as  provided  by  the  State  statute,  and 
that  they  were  made  as  authorized  by  such  act.^  If  the  dele- 
gation from  the  Legislature  of  the  power  to  adopt  ordinances 
specify  that  they  shall  be  enacted  by  a  certain  body,  such  as 
the  conmion  council,  regulations  by  another  body  or  a  muni- 
cipal official  may  be  void.^* 

Sec.  80.  Application  of  regulation  beyond  municipal  limits. 

The  jurisdiction  of  municipal  legislative  bodies  is  confined, 
as  a  general  proposition,  to  the  territorial  limits  of  the  muni- 
cipality. And,  though  municipal  regulations  may  be  made 
for  the  operation  of  motor  vehicles  within  its  boundaries,  thoy 

81.  People  V.  Untermyer,  153  App.  the  statute  pays  it  must,  it  then  be- 
Div.  176,  138  N.  Y.  Suppl.  334;  People  comes  actual  notice,  whether  seen  or 
V.  Hayes,  66  Misc.  606,  124  N.  Y.  not."  People  v.  Hayes,  66  Misc.  606, 
Suppl.  417;  People  v.  Chapman,  88  124  N.  Y.  Suppl.  417. 
Misc.  469,  152  N.  Y.  Suppl.  204.  See  First  class  cities.-  Under  the  pro- 
also  State  v.  Buchanan,  32  R.  I.  490,  visions  of  the  Highway  Law,  as 
79  Atl.  1114.  "The  construction  of  amended  by  chapter  274  of  the  laws  of 
the  statute  which  compels  the  erection  1910,  cities  of  the  first  class  may  pass 
of  signs  upon  all  highways  where  speed  ordinances  regulating  the  speed  of  auto- 
is  to  be  reduced  is  consistent  with  its  mobiles,  without  any  condition  as  to 
general  object  and  the  evil  sought  to  be  posting  of  signs.  People  v.  Untermyer, 
corrected.  Violations  of  speed  regula-  153  N.  Y.  App.  Div.  176,  138  N.  Y. 
tions  arc  not  crimes  niaUi  in  se;  they  Suppl.  334. 

involve  no  moral  turpitude.     The  legis-  82.  Eichmau    v.    Buchheit,    128   Wis. 

lature,  therefore,  has  directed  that,  be-  385,  107  N.  W.  325,  S  Ann.  Cas.  435. 

fore  one  can  be  held  for  violations  of  83.  Commonwealth   v.    Sherman,    191 

this   prohibited  act,   a  notice   shall  be  Mass.  439,  78  N.  E.  98. 

given  by  means  of  a  sign;   and,  if  it  84.  Harding  v.  Cavanaugh,  91  Misc. 

be  plainly  readable  and  contains  what  Rep.  511,  155  N.  Y.  Suppl.  374. 


88  The  Law  of  Automobiles. 

have  no  force  outside  of  the  limits.^^^  And  a  city  ordinance 
requiring  the  payment  of  a  license  fee  by  persons  operating- 
vehicles  for  the  transportation  of  passengers  for  hire  within 
the  city  limits,  has  been  held  inapplicable  to  the  transportation 
of  passengers  between  points  within  the  city  and  points  out- 
side.^^  Bnt  a  contrary  opinion  has  been  announced  in  respect 
to  this  class  of  traffic.®^  But,  where  one  is  engaged  in  carry- 
ing passengers  between  two  points  out  of  a  city,  though  his 
course  goes  through  the  city,  it  is  held  that  his  acts  do  not 
constitute  '*a  business  transacted  and  carried  on  in  such 
city, ' '  within  the  meaning  of  a  statute  permitting  the  city  "to 
license  such  business.^^ 

Sec.  81.  Punishment  for  violation  of  ordinance. 

Though  the  question  is  open  to  doubt,  it  has  been  held  that 
a  municipality  may  make  the  violation  of  one  of  its  ordinances 
a  criminal  offense  and  punish  the  offender  by  iine.^^  And  it 
has  been  held  that  the  Legislature  can  delegate  to  a  court  of 
county  commissioners  the  authority  to  make  and  promulgate 
rules  and  regulations,  the  violation  of  which  constitutes 
crime.^^  In  any  event,  it  is  proper  procedure  to  maintain  a 
civil  action  to  collect  a  fine  imposed  by  a  municipal  ordi- 
nance.^'^ 

Sec.  82.  Proof  of  ordinance. 

As  a  general  proposition,  the  courts  will  not  take  judicial 
notice  of  local  ordinances,  and  hence  their  existence  and  terms 
must  be  i^roved  as  a  fact.^^    Even  in  proceedings  in  an  in- 

84a.  Miller  v.  Week,  186  Ky.  552,  217  man,   S8  Mise.    fX.  Y.)    469,  152  X.  Y. 

S.  W.   904.  Suppl.  204. 

85.  McDonald  v.  City  of  Paragould,  89.  State  v.  Strawbridge  (Ala.  App.), 
120  Ark.  226,  179  S.  W.  335.  76  So.  479. 

86.  City  of  Caiterville  v.  Blystone,  90.  State  v.  Hamley,  137  Wis.  458, 
160  Mo.  App.  191,  141  S.  W.  701.  119  N.  W.   114. 

87.  Ex  imrte  Smith,  33  Cal.-App.  161,  91.  Muther  v.  Capps,  38  Cal.  App. 
164  Pae.  618.     Seo  also  section  100.  721,   177  Pae.   882;  Linstioth  v.  Peper 

88.  Chapman  v.  Selover,  225  N.  Y.  (Mo.  App.),  188  S.  W.  1125;  People 
417,  122  N.  E.  417,  reversing  Chapman  v.  Trainee,  93  Misc.  (X.  Y.)  82,  155 
V.  Selover,  172  App.  Div.  858,  159  N.  Y.  N.  Y.  Suppl.  1015;  White  v.  State,  82 
Suppl.  632.     See  also  People  v.  Chap-  Tex.  Ci-.  274,  198  S.  W.  964. 


Municipal  Regulations.  89 

ferior  court  sitting  in  the  municipality  passing  the  ordinance 
in  question,  it  is  held  in  some  jurisdictions  that  the  ordinance 
must  be  proved.^^  And  the  courts  will  not  take  judicial  knowl- 
edge that  park  conmiissioners  have  passed  regulations  pre- 
scribing the  rate  of  speed  for  motor  vehicles  on  the  park 
roads.^^  But  in  some  jurisdictions  local  courts  will  take  judi- 
cial notice  of  ordinances  in  force  in  such  locality .^^  And,  by 
virtue  of  statutory  enactments  in  some  States,  the  courts  are 
required  in  some  cases  to  take  judicial  notice  of  ordinances.^^ 
It  has  been  held  that,  on  a  trial  for  a  violation  of  a  municipal 
ordinance,  the  prosecution  must  show,  not  only  that  the  ordi- 
nance was  duly  adopted  by  the  legislative  body  of  the  muni- 
cipality, but  also  that  there  had  been  a  compliance  with  all 
the  requirements  of  the  law  relative  to  the  adoption  of  ordi- 
nances, such  as  the  publication  and  the  posting  of  the  regu- 
lation.^ Compilations  of  ordinances  authorized  by  statute 
are  generally  j^rima  facie  proof  of  their  substance,  legality  of 
adoption,  and  their  date  of  passage.^^ 

92.  People  v.  Trainee,  92  Misc.   (N.  Y.  Suppl.  528;   Wirth  v.  Burns  Bros., 
Y.)   82,  155  N.  Y.  Suppl.  1015.  229  N.  Y.  148,  128  N.  E.  Ill;  Peterson 

93.  People  v.  Lloyd,  178  111.  App.  66.  v.  Palli?,  103  Wash.  180,  173  Pac.  1021. 

94.  City   of    Spokane  v.    Knight,   96  96.  People  v.  Chapman,  88  Mi.«f.  (N. 
Wash.  403,  165  Pac.  105.  Y.)    469,  152  N.  Y.  Suppl.  204. 

95.  Hart  v.  Roth,  186  Ky.  535,  217  97.  Barrett  v.   Chicago,   dc.  R.   Co. 
S.  W.  893;  Cohen  v.  Goodman  &  Sons,  (Iowa),  175  N.  W.  950. 

Inc.,  189  N.  Y.  App.  Div.  209,  178  N. 


90  The  Law  of  Automobiles. 

CHAPTER  VII. 

FEDEEAL  CONTROL  OVER  MOTORING. 

Section  83.  In  general. 

84.  Powers  of  State  ami  Feilcial  governments. 

85.  Regulation  of  internal  matters  belongs  to  State. 

86.  Interstate  motoring. 

87.  The  right  of  transit 

88.  Citizen's   right  of  transit. 

89.  Transit  of  vehicle. 

90.  Limitation  on  license  fees. 

91.  Questions  of  interstate  commerce  not  in  issue. 

Sec.  83.  In  general. 

The  question  has  been  raised  in  the  minds  of  many  "vvhether 
or  not  the  United  States  government  should,  to  any  extent, 
control  the  operation  of  automobiles  and  seek  to  take  the 
matter  out  of  the  hands  of  the  States.  This  question  naturally 
arises  from  a  consideration  of  the  adverse  attitude  which 
some  of  the  State  legislators  have  taken  in  reference  to  the 
automobile.  The  advisibility  of  Congress  to  control  inter- 
state motoring  does  not  depend  upon  any  action  the  State 
might  take  in  regulating  the  automobiling  within  its  borders. 

Sec.  84.  Powers  of  State  and  Federal  governments. 

It  is  not  so  much  a  question  whether  the  United  States 
should  control  the  operation  of  the  motor  vehicles  as  whether 
the  Federal  government  really  possesses  the  power  to  act  in 
the  matter.  It  must  not  be  forgotten  that  in  this  country 
there  are  two  distinct  sovereignities  —  two  governments  — 
that  of  the  State  and  that  of  the  United  States.  Each  govern- 
ment is  distinct  and  independent  of  the  other  in  many  matters. 
There  are  certain  things  that  the  United  States  government 
cannot  do  which  affect  the  State,  and  there  are  matters  the 
State  has  no  control  over  which  affect  the  United  States. 

Sec.  85.  Regulation  of  internal  matters  belongs  to  State. 

The  regulation  of  the  use  of  internal  highways  is  a  matter 
which  belongs  exclusively  to  the  State  government.    It  is  a 


Fr.DERAL    C'OXTROL    OvEF.     MoTOMXG.  91 

matter  of  purely  internal  concern  and  comes  under  the  State's 
power  to  pass  regulations  protecting  the  public  from  danger 
in  the  operation  of  vehicles  on  the  highways.  Over  these 
State  internal  police  matters  the  United  States  has  no  control 
at  all ;  and,  in  so  far  as  motoring  is  confined  exclusively  within 
the  jurisdiction  of  a  State,  Congress  cannot  act. 

Sec.  86.  Interstate  motoring. 

Where,  however,  automobiling  is  interstate,  that  is,  where 
the  motorist  passes  from  one  State  into  another,  the  Federal 
government  is  not  necessarily  given  jurisdiction  over  such 
travel  by  the  commerce  clause  of  the  United  States  Constitu- 
tion. The  United  States  has  jurisdiction  to  control  interstate 
commerce,  and  interstate  commerce  possibly  may  include  in- 
terstate pleasure  travel  by  means  of  the  motor  car,  but  there 
is  great  doubt  as  to  this.  Action  by  the  United  States  in 
respect  to  interstate  motoring,  however,  would  not  prevent 
the  States  from  regulating  automobile  travel  within  their 
own  domains.  This  right  is  granted  the  States  by  the  Con- 
stitution and  could  not  be  taken  from  them  by  any  act  of  Con- 
gress. 

There  is  a  question  in  regard  to  the  jwwer  of  Congress  to 
regulate  interstate  automobiling,  and  that  is,  does  interstate 
travel  for  pleasure,  such  as  interstate  automobiling  generally 
is,  constitute  interstate  commerce  within  the  meaning  of  the 
United  States  Constitution,  gi'anting  to  Congress  the  exclusive 
control  thereof?  This  question  leads  us  to  ask  what  com- 
merce is.  Ordinarily  commerce  consists  of  "commercial  in- 
tercourse." It  must  be  conceded  that  interstate  travel  for 
pleasure  and  recreation  does  not  savor  of  anything  commer- 
cial. If  is  not  business.^  It  is  pleasure  and  recreation,  and 
nothing  more.  Of  course,  interstate  travel  carried  on  by 
automobiles  used  for  commercial  purposes,  such,  for  example, 
as  the  public  carrying  of  passengers  and  goods,  without  ques- 
tion constitutes  interstate  commerce.     The  greater  amount 

1.  Interstate    transportation    of    liq-  prosecuted  under  such  legislation  where 

uors. — Congress  has  enacted  legislation  an  automobile  is  used  as  the  means  of 

forbidding  the  transportation  of  liquors  transportation.      See    Ex    parte    West- 

into  "dry"  territory  and  one  may  l)e  brook,    250   Fed.    636. 


92  The  Law  of  AutomobiljvS. 

of  interstate  automobile  travel,  however,  is  for  the  purpose  of 
pleasure  and  recreation.  Business  and  pecuniary  gain  have 
no  connection  with  it. 

The  idea  that  Congress  may  possess  the  power  to  pass  regu- 
lations controlling  interstate  automobiling  is  not  by  any  means 
a  new  one.  There  can  be  no  question  as  to  Congress '  power. 
Whether  the  travel  be  by  steam  railroad,  trolley  car,  vessel, 
automobile,  bicycle,  or  on  foot,  if  it  consists  of  the  passage 
of  either  persons,  animals  or  goods  from  one  State  into  an- 
other, across  the  boundary  line  of  any  two  States,  then  the 
travel  may  constitute  interstate  commerce  provided  there 
exists  a  commercial  purpose.  People  who,  for  commercial 
gain  or  commercial  purposes,  walk  across  a  bridge  which 
spans  a  river  between  two  States  may  be  said  to  carry  on  in- 
terstate commerce,  and  Congress  possesses  plenary  power  to 
regulate  this  travel.  But  if  a  valid,  just  and  non-discriminat- 
ing law  is  to  be  enacted,  the  form  in  which  the  bill  is  framed 
and  the  method  of  procedure  of  its  supporters  are  of  para- 
mount importance.    Direct  legislation  will  not  do. 

Manifestly  the  flying  of  a  kite  or  the  throwing  of  a  stone 
across  the  boundary  of  two  States  would  not  constitute  inter- 
state commerce.  The  passage  of  telegraph  and  telephone  mes- 
sages, however,  has  been  held  to  come  within  the  commerce 
clause  of  the  Constitution,  and  the  kind  of  messages,  whether 
concerning  business,  pleasure  or  what  not,  makes  no  differ- 
ence according  to  the  decisions.  It  must  be  admitted  that  in 
the  case  of  the  automobile  we  have  the  following  elements  of 
interstate  commerce: 

1.  A  means  of  travel. 

2.  Actual  travel  or  traffic. 

3.  A  means  of,  and  actual  travel,  which  will  satisfactorily 
carry  and  convey  people  and  freight. 

4.  Interstate  travel  or  traffic. 

5.  Business  or  commercial  purpose  of  travel. 

Does  the  purpose  or  object  of  all  this  automobile  travel 
have  any  bearing  on  the  question  as  to  whether  it  constitutes 
commerce?  This  is  the  only  question  which  must  be  decided 
before  the  authority  of  Congress,  to  legislate  on  the  subject 


FeDEK.VL    CONTIIOL    OvER    ^loTOKING. 


93 


is  established.  We  will  consider  briefly  in  the  note  the  mean- 
ing of  the  term  commerce  and  ascertain  if  the  travel  must  in 
some  way  be  connected  or  related  to  business,  trade  or  gain.- 
It  is  the  oi^inioii  of  many  persons  that  Congress  possesses 
no  power  to  take  cognizance  of  the  automobile  which  is  en- 
gaged in  interstate  travel  for  pleasure  merely,  by  legislation 
directly  regulating  that  kind  of  travel.  Hon.  Hem-y  B. 
Brown,  former  Associate  Justice  of  the  Supreme  Court  of  the 
United  States,  also  considers  Congress'  power  in  this  respect 


2.  " Commprno "  i<5  flpfinp'''  '■"  t^e 
famous  case  of  Gibbons  v.  Ogden,  22^ 
U.  S.  (9  Wheat.)  1,  6  L.  Ed.  23,  to 
mean  not  only  traffic  but  also  Inter- 
course, and  it  is  said  in  McNaughton 
Company  v.  McGirl,  20  Mont.  124,  49 
Pac.  651,  38  L.  R.  A.  367,  that  com- 
merce is  traffic,  but  it  is  something 
more — it  is  intercourse.  The  transpor- 
tation of  passengers  is  a  part  of  com- 
merce. Passenger  Cases,  48  U.  S.  (7 
How.  283).  Commerce  is  traffic,  but  it 
is  much  more.  It  embraces  also  trans- 
portation by  land  and  water,  and  all  the 
means  and  appliances  necessarily  em- 
ployed in  carrying  it  on.  Chicago  &  N. 
W.  R.  R.  Co.  V.  Fuller,  84  U.  S.  (17 
Wall.)  560,  21  L.  Ed.  710.  Tlie  term 
"commerce"  in  its  broadest  accepta- 
tion includes  not  merely  traffic  but  the 
means  and  vehicles  by  which  it  is  prose- 
cuted. Winder  v.  Caldwell,  55  U.  S. 
(14  How.)  434,  14  L.  Ed.  487.  The 
term  embraces  all  instruincnis  hi/ 
which  commerce  may  &e  conducted. 
Trademark  Cases,  100  U,  S.  82,  25  L. 
Ed.  550.  But  it  is  well  settled  that  in- 
surance is  not  commerce,  and  logs  which 
are  floating  down  a  river  uncontrolled 
are  not  an  element  of  commerce.  Har- 
rigan  v.  Connecticut  River  Lumber 
Company,  129  Mass.  500. 

In  Pensacola  Tel.  Company  v.  West- 
ern Union  Tel.  Company,  9G  U.  S.  1,  24 
L.  Ed.  708,  we  have  the  following 
enumeration  of  agencies  of  travel  which 
may   be   engaged    in   interstate    travel. 


and  tlie  enumeration  is  made  in  the 
order  of  improved  means  of  transit. 
The  court  begins  with  the  liorse,  men- 
tions the  stage-coach,  sailing  vessel, 
steamboat,  railroad,  and  ends  with  the 
telegraph.  If  automobiles  had  been  in 
use  they  might  have  lioen  included  if 
used  commercially. 

In  view  of  an  attempt  to  have  Con- 
gress consider  favoiably  a  federal  auto- 
mobile registration  law,  the  following 
decision  is  of  interest: 

In  United  States  v.  Colorado  &  N.  W. 
R.  R.,  decided  by  the  United  States 
Circuit  Court  of  Appeals,  Eighth  Cir- 
cuit, 157  Fed.  321,  85  C.  C.  A.  27,  13 
Ann.  Cas.  893,  15  L.  R.  A.  (N.  S.) 
167,  the  following  is  from  the  syllabus 
by  the  court:  The  Safety  Appliance 
Acts  (Acts  March  2,  1893,  chap.  196,  27 
Stat.  531,  amended  by  Act  April  1, 
1896,  chap.  87,  29  Stat.  85,  U.  S.  Comp. 
St.  1901,  pp.  3,  174,  and  Act  March  2, 
1903,  chap.  976,  32  Stat.  103,  U.  S. 
Comp.  St.  Supp.  1907,  p.  885),  apply 
to  and  govern  a  railroad  company  en- 
gaged in  interstate  commerce  which 
operates  entirely  within  a  single  State 
independently  of  all  other  carriers. 

Every  part  of  every  transportation  of 
articles  of  commerce  in  a  continuous 
passage  from  a  commencement  in  one 
State  to  a  prescribed  destination  in  an- 
other is  a  transaction  of  interstate 
commerce. 

Congress  may  lawfully  affect  inter- 
state commerce  so  far  as  necessary  to 


94 


The  Law  of  Automobiles. 


doubtful.  In  the  February,  1908,  number  of  the  Yale  Law 
Journal  he  says,  concerning  the  automobile:  '^It  is  very 
doubtful  .  .  .  whether  the  interstate  conunerce  clause  of  the 
Constitution  extends  to  private  carriage  not  engaged  in  regu- 
lar traffic  between  the  States,  and  only  entering  them  occasion- 


regulate  effectuaUy  and  completely  in- 
terstate commerce,  because  the  Consti- 
tution reserved  to  Congress  plenary 
power  to  regulate  interstate  and  for- 
eign commerce,  and  the  Constitution 
and  the  Acts  of  Congress  in  pursuance 
thereof  are  the  supreme  law  of  the 
land. 

In  Lehigh  &  Wilkes-Barre  Coal  Co.  v. 
Borough  of  Junction  (N.  J.  L.  1918), 
&8  Atl.  806,  it  is  said:  "While  inter- 
state commerce  necessarily  involves  in- 
terstate transportation,  the  converse  is 
not  always  true.  A  railroad  or  ferry 
company,  for  example,  which  trans- 
ports persons  or  property  from  one 
State  to  another,  is  undoubtedly  en- 
gaged in  interstate  commercce,  and  a 
tax  by  the  State  upon  owners  of  vessels 
or  common  carriers  so  transporting  per- 
sons or  property  has  been  held  void  as 
a  regulation  of  commerce.  On  the  other 
hand,  transportation  may  be  conducted 
without  constituting  commerce  or  traf- 
fic, which  has  been  defined  to  be  the  ex- 
change of  merchandise  between  indi- 
viduals, communities  or  countries, 
whether  directly  in  the  form  of  barter 
or  by  the  use  of  money  or  other  medium 
of  exchange.  A  manufacturer  who 
sends  his  goods  manufactured  in  Con- 
necticut to  his  own  entry  port  or  store 
in  New  York  city,  transports  the  pro- 
ducts from  one  State  to  another,  but 
the  transaction  by  such  owner  is  not  of 
itself,  so  far  as  the  owner  is  concerned, 
interstate  commerce  in  the  sense  that 
the  city  of  New  York  has  no  power  to 
tax  the  goods  thus  stored  and  awaiting 
sale  in  New  York,  although  the  mer- 
chandise may  be  intended  for  a  foreign 
market.     The  transaction  lacks  the  es- 


sential element   of  trade,  namely,   sale 
or  exchange. 

The  Supreme  Court  of  the  United 
States  says,  conceniing  the  commerce 
over  which  the  Federal  government  has 
exclusive  control:  "Let  us  inquire 
what  is  commerce,  the  power  to  regulate 
which  is  given  to  Congress?  This  ques- 
tion has  been  frequently  propounded  in 
tliis  court,,  and  the  answer  has  been — - 
and  no  more  specific  answer  could  well 
have  been  given — that  commerce  among 
the  several  States  comprehends  traffic, 
intercourse,  trade,  navigation,  communi- 
cation, the  transit  of  persons,  and  the 
transmission  of  messages  by  telegraph 
— indeed,  ever}-  species  of  commercial 
intercourse  among  the  several  States — • 
but  not  that  commerce  '  completely  in- 
ternal,' which  is  carried  on  between  man 
and  man,  in  a  State,  or  between  differ- 
ent parts  of  the  same  State,  and  which 
does  not  extend  to  or  affect  other 
States.  The  power  to  regulate  gov- 
erned. Of  course,  as  has  been  often 
said.  Congress  has  a  large  discretion  in 
the  selection  or  choice  of  the  means  to 
be  employed  in  the  regulation  of  inter- 
state, commerce,  and  such  discretion  is 
not  to  be  interfered  with  except  where 
that  which  is  done  is  in  plain  violation 
of  the  Constitution.  .  .  .  Mani- 
festly, any  rule  prescribed  for  the  con- 
duct of  interstate  commerce,  in  order 
to  be  within  the  competency  of  Congress 
under  its  power  to  regulate  commerce 
among  the  States,  must  have  some  real 
or  substantial  relation  to,  or  connection 
with,  the  commerce  regulated."  Ter 
Mr.  Justice  Harlan,  in  Adair  v.  U.  S., 
208  U.  S.  161,  28  Sup.  Ct.  277,  13  Ann. 
Cas.   764.' 


Federal  Control  Over  Motoring.  95 

ally  and  irregularly  for  the  purposes  of  pleasure.  .  .  .  The 
practice  of  rushing  to  Congress  to  obtain  legislation  of  doubt- 
ful validity  is  one  which  ought  not  to  be  encouraged,  when  the 
States  can  afford  a  sufficient  remedy." 

Sec.  87.  The  right  of  transit. 

Since  the  advent  of  the  new  means  of  transportation,  the 
automobile,  pleasure  driving  has  developed  wonderfully, 
throughout  the  United  States.  A  Saturday  or  Sunday  after- 
noon drive,  which  formerly  amounted  to  nothing  more  exten- 
sive than  traveling  a  distance  of  four  or  five  miles,  may  now, 
by  use  of  the  motor  vehicle,  consist  of  a  twenty-five  mile  ride, 
and  across  the  line  into  another  State.  A  whole  day's  auto- 
mobile drive  might,  in  some  instances,  take  one  into  more 
than  one  State  other  than  his  own. 

Distances  have  been  shortened  by  the  motor  vehicle,  cities 
brought  closer  together  and  touring  through  the  country 
necessitating-  passage  over  and  across  several  and  man^ 
States  is  now  prevalent.  For  an  automobilist  to  suggest  a 
drive  between  the  cities  of  New  York  and  Philadelphia,  for 
example,  would  be  generally  looked  upon  as  a  short  ride,  al- 
though the  drive  requires  the  use  of  the  highways  of  three 
States.  Correctly  it  may  be  said  that  automobiling  to-day  is 
more  interstate  than  purely  local  within  any  one  particular 
State's  borders.  Rhode  Island  automobilists,  probably  more 
than  any  other  citizens,  realize  this,  since  the  State  has  a  very 
small  area  over  which  the  automobilist  can  travel.  The  same 
situation  exists  in  Delaware.  Considering  the  nature  of  auto- 
mobile travel  and  its  distinctive  interstate  character,  it  is 
naturally  a  question  paramount  in  the  minds  of  motorists  as 
to  whether  the  various  States  of  this  Union  possess  the  au- 
thority to  enact  laws  which  require  non-resident  automobilists 
coming  into  the  State  to  pay  a  fee  which  is  in  the  nature  of 
revenue.  In  other  words,  can  revenue  be  collected  from  tour- 
ing automobilists  by  the  States  through  which  they  travel  1 

In  considering  this  question,  it  must  not  be  forgotten  that 
the  United  States  of  America  is  a  nation.  It  is  a  country  and 
is  sovereign  mthin  its  limits.    It  is  a  distinct  government  the 


96  The  Law  of  Automobiles. 

same  as  France  or  Germany.  The  people  of  the  United  States 
are  its  citizens.  United  States  citizenship  carries  with  it  not 
only  certain  duties  and  responsibilities,  but  many  rights. 
Some  of  these  rights  are  inalienable,  others  are  not.  It  is 
necessary  for  uis  to  start,  with  these  ideas  in  view,  in  order 
properly  to  understand  the  status  of  a  United  States  citizen 
who  wishes  to  travel  across  the  country  by  means  of  a  private 
carriage.  We  are  apt  to  lose  sight  of  the  fact  that  there  is  a 
larger  and  more  important  government  here  than  that  of  the 
State,  although  a  State  is  sovereign  ^\ithin  its  proper  sphere. 

Sec.  88.  Citizen's  right  of  transit. 

The  question  which  we  will  start  with  will  be  confined  to 
merit  transit  from  one  State  to  another  by  a  United  States  or 
State  citizen.  Who  is  there  that  can  deny  to  the  citizen  of 
any  State  the  right  to  transport  himself  from  one  State  to  the 
one  adjoining?  He  may  either  walk,  ride  behind  or  on  a 
horse,  be  carried  by  an  automobile,  sailing  or  power  vessel, 
railroad  train  and  possibly  a  flying  machine,  without  being 
compelled  to  pay  one  penny  for  the  privilege  of  so  doing.  It 
is  the  citizen's  inalienable  right  to  be  allowed  to  enter  another 
State,  to  choose  another  domicile,  and,  if  he  desires,  to  con- 
stantly pass  and  repass  from  one  State  into  another. 
''Liberty"  which  is  guaranteed  by  the  Federal  Constitution 
to  the  people  of  the  various  States  not  only  secures  this  right, 
but  the  general  fundamental  principles  of  constitutional 
government  give  to  the  citizens  the  right  of  transit  from  State 
to  State.  We  Avill,  if  you  please,  confine  the  above  assertion 
to  transit  unaccompanied  by  any  contrivance  such  as  the  auto- 
mobile. 

Sec.  89.  Transit  of  vehicle. 

Being  convinced  that  transit  of  persons  cannot  be  obstructed 
by  the  State,  let  us  ask  if  there  can  be  any  restrictions  placed 
upon  transit  carried  on  by  a  mechanical  contrivance  of  ad- 
mitted dangerous  characteristics.  At  the  outset  let  it  be  said 
that  the  automobile  is  not  dangerous  per  se.  This  has  been 
held  to  be  the  law  in  several  cases  decided  by  the  highest 


Federal  Control  Over  Motoring.  97 

courts  in  this  country.  However,  it  must  be  admitted  that 
there  are  certain  dangers  connected  with  the  operation  of 
automobiles  which  are  not  experienced  in  driving  horse-drawn 
vehicles  on  the  public  highways.  Therefore,  the  State  pos- 
sesses the  authority  under  its  police  powers  to  regulate  auto- 
mobiling,  to  prescribe  speed  limits  and  to  require  drivers  and 
owners  of  motor  vehicles  to  become  registered  or  licensed.  It 
is  necessary,  in  order  to  regulate  automobiling,  to  pay  the  ex- 
penses of  the  department  issuing  licenses  and  registering 
drivers  and  owners  of  automobiles.  These  expenses  naturally 
should  be  met  by  the  class  of  persons  regulated  and  licensed. 
No  quarrel  can  be  picked  with  any  of  the  States  because  the 
support  of  the  motor  vehicle  departments  is  placed  upon  the 
shoulders  of  automobilists.  But  the  amount  of  the  fees 
charged  is  limited  by  law^,  by  the  United  States  Constitution 
and  the  common  law  as  found  in  American  judicial  decisions. 

Sec.  90.  Limitation  on  license  fees. 

It  is  a  well  settled  principle  of  the  law  governing  license 
fees  and  occupation  or  privilege  taxes  that  the  sum  charged 
for  the  license  must  not  be  unreasonable  and  so  large  as  to 
make  the  act  performed  virtually  prohibited.  The  rule  lays 
it  down  that  the  reasonableness  of  the  sum  is  to  be  determined 
according  to  what  the  expenses  are  incident  to  issuing  licenses 
and  maintaining  the  department  in  its  activities.  If,  there- 
fore, the  fee  charged  for  registering  an  automobile  or  a  motor 
vehicle  driver  is  reasonable  according  to  the  standards  just 
mentioned,  then  it  is  a  just  and  legal  exaction,  otherwise  it  is 
not.3 

Sec.  91.  Questions  of  interstate  commerce  not  in  issue. 

That  the  State  cannot  tax  interstate  commerce  is  forever 
settled ;  so  we  need  not  dwell  upon  that  phase  of  the  question. 
Moreover,  it  is  extremely  doubtful  if  travel  for  pleasure  is 
commerce  within  the  meaning  of  the  Federal  limitation. 

We  do  not  need  to  consider  the  commerce  feature  of  inter- 
state travel  any  longer,  and  the  surprise  is  great  that  hereto- 

3.  See    chapter    VIIT    herein    as    to    registration  and  licensing. 


98  The  Law  of  Automobiles. 

fore  the  inviolability  of  the  correlative  right  of  transit  has 
not  been  advocated.  No  matter  if  the  travel  is  by  rail  or  auto- 
mobile, interstate  transit  can  no  more  rightfully  be  taxed  than 
interstate  commerce.  Here  is  a  new  phase  of  interstate  com- 
munication for  the  judiciary  to  deal  with,  yet  it  is  very  old,  so 
old  that  it  has  nearly  been  forgotten.  We  first  heard  of  this 
right  of  transit  in  1867  in  Crandall  v.  Nevada."* 

In  this  case  it  was  held  that  a  State  cannot  tax  the  right  of 
transit  through  the  State  by  the  ordinary  means  of  travel. 
The  opinion  of  the  court  in  this  case  was  written  by  Mr.  Jus- 
tice Miller,  and  is  in  part  as  follows : 

''The  people  of  the  United  States  constitute  one  nation. 
They  have  a  government  in  which  all  of  them  are  deeply  in- 
terested. This  government  has  necessarily  a  capitol  estab- 
lished by  law,  where  its  principal  operations  are  conducted. 
Here  sits  its  Legislature,  composed  of  senators  and  represen- 
tatives, from  the  States  and  from  the  people  of  the  States. 
Here  resides  the  President,  directing,  through  thousands  of 
agents,  the  execution  of  the  laws  over  all  this  vast  country. 
Here  is  the  seat  of  the  supreme  judicial  power  of  the  nation, 
to  which  all  its  citizens  have  a  right  to  resort  to  claim  justice 
at  its  hands.  Here  are  the  great  executive  departments,  ad- 
ministering the  offices  of  the  mails,  of  the  public  lands,  of  the 
collection  and  distribution  of  the  public  revenues,  and  of  our 
foreign  relations.  These  are  all  established  and  conducted 
under  the  admitted  powers  of  the  Federal  government. 

''That  government  has  a  right  to  call  to  this  point  any  or 
all  of  its  citizens  to  aid  in  its  service,  as  members  of  the  Con- 
gress, of  the  courts,  of  the  executive  departments,  and  to  fill 
all  its  other  offices ;  and  this  right  cannot  he  made  to  depend 
upon  the  pleasure  of  a  State  over  whose  territory  they  must 
ptt'SS  to  reach  the  point  where  these  services  must  he  rendered. 

"The  government,  also,  has  its  offices  of  secondary  impor- 
tance in  all  other  parts  of  the  country.  On  the  seacoasts  and 
on  the  rivers  it  has  its  ports  of  entry.  Li  the  interior  it  has 
its  1-and  offices,  and  its  sub-treasuries.  In  all  these  it  demands 
the  services  of  its  citizens,  and  is  entitled  to  bring  them  to 

4.  6  Wall  (U.  S.)  35,  18  L.  Ed.  745. 


Federal  Control  Over  Motorixg.  99 

close  points  from  all  quarters  of  the  nation,  and  no  power  can 
exist  in  a  State  to  obstruct  this  right  that  would  eiuihle  it  to 
defeat  the  purposes  for  ivhich  the  government  ivas  established. 

"The  Federal  power  has  a  right  to  declare  and  prosecute 
wars,  and,  as  a  necessary  incident,  to  raise  and  transport 
troops  through  and  over  the  territory  of  any  State  of  the 
Union. 

"If  this  right  is  dependent  in  any  sense,  however  limited, 
upon  the  pleasure  of  a  State,  the  government  itself  may  be 
overthroAvn  by  an  obstruction  to  its  exercise.   .   .   . 

"But  if  the  government  has  these  rights  on  her  own  ac- 
count, the  citizen  also  has  correlative  rights.  He  has  the  right 
to  come  to  the  seat  of  government  to  assert  any  claim  he  may 
have  upon  the  government,  or  to  transact  any  business  he 
may  have  with  it,  to  seek  its  protection,  to  share  its  offices,  to 
engage  in  administering  its  functions.  He  has  a  right  to  /ree 
access  to  its  seaports  through  which  all  the  operations  of  for- 
eign trade  and  commerce  are  conducted,  to  the  sub-treasuries, 
the  land  offices,  the  revenue  offices,  and  the  courts  of  justice 
in  the  several  States,  and  this  right  is  in  its  nature  independent 
of  the  will  of  any  State  over  whose  soil  he  must  2^(^ss  in  the 
exercise  of  it. 

"The  views  here  advanced  are  neither  novel  nor  unsup- 
ported by  authority.  The  question  of  the  taxing  poAver  of  the 
States,  as  its  exercise  has  affected  the  functions  of  the  Fed- 
eral government,  has  been  repeatedly  considered  by  this  court, 
and  the  right  of  the  States  to  impede  or  embarrass  the  con- 
stitutional operations  of  that  government,  or  the  rights  ivhich 
its  citizens  hold  under  it,  has  been  uniformly  denied.' ' 

In  the  opinion  of  the  court  the  famous  case  of  ^XFcCulloch 
V.  Maryland  ^  was  commented  on  and  the  remarks  of  Chief 
Justice  Marshall,  "that  the  power  to  tax  involves  the  power 
to  destroy"  were  given  prominence.  Given  the  power  to  tax, 
the  extent  is  unlimited.  If  a  tax  of  one  dollar  is  legal,  a  thou- 
sand dollar  tax  Avould  be  lawful. 

The  court  adopted  and  approved  of  the  views  expressed  in 
the  Passenger  Cases,  as  follows : 

5.  4  Wheat.    (U.   S.)    316.  4  L.  Ed.  415. 


100  The  Law  of  Automobiles. 

** Living  as  we  do  under  a  common  government,  charged 
with  the  great  concerns  of  the  whole  Union,  every  citizen  of 
the  United  States  from  the  most  remote  States  or  Territories, 
is  entitled  to  free  access,  not  only  to  the  principal  departments 
established  at  Washington,  but  also  to  its  judicial  tribunals 
and  public  offices  in  every  State  in  the  Union.  For  all  the 
great  purposes  for  which  the  Federal  government  was  formed, 
we  are  one  people,  with  one  coinmon  country." 

"We  are  citizens  of  the  United  States,  and  as  members  of 
the  same  community,  7nust  have  the  right  to  pass  and  repass 
through  every  part  of  it  without  interruption,  as  freely  as  in 
our  own  States." 

*'And  a  tax  imposed  by  a  State  for  entering  its  territories 
or  harbors,  is  inconsistent  with  the  rights  which  belong  to 
citizens  of  other  States  as  members  of  the  Union,  and  with  the 
objects  which  that  Union  was  intended  to  attain.  Such  a 
power  in  the  States  could  produce  nothing  hut  discord  and 
mutual  irritation,  and  they  very  clearly  do  not  possess  it." 

The  automobile  is  now  a  common  and  ordinary  mode  of 
interstate  travel.  There  can  be  no  question  about  this.  Cran- 
dall  V.  Nevada,  it  will  be  particularly  noticed,  held  that  the 
State  cannot  tax  transit  carried  on  by  the  ordinary  modes  of 
travel.  Interstate  automobile  travel  clearly  comes  within  the 
ruling  of  the  court  in  this  case;  consequently  it  cannot  con- 
stitutionally be  taxed. 

But,  while  it  is  reasonably  clear  that  property  in  transit 
from  one  State  to  another  is  exempt  from  State  taxation,  if 
it  be  stored  for  an  indefinite  time  during  such  transit,  at  least 
for  natural  causes  or  lack  of  transportation,  it  may  lawfully 
be  assessed  by  the  State  authorities.^ 

6.  State  V.  Maxwell  Motor  Sales  Corp.  142  Minn.  226,  171  N.  W.  566. 


Licensing  and  Registration.  lOi 


CHAPTER  VIII. 

LICENSING  AND  KEGISTRATION. 

Section     92.  Scope  of  chapter. 

93.  Nature  of  license. 

94.  Nature  of  license  fee. 

95.  Purpose'  of   registration. 

96.  General  power  to  require   registration   and   licensing. 

97.  Power  of  municipal  corporations — in  general. 

98.  Power  of  municipal  corporations — licensing  power  annulled  by  State. 

99.  Power  of  municipal  corporations — aljrogation  of  municipal   pOwere 

by  subsequent  genera)  statute. 

100.  Power   of   municipal   corporations — territorial    applicatiop    of   ordi- 

nance. 

101.  Constitutionality  of  regulations — in  general. 

102.  Constitutionality  of  regulations — title. 

103.  Constitutionality  of  regulations — interference   with    ijiterstate  com- 

merce. 

104.  Constitutionality  of  regulations — prohibition  of  use  of  highways  un- 

til registration. 

105.  Constitutionality  of  regulations — license  fees  beyond  cost  of  regis- 

tration. 

106.  Constitutionality  of  regulations— double  taxation. 

107.  Constitutionality  of  regulations — exemption  from  other  taxation. 

108.  Constitutionality  of  regulations^ — taxation    not    based    on    value    of 

property. 

109.  Discrimination- — in  general. 

110.  Discrimination — between  motor  vehicles  and  other  i-nnvcyances. 

111.  Discrimination— different  sizes  of  machines. 

112.  Discrimination — vehicles   used   for   different   purpos<->. 

113.  Discrimination — dealers  in  different  classr. 

114.  Discrimination — non-residents. 

115.  Discrimination — non-resident  exemption  based  on  reciprocity. 

116.  Registration  by  particular  classes  of  owners — corporations  and  part- 

nerships. 

117.  Registration  by  particular  classes  of  owners — registration  in  trade 

name. 

118.  Registration  by  particular  classes  of  owners — dealers. 

119.  Registration    by   particular    classes    of    owners — issuance    of    blank 

licenses  to  automobile  organization. 

120.  Registration  by  particular  classes  of  owners — by  pur.haser  of  ma 

chine. 

121.  Registration  by  particular  classes  of  owners— death  of  owner. 

122.  Disposition  of  license  moneys. 

123.  Vehicles  to  which  regulations  are  applicable. 

124.  Display  of  number  plate. 


102  The  Law  of  Automobiles. 

Section  125.  Effect    of    non-registration    in   actions    for    injuries — -Massachusetts 
rule. 

126.  Effect  of  non-registration  in  actions  for  injuries — general  rule. 

127.  Effect  of  non-registration  in  actions  for  injuries — burden  of  proof. 

128.  Certificate  as  evidence  of  ownership. 

Sec.  92.  Scope  of  chapter. 

The  discussion  in  this  chapter  covers  the  registration  and 
licensing  of  motor  vehicles,  including  such  subjects  as  the 
power  of  the  State  and  municipal  corporations  to  require  the 
registration  of  the  machines  or  to  exact  license  fees  for  their 
operation  on  the  public  highways. 

In  other  chapters  are  discussed  the  general  powers  of  the 
State  ^  or  municipal  divisions  ^  to  regulate  the  operation  of 
motor  vehicles.  And  the  questions  of  the  registration  and 
licensing  of  the  drivers  of  vehicles,  as  distinguished  from  the 
machines,  are  reserved  for  another  chapter.^  So,  too,  regu- 
lations particularly  relating  to  conveyances  used  for  hire, 
such  as  jitneys,  taxicabs,  etc.,  are  treated  in  another  chapter."* 

Criminal  prosecutions  with  reference  to  the  failure  of  an 
owner  to  register  his  machine,  are  discussed  in  another 
chapter.^ 

Sec.  93.  Nature  of  license. 

A  license  to  operate  an  automobile  is  merely  a  privilege.*^ 
It  does  not  constitute  a  contract,  and  hence  does  not  neces- 

1.  Chapter  5.  license,  all  that  the  autoist  cares  about 

2.  Chapter   6.  is  his  protection  under  it  and  the  au- 

3.  Chapter  12.  thority  it  gives  him  to  drive  his  auto- 

4.  Chapter  9.  mobile.     The  motor  car  driver  seldom 

5.  Chapter  27.  has  any  occasion  to  consider  the  nature 

6.  Foshee  v.  State,  15  Ala.  App.  113,  of  his  license  and  what  all  his  rights 
72  So.  685;  State,  ex  rel.  McClung  v.  are  under  it  aside  from  the  privilege 
Becker  (Mo.),  233  S.  W.  54.  given  to  him  to  use  his  machine.     An 

What  an  automobile  license  is.— It  is  automobile  license  is,  however,  some- 
very  generally  understood  throughout  thing  more  than  a  mere  formality, 
the  United  States  to-day  that  in  order  which  can  be  procured  by  compliance 
for  one  to  operate  a  motor  vehicle  on  with  a  certain  amount  of  red  tape.  The 
the  public  highways  in  most  of  the  various  automobile  acts  in  the  United 
States  it  is  first  necessary  to  procure  a  States  provide  for  two  kinds  of  licenses 
license  to  do  so  from  the  proper  au-  — perpetual  and  annual.  The  perpetual 
thorities.     After  having  procured  this  license,  of  course,  is  more  valuable  than 


Licensing  and  Registration. 


103 


sarily  pass  to  a  purchaser  of  the  vehicle^  Moreover,  as  a 
mere  license  and  not  a  contract,  it  may  be  revoked  for  cause 
shown. 

In  some  jurisdictions,  particularly  in  England,  a  procedure 
is  estalDlished  for  the  revocation  of  motor  vehicle  licenses.^ 
The  usual  registration  and  licensing  system  pertains  to  the 
machine  rather  than  to  the  operator  thereof.  Regulations 
may,  however,  he  adopted  requiring  the  licensing  of  chauf- 
feurs.^ 


one  that  is  temporary,  since  the  latter 
necessitates  the  payment  of  a  fee  peri- 
odically, while  the  former  may  be  pro- 
cured and  enjoyed  upon  the  payment  of 
but  one  fee.  Whether  the  license  be 
temporary  or  perpetual,  it  is  in  con- 
templation of  law  merely  a  license — a 
privilege.  But  what  does  such  a  license 
mean,  and  what  are  the  legal  rights  of 
the  holder  of  it?  We  might  say  that 
he  has  no  legal  rights  conferred  upon 
him  by  the  license,  and  that  it  is  nega- 
tive in  its  operation.  For  without  a 
license  he  is  subject  to  arrest  and  crim- 
inal prosecution ;  with  it  he  is  immune 
from  interference.  In  other  words  the 
license  confers  upon  him  a  sort  of  nega- 
tive right  to  be  let  alone  if  he  other- 
wise complies  with  the  law.  This  is 
really  all  that  the  automobilist's  license 
amounts  to.  For  it  has  been  held  many 
times  by  the  highest  courts  in  this 
country  that  a  license  does  not  consti- 
tute a  contract  within  the  meaning  of 
the  Federal  Constitution  prohibiting  a 
State  from  passing  any  law  impairing 
the  obligation  of  contracts,  and  it  is 
because  a  license  is  not  a  contract  that 
It  may  be  revoked  or  suspended  by 
legislative    authority. 

7.  Foshce  v.  State,  15  Ala.  App.  113, 
72  So.  685. 

8.  Indorsing  conviction  on  license. — 
Where  the  identification  plate  is  not  in 
accordance   with   the   local   government 


board  regulations  in  England  there  is 
held  to  be  ' '  an  offense  in  connection 
with  the  driving  of  a  motor  car"  within 
the  meaning  of  the  English  Motor  Act 
1903  (3  Edw.  7,  ch.  36),  section  4,  au- 
thorizing an  indorsement  of  conviction 
on  the  license.  Rex  v.  Gill  (K.  B. 
Div.),  100  T.  R.   (N.  S.)   858. 

So  the  license  may  be  indorsed  on  a 
conviction  for  exceeding  the  speed 
limits  in  the  royal  parks,  though  the 
regulations  creating  the  speed  limits 
were  made  after  the  passing  of  the 
Motor  Car  Act.  Rex  v.  Plowden  (K. 
R.  Div.),  100  Law  T.  R.  (N.  S.)   856. 

Allowing  a  motor  car  to  stand  in 
tlie  liighway  so  as  to  cause  an  unneces- 
sary obstruction  is  not  "an  offense  in 
connection  with  the  driving  of  a  motor 
car ' '  within  the  meaning  of  the  English 
Motor  Car  Act  1903  (3  Edw.  7,  ch.  36), 
sec.  4,  subsces.  1,  (c)  2,  which  au- 
thorizes the  court  to  indorse  the  parti- 
culars of  a  conviction  of  such  act  upon 
the  license.  Rex  v.  Justices  of  West 
Riding  of  York  (K.  B.  Div.),  102  Law 
T.  R.  (N.  S.)   138. 

When  no  power  to  indorse  a  license 
to  drive  a  motor  car  with  particulars 
of  the  conviction  when  the  holder  is 
convicted  of  a  first  or  second  offense 
of  exceeding  a  speed  limit.  Rex  v. 
Marsham,  97  Law  T.  R.  (N.  S.)  396. 

9.  See  chapter  XII. 


104 


The  Law  of  Automobiles. 


Sec.  94.  Nature  of  license  fee. 

The  charge  imposed  for  the  privilege  of  operating  a  motor 
vehicle  on  the  public  highways  is  not  generally  considered  a 
tax,  but  is  a  mere  license  or  privilege  fee.^^  When  considered 
as  a  tax,  it  is  not  deemed  a  tax  on  the  vehicle  as  such,  but  as 
a  tax  on  the  privilege  of  using  the  vehicle  for  transportation 
along  the  public  highways.  That  is  to  say,  it  is  not  a  tax  on 
property,  but  is  a  tax  on  privilege." 

A  municipal  ordinance  which  requires  the  registration  and 
numbering  of  motor  vehicles  and  requires  the  payment  of  a 
fee  to  cover  the  value  of  the  number  plate  furnished  by  the 
municipality,  is  held  to  constitute,  not  a  license,  but  merely 
a  regulation.^ 


10.  Alabama. — Foshee  v.  State,  15 
Ala.  App.  113,  72  So.  685. 

Florida. — Jackson  v.  Neff,  64  Fla. 
326,  332,  60  So.  350. 

Illinois. — Harder 's  Storage  &  Van 
Co.  V.  Chicago,  235   111.   58,85  N.  Y.  254. 

Massachusetts. — Commonwealth  v. 
Boyd,  188  Mass.  79,  74  N.  E.  255. 

Mississippi. — State  v.  Lawrence,  108 
Miss.  291,   66  So.   745. 

Neto  Jersey. — Unwin  v.  State,  73  N. 
J,  L.  529,  64  Atl.  163,  affirmed  75  N. 
J.  L.  50O,  68  Atl.   110. 

Oklahoma. — Ex  parte  Shaw,  157  Pac. 
900. 

Tennessee. — Ogilvie  v.  Harley,  141 
Tenn.  392,  210  S.  W.  645. 

Texas. — Atkins  v.  State  Highway 
Dept.  (Civ.  App.),  201  S.  W.  226. 

Vermont. — State  v.  Jarvis,  89  Vt. 
239,  95  Atl.  541. 

11.  Alabama. — Hudgens  v.  State,  15 
Ala.  App.  156,  72  So.  605;  Foshee  v. 
State  (Ala.  App.),  72  So.  685. 

Florida. — Jackson  v.  Neff,  64  Fla. 
326,  60  So.  350. 

Idaho. — Ex  parte  Kesslcr,  26  Idaho, 
764,  146  Pac.   113. 

Illinois. — Harder 's  Storage  &  Van 
Co.  V.  Chicago,  235  111.  58,  85  N.  E. 
245. 

Kentucky. — Smith  v.  Commonwealth, 
175  Ky.  286,  194  S.  W.  367. 


Michigan. — Jasnowski  v.  Board  of 
Assessors  of  City  of  Detroit,  191  Mich. 
287,   157  N.  W.  891. 

Mississippi. — State  v.  Lawrence,  108 
Miss.  291,  66  So.  745. 

Missouri. — State,  ex  rel.  McClung  v. 
Becker  (Mo.),  233  S.  W.  54. 

New  Jersey. — Unwin  v.  State,  73  N. 
J.  L.  529,  64  Atl.  163,  affirmed  75  N. 
J.  L.  500,  68  Atl.  110. 

New  Mexico. — State  v.  Ingalls,  18  N. 
Mex.  211,  135  Pac.  1177. 

Oklahoma. — Ex  parte  Phillips,  167 
Pac.  221. 

South  Carolina. — Lillard  v.  Melton, 
103  S.  Car.  10,  87  S.  E.  421. 

Tennessee. — Wilson  v.  State,  224  S. 
W.  168. 

Washington. — State  %'.  Collins,  94 
Wash.  310,  162  Pac.  556.  "A  license 
fee,  such  as  is  provided  for  in  this  act, 
may  or  may  not  be  a  tax,  depending 
upon  whether  its  imposition  is  tied  to 
the  police  or  taxing  power  of  the  State. 
But,  giving  respondent  the  benefit  of 
his  contemplation  that  this  license  fee 
is  imposed  under  the  taxing  power  of 
the  State,  it  is  clear  that  it  Is  not  a 
property  tax.  but  is  in  the  nature  of  a 
license  or  privilege  tax."  State  v.  Col- 
lins, 94  Wash.  310,  162  Pac.  556. 

12.  People  V.  Schneider,  139  Mich. 
G73,  103  N.  W.  172,  12  Det.  L.  N.  32, 


Licensing  and  Registration.  105 

While  ordinarily  a  licensing  statute  may  be  construed  as 
merely  a  regulation,  a  more  serious  question  arises  when  the 
amount  of  the  license  fee  is  designed  to  create  a  fund  in  ex- 
cess of  the  needs  for  supervision  of  the  machines  and  the  en- 
forcement of  the  law.  In  some  jurisdictions  it  is  held  that 
when  an  excess  is  thus  produced,  the  act  becomes  a  revenue 
measure  as  to  the  excess,"  but  in  other  jurisdictions  the  view 
is  taken  that  an  excess  may  be  raised  for  the  maintenance  of 
the  public  highways  without  the  law  being  classed  other  than 
as  a  regulatory  measure." 

Sec.  95.  Purpose  of  re^stration. 

The  reason  assigned  for  the  necessity  of  registration  and 
licensing  is  that  the  vehicle  should  be  readily  identified  in 
order  to  debar  operators  from  violating  the  law  and  the  rights 
of  others,  and  to  enforce  the  laws  regulating  the  speed,  and 
to  hold  the  operator  responsible  in  cases  of  accident.  The 
Legislatures  have  deemed  that  the  best  method  of  identifica- 
tion, both  as  to  the  vehicle  and  the  owner  or  operator,  is  by 
a  number  on  a  tag  conspicuously  attached  to  the  vehicle.  In 
case  of  any  violation  of  law  this  furnishes  means  of  identifica- 
tion, for,  from  the.  number,  the  name  of  the  owner  may  be 
readily  ascertained  and  through  him  the  operator.^^     c^^^^^ 

69  L.  E.  A.  345,  5  Ann.  Cas.  790;  Unwin  357;  Buggies  v.  State,  130  Md.  553,  87 

V    State,  73  N.  J.  L.  529,  64  Atl.  163,  Atl.    1080;    People    v.    Schneider,    139 

affirmed  75  N.  J.  L.  500,  68  Atl.  110;  Mich.   673,   103  N.  W.   172,   12  Det.  L. 

Borough    of    Applewold    v.    Dosch.    60  N.  32,  69  L.  R.  A.  345.  5  Ann.  Cas.  790; 

Pitts.  Leg.  J.  22.  Martin    v.    Whit*     (1910),     1     K.    B. 

13.  Ex  parte  Schuler,   167   Cal.   282,  (Eng.)   665. 

139  Pac.  685;  Vernor  v.  Secretary  of  The    Massachusetts    Act    forbidding 

State,  179  Mich.  157,  146  N.  W.  338;  thn    operation    of   an    automobile  by   a 

Ex  parte  Mayes  (Okla.),  167  Pac.  749.  per.son  without  a  license  permits  an  un- 

See    also.    State,    ex    rel.    McClung    v.  licensed  person  to  operate  an  automo- 

Becker  (Mo.),  233  Mo.  54.  bile    with    a    licensed    chauffeur.      The 

14.  Ex  parte  Kessler,  26  Idaho,  764,  statute  was  intended  to  provide  an  op- 
146  Pac.  113;  Smith  v.  Commonwealth,  portunity  for  persons  to  learn  to  use 
175  Ky.  286,  194  S.  W.  367;  Atkins  v.  an  automobile  by  running  It  under  the 
State  Highway  Dept.  (Tex.  Civ.  App.),  supervision  of  a  licensed  person  and 
201  S.  W.  226.     See  also  section  105.  thus  acquire  skill  by  practice.     Bo^urne 

15.  See  People  v.  MacWiUiams,  91  v.  Whitman,  209  Mass.  155,  95  N.  E. 
App.  Div.   (N.  Y.)   176,  86  N.  Y.  Supp.       404,  35  L.  R.  A.   (N.  S.)   701. 


106 


The  Law  of  Automobiles. 


acts  are  not  passed  merely  for  the  purpose  of  revenue  but 
have  for  their  object  the  protection  of  the  public.^*^  It  is  not 
difficult  to  see  that  the  registration  and  numbering  of  auto- 
mobiles is  intimately  connected  with  their  safe  operation  in 
the  State.  Many  automobiles  are  precisely  alike  in  external 
appearance.  They  are  sometimes  operated  by  those  whose 
faces  are  partially  concealed  and  whose  identity  is  uncertain. 
Those  operators  who  are  most  reckless  and  indifferent  —  and 
those  are  the  ones  that  endanger  the  safety  of  others  —  may 
violate  the  laAV  with  impunity  unless  some  method  is  adopted 
by  which  they  or  their  automobiles  may  be  identified.  A  pro- 
vision in  a  law  for  registration  and  numbering  is  such  a 
method.    It  is  reasonable  to  believe  that,  when  he  knows  that 


Purpose  of  re-registration. — "  The 
mauifest  purpose  of  requiring  registra- 
tion and  the  display  of  official  number 
plates  is  (1)  to  accomplish  in  advance 
the  collection  of  the  license  or  regis- 
tration fee,  and  (2)  to  furnish  a  means 
of  identification  of  the  vehicle.  The 
pre-eminent  purpose,  however,  of  re- 
quiring annual  re-registration  and  an- 
nual number  plates  (which  is  the  re- 
quirement involved  in  the  case  at  bar) 
is  to  accomplish  the  collection  of  the 
annual  fee.  Identification  is  not  aided 
by  mere  re-registration  or  by  a  change 
of  numbers  or  plates."  State  v.  Gish, 
168  Iowa,  70,  150  N.  W.   37. 

16.  Knight  v.  Savannah  Elec.  Co.,  20 
Ga.  App.  719,  93  S.  E.  17;  Greig  v. 
City  of  Merritt,  11  Dom.  Law  Rep. 
852,  854,  wherein  it  was  said:  "I  do 
not  think  however,  that  the  sole  or  in- 
deed the  principal  reason  in  the  statute 
for  requiring  registration  and  licensing 
of  motors  is  to  secure  revenue.  There 
is,  I  think,  a  peculiar  significance  in  the 
fact  that  the  motor  must  be  registered. 
To  secure  registration  under  sec.  11  the 
applicant  must  sign  an  application  form 
which  contains  full  particulars  as  to  the 
make  of  the  car,  and  as  to  the  garage 
or   place   where   the   car    is   kept,   with 


the  name  in  full  of  the  owner,  the  ap- 
plicant. When  a  license  is  issued,  sec. 
25  of  the  Act  requires  that  the  motor 
shall  have  attached  at  the  back  the 
number  of  the  license,  the  figures  being 
four  inches  in  height  and  displayed  in 
a  conspicuous  place  at  the  back.  And 
now  by  a  more  stringent  provision  of 
the  amending  Act  of  1913  a  specially 
designed  number  plate  must  be  dis- 
played on  the  front  and  at  the  back  of 
the  car.  The  object  of  such  provisions 
is  clearly  for  the  benefit  of  the  public. 
In  the  event  of  the  law  being  violat-ed 
the  offender  can  be  readily  identified  by 
the  number  on  his  car  and  brought  to 
justice.  The  motor  car  whilst  not  an 
outlaw  on  the  highway  is  yet  without 
doubt  a  very  dangerous  machine  unless 
under  very  careful  control.  The  stat- 
ute, containing  as  it  does,  some  drastic 
provisions  affecting  one's  common  law 
rights  and  especially  so'  in  the  matter 
of  the  burden  of  proof,  is  clearly 
framed  with  an  eye  to  the  protection 
of  the  public,  and  the  question  of  reve- 
nue is,  I  think,  merely  incidental  in  the 
Act."  See  also  Hughes  v.  New  Haven 
Taxicab  Co.,  87  Conn.  416,  87  Atl.  421. 
See  also  section  94. 


Licensing  and  Registration. 


107 


the  number  displayed  on  the  automobile  identifies  the  vehi- 
cles, fear  of  discovery  and  punishment  Avill  lead  the  automo- 
bile driver  to  observe  the  requirements  of  the  law.^' 

Sec.  96.  General  power  to  require  registration  and  licensing. 
There  is  no  dispute  as  to  the  general  proposition  that  a 
State,  in  the  exercise  of  its  police  power,  has  the  power  to 
require  the  registration  of  motor  vehicles  and  the  payment 
by  owners  of  license  fees.^^    This  power  the  State  may  exer- 


17.  See  People  v.  Schneider,  139 
Mich.  673,  103  N.  W.  172,  13  Det.  L. 
N.  32,  69  L.  K.  A.  345,  5  Auu.  Cas.  790. 

18.  United  States. — Hendrick  v. 
State  of  Maryland,  235  U.  S.  610,  35 
S,  Ct.  140;  Kane  v.  State  of  New 
Jersey,  242  U.  S.  160,  37  S.  Ct.  30. 

^ia&OH!  a.— Matter  of  Bozeman,  7 
Ala.  App.  151,  61  So.  604,  63  So.  201 ; 
Foahee  v.  State,  15  Ala.  App.  113,  72 
So.  685. 

California. — Ex  parte  Seliuler,  167 
Cal.  282,  139  Pae.  685. 

Connecticut. — State  v.  Scheidler,  91 
Conn.  234,  99  Atl.  492. 

District  of  Columbia. — Mark  v.  Dis- 
trict of  Columbia,  37  App.  D.  C.  563, 
37  L.  E.  A.   (N.  S.)  440. 

Florida.— Jackson  v.  Neff,  64  Fla. 
326,  60  So.  350. 

Illinois.— Christy  v.  Elliott,  216  111. 
31,  74  N.  E.  1035,  1  L.  R.  A.  (N.  S.) 
215,  3  Ann.  Cas.  487,  108  Am.  St.  Rep. 
196;  Harder 's  Storage  &  Van  Co.  v. 
Chicago,  235  111.  58,  85  N.  E.  345; 
Heartt  v.  Village  of  Downer's  Grove, 
278  111.  92,  115  N.  E.  869. 

Indiana. — Kersey  v.  Terre  Haute,  161 
Ind,  471,  68  N.  E.  1027. 

Jowa.— State  v.  Gish,  168  Iowa,  70, 
150  N.  W.  37. 

Kentuchij.— City  of  Henderson  v. 
Lockett,  157  Ky.  366,  163  S.  W.  199; 
City  of  Newport  v.  Merkel  Bros.  Co., 
156  Ky.  580,  161  S.  W.  549 ;  Smith  v. 
Commonwealth,  175  Ky.  286,  194  S.  W. 
367.     "It  is  conceded  that  it  is  a  right 


inherent  in  the  sovereignty  of  the  State 
to  regulate  the  use  of  motor  vehicles 
upon  the  roads  of  the  State,  and  it 
has  been  so  held  by  many  courts." 
Smith  v.  Commonwealth,  175  Ky.  286, 
194  S.  "W.   367. 

Massachusetts. — Commonwealth  v. 
Boyd  188  Mass.  79,  74  N.  E.  255. 

Michigan. — People  v.  Schneider,  139 
Mich.  673,  103  N.  \V.  172,  12  Det.  Leg. 
N.  32,  69  L.  R.  A.  345,  5  Ann.  Cas. 
790;  Vernor  v.  Secretary  of  State,  179 
Mich.  157,  146  N.  W.  338;  Jasnowski 
V.  Board  of  Assessors  of  City  of  De- 
troit, 191  Mich.  287,  157  N.  W.  891. 

Minnesota. — Park  v.  City  of  Duluth, 
134  Minn.  296,  159  N.  W.  627.  "It  is 
not  seriously  questioned  that  the  legis- 
lature might  impose  a  wheelage  tax 
upon  vehicles.  We  have  no  doubt  that 
it  might  do  so.  The  power  of  the  leg- 
islature to  tax  is  plenary.  It  is  not 
dependent  on  any  constitutional  grant. 
The  power  to  tax  inheres  in  the  State 
as  an  attribute  of  sovereignty,  and  is 
without  limit  except  as  restricted  by 
the  Constitution."  Park  v.  City  of  Du- 
luth, 134  Minn.  296,  159  N.  W.  627. 

Mississippi. — State  v.  Lawrence,  108 
Miss.  291,  66  So.  745. 

Neiv  Jersey. — Unwin  v.  State,  73  N. 
J.  L.  529,  64  Atl.  163,  affirmed  75  N. 
J.  L.   500,  68  At!.  110. 

New  Mexico.— State  v.  Ingalls,  18  N. 
Mex.   211,  135  Pac.  1177. 

Nexo  Fort.— Pratt  Institute  v.  City 
of  New  York.  183  N.  Y.  151,  75  N.  E. 


108  The  Law  of  Automobiles. 

cise  directly  through  the  means  of  a  statute  regulating  the  use 
of  the  public  highways  by  automobilists.  Or  the  State  may 
delegate  certain  powers  in  this  respect  to  municipal  divisions 
of  the  State,  who  may  thereby  be  authorized  to  pass  suitable 
regulations  for  the  registration  and  licensing  of  motor 
vehicles.^^ 

After  a  delegation  of  the  power  to  a  municipality,  it  may 
resume  its  control  over  the  subject  by  abrogating  the  authority 
of  the  municipality.^"  Constitutional  provisions,  however, 
may  override  the  legislative  authority,  so  that  it  cannot  de- 
prive a  municipal  corporation  of  the  power  of  licensing  vehi- 
cles or  other^\dse  regulating  their  use  within  the  municipality.^ 

The  taxing  and  licensing  power  of  the  State  or  municipal 
divisions  thereof  is  limited,  so  far  as  vehicles  in  the  military 
service  of  the  United  States  are  concerned ;  but  the  fact  that 
one  is  engaged  in  running  auto  busses  between  a  military 
camp  and  a  nearby  city  does  not  necessarily  absolve  him  from 
the  duty  of  acquiring  a  license  under  a  State  law  and  paying 
the  license  fee  on  vehicles  used  for  the  purpose.^ 

1119,  5  Ann.  Cas.  198;  People  v.  Mac-  103  S.  Car.  10,  87  S.  E.  421. 

Williams,  91  N.  T.  App.  Div.   176,  86  South  Dakota.— In  re  Hoffert,  34  S. 

N.  Y.  Suppl.  357;  People  ex  rel.  Hainer  Dak.  271,  148  N.  W.  20,  52  L.  R.  A. 

V.  Keeper  of  Prison,  121  App.  Div.  645.  (N.  S.)   949. 

106  N.  Y.  Suppl.  314,  affirmed  190  N.  Tennessee.— ^i\son   v.   State,   224   S. 

Y.  315,  83  N.  E.  44;  Buffalo  v.  Lewis,  W.  168. 

123  App.  Div.    163,   108  N.  Y.   Suppl.  Texas. — Ex  parte  Parr,  82   Tex.  Cr. 

450,  affirmed  192  N.  Y.  193,  84  N.  E.  525,   200  S.  W.  404;    Atkins  v.   State 

809;  People  v.  Schoepflin,  78  Misc.  62,  Highway  Dept.  (Civ.  App.),  201  S.  W. 

137   N.   Y.   Suppl.   675.  226. 

Oklahoma. — Ex  parte  Shaw,  157  Pac.  Washington. — City     of      Seattle     v. 

900;  Ex  parte  Mayes,  167  Pac.  749.  King,    74    Wash.    277,    133    Pac.    442; 

Oregon. — Briedwell      v.      Henderson,  State  v.  Collins,  94  Wash.  310,  162  Pac. 

195  Pac.  575.  556. 

Pennsylvania. — Oonmwn wealth         v.  19.  See  sections  97-100. 

Densmore,  29  Pa.  Co.  Ct.  217;  Common  20.  Section  99. 

wealth  v.  Hawkins,  14  Pa.  Dist.  Rep.  21.  People  v.  McGraw,  184  Mich.  233 

592;    Matter   of   Automobile   Acts,    15  150  N.  W,  833. 

Pa.  Dist.  Rep.  83.  22.  Ex  parte  Marshall  (Fla.),  77  St) 

South   Carolina. — Lillard  v.    Melton,  869. 


Licensing  and  Registration.  109 

Sec.  97.  Power  of  municipal  corporations  —  in  general. 

The  registration  and  licensing  of  motor  vehicles  is  pri- 
marily within  the  control  of  the  Legislature,^^  and  the  only 
power  lodged  in  municipal  divisions  is  such  as  has  been  dele- 
gated b>^  the  Legislature  to  the  municipalities.^* 

The  right  of  a  city  to  levy  a  license  fee  upon  automobiles 
can  be  received  only  from  the  Legislature,  and  must  be  exer- 
cised within  the  limits  of  the  power  conferred.^^  By  virtue  of 
some  statutory  provisions,  a  city  is  expressly  authorized  to 
license  vehicles.^^  And  under  general  laws  and  special  char- 
ter provisions  giving  municipalities  control  and  regulation  of 
the  streets,  it  may  be  stated  as  a  general  rule,  that,  unless 
the  power  over  the  registration  and  licensing  of  motor  vehi- 
cles is  expressly  excluded,  municipal  corporations  will  have 
such  power."  Moreover,  it  is  held  that  a  general  authority  to 
regulate  vehicles  on  the  municipal  streets  may  be  sufficient 
basis  to  justify  an  ordinance  requiring  the  licensing  of  motor 
vehicles  and  the  payment  of  license  f  ees.^*  Thus,  an  act  which 
empowered  a  certain  city  to  **  regulate  and  license  all  cars, 
wagons,  drays,  coaches,  omnibuses,  and  every  description  of 

23.  Section  96.  dcrson  v.  Lockett,  157  Ky.  366,  163  S. 

24.  City  of  Mobilo  v.  Gentry,  170  Ala.       W.  199. 

234,  54   So.   488;   Heartt  v.  Village  of  26.  Harder 's    Storage   &   Van  Co.   v. 

Downer's  Grove,  278  111.  92,  115  N.  E.  Chicago,    235    111.    58,    85    N.    E.    245; 

869 ;  Park  v.  City  of  Duluth,  134  Minn.  Ayres  v.  City  of  Chicago,  239  111.  237, 

296,  159  N.  W.  627.  87     N.     E.     1073;     White    v.     Turner 

Counties.— /»!   Alabanm,  counties  are  (Wash.),  195  Pac.  240. 

authorized   to   impose  license   taxes   on  27.  Ayres  v.  City  of  Chicago,  239  111. 

commercial    vehicles   but   not   on   those  237,  87  N.  E.  1073;  People  v.  Schneider, 

used  for   private  use.     Mills  v.   Court  139  Mich.  673,  103  N.  W.  172,  12  Det. 

of  Com'rs  (Ala.),  85  So.  564;  Johnson  Leg.  N.  32,  69  L.  R.  A.  345,  5  Ann.  Cas. 

V.  State  (Ala.),  85  So.  567.     See  also,  790;  Park  v.  City  of  Duluth,  134  Minn. 

McClure  v.   State    (Ala.   App.),   88   So.  296,  159  N.  W.  627;  Wassou  v.  City  of 

35.     A  similar  delegation  of  power  has  Greenville   (Miss.),  86  So.  450;   Kella- 

been  sustained  in  Arhansas.    Pine  Bluff  her  v.  Portland,  57  Oreg.  575,  112  Pac. 

Transfer  Co.  v.   Nichol,   140  Ark.   320,  1076:  Ex  parte  Parr,  82  Tex.  Cr.  525. 

215  S.  W.  579.  200  S.  W.  404. 

25.  City    of    Mobile   v.    Gentry,    170  28.  People    v.    Schneider,    139    Mich. 

Ala.  234,  54  So.  488 ;   Ex  parte  Smith,  673,  103  N.  W.  172,  12  Det.  Leg.  N.  32, 

33   Cal.  App.   161,   164  Pac.   618;   City  69  L.  R.  A.  345,  5  Ann.  Cas.  790.     See 

of  Newport  v.   Merkel   Bros.  Co.,   156  also.  City  of  Mayfield  v.  Carter  Hard- 

Ky.  580,  161  S.  W.  549;  City  of  Hen-  warn  Co.  (Ky.),  230  S.  W.  298. 


110  The  Law  of  Automobiles. 

carriages,"  has  'been  held  to  authorize  the  city  to  imi30se  a 
license  on  automobiles,  notwithstanding  they  were  unknown 
when  the  act  was  passed.-^  And,  under  a  statute  authorizing 
cities  ''To  regulate  and  license  the  use  of  carts,  drays, 
wagons,  coaches,  omnibuses,  and  every  description  of  car- 
riages and  vehicles  kept  for  hire  and  to  license  and  regulate 
the  use  of  the  streets  of  the  town  or  city  by  persons  who  use 
vehicles  or  solicit  or  transact  business  thereon,"  it  was  held 
that  a  city  may  by  ordinance  le\^'  a  license  upon  automobiles.^" 
So,  too,  a  statute  authorizing  cities  to  grant  licenses  for  law- 
ful purposes  and  to  fix  the  amount  to  be  paid  therefor,  has 
been  held  sufficient  authority  for  an  ordinance  licensing  vehi- 
cles for  hire.^^ 

Sec.  98.  Power  of  municipal  corporations  —  licensing'  power 
annulled  by  State. 
The  Legislature  having  the  control  of  the  licensing  of  motor 
vehicles  throughout  the  State,^^  j^ay  delegate  such  power  to 
municipalities  or  it  may  reserve  it  to  itself.  Or,  having  once 
delegated  such  authority,  its  control  over  the  subject  is  not 
exhausted,  and  it  may  resume  its  authority  by  abrogating  the 
power  theretofore  granted  to  municipal  officials.^^  Thus,  in 
some  States  it  is  provided  by  statute  that  municipal  corpora- 
tions shall  not  pass  regulations  for  the  licensing  of  motor 
vehicles.^^  Or  the  right  to  pass  regulations  may  be  subject  to 
limitations.^^  The  Legislature  may  provide  that  the  owner 
of  vehicles  shall  display  thereon  no  number  plate  other  than 

29.  Commonwealth    v.    Hawkins,    14       221. 

Pa.  Dist.  Rep.  592.    Compare  Washing-  34.  Barrett  v.   New  YorK,   189   Fed. 

ton  Elec.  Vehicle   Transp.   Co.  v.  Dis-  268;    City   of   Lincoln   v.   Dehner,    268 

trict  of  Columbia,  19  App.  D.  C.  462.  HI.  175,   108  N.  E.  991;   Hiler  v.  City 

30.  City  of  Mobile  v.  Gentry,  170  of  Oxford,  112  Miss.  22,  72  So.  837; 
Ala.  234,  54  So.  488.  State  v.  Fink  (N.  Car.),  103  S.  E.  16; 

31.  Seattle  v.  King,  74  Wash.  277,  Ex  parte  Shaw  (Okla.),  157  Pac.  900; 
133  Pac.  442.  See  sections  138-142  as  City  of  Muskogee  v.  Wilkins  (Okla.), 
to  power  of  municipalities  to  regulate  175  Pac.  497;  City  of  Bellingham  v. 
vehicles  used  for  hire.  Cissna,  44  Wash.  397,  87  Pac.  481. 

32.  Section  96.  35.  Anderson  v.  Wontworth,  75  Fla. 

33.  Ex  parte  Shaw  (Okla.),  157  Pac.  300,  78  So.  265. 
900;  E'x  parte  Phillips  (Okla.),  167  Pac. 


LICEN8IXG    AND    REGISTRATION.  Ill 

the  one  issued  by  the  State  officials.^*^  As  a  general  proposi- 
tion, the  State  statutes  give  the  authorities  of  municipal  divi- 
sions greater  power  over  vehicles  used  for  hire,  such  as  jitneys 
and  taxicabs,  than  over  automobiles  and  business  cars.^' 
Constitutional  pro\dsions  may  affect  the  power  of  the  Legis- 
lature. For  example,  it  has  been  held  that  a  provision  of  a 
constitution  to  the  effect  that  the  right  of  all  cities  to  the 
reasonable  control  of  their  streets  is  reserved  to  them,  pre- 
cludes a  statute  to  the  effect  that  local  authorities  shall  have 
no  power  to  pass  or  enforce  an  ordinance  requiring  from  an 
automobile  owner  or  chauffeur  any  license  or  permit  for  the 
use  of  streets.'^ 

Sec.  99.  Power  of   municipal   corporations  —  abrogation   of 
municipal  powers  by  ^bsequent  general  statute. 

It  is  evident  that  it  is  wiser  to  have  a  State  system  for  the 
registration  and  licensing  of  motor  vehicles,  than  to  permit 
each  separate  municipality  to  have  control  over  the  subject. 
In  recent  years  the  tendency  of  legislation  has  been  to  take 
the  licensing  power  from  municipalities  and  to  lodge  it  in  the 
State  authorities.  Hence,  though  municipalities  have  from 
time  to  time  been  authorized  to  license  the  operation  of  motor 
vehicles  within  their  territorial  limits,  it  has  generally  been 
held  that  a  State  statute  prescribing  a  uniform  system  of 
registration  and  licensing  throughout  the  State  has  the  effect 
of  repealing  the  powers  of  municipalities  and  of  abrogating 
all  local  regulations  theretofore  enacted.^^    The  result  reached 

36.  City  of  Chicago  v.  Francis,  262  v.  City  of  Columbus,  SO  Ohio  St.  686, 
111.  331,  104  N.  E.  662;  City  of  St.  89  N.  E.  92.  See  also,  Shrcveport  v. 
Louis  V.  Williams,  235  Mo.  503,  139  S.  Stringfellow,  137  La.  552,  68  So.  951 ; 
W.  340;  Brazier  v.  Philadelphia,  15  Pa.  Heartt  v.  Village  of  Downer's  Grove, 
Dist.  Kep.  14.    See  also  section  124.  278   111.   92,  115  N.  E.  869;   Ex  parte  ^ 

37.  Section  136.  Phillips  (Okla.),  167  Pac.  221. 

38.  People  v.  McGraw,  184  Mich.  233.  Tennsylvanki.—ln  Commonwealth  v. 
130  N.  W.  836.  Hawkins,    14    Pa.    Dist.    Rep.    592,    the 

39.  Helena  v.  Dunlap,  102  Ark.  131,  court  upheld  the  validity  of  an  ordi- 
143  S.  W.  138;  Pratt  Institute  v.  City  nance  (passed  by  the  city  of  Pittsburg 
of  New  York,  183  N.  Y.  151,  75  N.  E.  under  the  power  conferred  by  the 
1119,  5  Ann.  Cas.  198;  Buffalo  v.  Lewis,  special  Act  of  April  1,  1SS6  [P.  L.  565, 
192  N.  Y.  193,  84  N.  E.  809;  State  v.  sec.  71],  to  regulate  and  license  every 
Fink   (N.  Car.),  103  S.  E.  16;   Frisbie  description   of  carriages)    which  makes 


112 


The  Law  of  Automobiles. 


may  be  thought  to  be  contrary  to  the  canon  of  construction 
that  a  general  act  does  not  impliedly  repeal  a  local  or  special 
act;  but  this  rule  of  construction  does  not  generally  apply 
when  it  is  evident  that  the  general  act  was  intended  to  cover 
the  entire  subject.  Where  a  later  act  covers  the  whole  sub- 
ject of  earlier  acts  and  embraces  new  provisions,  and  the  act 
plainly  shows  that  it  was  intended,  not  only  as  a  substitute 
for  the  earlier  acts,  but  to  cover  the  whole  subject  then  con- 
sidered by  the  Legislature  and  to  prescribe  the  only  rules  in 
respect  thereto,  it  will  operate  as  a  repeal  of  all  former  stat- 
utes relating  to  such  subject  matter,  even  if  the  former  acts 
are  not  in  all  respects  repugnant  to  the  new  act.'^    In  some 


it  unlawful  for  any  person  to  operate, 
or  cause  to  be  operated,  upon  the  streets 
of  the  city,  an  automobile,  motor  ve- 
hicle, or  other  conveyance  or  wagon,  the 
motive  power  of  which  shall  be  elec- 
tricity, steam,  gasoline,  or  any  source  of 
energy  other  than  human  and  animal 
power  except  upon  the  conditions,  inter 
alia,  of  the  payment  by  the  owner  of 
an  annual  license  fee  of  six  dollars  if 
the  vehicle  is  intended  to  carry  one  or 
two  persons,  and  a  fee  of  ten  dollars 
if  intended  to  carry  more  than  two  per- 
sons. The  court  said  that  the  license 
imposed  was  not  unreasonable,  and  was 
uniform  upon  different  kinds  of  the 
several  classes  of  vehicles  named ;  and 
that  was  all  the  law  required  in  that 
respect. 

The  power  conferred  upon  the  city  of 
Pittsburg,  Pennsylvania,  by  the  special 
Act  of  April  1,  1868  (P.  L.  565),  to 
impose  a  license  upon  automobiles  used 
in  the  city  streets  was  not  repealed  by 
the  Act  of  April  23,  1903  (P.  L.  268), 
regulating  the  use  of  automobiles 
throughout  the  State,  as  the  later  act 
contains  no  repealing  clause,  and  by 
the  provision  of  the  seventh  section,  to 
the  effect  that  the  amount  of  license 
prescribed  by  the  act  shall  not  apply 
to  any  city  or  other  municipality  in 
which  the  authorities  have  imposed   a 


license  fee  for  the  same  purpose,  indi- 
cates an  intention  to  preserve  to  the 
municipalities  any  authority  previously 
conferred  upon  them  authorizing  the 
licensing  of  vehicles.  Commonwealth 
V.  Hawkins,  14  Pa.  Dist.  Rep.  592. 

40.  Pratt  Institute  v.  City  of  New 
York,  183  N.  Y.  151,  75  N.  E.  1119,  5 
Ann.  Cas.  198. 

In  Illinois  it  was  held  that,  though 
the  object  of  a  statute  was  to  take  the 
subject  of  the  regulation  of  the  speed 
and  operation  of  automobiles  out  of 
the  hands  of  the  local  authorities  and 
to  pass  a  law  of  general  and  uniform 
regulation  applicable  alike  to  all  munici- 
palities of  the  State  and  its  effect  was  to 
abrogate  all  municipal  ordinances  desig- 
nated to  regulate  the  use  of  motor  ve- 
hicles passed  prior  to  the  time  such  law 
went  into  force  and  to  deprive  such  mu- 
nicipalities of  the  power  to  pass  such 
regulating  ordinances  in  the  future,  yet 
a  Wheel  Tax  Ordinance,  imposing  a  tax 
upon  different  kinds  of  vehicles,  includ- 
ing automobiles,  is  within  the  power  of 
a  municipality  to  subsequently  pass 
where  by  statute  power  is  conferred 
upon  "The  city  council  in  cities,  and 
president  and  board  of  trustees  in  vil- 
lages ...  to  direct,  license,  and 
control  all  wagons  and  other  vehicles, 
conveying  loads  within  the  city,  or  any 


Licensing  and  Registration.  113 

jurisdictions,  the  repeal  of  the  State  law  will  not  have  the 
effect  of  reviving  the  municipal  regulation  on  the  subject/^ 

Sec.  100.  Power  of  municipal  corporations  —  territorial  ap- 
plication of  ordinance.' 

The  powers  of  municipalities,  as  a  general  rule,  extend  only 
within  their  territorial  limits.  Thus,  where  a  statute  pro- 
vided that  any  person  desiring  to  operate  an  automobile  in 
a  city  must  procure  a  license  from  the  license  commissioner 
thereof,  and  if  he  desired  to  operate  it  in  the  county  outside 
the  city  limits  he  should  procure  a  license  from  the  county 
clerk  of  such  county,  it  was  held  that  the  owner  of  an  auto- 
mobile was  required  to  take  out  a  license  in  each  and  every 
county  over  the  roads  of  which  he  desired  to  operate  his  auto- 
mobile.*^ One  carrying  passengers  for  hire,  though  procuring 
a  license  in  the  city  where  its  principal  business  is  conducted, 
may  be  required  to  take  out  a  license  under  the  regulations  of 
other  cities  through  which  he  may  transport  passengers." 
Considerable  difficult}^  may  be  experienced  relative  to  the 
powers  of  municipalities  over  vehicles  traveling  between 
points  within  the  city  and  points  outside  of  its  boundaries.  In 
one  State,  it  has  been  held  that  a  licensing  regulation  applies 
to  motor  vehicles  using  the  municipal  streets  for  travel  be- 
tween points  within  and  points  without  its  limits.''*  But  in 
another  State,  the  application  of  a  regulation  in  such  cases 
has  been  denied.*^  Where  one  is  engaged  in  carrying  passen- 
gers between  two  points  both  outside  of  a  city,  though  the 
course  of  travel  passes  through  the  city,  it  has  been  held  that 
his  acts  do  not  constitute  a  ''business  transacted  and  carried 
on  in  such  city,"  within  the  meaning  of  a  statute  permitting 
the  city  to  license  such  business;  and  the  fact  that  he  may 

particular   class    of   such   wagons,    and  Ohio  St.  686,  89  N.  E.  92. 

other  vehicles,  and  prescribe  the  width  42.  State  v.  Cobb,  113  Mo.  App.  156, 

and  tire  of  the  same,  the  license  fee,  87  S.  W.  551. 

when  collected,  to  be  kept  as  a  sepa-  43.  Opydyke    v.    City    of    Annistou 

rate    fund    and    used    only   for   paying  (Ala.  App.),  78  So.  634. 

the  cost  and  expense  of  street  or  alley  44.  City   of  Carterville   v.   Blystone, 

improvement  or  repair."    Ayres  v.  City  160  Mo.  App.  191,  141  S.  W.  701. 

of  Chicago,  239  111.  237,  87  N.  E.  1073.  45.  McDonald  v.  City  of  Paragould, 

41.  Frisbie  v.  City  of  Columbus,   80  120  Ark.  226,  179  S.  W.  335. 

8 


114 


The  Law  of  Automobiles. 


incidentally  stop  in  the  city  does  not  change  the  situation/*' 
A  resident  of  a  municipality  cannot  object  to  an  ordinance 
because  it  would  impose  burdens  on  non-residents.*^ 


Sec.  101.  Constitutionality  of  regulations  —  in  general. 

Eegulations  relative  to  the  registration  and  licensing  of 
motor  vehicles  must  be  in  accord  with  the  State  and  Federal 
constitutions,  whether  the  regulation  is  one  enacted  by  the 
Legislature  of  the  State  or  by  a  municipal  body."^  But,  except 
in  peculiar  instances  or  under  unusual  constitutional  require- 
ments, the  regulations  have  generally  been  sustained.*^    For 


46.  Ex  parte  Smith,  33  Cal.  App.  161, 
164  Pac.  618,  wherein  it  was  said: 
"The  business  conducted  by  petitioner, 
as  alleged  in  violation  of  the  ordinance, 
is  that  of  transporting  passengers  for 
hire,  not  in  the  city,  but  between  term- 
ini both  of  which  are  outside  thereof, 
incidental  to,  connected  with,  and  as  a 
part  of  which  a  number  of  facts  other 
than  transportation,  such  as  soliciting 
business,  taking  on  and  discharging 
passengers,  collecting  fares,  and  caring 
for  their  welfare  enroute,  are  necessary 
to  be  performed.  The  transportation  of 
the  passengers  over  any  particular  part 
of  the  public  highway  is  one  of  the 
incidents  of  the  business,  but  it  no  more 
constitutes  the  business  than  does  the 
collection  of  their  fares.  Hence  it  can- 
not be  said  that  the  carrying  of  pas- 
sengers for  hire  from  Los  Angeles  to 
Bakersfield  by  means  of  a  motor  ve- 
hicle operated  over  the  public  highway, 
a  part  of  which  extends  through 
Tropico,  where  no  stops  are  made,  nor 
any  of  the  incidental  acts  of  such 
transportation  performed  other  than 
traveling  along  the  streets,  constitutes 
a  business  "transacted  and  carried  on 
in  such  city."  Adopting  the  contrary 
view  urged  by  respondent,  the  con- 
clusion must  logically  follow  that  a 
physician,  grocer,  plumber,  indeed, 
every    one    engaged    in    a   professional 


calling  or  business  in  one  city,  having 
occasion  to  make  a  professional  call  or 
deliver  goods  to  a  purchaser,  to  do 
which  required  him  to  travel  upon  the 
highways  through  other  cities,  could  un- 
der a  like  provision  of  the  ordinance  to 
that  here  involved  be  subjected  to  a  tax 
in  the  guise  of  a  license  levied  upon 
the  theory  that  such  use  of  the  streets 
constituted  a  business  transacted  and 
carried  on  in  the  different  cities  through 
which  he  passed.  While  the  use  of  the 
streets  may  be  regulated,  the  city  has 
no  power  to  convert  them  into  toll 
roads,  and  thus  exact  tribute  from 
those  who  in  the  conduct  of  business 
elsewhere  have  occasion  to  use  them 
solely  as  highways. ' ' 

47.  Wasson  v.  City  of  Greenville 
(Miss.),   86   So.   450. 

48.  Pointing  out  constitutional  pro- 
vision violated. — Where  it  was  at- 
tempted to  question  the  constitution- 
ality of  the  Missouri  Automobile  Act 
of  1905,  which  required  a  license  on  the 
part  of  the  persons  desiring  to  operate 
an  automobile,  the  court  declined  to 
consider  the  question,  because  neither 
the  article  nor  the  section  of  the  con- 
stitution claimed  to  have  been  violated 
was  pointed  out  or  referred  to  in  the 
defendant 's  motions  or  briefs.  State  v. 
Cobb,  113  Mo.  App.  156,  87  S.  W.  551. 

49.  Section  97. 


LiCEXSiXG  AXD  Registration.  115 

example,  the  requirement  that  a  number  plate  shall  be  attached 
to  the  machine  so  as  to  identify  it,  does  not  violate  the  con- 
stitutional guarantee  against  unreasonable  searches  or  the 
provision  that  no  person  shall  be  compelled  to  be  a  witness 
against  himself  or  deprived  of  his  liberty  or  property  without 
due  process  of  law.^'^  A  statute  providing  that  the  ''license 
tax"  imposed  shall  be  paid  to  the  "tax  collector"  of  the 
county,  is  not  in  conflict  with  a  constitutional  provision  to  the 
effect  that  the  county  judge  shall  issue  all  licenses  recpired 
by  law  to  be  issued  in  the  county .^^  But,  under  a  constitutional 
provision  forbidding  the  imposition  of  taxes  on  counties  or 
the  inhabitants  thereof  for  county  purposes,  the  Legislature 
cannot  enact  a  law  imposing  certain  taxes  in  the  form  of 
license  fees  on  the  owners  of  motor  vehicles  and  distributing 
part  of  such  moneys  to  the  road  fund  of  the  several  counties.^' 
But,  when  the  license  fee  is  not  a  tax,  but  merely  a  regulatory 
requirement  imder  the  police  power,  there  is  no  objection  to 
a  division  of  the  fees  among  municipalities.^^ 

Sec.  102.  Constitutionality  of  regulations  —  title. 

Constitutions  in  most  States  contain  provisions  respecting 
the  titles  of  proposed  laws,  and  an  act  which  is  not  properly 
entitled  is  void.  Thus,  it  is  sometimes  required  that  acts  shall 
contain  but  one  subject  and  that  shall  be  expressed  in  the 
title.^*    But  an  act  for  the  regulation  of  motor  vehicles  and 

50.  People  v.  Schneider,  130  Mich.  the  counties  presumably  for  use  upon 
673  103  N.  W.  172,  12  Det.  L.  N.  32,  the  public  roads  under  county  super- 
69  L.  E.  A.  345,  5  Ann.  Cas.  790;  vision.  It  has  been  held  that  license 
People  V.  MacWillianis,  91  K  Y.  App.  taxes  for  county  purposes  are  within 
Div.  176,  86  N.  Y.  Suppl.  357.  the    inhibitions    of    the   section    of    the 

51.  Jackson  v.  Xeff,  64  Fla.  326,  60  Constitution  last  cited,  and  that  the 
So.  350.  whole  subject  of  county  taxes  has  been 

52.  Ex  parte   Schuler,   167  Cal.   282,  delegated  to  the  local  authorities." 
139    Pac.    6S5,    wherein    it    was    said:  53.  Ex  parte  Shaw  (Okla.),  157  Pac. 
"The  Motor  Vehicle  Act  imposes  a  tax  900. 

upon  the  inhabitants  and  property  in  54.  See  People  v.  Sargent,  254  111. 
every  county  and  city  and  county  in  514,  98  X.  E.  959. 
the  State  for  the  purpose,  among  Defective  title  of  Act. — See  Common- 
others  of  creating  a  fund,  one-half  of  wealth  v.  Densmore,  13  Pa.  Dist.  Rep. 
which,  less  expenses  of  administration,  639,  29  Pa.  Ct.  Rep.  217,  holding  that 
shall   be   paid   into   the   road   funds   of  the  provisions  of  the  Pennsylvania  Act. 


116 


The  Law  of  Automobiles. 


entitled  in  that  manner,  is  not  invalid  because  it  also  pro- 
vides for  the  disposition  of  license  fees  received  under  the 
statute.''^  Constitutional  provisions  relative  to  the  entitling 
of  acts,  do  not  generally  apply  to  municipal  ordinances.^^ 


Sec.  103.  Constitutionality  of  regulations  —  interference  with 
interstate  commerce. 

So  long  as  there  is  no  national  legislation  relative  to  the 
registering  and  licensing  of  motor  vehicles,  a  State  statute 


April  23,  1903  (P.  L.  268),  requiring 
the  owners  of  automobiles  to  take  out 
license,  was  so  uncertain  that  a  con- 
viction for  the  violation  could  not  be 
sustained  in  view  of  the  fact  that  there 
is  nothing  in  the  act  as  to  what  the 
license  shall  contain,  and  that  the  title 
of  the  act  refers  to  the  licensing  of 
"operators"  and  not  "owners"  of 
automobiles.  See  also  In  re  Automobile 
Acts,  15  Pa.  Dist.  Rep.  83. 

55.  Smith  v.  Commonwealth,  175  Ky. 
286,  194  S.  W.  367 ;  Jasnowski  v.  Board 
of  Assessors  of  City  of  Detroit,  191 
Mich.  287,  157  N.  W.  891;  Common- 
wealth ex  rel.  Bell  v.  Powell,  249  Pa. 
St.  144,  94  Atl.  746.  "Because  sub- 
section 14  and  section  27  provide  for 
the  payment  of  the  license  fees  into  the 
State  road  fund  and  the  title  of  the 
act  provides  only  for  the  regulations, 
licensing,  and  governing  the  use  of 
motor  vehicles,  it  is  insisted  that  the 
title  of  the  act  is  only  broad  enough  to 
justify  an  act  strictly  for  the  regula- 
tion of  motor  vehicles  and  that  the  pay- 
ment of  the  license  fees  into  the  State 
road  fund  is  the  setting  apart  of  the 
fees  for  a  revenue  purpose — that  is,  the 
improvement  of  the  public  highways — 
and  for  that  reason  the  act  relates  to 
two  subjects  and  therefore  is  void. 
Without,  at  this  point,  entering  into 
any  discussion  as  to  whether  the  statute 
is  one  enacted  in  the  exercise  of  the  po- 
lice power  or  is  really  a  statute  enacted 
for  revenue  purposes,  only,  under  the 


guise  of  au  exercise  of  the  police  power, 
it  will  be  first  determined  whether  the 
statute,  in  any  of  its  provisions,  is  con- 
trary to  section  51  of  the  Constitution, 
and  the  other  questions  involved  will  be 
hereafter  adverted  to.  The  use  of 
motor  vehicles  consists  in  driving  them 
upon  the  highways  of  the  State.  No 
other  use  is  contemplated  for  such  ve- 
hicles. To  "license"  necessarily  means 
to  grant  a  privilege  which  Is  otherwise 
withheld.  To  license  a  vehicle  must  be 
either  to  grant  the  privilege  of  its  own 
ership  or  its  use.  The  title  of  the  act 
contemplates  licensing  the  use  of  them, 
or  else  the  expression  in  it  to  "govern 
the  use  of  motor  vehicles"  would  be 
without  signification  or  meaning. 
Hence  the  patent  meaning  of  the  title 
is  to  regulate,  permit,  and  govern  the 
use  of  motor  vehicles  upon  the  roads. 
Such  a  title  relates  to  only  one  subject. 
To  the  ordinary  mind,  to  license  the 
privilege  of  using  property,  in  a  cer- 
tain way,  contemplates  the  exacting  of 
fees  or  a  tax  for  such  privilege.  The 
general  rule  often  declared  in  determin- 
ing whether  a  legislative  act  is  invalid 
under  the  provisions  of  section  51  of 
the  Constitution  is,  if  all  the  provisions 
of  an  act  relate  to  the  same  subject, 
are  naturally  connected,  and  are  not 
foreign  to  the  subject  expressed  in  the 
title,  it  is  sufficient."  Smith  v.  Com- 
monwealth, 175  Ky.  286,  194  S.  W.  367. 
56.  Ex  parte  Parr,  82  Tex.  Cr.  525, 
200  S.  W.  404. 


liicENsixV(j  AND  Rp:gistratiox, 


117 


on  the  subject  is  not  contrary  to  the  commerce  clause  of  the 
Federal  constitution,  although  vehicles  engaged  in  interstate 
commerce  may  be  more  or  less  affected  thereby.^'  A  State 
has  the  power  to  enact  a  motor  vehicle  law  which  will  impose 
a  license  fee  on  non-residents  who  may  use  the  highways  of 
such  State/^  But  is  doubtful  if  a  municipality  can  impose 
a  license  fee  for  a  jitney  or  bus  which  is  used  solely  for  the 
carriage  of  passengers  from  a  city  in  one  State  to  a  city  in 
another.^^ 


Sec.  104.  Constitutionality    of    regulations  —  prohibition    of 
use  of  highways  until  registration. 

Where  the  State  has  enacted  a  registration  system  for 
motor  vehicles,  it  may  properly  enact  that  no  person  shall 


57.  Ilendrick  v.  Maryland,  235  U.  S. 
610,  622,  35  S.  Ct.  140,  wherein  it  was 
said:  "The  movement  of  motor  ve- 
hicles over  the  highways  is  attended  by 
constant  and  serious  dangers  to  the 
public,  and  is  also  abnormally  destruc 
tive  to  the  ways  themselves.  Their  suc- 
cess depends  on  good  roads,  the  con- 
struction and  maintenance  of  which  are 
exceedingly  expensive ;  and  in  recent 
years  insistent  demands  have  l>een  made 
upon  the  States  for  V^etter  facilities, 
especially  by  the  ever-increasing  num- 
ber of  those  who  own  such  vehicles.  As 
is  well-known,  in  order  to  meet  this  de- 
mand and  accommodate  the  growing 
traffic  the  State  of  Maryland  has  built 
and  is  maintaining  a  system  of  im- 
proved roadways.  Primarily  for  the  en- 
forcement of  good  order,  and  the  pro- 
tection of  those  within  its  own  juris- 
diction the  State  put  into  effect  the 
above-described  general  regulations, 
including  requirements  for  registration 
and  licenses.  A  further  evident  pur- 
pose was  to  secure  some  compensation 
for  the  use  of  facilities  provided  at 
great  cost  from  the  class  for  whose 
needs  they  are  essential  and  whose 
operations  over  them  are  peculiarly  in 


jiuious.  In  the  absence  of  national 
legislation  covering  the  subject  a  State 
may  rightfully  prescribe  uniform  regu- 
lations necessary  for  public  safety  and 
order  in  respect  to  the  operation  upon 
its  highways  of  all  motor  vehicles — - 
those  moving  in  interstate  commerce 
as  well  as  others.  And  to  this  end  it 
may  require  the  registration  of  such  ve- 
hicles and  the  licensing  of  their  drivers, 
charging  therefor  reasonable  fees 
graduated  according  to  the  horse-power 
of  the  engines — a  practical  measure  of 
size,  speed,  and  difficulty  of  control. 
This  is  but  an  exercise  of  the  police 
power  uniformly  recognized  as  belong- 
ing to  the  States  and  essential  to  the 
preservation  of  the  health,  safety  and 
comfort  of  their  citizens;  and  it  doe3 
not  constitute  a  direct  and  material 
burden  on  interstate  commerce.  The 
reasonableness  of  the  State's  action  is 
always  subject  to  inquiry  in  so  far  as  it 
effects  interstate  commerce,  and  in  that 
regard  it  is  likewise  subordinate  to  the 
will  of  Congress." 

58.  Kane  v.  State  of  New  Jersey.  242 
U.  S.  160,  37  S.  Ct.  30. 

59.  Commonwealth     v.     O'Neil,     233 
Mass.   535,  24  N.  E.  482. 


118 


The  Law  of  Automobiles. 


drive  a  motor  vehicle  upon  the  public  highways  without  hav- 
ing the  same  properly  registered.^^  But  where  the  owner  of 
an  automobile  has  duly  registered  the  same  but,  on  account 
of  the  failure  of  the  State  authorities  has  not  received  a  num- 
ber plate,  it  has  been  held  that  he  can  operate  the  machine 
under  the  plates  for  the  previous  year."^ 

Sec.  105.  Constitutionality  of  regulations  —  license  fees  be- 
yond cost  of  registration. 

The  courts  are  not  in  agreement  as  to  the  effect  of  fixing  the 
license  fees  at  a  sum  greater  than  is  necessary  for  the  super- 
vision of  motor  vehicles  and  the  enforcement  of  the  statute. 
Where  the  license  fees  imposed  by  a  statute  are  greater  than 


60.  See  Matter  of  Automobile  Acts, 
15  Pa.  Dist.  Rep.  83. 

61.  State  V.  Gish,  168  Iowa,  70,  150 
N.  W.  37,  wherein  it  was  said:  "Tak- 
ing the  entire  legislative  act  now  under 
consideration,  it  is  manifestly  a  regula- 
tion of  the  use  of  motor  vehicles  and 
not  an  attempted  prohibition  thereof. 
It  ought  therefore  to  be  construed  con- 
sistently with  its  character  in  that  re- 
gard. The  gist  of  the  violation,  there- 
fore, must  be,  not  the  mere  use  of  the 
motor  vehicle  by  the  owner,  but  the 
failure  of  the  owner  to  perform  the 
statutory  duties  laid  upon  him  as  condi- 
tions precedent  to  its  use.  In  order 
that  the  o^^^ler  may  be  constitutionally 
precluded  from  the  use  of  his  vehicle, 
he  must  himself  be  found  In  default  in 
the  performance  of  some  statutory  duty 
imposed  upon  him  as  a  condition  pre- 
cedent to  its  use.  To  compel  the  owner 
to  desist  from  the  use  of  his  vehicle 
for  an  indefinite  length  of  time  because 
of  the  inability  of  the  official  machinery 
of  the  State  to  furnish  him  the  number 
plates,  as  contemplated  by  the  statute, 
w6uld,  of  itself,  amount  to  a  very  prac- 
tical penalty,  which  might  operate 
more  seriously  upon  him  than  the  maxi- 
mum fine  imposed  by  the  statute.  If 
the  legislature  is  without  power  to  im- 
post upon  him  a  direct  penalty  for  the 


mere  default  or  failure  of  another,  the 
statute  ought  not  to  be  construed  so  as 
to  impose  an  indirect  penalty  upon  him 
under  the  same  circumstances  and  with- 
out any  default  on  his  own  part.  The 
owner's  right  to  the  use  of  his  ve- 
hicle after  complying  with  the  statutory 
duties  imposed  upon  him  is  a  substan- 
tial property  riglit.  It  is  common 
knowledge  that  the  daily  business  of 
thousands  of  people  in  the  State  is  de- 
pendent upon  the  daily  use  of  such  ve- 
liicles.  It  is  a  matter  of  public  notor- 
iety, also,  that  the  machinery  provided 
by  the  State  for  the  furnishing  of  num- 
ber plates  has  sometimes  proved  inade- 
quate to  meet  the  demands  upon  it,  and 
that  the  Secretary  of  State,  without 
fault  on  his  own  part,  has  been  unable 
sometimes  to  furnish  number  plates  to 
those  entitled  to  them  without  long  de- 
lay. The  construction  of  the  statute 
which  is  contended  for  by  the  State 
would  require  many  thousands  of  ve- 
hicles to  stand  unused  waiting  for  some 
belated  factory  to  perform  its  broken 
contract  with  the  Secretary  of  State. 
These  considerations  should  not  be  over- 
looked in  ascertaining  the  legislative 
intent,  because  these  are  conditions 
which  arise  naturally  out  of  the  practi- 
cal  operation   of   the  law." 


Licensing  and  Registration. 


119 


is  required  for  the  enforcement  of  the  regulations  imposed  by 
the  statute,  the  act  cannot  ahvays  be  construed  solely  as  a 
police  regulation,  but  as  to  the  excess  received  in  some  States, 
the  statute  is  considered  as  a  reveime  measure,'^^  ^nd  its 
validity  is  determined  according  to  the  rules  which  apply  to 
revenue  acts,  and  not  by  those  rules  which  apply  to  police  regu- 
lations.*'^ Under  the  constitutions  of  some  States,  a  license 
fee  cannot  be  imposed  for  the  purpose  of  raising  revenue  ;«* 
and  a  fee  which  is  unreasonable  as  a  police  regulation  is  un- 
collectible.^"   The  question  of  what  constitutes  a  reasonable 


62.  Ex  imrte  Schuler,   167   Cal.   282, 
139  Pac.  G85.    See  also  section  94. 

63.  Ex  parte  Schuler,  167  Cal.  282, 
139  Pac.  685;  City  of  Muskogee  v. 
AVilkins  (Okla.),  175  Pac.  497.  ''The 
Attorney-General  contends  that,  because 
a  police  measure  will  produce  a  vast 
amount  of  revenue  that  fact  cannot  af- 
fect the  validity  of  the  act  if  the  power 
to  pass  either  a  police  or  a  revenue  law 
existed  at  the  time  of  its  passage. 
That  the  act  was  passed,  in  part  as  a 
police  measure,  there  can  Tje  small 
doubt.  Its  title  characterizes  it  as  an 
act  'to  regulate  the  use  and  operation 
of  vehicles,'  and  many  of  its  provisions 
are  regulatory  in  their  nature.  That 
its  exactions  go  far  beyond  the  reason- 
able limits  of  a  mere  police  measure  we 
have  no  doubt.  It  must  be  conceded,  of 
course,  that  the  term  'police  power'  is 
a  very  broad  and  flexible  one  and  that 
the  courts  are  by  no  means  narrow  and 
'technical'  (as  the  common  expression 
is)  in  their  definition  of  that  power, 
but  where  the  legislature  has  clearly 
transgressed  its  authority  and  has 
passed  a  measure  for  purposes  not 
within  the  reasonable  scope  of  laws  for 
the  preservation  of  the  public  safety, 
health,  or  comfort,  the  courts  have  been 
compelled  so  to  declare.  The  necessary 
expense  involved  in  the  regulatory  pro- 
visions of  the  Motor  Vehicle  Act  cannot 
be  very  great.  The  small  initial  ap- 
propriations for  the  extra  clerical  and 


other  help  to  Ijc  employed  in  the  State 
Treasurer's  office  and  by  the  depart- 
ment of  engineering  indicate  that  the 
legislature  anticipated  no  great  outlay 
in  the  collection  of  fees,  ascertainment 
of  horse  power  of  motor  vehicles,  supply 
of  stationery,  numbers,  and  other  things 
necessary  in  the  carrying  out  of  the 
purely  police  features  of  the  statute. 
The  repair  of  public  roads  is  not  a 
police  measure,  yet  it  is  evident  that 
the  bill  was  passed  for  the  principal 
purpose  of  raising  revenue  for  use  in  the 
upkeep  of  such  highways."  Ex  parte 
Schuler,  167  Cal.  232,  139  Pac.  685. 

64.  Ex  parte  Mayes  (Okla.),  167  Pac. 
749. 

65.  Vernor  v.  Secretary  of  State,  179 
Mich.  157,  146  N.  W.  338;  State  v. 
Lawrence,  105  Miss.  58,  61  So.  975.  "A 
license  is  issued  under  the  police  power 
of  the  authority  which  grants  it.  If 
the  fee  required  for  the  license  is  in- 
tended for  revenue,  its  exaction  is  an 
exercise  of  the  power  of  taxation. 
.  .  .  To  be  sustained,  the  act  we  are 
liere  considering  must  be  held  to  be  one 
for  regulation  only,  and  not  as  a  means 
primarily  of  producing  revenue.  Such 
a  measure  will  be  upheld  by  the  courts 
when  plainly  intended  as  a  police  regu- 
lation, and  the  revenue  derived  there- 
from is  not  disproportionate  to  the  cost 
of  issuing  the  license,  and  the  regula- 
tion of  the  business  to  which  it  applies. 
.     .     .     Anvthing     in     excess     of     an 


120  The  Law  of  Automobiles. 

fee  in  such  States  is  a  matter  which  depends  largely  upon 
legislative  discretion,^*'  but  is,  nevertheless,  a  question  of  fact 
depending  on  the  particular  circumstances,  and  if  the  amount 
is  out  of  proportion  to  the  expense  involved,  it  will  be  declared 
to  be  a  tax.^"  It  will  be  presumed  that  the  amount  of  a  license 
fee  is  reasonable,  unless  the  contrary  appears  upon  the  face 
of  the  law  itself  or  is  established  by  proper  evidence."^  Of 
course,  if  the  Legislature  has  power  to  raise  revenue  by  license 
taxes,  there  is  no  necessity  for  drawing  a  fine  line  of  demarca- 
tion between  police  regulations  and  revenue  acts.^^ 

In  other  States,  it  is  thought  that,  by  reason  of  the  injuri- 
ous effects  of  motor  vehicles  to  the  public  highways,  an  in- 
creased license  fee  which  will  furnish  a  fund  for  the  repair 
and  maintenance  of  the  public  highways  is  within  the  police 
power  of  regulation ;  and  its  validity  is  determined  according 
to  its  status  as  a  police  regulation  rather  than  as  a  revenue 
act.  In  the  latter  case,  the  State  may  impose  a  license  which 
will  not  only  pay  the  expense  of  administration  and  super- 
vision of  the  law,  but  will  leave  a  surplus  to  go  into  the  gen- 
eral fund  of  the  State  for  the  maintenance  of  highways.™ 

amount   which   will   defray   such  neces-  Jersey,    242    U.    S.    160,    37   S.   Ct.    30. 

sary  expense  cannot  be  imposed  under  ' '  The     principal,    which     it    seems     is 

the   police   power,   because   it   then   be-  enumerated,    is    that    it    is    within    the 

comes  a  revenue  measure."     Vernor  v.  police  power  of  the  State  to  exact  a 

Secretary  of  State,  179  Mich.  157,  146  license  tax  in   excess  of   the   costs,  of 

N.  W.  338.  regulation   and   supervision,  where   the 

66.  Vernor  v.  Secretary  of  State,  179  subject  is  one  within  the  police  power, 
Mich.  157,  146  N.  W.  338.  and  to  apply  the  excess  to  the  remedy- 

67.  Henderson  v.  Lockett,  157  Ky.  ing  of  the  extraordinary  and  baleful 
366,  163  S.  W.  199;  Vernor  v.  Secre  effects  of  the  exercise  of  the  taxed 
tary  of  State,  179  Mich.  157,  146  N.  W.  privilege,  as  the  applicaton  of  the 
338.  tax  upon  the  privilege  of  keeping  dogs 

68.  Vernor  v.  Secretary  of  State,  179  to  paying  for  their  destruction  of 
Mich.  157,  146  N.  W.  338.  sheep,  and  the  tax  upon  the  privilege 

69.  Stale  v.  Ingalls,  IS  Mex.  211,  135  of  operating  motor  vehicles  upon  the 
Pac.  1177.  highways     to    repairing    the    damages 

70.  Smith  v.  Commonwealth,  175  Ky.  to  such  highways,  which  are  pecu- 
286,  194  S.  W.  367;  Saviers  v.  Smith  liarly  the  work  of  such  vehicles,  and 
(Ohio),  128  N.  E.  269;  Atkins  v.  State  in  excess  of  that  wrought  by  other 
Highway  Dept.  (Tex.  Civ.  App.),  201  vehicles.  This  line  of  cases  has  held 
8.  W.  266.  Compare  City  of  Hender-  that  the  regulation  of  the  use  of  the 
son  v.  Lockett,  157  Ky.  366,  163  S.  W.  motor  vehicles  upon  the  public  high- 
199.     See  also  Kane  v.  State  of  New  ways  was  authorized  under  the  police 


Licensing  and  Registration. 


121 


Sec.  106.  Constitutionality  of  regulations  —  double  taxation. 

'^ Double"  taxation  is  condemned  by  the  courts.  Double 
taxation  occurs  when  the  same  property  is  taxed  twice  by  the 
same  government  during  the  same  period."  But  the  fact  that 
motor  vehicles  are  subject  to  an  ad  valorem  tax  on  their  value 
and  also  subject  to  a  license  fee  for  the  operation  on  the  public 
highways,  does  not  constitute  double  taxation,  for  the  two  are 
levied  on  separate  things,  one  on  property  and  the  other  on 
a  privilege  to  use  the  highways.'^ 


power,  and  that  a  license  fee  could  be 
exacted  in  excess  of  the  cost  of  the 
registration  and  supervision  of  the 
vehicles,  whero  the  funds  arising  from 
the  license  taxes  were  devoted  exclu- 
sively to  the  improvement  and  repair- 
ing of  the  public  highways,  and  that 
it  was  proper  to  levy  a  graduated 
license  tax  in  accordance  witli  the 
horse  power  of  the  vehicle,  which 
would  he  a  tax  upon  each  of  them 
reasonably  coraniensurate  with  its 
power  of  destruction  to  the  highways. 
This  is  upheld  upon  the  principle  that 
such  a  graduated  license  tax  in  ex- 
cess of  the  necessarj-  cost  of  registra- 
tion and  supervision  of  the  vehicles 
is  in  the  nature  of  a  toll  exacted  of 
the  vehicles  for  the  privilege  of  the 
use  of  the  roads,  and  a  tax  in  propor- 
tion to  their  power  of  destruction 
was  a  just  and  reasonable  basis  upon 
which  to  levy  the  tax.  The  require- 
ment that  the  motor  vehicle  should 
contribute  to  the  upkeep  of  the  pub- 
lic highways  in  proportion  to  their 
power  to  destroy  them,  in  excess  of 
other  vehicles,  which  are  used  upon 
the  roads,  appeals  to  the  sense  of 
justice  and  fairness;  and  hence  we 
conclude  that  it  is  within  the  police 
power  of  the  State  and  is  a  valid  ex- 
ercise of  that  power  to  enact  a  statute 
Buch  as  the  one  in  question,  where  the 


primary  purpose  is  for  tlie  regulation 
and  control  of  motor  vehicles,  and  to 
impose  a  license  tax  upon  their  use 
of  the  public  highways,  where  the  tax, 
after  the  expenses  of  the  registration 
and  supervision  are  fiatis.fied,  goes  ex- 
clusively to  the  upkeep  of  the  high- 
ways and  to  remedy  the.  injuries. 
which  the  vcJiicles  liave  caused,  pro- 
vided the  license  tax  is  not  an  un- 
reasonable one,  and  the  one  fixed  by 
the  statute  does  not  appear  to  be 
unreasonable,  when  comi>ared  witli 
what  is  exacted  in  many  other  States. 
Sinith  v.  Commonwealth,  ^~'^  Ky.  280, 
194  S.  W.  367. 

71.  Smith  v.  Commoinvealth.  175 
Ky.  286,  194  S.  W.  367. 

72.  Alabama. — State  v.  Strawbridge 
(Ala.  App. ),  76  .So.  479;  Hudgena  v. 
State.  1;")  Ala.  App.  156,  72  So.  605. 

Arkansas. — Pine  151ufl"  Transfer  Co. 
v.  Nichol,  140  Ark.  320,  215  S.  W.  579. 

California. — Ex  parte  Schuler,  167 
Cal.  282,  139  Pac.  685. 

District  of  Columbia. — Mark  v.  Dis- 
trict of  Columbia,  37  App.  D.  C.  563. 
37  L.  R.  A.    (N.  S.)    440. 

Florida. — Jackson  v.  Neff,  64  Fla. 
326,  60  So.  350. 

Illinois. — Harder's  Storage  &.  \'^an 
Co.  V.  Chicago,  235  111.  58,  85  N.  E. 
245. 


122 


The  Law  of  Automobiles. 


Sec.  107.  Constitutionality  of  regulations  —  exemption  from 
other  taxation. 

As  a  general  proposition  the  State  had  plenary  power  in 
deciding  what  property  shall  be  exempt  from  taxation.'^  Thus, 
the  Legislature  may,  as  a  general  proposition,  enact,  that, 
when  the  owner  has  paid  the  required  license  fee  for  the  regis- 
tration of  his  automobile,  he  shall  be  exempt  from  further 
taxation  on  the  machine.'^*  Such  a  statute  will  bar  other  taxa- 
tion of  motor  vehicles  by  municipal  corporations,  but  it  will 
not  necessarily  preclude  a  municipality  from  imposing  a 
license  fee  on  hackmen.'^^    In  this  connection  it  is  also  decided 


Kentucky. — "  Double  taxation,  how- 
ever, only  arises  when  the  same  prop- 
erty is  taxed  twice,  when  it  ought  to 
•have  been  taxed  but  once,  and  the 
second  tax  must  be  imposed  upon  the 
same  property  by  the  same  authority 
during  the  same  taxing 'period.  .  .  . 
The  license  tax,  however,  authorized 
by  the  statute  in  question  is  not  a 
tax  upon  the  property  in  the  motor 
vehicle,  but  it  is  a  tax  upon  tlie  privi- 
lege of  using  tlie  vehicle  upon  the 
public  roads.  It  has  been  continu- 
ously held,  both  in  this  State  and 
elsewhere,  that  a  license  tax  for  the 
exercise  of  a  privilege  is  not  double 
taxation,  although  the  property,  which 
is  used  in  enjoying  the  privileges, 
ibears  an  ad  valorem  tax,  and  there 
is  no  constitutional  objection  to  the 
levj'ing  of  iboth."  Smith  v.  Common- 
-wealth,   175   Ky.   286,   194   S.   W.    367. 

2Vew  Mexico. — ^State  v.  Ingalls,  18 
N.  Mex.  311,  135  Pac.  1177. 

Tennessee. — Wilson  v.  State,  224  S. 
W.   168. 

See  also  section  94. 

73.  "  It  is  within  the  power  of  the 
legislature  to  exempt  from  other 
forms  of  taxation  property  which 
pays  a  specific  tax,  and  this  is  true 
whether  the  specific  tax  is  levied  upon 
the  property  itself  or  upon  the  right 
to  use  the  property  in  a  certain  way." 


Jasnowski  v.  Board  of  Assessors  of 
City  of  Detroit,  191  Mich.  287,  157 
N.   W.   891.     See  also  sections   62,   63. 

74.  Achenbach  v.  Kincaid,  25  Idaho, 
768,  140  Pac.  529;  Ex  parte  Kessler, 
26  Idaho,  764,  146  Pac.  113;  Jas- 
nowski V.  Board  of  Assessors  of  City 
of  Detroit,  191  Mich.  287,  157  X.  W. 
891;  State  ex  rel.  City  of  Fargo  v, 
Wetz  (X.  Dak.),  168  N.  W.  835,  5  A. 
:L.  R.  731;  Ex  parte  Shaw  (Okla.),  157 
Pac.  900.  See  also  Matter  of  Bozeman, 
7  Ala.  App.  151,  61  So.  604,  63  So.  201. 
"  It  may  well  be  assumed  that  the  legis- 
lature gave  heed  to  the  growing  de- 
mand among  the  people  of  the  State 
for  the  improved  higliways  and  con- 
eluded  tliat  the  motor  vehicles,  which 
were  largely  responsible  for  tliat  de- 
mand, should  bear  the  expense  of  the 
betterments,  and  accordingly  imposed 
this  form  of  contribution.  The  ques- 
tion as  to  whether  this  tax  should  be 
ill  lieu  of,  or  in  addition  to,  all  other 
forms  of  taxation,  was  one  which  ap- 
piealed  to  the  discretion  of  the  legis- 
lature. Having  exercised  that  dis- 
cretion, it  is  not  for  tbe  courts  to 
declare  that  it  did  not  execute  it 
wisely  or  justly."  Jasnowski  v. 
Board  of  Assessors  of  City  of  Detroit, 
191  Mich.  287,  157  N.  W.  891. 

75.  State  v.  Jarvis,  89  Vt.  239,  95 
Atl.  541."    See  also  section  139. 


LU'ENSIXG    AM)    ReGISTHATIOX.  123 

in  CaUfornia  that  under  a  constitutional  provision  taxing 
property  used  in  the  operation  oi*  their  business  'hy  public  ser- 
vice corporations  and  providing  that  "such  taxes  shall  be  in 
lieu  of  all  other  taxes  and  licenses,  State,  county  and  muni- 
cipal," such  a  corporation  is  exempt  from  the  payment  of  a 
license  tax  upon  motor  vehicles  used  by  it  in  the  operation  of 
its  business."^ 

Sec.  108.  Constitutionality    of    regulations  —  taxation    not 
based  on  value  of  property. 

Constitutional  jorovisions  in  some  States  require  that  taxes 
shall  be  levied  on  a  uniform  and  equal  rate  of  assessment  on 
all  property  in  the  State  according  to  its  money  value.  Of 
course,  license  fees  for  the  operation  of  motor  vehicles  are 
not  levied  on  such  machines  according  to  their  money  value, 
but  are  levied  according  to  their  use  or  their  horse  power  or 
some  other  system  which  differentiates  machines  of  different 
sizes  and  classes.  But  so  long  as  the  courts  can  say  that  the 
license  fee  is  not  a  tax  —  and  this  is  the  view  taken  unless  the 
fee  is  so  large  that  it  seems  designed  to  afford  revenue  as 
such"  —  the  statute  imposing  it  is  enforceable.'^  Constitu- 
tional provisions  of  that  nature  are  construed  as  applicable 
only  to  property  taxes,  and  not  to  occupation,  privilege,  or 
license  taxes.''^    But,  when  the  tax  is  raised  for  revenue,  not 

76.  Pacific    Gas    &    Electric    Co.    v.       taxes  for  general  purposes,  and  has  no 
Roberts,  168  Cal.  420.  143  Pac.  700.  relation   to   privilege   taxes."     State  v. 

77.  .Section   lOo.  Tjawrence,  108  :\Iiss.  201.  66  So.  745. 

78.  Idaho — Ex     parte     Kessler,     26  yew    Mexico. — State    v.    Ingalls,    18 
Idaho,  764,  146  Pac.  113.                                   X.  Mex.  211,  135  Pac.  1177. 

Mississippi. — ^State  v.  Lawrence,  108  North    DaJcota. — State    ex    rel.    City 

Miss.    291,    66    So.    745.      "It    is    also  of   Fargo   v.   Wetz,    168   X.   W.    835,   5 

argued    that    the    act    is    void    because  A.  L.  E.  731. 

there    is    a     lack    of    uniformity    and  Oklahoma. — Ex     parte     Shaw,      157 

equality  according  to  value  in  the  prop-  Pac.  900. 

erty  which  is  sought  to  be  taxed.     As  Texas. — Atkins     v.     State    Highway 

we  have  already  said,  it  is  not  the  prop-  Dept.   (Civ.  App.),  201  S.  W.  226. 

erty  taxed,  but  the  privilege  of  using  Washington. — iState     v.     Collins,     94 

the  property,  motor  vehicles  and  cycles.  Wash.  310,  162  Pao.  556. 

on  the  public  roads  which  is  taxed.    The  79.  State   v.    Collins,   94   Wash.   310, 

equality   and  uniformity   clause  of  the  162  Pac.  556. 
Constitution  applies  only  to  ad  valorem 


124  The  Law  of  Automobiles. 

for  regulation,  an  entirely  different  constitutional  situation 
is  presented.^* 

Sec.  109.  Discrimination  —  in  general. 

One  of  the  objections  frequently  made  to  automobile  legis- 
lation is  that  it  is  discriminatory  and  imposes  burdens  on  the 
automobile  which  are  not  imposed  on  travelers  in  general,  or 
that  it  imposes  greater  burdens  on  some  automobilists  than 
on  others.  The  Federal  Constitution  prohibits  the  States  to 
enact  laws  which  deny  to  persons  the  equal  protection  of  the 
State  laws.  This  constitutional  provision  makes  it  illegal  for 
any  State  to  arbitrarily  pick  out  one  class  of  persons  and 
legislate  against  them  concerning  any  subject.  But  such  dis- 
crimination must  be  arbitrary,  not  based  upon  any  logical  or 
reasonable  cause  for  distinction  in  order  to  be  illegal.  Legis- 
lation affecting  merely  one  class,  so  long  as  those  in  the  same 
class  are  affected  alike,  is  not  objectionable,  if  the  classifica- 
tion is  founded  upon  a  reasonable  basis.^^  Exact  equality  in 
the  operation  of  the  regulation  or  in  the  classification  cannot 
be  attained,  for  that  is  impossible;  but  the  classification  is 
proper  if  it  is  made  on  a  reasonable  basis.^^  xhe  classification 
need  not  be  either  logically  appropriate  or  scientifically  ac- 
curate. It  is  enough  if  it  acts  impartially  within  the  class.*^ 
It  is  clear  that  motor  vehicles  may  be  put  into  a  distinct  class 
and  regulations  adopted  which  will  apply  to  no  other  class  of 
conveyances.^* 

Sec.  110.  Discrimination  —  between  motor  vehicles  and  other 

conveyances. 

A  motor  vehicle  is  unlike  any  other  means  of  transportation 

used  on  public  highways,  and  hence  there  is  no  constitutional 

objection,  so  far  as  the  claim  of  special  or  class  legislation  is 

so.  Ex    jHM-te    Mayes     (Okla.),     167  82.  Park     v.    City    of    Duluth,     134 

Pac.  749.  Minn.    296,   159  N.   W.   627 ;    Kellaher 

81.  Hudgens  v.   State,   15  Ala.  App.  v.    Portland,    57    Oreg.    575,    112    Pac. 

.  156,  72  So.  605 ;  Helena  v.  Dunlap,  102  1076. 

Ark.  131,  143  S.  W.  138;  Park  v.  aty  83.  Mark    v.    District    of    Columbia, 

of  Duluth,   134  Minn.   296,    159  N.   W.  37  App.  D.  C.  563,  37  L.  R.  A.   (N.  S.) 

627;    Kellaher   v.    Portland,    57    Greg.  440. 

575,  112  Pac.  1076.  -      84.  Section   110. 


LiCEXSING    AND   REGISTRATION. 


125 


concerned,  in  making  a  registration  system  or  other  regula- 
tions applicable  to  such  machines  and  not  to  other  means  of 
travel.^^  The  automobile  is  in  a  class  by  itself,  and  the  users 
of  such  machines  are  in  a  class  by  themselves ;  and  legislation 
in  recognition  of  this  condition  is  based  upon  a  solid,  easily 
recognized  distinction.^  Automobiles  may  be  excluded  from 
a  scheme  of  municipal  taxation  in  the  exercise  of  the  power  of 
a  municipal  corporation  to  classify  vehicles  for  the  purpose 
of  a  vehicle  tax  ordinance.^^  But  it  has  been  held  to  be  an  un- 
reasonable discrimination  to  imi>ose  a  license  fee  on  horse- 
dra^m  delivery  wagons  and  trucks  without  imposing  a  fee  on 
those  operated  by  their  own  motive  power.^ 


Sec.  111.  Discrimination  —  different  sizes  of  machines. 

There  is  a  logical  connection  between  the  weight  and  power 
of  different  motor  vehicles  and  the  damage  to  the  highways  or 


85.  Arkansas. — Helena  v.  Dunlap, 
102  Ark.   131,  136,  143  S.  W.  138. 

California. — Ex  parte  Schuler,  167 
Cal.  282,  139  Pac.  685. 

Illinois. — Christy  v.  Elliott,  216 
111.  31,  74  N.  E.  1035,  1  L.  R.  A.  (N. 
S.)  215,  3  N.  Ca3.  487,  108  Am.  St. 
Rep.  196;  Westfalls,  etc.,  Express  Co. 
V.  City  of  Cliicago,  280  111.  318,  117 
N.  E.  439;  Slade  v.  City  of  Oliicago, 
1  111.  Cir.  Ct.  Rep.  520. 

Massachusetts. —  Commonwealth  v. 
Boyd,  188  Mass.  79,  74  N.  E.  255. 

Michigan. — People  v.  Schneider,  139 
Mich.  673,  103  N.  W.  173,  12  Det.  L. 
N.  32,  69  L.  R.  A.  345,  5  Ann.  Cas. 
790. 

Mississippi. — State  v.  Lawrence,  108 
Miss.  291,  66  So.  745. 

New  Jersey. — Unwin  v.  State,  73  N. 
J.  L.  529,  64  Atl.  163,  affirmed  State 
V.  Unwin,  75  N.  J.  L.  500,  68  Atl.  110. 

New  Mexico. — State  v.  Ingalls,  18 
N.  Mex.  211,  135  Pac.  1177. 

New  York. — People  v.  MacWilliaras, 
91  App.  Div.  176,  86  N.  Y.  Suppl.  357. 

Ofeio.— Allen  v.  Smith,  84  Oh.  St. 
283,  95  N.  E.  829,  Ann.  Cas.  1912  C. 


611. 

Pennsylvania. —  Commonwealth  v. 
Densomer,  13  Pa.  Dist.  Rep.  639. 

South  Dakota. — In  re  Hoffert,  34  S. 
Dak.  271,  148  N".  W.  20,  50  L.  R.  A. 
(N.  S.)    949. 

The  Missouri  law  of  1903,  p.  162, 
relating  to  the  operation  and  speed  of 
automobiles  on  the  highway  of  the 
State,  fixing  the  amount  of  license,  and 
prescribing  a  penalty  for  violating  the 
same,  is  not  unconstitutional  as  class 
legislation,  in  that  it  discriminates 
against  certain  users  of  the  highway. 
State  V.  Swagerty,  203  Mo.  517,  102 
S.  W.  483,  10  L.  R.  A.  (N".  S.)  601, 
11  Ann.  Cas.  725. 

86.  Westfalls,  etc..  Express  Co.  v. 
City  of  Chicago,  280  111.  318,  117  N. 
E.  439;  Slade  v.  City  of  Chicago,  1 
III.  Cir.  Ct.  Rep.  520;  Allen  v.  Smith, 
84  Ohio  St.  283,  95  N.  E.  829,  Ann. 
Cas.  1912  C.  611,  construing  Act  May 
11,  1908,  99  Ohio  Laws,  538. 

87.  Kersey  v.  Terre  Haute,  161  Ind. 
471,  68  N.  E.  1027. 

88.  Kellaher  v.  Portland,  57  Oreg. 
575,  112  Pac.  1076. 


126 


The  Law  of  Automobiles. 


to  other  travelers  which  may  be  occasioned  through  their 
operation.^^  Hence,  it  is  not  an  unjust  discrimination  to  grade 
the  license  fees  for  motor  vehicles  according  to  the  horse 
power  of  the  machines;  the  greater  the  horse  power,  the  larger 
the  fee.^°  So,  too,  an  excise  tax  on  automobiles  in  the  District 
of  Columbia,  graduated  according  to  the  seating  capacity  of 
the  machines,  has  been  sustained.^^ 


Sec.  112.  Discrimination  —  vehicles  used  for  different  pur- 
poses. 

The  different  uses  to  which  motor  vehicles  may  be  put,  justi- 
fies a  classification  of  the  machines  along  such  lines,  and  the 
imposition  of  larger  fees  on  vehicles  used  for  some  purposes 
than  against  those  used  for  other  purposes.^^  Hence  the  li- 
cense fee  for  a  business  truck  may  be  different  from  those  im- 
posed on  other  motor  vehicles.^^   Or  tractors  may  be  exempted 


89.  Ex  parte  Schuler,  167  Cal.  282, 
139  Pae.  685.  See  also,  Pine  Bluff 
Transfer  Co.  v.  Nichol,  140  Ark.  320, 
215  S.  W.  579. 

90.  United  States. —  Heiidrick  v. 
State  of  Maryland,  235  U.  S.  610,  35 
S.  Ct.  140;  Kane  v.  State  of  New 
Jersey,  242  U.  S.  160,  37  S.  Ct.  30. 

Alahama. — See  Kennamer  v.  State, 
150  Ala.  74,  43  So.  482;  Bozeman  v. 
State,  7  Ala.  App.  151,  61  So.  604. 

California. — Ex  parte  Schuler,  167 
Cal.  282,  139  Pac.  685. 

Idaho. — In  re  Kessler,  26  Idaho,  764, 
146  Pac.  113. 

Kentucky. — City  of  Henderson  v. 
Lockett,  157  Ky.  366,  163  S.  W.  199; 
Smith  V.  Commonwealth,  175  Ky.  286, 
194  S.  W.  367. 

Missouri. — State  ex  rel.  McClung  v. 
Becker  (Mo.),  233  S.  W.  54. 

New  Jersey. — Kane  v.  State,  81  N. 
J.  L.  594,  80  Atl.  453,  Ann.  Cas.  1912 
D.  237;  Cleary  v.  Johnston,  79  N.  J. 
L.  49,  74  Atl.  538. 

South  Carolina. — ^Lillard  v.  Melton, 
103  S.  Car.  10,  87  S.  E.  421.  "The 
apportionment    on    a    basis    of    horse 


power  has  a  direct  and  natural  rela- 
tion to  the  privilege  granted,  the  use 
of  the  highway,  and  since  the  license 
relates  to  all  persons  in  a  class,  and 
operates  uniformly  upon  all  therein, 
there  is  no  unlawful  discrimination." 
Lillard  v.  Melton,  103  S.  Car.  10,  87 
S.  E.  421. 

Te^as. — ^Atkins  v.  State  Highway 
Dept.   (Civ.  App.),  201  S.  W.  226. 

91.  Mark  v.  District  of  Columbia,  37 
App.  D.  C.  563,  37  L.  E.  A.  (N.  S.) 
440.  See  also  State  v.  Amos,  76  Fla. 
26,  79  So.  433,  as  to  the  license  fees 
based  on  seating  capacity. 

92.  Park  v.  City  of  Duluth,  134 
Minn.  296,  159  N.  W.  627;  In  re  Hof- 
fert,  34  S.  D.  271,  148  N".  W.  20,  52 
L.  R.  A.   (N.  S.)  949. 

93.  Pine  Bluff  Transfer  Co.  v. 
Nichol,  140  Ark.  320,  215  S.  W.  579; 
Park  V.  City  of  Duluth,  134  Minn.  296, 
159  N.  W.  627.  A  license  fee  charged 
against  vehicles  used  for  pleasure  may 
be  sustained  although  no  charge  is 
niade  against  commercial  vehicles. 
Ogilvie  V.  Harley,  141  Tenn.  392,  210 
S.  W.  645. 


Licensing  and  Registration.  127 

while  other  motor  vehicles  and  trailers  are  taxed.^^  And  a 
larger  fee  may  be  imposed  on  a  motor  vehicle  used  for  hire 
than  is  required  of  the  owner  of  a  machine  used  without 
charge.^^  So,  too,  a  municipality  may  be  exempted  from  the 
payment  of  a  license  fee  for  a  motor  vehicle  used  by  the  police 
or  fire  department,  but  required  to  pay  a  fee  for  one  used  for 
other  purposes ;  the  classification  in  this  case  being  based  on 
the  distinction  which  exists  between  machines  used  in  the 
governmental  powers  of  the  municipality  and  those  used  in  its 
proprietary  powers.^*^ 

Sec.  113.  Discrimination  —  dealers  in  different  class. 

A  motor  vehicle  laAv  is  not  discriminatory  because  it  places 
dealers  and  manufacturers  of  vehicles  in  a  separate  class  and 
imposes  upon  them  a  license  fee  which  is  more  or  less  than  is 
charged  against  other  owners  of  such  machines.^^  Thus,  a 
system  of  license  fees  may  exact  from  dealers  a  fee  of  $50  if 
they  operate  not  more  than  five  automobiles  and  $10  for  every 
motor  vehicle  in  excess  of  five  so  operated.^^  So,  too,  such  a 
statute  may  levy  a  tax  on  individual  owners  of  motor  vehicles 
of  twenty-five  cents  per  horse  power  and  tw^enty-five  cents  per 
hundred  weight  and  then  levy  a  flat  rate  of  $10  per  car  on 
manufacturers  for  cars  not  used  for  the  private  purposes  of 
manufacturers.^^  And  a  registration  system  is  not  unconsti- 
tutional as  lacking  uniformity,  because  it  provides  that  it  shall 
not  apply  to  motor  vehicles  which  manufacturers  and  vendors 
may  have  in  stock  for  sale  and  not  used  for  private  use  or 
hire.^ 

94.  Saviers  v.  Staiith  (Ohio),  128  N.  usually  kept  for  sale  and  are  not  used 
E.  269.  in   the   ordinary   way,   but   merely   for 

95.  Jackson  v.  Neff,  64  Fla.  326,  60  .  purposes  of  '  demonstration '  and  ex- 
So.  350;  Heartt  v.  Village  of  Downer's  hibition  to  intending  purchasers. 
Grove,  278  111.  92,  115  N.  E.  869;  State  Dealers  are  therefore  placed  in  a  class 
V.  Ferry  Line  Auto  Bus  Co.,  99  Wash.  by  themselves."  Ex  parte  Schuler,  167 
64,   168  Pac.   893.     See  chapter  IX  as  Cal.  282,  139  Pac.  685. 

to  licensing  of  vehicles  used  for  hire.  98.  Ex  parte  Schuler,   167   Cal.   282, 

96.  State  v.   Collins,    94  Wash.   310,       139  Pac.  685. 

162  Pac.  556.  99.  .Jasnowski    v.    Board    of    Assess- 

97.  "No  doubt  the  legislature  took  ors  of  City  of  Detroit,  191  :\rich.  287, 
into  consideration  the  fact  that  motor       157  N.  W.  891. 

cars   in   the  possession   of  dealers  are  1.  People  v.  MacWilliams,  91  N.  Y. 


128 


The  Law  of  Automobiles. 


Sec.  114.  Discrimination  —  non-residents. 

Regulations  relative  to  the  registration  and  licensing  of 
motor  vehicles  generally  contain  exceptions  in  favor  of  non- 
residents. Thus,  the  Legislature  frequently  exempts  non- 
residents of  the  State  from  the  i3ayment  of  license  fees  when 
their  owners  have  complied  with  the  registration  laws  of  the 
State  of  their  residence.  And  municipal  corporations  some- 
times enact  licensing  regulations  which  are  applicable  to 
owners  residing  within  the  municipality,  but  not  those  living 
outside  of  the  municipal  limits.  The  validity  of  an  exception 
of  this  nature  is  universally  sustained.^  On  the  contrary,  a 
city  ordinance  requiring  a  license  fee  from  all  users  of  the 
citv  streets  has  been  held  unreasonable  as  to  the  vehicles  of 


App.  Div.  176,  86  N.  Y.  Suppl.  357; 
CJommonwealth  v.  Densmore,  29  Pa.  Co. 
Ct.  219. 

2.  Arkansas. — Fort  iSmith  v.  Scruggs, 
70  Ark.  549,  69  S.  W.  679,  91  Am.  St. 
Eep.  100,  58  L.  R.  A,  921.  "  But  it  is 
said  that,  conceding  that  the  legisla- 
ture had  the  power  to  permit  cities 
to  levy  a  toll  for  the  use  of  the  streets, 
it  should  he  imposed  equally  upon  all 
who  use  the  streets,  and  that  this  act 
is  void  for  the  reason  that  it  discrim 
inates  in  favor  of  those  who  dwell  out- 
side of  the  city,  and  permits  the  tax 
to  be  levied  upon  residents  only.  It 
is  doubtless  true  that  the  legislature 
could  not  arbitrarily  select  certain  citi- 
zens upon  whom  to  impose  the  tax, 
while  exempting  others  in  like  situa- 
tion. But  the  rule  of  equality  only 
requires  that  the  tax  shall  be  collected 
impartially  of  all  persons  in  similar 
circumstances;  and  this  statute  applies 
equally  to  all  persons  of  the  class 
taxed.  As  a  class,  residents  of  the 
city  use  the  streets  more,  and  are  more 
benefited  by  having  them  kept  in  good 
repair,  than  those  who  do  not  live  in 
the  city.  It  is  true  that  non-residents 
of  the  city  also  use  the  streets  with 
their  wagons  and  other  vehicles,  and 
it  may  be  true   that  certain  of   them 


use  the  streets  as  much  or  more  than 
certain  of  the  residents  of  the  city,  but, 
as  a  class,  they  do  not  use  the  streets 
as  much  as  residents  of  the  city,  and 
this  furnishes  a  reasonable  basis  for 
the  distinction  made  in  the  act  between 
the  two  classes.  The  requirement  of 
the  statute  that  the  tax  must  be  im- 
posed on  residents  of  the  city  only  is 
but  an  adoption  by  the  legislature  of 
the  common  policy  of  making  each 
community  keep  up  its  own  highways. 
This  does  not  discriminate  unjustly  in 
favor  of  those  who  live  beyond  the 
city  limits,  for  they  have  to  keep  other 
liighways  which  the  people  of  the  city 
may  in  turn  use  free  of  charge.  Ftor 
this  reason  we  think  that  it  was  within 
the  discretionary  powers  of  the  legis- 
lature to  make  this  distinction,  and 
that  it  does  not  invalidate  the  act. 
After  a  full  consideration  of  the  ques- 
tions presented  we  are  of  the  opinion 
that  the  enactment  of  this  statute  ^va,s 
a  valid  exercise  of  legislative  power." 
Fort  Smith  v.  Scruggs,  70  Ark.  549, 
69  S.  W.  679,  91  Am.  St.  Rep.  100,  58 
L.  R.  A.  921. 

California. — Ex  parte  Sehuler,  167 
Cal.  282,  139  Pac.  685. 

Illinois. — ^Heartt  v.  Village  of  Dow- 
ner's Grove,  278  111.  92,  115  N".  E.  869. 


Licensing  and  Registration.  129 

non-residents/'  But  it  is  within  the  power  of  a  State  to  im- 
pose a  license  fee  and  other  regulations  on  the  machine  of  a 
non-resident  while  it  is  operated  within  the  State.''  The  exemp- 
tion generally  continues  for  hut  a  few  weeks  or  months  after 
the  vehicle  comes  within  the  locality,  and,  if  it  remains  longer 
than  the  specified  time,  it  must  be  registered  in  the  same 
manner  as  is  required  of  the  vehicles  of  residents.'  In  some, 
jurisdictions,  a  motorist  who  continues  to  operate  his  machine 
after  the  expiration  of  the  period  of  exemption,  becomes  a 
trespasser  upon  the  highways."  Where  the  statute  provides 
that  automobiles  of  non-residents  may  be  operated  upon  the 
highways  for  ten  days  "continuously,"  at  the  expiration  of 
which  time  they  shall  be  subject  to  registration,  it  was  held 
that  where  there  was  not  a  continuous  operation  of  the  vehicle 
for  ten  days  within  the  State,  it  was  not  subject  to  registra- 
tion, although  it  had  been  operated  within  the  State  more  than 
ten  days  in  the  aggregate.'^ 

Sec.  115.  Discrimination  —  non-resident  exemption  based  on 
reciprocity. 

Several  States  have  considered  legislation  providing  for  the 
exemption  of  non-resident  automobilists  registered  in  their 

Indmna. — Kersey  v.  Terre  Haute,  Ifil  tion   of  such  a  tax  upon  non-residents 

Ind.  471,  68  N.  E.  1027.  wlio    use    such    highways    temporarily, 

Kentucky. — City      of      Newport      v.  \\&.i  never  been  questioned  or  denied  in 

Merkel  Brothers  Co.,  ]')6  Ky.  580,   IGl  any  jurisdiction  of  whicli  we  are  aware. 

S.  W.  549.  ^"   ^he  contrary,   the  right  to   impose 

i/wncsota.— See     Park     v.     City     of  such    a    license    or    tax    is    generaUy 

Duluth,  134  Minn.  296,  159  N.  W.  627.  recognized."     Lillard  v.  Melton,  103  S. 

Mississippi. — ^State  v.  Lawrence,   108  Car.  10,  87  S.  E.  421. 

Miss.  291,  66  So.  745.  3-  P^g    v.    City    of    Columbus,    80 

South   Caroiiwa.— Lillard    v.    Melton.  Ohzo  St.  367,  89  N.  E.  14. 

AGS   S.   Car.    10,    87    S.   E.   421.      '"  llu'  4.  Kane  v.  State  of  Now  Jersey,  242 

t^bjection  that  there   is   an   unjust  dis-  V.  S.  160,  37  S.  Ct.  30. 

crimination  in  the  provision  which  ini  5.  Ex   parte    Schuler,    167    Cal.    282, 

poses  upon  resident  vehicles  a  lincenso.  139  Pac.  685;  Burns  v.  Bay  State  Ry. 

whfle  those  of  other  counties  and  States  Co.,  77  N.  H.  112,  88  Atl.  710. 

may     temporarily     use     the     highways  6.  Dudley    v.    Northampton    St.    Ry. 

without  incurring  liability  for  the  pay-  Co.,    202    Mass.   443,   89   N.   E.   25,   23 

ment  thereof,  is  wholly  without  merit.  L.  E.  A.    (N.  S.)    561n. 

The   right   to    tax    the    residents    of    a  7.  Burns   v.    Bay    State   Ry.    Co.,    77 

municipality    for    the    maintenance    of  N.  IT.  112,  88  Atl.  710. 
roads  and  streets,  witliout   tlif  iniposi 

9 


130  The  Law  of  Automobiles. 

home  States,  provided  these  latter  States  grant  the  same 
privilege  in  return.  Such  legislation*  would  seem  to  be  un- 
constitutional, because  the  reciprocity  condition  conflicts  di- 
rectly with  that  clause  of  the  Federal  Constitution  which  pro- 
hibits a  State  to  discriminate  against  non-residents  merely  be- 
cause their  home  State  does  not  reciprocate  the  privileges 
granted.  The  State  has  the  right  to  require  all  non-resident 
automobilists  to  take  out  a  local  automobile  license,  but  it 
cannot  pick  out  and  discriminate  against  motorists  whose 
home  State  does  not  grant  exemption  privileges  to  non-resi- 
dents. 

The  theory  of  this  legislation  seems  to  be  founded  on  the 
fact  that  a  State  may  regulate  the  right  of  a  foreign  corpora- 
tion to  do  business  within  its  jurisdiction,  and  may  compel  it 
to  take  out  a  local  license.  Ketaliatory  legislation  depriving 
corporations  of  another  State  of  the  right  to  do  business  un- 
less a  similar  privilege  is  granted  by  that  other  State  has  been 
common  in  this  country,  and  does  not  conflict  with  the  Con- 
stitution, since  a  corporation  has  no  right  to  migrate  into  an- 
other State  unless  permission  is  given  it  to  do  so.  Conse- 
quently, the  State  can  entirely  prohibit  the  corporation  from 
entering  its  jurisdiction,  which  includes  the  right  of  prohibit- 
ing entry  into  its  jurisdiction  under  certain  conditions.  Auto- 
mobilists, however,  are  not  corporations.  Every  citizen  of 
this  country  has  the  inviolable  right  to  travel  into  and  through 
any  State  he  wishes  as  long  as  he  complies  with  the  laws 
governing  the  local  inhabitants.  Any  law  discriminating 
against  non-residents  under  certain  conditions,  depending 
upon  the  action  of  the  home  State  of  these  non-residents,  is 
thought  to  be  null  and  void.^ 

8.  A   non-resident    who    asserts   that  complained  of  requires  a  compliance  by 

such    a   statute    discriminates    against  non-residents    with    the    laws   of    their 

residents  of  the  particular  jurisdiction  State.     Fendrick  v.  Maryland,  235  U. 

within   which  he   resides  must  show  a  S.  610,  35  S.  Ct.  140.     See  also,  Kane 

compliance  with  the  laws  of  his  domi-  v.    State    of    New    Jersey,    242    U.    S. 

cile  in  this  respect,  where  the  statute  160,  37  S.  Ct.  30. 


LiCENSIXG    AND    REGISTRATION.  131 

Sec.  116.  Registration  by  particular  classes  of  owners  —  cor- 
porations  and  partnerships. 

Under  an  automobile  law  which  requires  all  automobiles  and 
motorcycles  to  be  registered  by  the  owner  or  persons  in  con- 
trol, and  prohibiting  any  person  to  operate  such  a  vehicle  un- 
til he  shall  first  have  obtained  a  license,  which  he  must  keep 
with  him  when  operating  the  machine,  it  has  been  held  that  a 
corporation  or  partnership  owning  a  vehicle  covered  by  the 
statute,  must  register  the  automobile  in  the  corporate  or  firm 
name,  but  the  license  is  not  to  be  issued  to  the  corporation  or 
firm  as  such,  it  being  personal  to  the  operator.^  Where  an 
automobile  is  owned  by  two  partners,  both  of  whom  are  li- 
censed, and  the  machine  carries  the  number  of  one  of  the  li- 
censed partners,  and  both  are  occupants  of  the  machine,  the 
operation  of  the  machine  by  the  partner  whose  license  is  not 
carried  may  be  proper.^"  Under  the  Massachusetts  statute 
for  the  registration  of  motor  vehicles,  upon  the  change  in  per- 
sonel  of  a  partnership,  an  equivalent  change  must  be  made  in 
the  registration  of  its  machine."  And,  under  such  statute,  if 
it  is  jointly  owne^,  it  should  be  registered  in  the  names  of  all 
of  the  joint  owners.^^ 

Sec.  117.  Registration  by  particular  classes  of  owners  — 
registration  in  trade  name. 
Inasmuch  as  a  corporation,  firm  or  individual  may  adopt  a 
trade  name  under  which  business  may  be  transacted,  a  regis- 
tration in  the  name  so  adopted  may  be  proper,  provided,  of 
course,  a  fictitious  name  cannot  be  adopted  by  an  individual, 
under  the  guise  of  a  trade  name,  for  the  purpose  of  concealing 
his  identity.  So  a  plaintiff  who  has  thus  registered  his  auto- 
mobile may  recover  for  injuries  due  to  the  negligence  of  an- 
other and  his  right  to  recover  will  not  be  defeated  by  the  fact 
that  the  plaintiff  has  failed  to  comply  with  a  statute  requiring 
a  certificate  of  certain  facts  to  be  filed  by  such  a  trader,  the 

9.  Emerson  Troy  Granite  Co.  v.  11.  Rolli  v.  Converse,  227  Mass.  162, 
Pearson,  74  N.  H.  22,  64  Atl.  582.»                116  N.  E.  507. 

10.  Yeager  v.  Winston  Motor  Car-  12.  Shufelt  v.  McCartin  (Mass.). 
riage  Co.,  53  Pa.  Super.  Ct.  202.                  126  N.  E.  362. 


132  Thk  Law  of  Automobiles, 

statute  being  intended  solely  foi-  the  iiiroriuatioii  and  ])rotec- 
tion  of  creditors  with  whom  ho  might  contraot.'' 

Sec.  118.  Registration    by    particular    classes    of    owners  — 
dealers. 

Regulations   may   be    prescribed   for   the    registration    of 
dealers  which  are  not  applicable  to  other  owners  of  motor 
vehicles  without  creating  an  illegal  discrimination.^*    Where 
a  statute  provides  for  a  registration  by  dealers,  it  must  be 
made  by  the  one  actually  contemplated  by  the  statute.^^     80, 
under  a  statute  containing  a  j)rovision  for  the  issuance  of  a 
license  to  such  persons  and  defining  a  dealer  as  "ever}^  per- 
son who  is  engaged  in  the  business  of  buying,  selling  or  ex- 
changing motor  vehicles,  on  commission  or  otherwise  and 
every  person  who  lets  for  hire  two  or  more  motor  vehicles," 
it  was  held  that  registration  in  the  name  of  one  carrying  on  a 
garage  business  as  agent  for  an  OA\Tier  was  not  sufficient ;  but 
that  registration  in  the  name  of  the  principal,  the  actual 
owner,  was  necessary .^"^    Under  a  motor  vehicle  law  providing 
that  "Every  person,  firm,  association  or  corporation  manu- 
facturing or  dealing  in  motor  vehicles  may,  instead  of  regis- 
tering each  motor  vehicle  so  manufactured  or  dealt  in,  make 
a  verified  application  for  a  general  distinctive  number  for  all 
the  motor  vehicles  owned  or  controlled  by  such  manufacturer 
or  dealer.     .     .     .     Such  number  plate  or  duplicate  thereof 
shall  be  displayed  by  every  motor  vehicle  of  such  manufac- 
turer or  dealer  when  the  same  is  operated  or  driven  on  the 
public  highways.    .    .    .    Nothing  in  this  subdivision  shall  be 
construed  to  apply  to  a  motor  vehicle  operated  by  a  manu- 
facturer or  dealer  for  private  use  or  for  hire,"  it  was  held 
that  "personal  use"  included  not  incidental  to  the  business 
of  manufacturing  or  dealing  in  motor  vehicles  and  that  a 
dealer  in  transporting  merchandise  from  the  business  place  of 
the  firm  to  one  of  its  customers  violated  the  law  when  he  did 
not  have  a  separate  registry  num'ber  issued  for  that  particular 

13.  Crompton  v.  Williams,  216  Mass.  15., See    Skene   v.    Graham,    116    Me. 
184,  103  N.  E.  298.                                            202,  100  Atl.  938. 

14.  Section  113.  16.  Gould   v.   Elder,    219    Mass.    396, 

107  N.  E.  50. 


LicEX.siN(;  AND  Reglsthation.  Jo8 

vehicle.^'  And,  under  <a  statute  providing  that  every  automo- 
bile dealer,  liveryman,  or  manufacturer,  instead  of  register- 
ing each  car  owned  or  controlled  by  him,  might  apx^ly  for  and 
obtain  a  general  distinguishing  number  or  mark  under  which 
every  motor  vehicle  owned  or  controlled  by  him,  until  sold  or 
loaned,  for  a  period  of  more  than  five  successive  days,  should 
,be  regarded  as  registered,  it  was  held,  that,  although  the 
statute  was  not  designed  to  allow  others,  under  cover  of  the 
dealer's  general  number  or  distinguishing  mark,  to  operate 
icars  belonging  to  or  controlled  by  themselves,  yet  an  automo- 
bile, while  in  the  exclusive  possession  and  control  of  a  dealer 
for  sale,  might  be  lo.aned  by  him  to  its  owmer  for  an  after- 
noon's use  without  impairing  the  validity  of  its  registration 
under  the  dealer's  general  number  or  mark,  jjrovided  the 
arrangement  'between  them  w'as  entered  into  in  good  faith  and 
not  as  a  mere  cover  to  enable  the  owner  to  operate  his  own 
car  and  escape  the  payment  of  the  registration  fee.^^  On  the 
other  hand  it  has  been  held  that  a  machine  covered  by  a 
.Dealer's  license  is  operating  without  a  license  when  it  is  used 
for  pleasure  purposes.^^  A  statute  as  to  dealers  may  apply 
to  dealers  in  used  niachines.^" 

17.  People   ex    rel.    Howe   v.    Hanna,  motor  vehicles.      Tlie  defendant  in   my 

136  N.  Y.  Suppl.  162,  26  N.  Y.  Cr.  K.  opinion    was     engaged     in    using    and 

324.     Magistrate  Freschi   said  in  this  operating  the  motor  vehicle  in  question 

case:      "Each   and  every  car  operated  for    the    private    business    and    use    of 

by   a   manufacturer    or   dealer    for    his  Healy  &  Co..  in  that  he  did  transport 

own   personal  use  and  pleasure,   in  no  merchandise  from  the  business  place  of 

way  connected  with  or  relating  to  the  said    firm   to   one   of    their    customers, 

business    of   manufacturing   or    dealing  and  to  that  extent  his  acts  were  in  the 

in  motor  vehicles,  must  have  a  separate  nature  of  an  express  or  delivery-  busi- 

and  distinctive  numiber  for  each  motor  ness.      The    fact    that    no   charge    was 

vehicle    so    owned    and    controlled    by  made    for    such    delivery    does    not,    in 

him.     A  general  distinctive  nuraljer  in  my  opinion,  alter  the  case." 

all  other   cases  is  proper.     The   intent  18.  Shaw     v.     Connecticut     Co..     86 

of  the  law   is  plain.     A   manufacturer  Conn.    409,     85    Atl.     536.      See    also, 

or    dealer,    who    permits    a   car    to    be  Browni  v.  Chevrolet  Motor  Co.,  39  Cal. 

operated  for  a  private  use  or  for  hire  App.   738.  179  Pac.  697:   Koonovsky  v. 

without     having    a    separate    number,  Oullette,  226  Mass.  474,  116  N.  E.  243. 

aside    from    the    distinctive    manufact-  19.  Cobb      v.      Cumberland      Oounty 

turerer's     number,     violates     the    law.  Power  &.  Light  Co.,   117   Me-   455.   104 

Personal    use    includes    anything    and  Atl.  844. 

everything   not   incidental   to  the  busi-  20.  Matter  of  Retail  Dealers  License 

ness    of    manufacturing    or    dealing    in  (Iowa).  183  N.  W.  440. 


134  The  Law  of  Automobiles, 

Sec.  119.  Registration   by   particular   classes    of   owners  — 
by  purchaser  of  machine. 

Upon  the  sale  of  a  motor  vehicle,  the  statutes  require  that 
it  be  licensed  in  the  name  of  the  purchaser.  In  some  States 
it  has  been  provided  that  unless  the  vehicle  is  registered  ,ac- 
<jording  to  the  statute  Avithin  ten  days  after  the  sale,  the  sale 
is  invalid.  But,  the  failure  of  the  purchaser  to  procure  the 
required  registration  dioes  not  m.ake  the  sale  void  ah  initio, 
for  the  contract  is  valid  when  made.  The  effect  of  the  statute 
in  such  a  case  is  to  attach  to  every  sale  a  contingent  condi- 
,tion  subsequent,  under  which  the  sale  may  become  abortive  on 
failure  to  comply  with  the  statutory  requirements  with  refer- 
,ence  ^to  registration.  It  has  been  held  that  the  seller  can  re- 
cover the  machine  as  well  as  the  use  lof  it  by  the  purchaser, 
but  that  he  cannot  recover  on  a  note  given  for  part  of  the 
.purchase  price.^^  Inasmuch  as  the  registration  laws  merely 
afford  to  the  owner  of  a  motor  vehicle  a  license,  and  not  a 
.contract,^  .the  right  to  operate  a  machine  is  a  persional  right 
and  is  not  transferable.  Hence,  upon  the  sale  of  a  machine 
,the  purchaser  must  generally  have  it  registered  in  his  name.^^ 
.Where  a  machine  is  sold  under  a  contract  of  conditional  sale 
with  a  reservation  of  ownership  until  complete  payment  is 
,made,  it  is  held  that,  under  a  sitatute  requiring  the  registration 
to  be  in  the  name  of  the  'Sowner,"  it  may  be  registered  in  the 
name  of  the  conditional  purchaser.^^  The  word  "owner"  may 
be  broad  enough  to  include,  not  only  the  persons  in  whom  the 
legal  title  is  vested,  but  also  bailees,  mortgagees  in  possession 
and  vendees  under  oonditional  contracts  of  sale  who  have 
acquired  a  special  property  which  confers  ownership  as  be- 
itween  them  and  the  general  public.^^  A  purchaser  may  be  re- 
quired to  procure  registration  in  his  name,  although  he  is  a 
dealer  and  has  a  de.aler's  license.^ 

21.  Swank  v.  Moison,  85   Greg.  662,  Mass.   281,   114  N".  E.   207;    Hurnanen 
16,6  Pac.  962.  v.   Nicksa,    228   Mass.    346,    117    N.   E. 

22.  Section  93.  325. 

23.  Foshee  v.  State,  15  Ala.  App.  113,  25.  Downey  v.  Bay  State  Street  Ry., 
72  So.  685,  225  Mass.  281,  114  N.  E.  207. 

24.  Brown  v.  New  Haven  Taxieab  26.  Briedwell  v.  Henderson  (Oreg.), 
Co.,     92     Conn.     252,     102     Atl.     573;  195  Pac.  575. 

Downey  v.  Bay  State  St.  Ry.  Co.,  225 


Licensing  and  Registration.  135 

Sec.  120.  Re^stration  by  particular  classes  of  owners  — 
issuance  of  blank  licenses  to  automobile  organi- 
zation. 

State  highway  cominissioners  are  not  authorized  to  issue 
automobile  licenses  in  blank  to  automobile  organizations  who 
.desire  to  pay  for  them  and  to  issue  them  to  persons  entitled 
^to  receive  them  i'rom  time  to  time,  for  the  power  to  issue 
licenses  cannot  be  delegated  to  such  organizations.^^ 

Sec.  121.  Registration  by  particular  classes  of  owners  — 
death  of  owner. 
Where  the  owner  of  la  m-achine  dies  after  making  an  appli- 
cation for  a  license  and  before  the  license  goes  into  effect,  the 
license  will  not  inure  to  the  benefit  of  his  representatives  or 
family.^^ 

Sec.  122.  Disposition  of  license  moneys. 

Considerable  difficulty  has  been  experienced  as  to  the  dis- 
position which  shall  be  made  of  license  fees  collected  under 
a  motor  vehicle  registration  statiite.  Ordinarily  such  funds 
may  be  used  to  defray  the  expenses  of  the  enforcement  of  the 
law,  and  the  balance,  if  any,  may  be  placed  in  a  general  fund 
for  the  care  and  maintenance  of  the  highways.-^  Or  the  fund 
may  be  divided  between  the  State  and  local  divisions.^"^  Or 
the  State  may  authorize  municipalities  to  collect  license  fees 
within  the  municipality  and  to  place  them  in  a  municipal  high- 
way fund  for  the  care  of  the  streets.^^  Provisions  of  the  Con- 
stitution may,  however,  interfere  with  the  discretion  of  the 
Legislature  in  -this  matter.    Thus,  a  proposed  distribution  of 

27.  Opinion  of  Atty.  Gen'l,  35  Pa.  Mississippi.— St&te  v.  Lawrence,  108 
Co.  Ct.  512.  Miss.  291,  66  So.  745. 

28.  Fairbanks  v.  Kemp,  226  Mass.  Missouri. — Gasconade  County  v. 
75,  115  N.  E.  240.  Gordon,  241  Mo.  569,  145  S.  W.  1160. 

29.  Florida. estate  ex  rel.  Lunig  v.  Pennsylvania. — 'Commonwealth  ex  re?. 
Johnson,  71  Fla.  363,  72  So.  477.  Boll  v.  Powell,  249  Pa.  St.  144,  94  Atl. 

Illinois. — People  v.  Sargent,  254  111.  746. 

514,  98  N.  E.  959.  30.  Matter  of  Bozeman,  7  Ala.  -\pp. 

Michigan. — Janowski     v.     Board     of  151,  61  So.  604,  63  So.  201. 

Assessors  of  City  of  Detroit.  191  Mich.  31.  Harder's   Storage  &  Van   Co.    v. 

287,  157  N".  W.  891.  Chicago,  235  Til.  58,  85  N.  E.  245. 


136  The  Law  of  Automobiles. 

a  part  of  the  iiioneys  among  the  eonnties  of  the  State  is  illegal, 
when  there  is  a  constitutional  provision  forbidding  the  Legis- 
lature from  imposing  taxes  on  the  inhabitants  of  counties  for 
county  purposes.^'  But  the  fact  that  the  larger  part  of  the 
license  fees  are  collected  within  the  cities  of  the  State  arid  that 
the  larger  portion  of  the  fees  is  to  be  spent  in  the  care  of  rural 
highways,  does  not  render  the  distribution  unlawful.^  A 
constitutional  provision  forbidding  the  enactment  of  a  law 
permitting  the  payments  of  licenses  to  the  State  and  relieving 
the  party  making  it  from  the  payment  of  all  other  license 
fees,  is  not  violated  by  a  statute  imposing  a  license  fee  on 
motor  vehicles  and  exempting  them  from  other  license  taxes, 
where  the  statute  expressly  provides  for  the  apportionment 
of  the  fees  between  the  State  and  municipalities.'^*  The  cir- 
cumstance that  the  proposed  distribution  of  -the  licensee 
moneys  is  unconstitutional  will  not  necessarily  condemn  the 
entire  motor  vehicle  system  of  registration.-''^ 

Sec.  123.  Vehicles  to  which  regulations  are  applicable. 

Modern  motor  vehicle  statutes  generally  specify  with  par- 
ticularity the  vehicles  to  which  they  are  applicable.  But,  be- 
fore the  enactment  of  such  exact  statutes,  some  difficulties  of 
construction  were  presented  to  the  courts.  An  act  empower- 
ing certain  cities  to  regulate  and  license  ''all  cars,  wagons, 
drays,  coaches,  omnibuses,  and  every  description  of  car- 
riages," has  been  construed  .as  authorizing  the  imposition  of 
license  requirements  on  automobiles,  although  such  vehioles 
were  unknown  at  the  time  of  the  passage  of  the  statute.^*'' 
But,  on  the  contrary,  it  has  been  held  that  a  statute  imposing 
a  tax  on  the  transportation  of  "hacks,  cabs,  onmibuses,  and 
o.ther  vehicles  for  the  transportation  of  passengers  for  hire" 
did  not  include  an  electric  autoanobile  where  such  was  not 

32.  Ex  parte  Schuler.  167  Cal.  282.  34.  Matter  of  Bozeman,  7  Ala.  App. 
139  Pac.  685.  1-'>1.  61  So.  604.  63  So.  201. 

33.  Ex  parte  Sclmler,  167  Cal.  282,  35.  Ex  parte  Schuler,  167  Cal.  282, 
139  Pac.  685;  .Jasowski  v.  Board  of  139  Pac.  685;  People  v.  Sargent,  254 
Assessors  of  City  of  Detroit,  191  Muh.  111.  514,  1)8  N.  E.  959. 

287    157  N.  \V.  8^1.  36.  Commonwealth    v.     Hawkins,    14 

Pa.  Dist.  Rep.  592. 


Licensing  and  Registration.  137 

known  or  in  use  at  the  time  tlie  act  was  passed.''^  A  buggy, 
carriage  or  automobile,  when  in  use  upon  public  streets  of  a 
city,  whether  used  for  pleasure  or  for  hire,  if  persons  are  car- 
ried therein,  is  in  use  for  ''carrying  a  load  "  within  the  mean- 
ing of  a  statute.'**  A  law  requiring <the  licensing  of  operators 
of  automobiles,  and  defining  automobiles  as  all  vehicles  pro- 
pelled by  other  than  muscular  power,  except  railroads  and 
railway  cars,  and  motor  vehicles  running  only  upon  rails  or 
tracks,  and  road  rollers,  has  been  heM  to  include  a  road  loco- 
motive or  traction  engine  used  to  draw  cars.^^  An  act  for  the 
registration  of  any  "automobile,  locomobile,  or  other  vehicle 
or  conveyance  of  like  character,  propelled  by  steam,  gas, 
gasolene,  electricity,  or  any  power  other  than  muscular 
power,"  requires  the  registration  oi  motorcycles.^'^  One  en- 
gaged as  a  contractor  in  carrying  mail  for  the  United  States, 
may  be  required  to  procure  a  license  for  his  vehicle.''^ 

Sec.  124.  Display  of  number  plate. 

For  the  purpose  of  identifying  motor  vehicles,  a  registra- 
tion system  may  require  the  o\\mer  of  an  automobile  to  carry 
a  number  plate  on  the  machine.^^  And  the  State,  when  enact- 
ing a  system,  may  foi'bid  municipalities  'from  requiring  other 
number  plates  than  the  one  issued  by  the  State.^"^     But  'a 

37.  Washington  Elec.  Vehicle  Transp.  tiiiu',  hence  the  urgent  need  of  a  gen- 
Co.  V.  District  of  Columbia.  19  App  eral  law  which  would  apply  to  the 
Cas.   (D.  C.),462.  whole  State,  so   that   laws   concerning 

38.  Harder  v.  Chicago,  233  111.  294.  motor  vehicles  being  propelled  about 
85  N.  E.  255.  the    State    should    not   'be   left    to    the 

39.  Emerson  Troy  Granite  Co.  v.  ordinances  of  each  individual  village 
Pearson,  74  N.  H.  22,  64  Atl.  582.  or  city  in  the  State.     The  latter  course 

40.  Knight  v.  Savannah  Elec  Co..  would  lead  to  confusion  and  in  some 
20  G'a.  App.  719,  93  S.  E.  17.  cases  to   injustice.     Almost  any  owTier 

41.  State  V.  Wiles  (Wash.).  1 91)  \\u-.  of  a  motor  vehicle  or  motorcycle  will 
749.  frequentl}^  pass  through   several  cities 

42.  Slado  V.  City  of  Chicago.  1  111.  or  villages  in  the  course  of  a  few 
Cir.  Ct.  Rep.  520:  Commonwcaltli  \.  hours.  If  the  city  of  Chicago  can  com- 
Boyd.  188   Mass.  79.  74  X.  E.  255.  jk-I    the    owner    of    an    automobile    to 

43.  City  of  Chicago  v.  Francis,  262  affix  the  tag  of  that  municipality- 
Ill.  331,  104  X.  E.  662,  wherein  it  was  every  other  city  and  village  in  the 
said :  "  With  tlie  extended  use  of  State  can  by  ordinance  do  likewise, 
motor  vehicles  and  the  long  distances  The  legislature  evidently  had  this  in 
traveled    by   thorn    in    short    periods   of  mind,  as  Avell   as  other  matters  which 


138  The  Law  of  Automobiles. 

•statute  regulating  the  licensing,  operating,  etc.,  of  motor  vehi- 
cles, and  providing  infer  alia  that  not  more  than  one  State 
license  number  shall  be  carried  upon  the  front  or  back  of  the 
•vehicle,  and  that  a  "license  nmnber  obtained  in  any  other 
place  or  State  shall  be  removed  from  said  vehicle  while  the 
vehicle  is  being  used  within  this  commonwealth,"  was  held 
not  to  conflict  with  nor  supersede  -an  ordinance  which  provided 
for  the  licensing,  regulation,  and  operation  of  motor  vehicles 
within  a  municipality,  for  both  the  act  and  the  ordinance 
could  stand  together,  and,  for  motor  vehicles  operated  wdthin 
the  said  city,  both  State  and  city  licenses  must  be  obtained 
and  both  license  tags  displayed,  a  municipality  not  being 
within  the  meaning  of  the  word  ''place"  as  used  in  the  act.*' 
Under  a  statute  forbidding  any  person  to  operate  or  drive  a 
motor  vehicle  on  the  public  highways  "unless  such  vehicle 
shall  have  a  distinctive  number  assigned  to  it  by  the  secretary 
of  state  and  a  number  plate  issued  by  the  secretary  of  state 
with  a  number  corresponding  to  that  of  the  certificate  of  regis- 
tr-ation  conspicuously  displayed"  on  the  'front  and  rear  of 
such  vehicle,  it  is  held  that  one  who  drives  a  motor  vehicle 
without  having  such  distinctive  number  thus  displayed  is 
guilty  of  a  violation  of  law  without  regard  to  the  question  of 

would    lead    to    confusion    unless    cor-  use  of  motor  vehicles  when  conditions 

reeted,    when    the    law    of    1911    was  warrant  them." 

passed.  The  exception,  from  the  law,  Under  a  statute  in  Missouri  providing 
of  motor  trucks  and  motor-driven  com-  the  manner  in  which  the  registration 
mercial  vehicles,  which  would  neces-  number  of  all  motor  vehicles  registered 
sarily  be  used  locally,  emphasizes  the  in  the  office  of  the  Secretary  of  State 
intent  of  the  law  in  regard  to  motor  should  be  displayed,  and  further  pro- 
vehicles  like  the  one  used  by  plaintiff  viding,  "  And  provided  that  said  owner 
in  error  in  this  case.  It  is  undoubtedly  shall  not  be  requiretl  to  place  any  other 
necessary  for  municipalities  to  estab-  mark  of  identity  upon  his  motor 
lish  and  enforce  traffic  regulations,  and  vehicle,"  an  ordinance  passed  by  the 
the  reasonableness  of  miinicipal  ordi-  municipal  assembly  of  the  city  of  St. 
nances  enforcing  such  regulations  would  f^uis  providing  also  for  the  display  of 
depend  upon  the  circumstances  and  con  identification  numbers  and  the  size 
ditions  in  such  municipalities.  Under  thereof  w^a,s  held  invalid  as  being  in 
the  law  a  municipality  may  make  and  conflict  with  the  statute.  City  of  St. 
enforce  reasonable  traffic  and  other  Txjuis  v.  Williams,  235  Mo.  503,  139 
regulations,   except  as  to  the   rate   of  S.  W.  340. 

speed,   not   inconsistent   with   the   pro-  44.  Brazier   v.    Philadelphia,    15    Pa. 

visions  of  the  State  law  regulating  the  Dist.  Rep.  14. 


Licensing  and  Registration.  139 

criminal  intent/^  But,  where  upon  the  re-regislration  of  a 
vehicle,  the  State  fails  to  furnish  the  number  plates,  it  is  held 
that  he  may  operate  the  machine  under  the  plates  issued  dur- 
ing the  previous  yeiar.^^ 

Sec.  125.  Effect  of  non-registration  in  actions  for  injuries  — 
MsiSsachusetts  rule. 
The  courts  are  not  entirely  in  harmony  as  to  the  effect 
which  shall  be  given  to  the  non-registration  of  motor  vehicles, 
when  injuries  are  occasioned  by  or  to  such  machine  or  to  the 
occupants  thereof.    The  question  is  somewhat  similar  to  the 
one  presented  when  an  unlicensed  chauffeur  receives  an  injury 
while  he  is  unlawfully  operating  a  motor  vehicle,  though,  on 
account  of  a  difference  in  the  statute,  a  different  conclusion 
may  be  reached  in  oase  of  an  unlicensed  chauffeur.*^    The 
courts  of  Massachusetts  take  a  position  on  the  question  which 
is  opposed  to  the  great  weight  of  authority.    It  is  there  held 
that  a  motor  vehicle  not  properly  registered  is  a  nuisance  and 
trespasser  upon  the  highways  of  the  State,  and  that,  as  a 
general  rule,  if  the  machine  or  an  occupant  receives  an  in- 
jury from  another  vehicle  or  from  a  defect  in  the  highw^ay, 
the  non-registration  will  preclude  a  recovery  for  the  injuries.*' 
Thus,  it  is  held  that  a  person  riding  in  an  unregistered  auto- 
mobile is  not  entitled  to  the  rights  of  a  traveler  and  cannot 
avail  himself  of  the  violation  of  an  acft  **for  the  better  pro- 
tection of  travelers  at  railroad  crossings,"  and  requiring  a 

45.  People  v.  Schoepflin,  78  Misc.  215  Mass.  563,  102  N.  E.  923;  Holland 
(N.  Y.)  62,  137  N.  Y.  Suppl.  675.  v.  City  of  Boston,  213  Mass.  560,  100 
Compare   Axtell   v.   State    (Tex.    Cr.),      N.    E.    1009;    Love  v.   Worcester    Con- 

216  S.  W.  394.  solidated    Street    Railway,    213    Maes. 

46.  State  v.  Gish,  168  Iowa,  70,  150  137,  99  N.  E.  960;  Chase  v.  New  York 
N.  W.  37.  Central  &  Hudson  River  Railroad,  208 

47.  Bourne  v.  Whitman,  209  Mass.  Mass.  137,  94  N.  E.  377;  Trombley  v. 
155,  95  N.  E.  404,  35  L.  R.  A.  (N.  S. )  Steven s-Duryea  Co.,  206  Mass.  516,  92 
701.     See  also  section  226,  N.  E.  764;  Feeley  v.  Melrose,  205  Mass. 

48.  Dudley  v.  Northampton  Street  329,  91  N.  E.  306,  21  L.  R.  A.  (N.  S.) 
Ry.  Co.,  202  MasS.  443,  89  N.  E.  25,  1156,  137  Am.  St.  Rep.  445;  Dowey  v. 
23  L.  R.  A.  (N.  S.)  56 In,  followed  in  Bay  State  St.  Ry.  Co.,  225  Mass.  281. 
Dean  v.  Boston  Elevated  Railroad  Co.,  114  N.  E.  207;   Rolli  v.  Converse,  227 

217  Mass.  495,  108  N.  E.  616;  Cromp-  Mas?.  162,  116  N.  E.  507;  Wentzell 
ton  v.  Williams,  216  Mass.  184,  103  v.  Boston  Elev.  Ry.  Co.,  230  Mass.  275, 
N.    E.    298;    Holden    v.    McGillicuddy,       119  N.  E.  652. 


.140 


The  Law  of  Automobiles. 


signal  from  an  engine;  approaching  a  traveled  way  or  place.*' 
But  the  fact  that  the  machine  is  a  trespasser  does  not  pre- 
clude him  from  recovery  in  all  cases,  for,  if  it  can  be  shown 
that  the  act  e-ausing  injury  to  the  machine  or  occupant  was  a 
reckless,  wanton  or  wilful  act,  recompense  for  the  injuries 
may  be  recovered.^*^  The  rule  may  work  to  render  the  driver 
of  an  unlicensed  automobile  liable  for  injuries  to  another 
traveler.^^  Where  an  automobile  is  not  registered  in  accord- 
ance with  the  statutory  requirements,  the  owner  cannot  law- 
fully operate  it  upon  the  highway,  nor  oan  he  legally  authorize 
or  permit  a  third  person  so  to  do  and  he  is  liable  for  the  con- 
•sequences  of  the  operation  of  such  a  vehicle  by  one  whom  he 
has  permitted  to  use  it  whether  the  latter  is  acting  within  the 
.scope  of  his  employment  or  is  using  the  car  in  connection  with 
his  own  business  or  pleasure.^-  If,  however,  the  owner  of  an 
.unregistered  automobile  has  neither  given  any  permission  nor 
.consent  to  its  use  by  ^another,  either  express  or  implied,  then 
no  liability  will  attach  to  him  for  its  oper-ation  by  such  per- 
.son."*"    The  situation  in  Massachnsetts  was  changed  to  some 


49.  Chase  v.  New  York  Central  A 
Hudson  River  Railroad.  308  Mass.  13  7. 
94  N.  E.  377. 

50.  Holland  v.  Boston,  213  Mass. 
560,  100  N.  E.  1009;  Wentzell  v.  Bos 
ton  Elev.  R,y.  Co.  (Mass.),  119  N.  E. 
652;  United  Transp.  Co.  v.  Hass.  91 
Misc.  (N.  Y.)  311,  155  N.  Y.  Suppl. 
110,  affirmed  155  X.  Y.  Suppl.  114.-> 
(discussing  the  Massachusetts  rule). 
'"There  is  but  small  doubt  that  an  un 
registered  automobile  is  a  trespassoi- 
upon  the  highway,  and  it  must  he 
true  tliat  the  operator  or  occupant  i*^ 
in  no  better  condition  to  recover  tlian 
a  person  Avould  be  who  was  violating 
the  law  in  walking  on  the  track  of  a 
railroad,  but  even  a  person  thus  tres- 
passing, as  against  what  would  really 
be  found  to  be  a  willful,  wanton  and 
reckless  act  of  another,  is  entitled  to 
some  protection."  United  Transp.  Co. 
V.  Hass,  91  Misc.  (N.  Y.)  311,  155  X. 
Y,  Slippl.  110,  affirmed  115  N.  Y.  Suppl. 
1115,   wherein    the   Massachusetts   rule 


was  discussed. 

Wanton  negligence  not  established. — 
Failure  of  a  motorman  to  see  an  auto- 
mobile before  he  did  and  to  bring  his 
car  to  a  stop  quicker  while  evidence 
of  negligence  fails  to  reach  tlie  kind 
of  conduct  required  to  warrant  a  recov- 
ery by  plaintiffs  who  were,  by  reason 
of  the  automobile  being  unlicensed, 
trespassers  upon  the  highw^ay.  Dean 
V.  Boston  Elevated  Railway  Co.,  217 
Mass.  495,  105  K  E.  616. 

51.  Fairbanks  v.  Kemp,  226  Mass. 
75,  115  N.  E.  240;  Koonovsky  v.  Quel 
lette,  226  Mass.  474,  116  N.  E.  243; 
Hurnanen  v.  Nicksa,  228  Mass.  346, 
117  N.  E.  325;  Gowdek  v.  Cudahy 
Packing  Co.,  233  Mass.  105.  123  N.  E. 
398;  Evans  v.  Rice  (Mass.),  130  N.  E. 
672. 

52.  Evans  v.  Rice  (Mass.),  130  N. 
E.  672. 

53.  Oould  V.  Elder,  219  Mass.  396, 
107  N.  E.  59;  Gowdek  V.  Cudahy  Pack 
ing  Co.    (Mass.),   123  N.  E.   398. 


Licensing  and  Registration. 


141 


.extent  by  a  statute  in  1915  which  provides  in  effect  that  the 
.violation  shall  not  he  a  defense  unless  it  is  shown  that  the 
person  injured  or  killed,  or  the  owner  of  the  property  injured, 
knew  or  had  reason  to  know  that  the  provisions  of  the  statute 
were  being  violated.  Hence,  it  is  now  the  law  that  the  chauf- 
feur of  a  machine  may  sometimes  recover  'for  his  injuries  in 
a  case  where  the  owner  would  be  denied  recovery  for  dam- 
ages to  the  machine.^* 

In  Connecticut  it  was  held,  that,  in  the  absence  of  any  statu- 
tory provision  to  th'at  effect,  the  use  of  an  unregistered  and 
unnumbered  automobile  upon  the  public  highways  as  required 
by  statute  w^as  not  unlawful,  and  did  not  preclude  the  owner 
from  recovering  damages  of  a  city  for  injuries  to  himself  and 
to  the  car  w^hich  were  caused  by  a  defect  in  the  highway  due 
to  the  city's  negligence.'^^  But,  by  a  subsequent  statute  en- 
acted in  that  State,  it  was  expressly  provided  that  no  recovery 
shall  be  had  by  the  "owner,  operator,  or  any  passenger  of  a 
motor  vehicle  "  which  is  not  registered  as  required  by  the  act 
''for  any  injury  to  person  or  property  received  by  reason  of 
the  operation  of  such  motor  vehicle  upon  the  public  highways 
of  this  State. "^"^     The  word  "operation"  as  used  in  such 


54.  RoUi  V.  Converse,  227  Mass.  Ifi2. 
116  N.  E.  507. 

55.  Hemming  v.  City  of  New  Haven, 
82  Conn.  661,  74  Atl.  892,  18  Ann. 
Cas.  240;  25  L.  R.  A.  (N".  S.)  734n, 
wherein  the  court  said :  "  The  plain- 
tiff was  violating  the  statute  relating 
to  the  registration  of  automobiles,  but 
that  fact  does  not  relieve  the  defend- 
ant. The  statute  imposed  an  obligation 
upon  the  plaintiff  to  register  his  auto- 
mobile and  for  its  violation  prescribed 
a  penalty.  The  statute  goes  no  further 
and  it  cannot  be  held  that  the  right 
to  maintain  an  action  for  damages 
resulting  from  the  omission  of  the  de- 
fendant to  perform  a  public  duty  is 
taken  away  1>ecause  the  person  injured 
was  at  the  time  his  injuries  were  sus- 
tained disobeying  a  statute  law  which 
in  no  way  contributed  to  the  accident. 
A    traveler    with    an    unregistered    and 


unnumbei'cd  automobile  is  not  made  a 
trespasser  upon  the  street,  neither  does 
it  necessarily  follow  that  the  property 
which  he  owns  is  outside  of  legal  pro- 
tection when  injured  by  the  unlawful 
act  of  another.  .  .  .  The  registration 
of  plaintiff's  machine  was  of  no  conse- 
quence to  the  defendant.  His  failure 
to  register  and  display  his  number  in 
no  way  contributed  to  cause  the  in- 
jury. The  accident  would  have  hap- 
pened if  tlie  law  in  this  respect  had 
been  fully  observed.  Tlie  plaintiff's 
unlawful  act  was  not  the  act  of  using 
the  street  but  in  making  a  lawful  use 
of  it  without  having  his  automobile 
registered  and  marked  as  required  by 
law.  The  statute  contains  no  prohil>i- 
tion  against  using  an  unlicensed  and 
unnuml)ered  automobile  upon  the  high- 
way and  streets  of  the  State." 

56.  Stroud      v.      Board      of      Watef 


142 


The  Law  of  Automobiles. 


statute  includes  such  stops  as  the  vehicle  would  ordinarily 
make,  and  the  owner  of  lan  unlicensed  automobile  may  not 
recover  for  injuries  thereto  received  by  a  truck  running  into 
it  while  it  is  standing  by  the  side  of  the  highway.^^  But  an 
unlicensed  machine  is  not  in  ''operation"  on  the  highway 
when  it  is  tow^ed  by  another  vehicle.^  Under  the  statute,  the 
burden  is  upon  the  owner  of  the  machine,  when  seeking  to 
recover  his  injuries,  to  show  the  vehicle  was  properly  regis- 
tered.^^ 

In  Maine,  the  statute  forbidding  the  operation  of  motor 
vehicles  on  the  public  highways  unless  they  are  registered  and 
licensed  .according  to  the  statute,  is  very  similar  to  the  Massa- 
chusetts law,  and  it  has  to  some  extent  received  a  similar  con- 
struction.^'^    The  statute  renders  unlawful  all  travel  in  an  un- 


Ck)m'r8  of  City  of  Hartford,  90  Conn. 
412,  97  Atl.  336;  Brown  v.  New  Haven 
Taxicab  Co.,  92  Conn.  252,  103  Atl. 
573. 

57.  Stroud     v.      Board      of      Water 
Com'rs  of  City  of  Hartford,  90  Conn. 
412,  97  Atl.  336,  wherein  it  was  said: 
"  The     word     '  operation  '     cannot     be 
limited,     as     the     plaintiff    claims     it 
should  be,   to  a  state   of   motion   con 
trolled  by  the  mechanism  of  the   ear. 
It  is  self-evident  that  an   injury  may 
be    received    after    the    operator    has 
brought   his  car   to   a   stop,   and  may 
yet  be  received  by  reason  of  its  opera 
tion.     The  word  'operation,'  therefore, 
must    include    such    stops    as    motor 
vehicles  ordinarily  make  in  the  course 
of    their    operation.      It    is    also    clear 
that  the  words  '  received  by  reason  of 
the  operation '  do  not  refer  merely  to 
injuries    proximately    caused    by    such 
operation.     That  cannot  be  so,  because 
the  whole  purpose  of  section  19   is  to 
prevent  a  recovery  in  cases  where  the 
owner,   operator,    or   passenger   of   the 
illegally  registered  car  would  otherwise 
be   entitled  to   one;    and   no    such    re- 
.    covery  could    in   any  event  be  had    if 
the  operation  of  the  illegally  registered 
car  was  in  a  legal  sense  the  proximate 


cause  of  the  injury.     In  order  to  give 
any   reasonable  effect   to  section   19,   it 
must   be   understood    as    requiring    the 
owner,    operator,    or    passenger    of    a 
motor  vehicle,  not  registered  in  accord- 
ance  with   sections   2   or   3   of   the  act, 
to   assume    all   the   ordinary    perils    of 
operating  it  on  the  highway.     In  this 
case  the  plaintiff's  car  was  as  much  in 
the    ordinary    course    of    operation    on 
the  highway  at  the  time  of  the  injury 
as   if   it  had  been   used    for  shopping, 
calling,      or      delivering      merchandise. 
One  so  using  the  highway  necessarily 
incurs  the  risk  of  injury  from  the  neg 
ligence    of    fellow    travelers,    as    well 
while  his   vehicle   is   at  rest  as  while 
it  is  in  motion,  and  the  injury  com- 
plained of   in   this  case  was   received 
'  by    reason    of '   the   operation    of   the 
plaintiff's    illegally    registered    ear    on 
the  highway,   within   the   plain    intent 
of  the  act." 

58.  Dewhirst  v.  Connecticut  Co. 
(Conn.),   114  Atl.   100. 

59.  DeWhirst  v.  Connecticut  Co. 
(Conn.),   114  Atl.   100. 

60.  McCarthy  v.  Inhabitants  of 
Town  of  Leeds,  115  Me.  134,  98  Atl. 
72,  wherein  the  court  expressed  its 
views    as    follows:      "An    examination 


Licensing  and  Registration. 


143 


licensed  machine,  and  when  the  action  is  against  a  munici- 
pality and  is  based  on  the  nnsafety  of  the  highway,  the  person 
injured  cannot  recover.^^  Even  an  infant  child  riding  in  the 
machine  is  barred  from  recovery  in  such  a  case.®^  But  it  is 
held  in  an  action  for  injuries  received  from  a  collision  with 
a  street  car,  that  the  non-registration  will  not  necessarily  bar 
a  recovery.*'^ 

In  Canada  different  conclusions  may  be  drawn  in  different 
provinces,  as  the  question  is  determined  by  the  reading  of 
the  regulations  in  the  several  provinces  and  territories.®^ 

Sec.  126.  Effect  of  non-registration  in  actions  for  injuries  — 
general  rule. 

The  general  rule  as  to  the  effect  of  non-registration  of  a 
motor  vehicle  is  niot  in  agreement  with  the  doctrine  promul- 


of  the  decided  cases,  we  think,  clearly 
shows  that,  when  the  statute  provides 
for  the  registration  of  automobiles 
and  fixes  a  penalty  for  their  operation 
upon  the  highways  and  streets  of  the 
State,  unless  registered,  their  opera- 
tion upon  the  highways  and  streets 
while  unlawful,  does  not  of  itself  bar 
the  owner  from  recovering  damages  for 
injuries  sustained  by  reason  of  defective 
highways,  because  the  violation  of  the 
law  does  not  contribute  to  the  injury: 
but  if,  in  addition  to  the  penalty  pro- 
vided by  law,  the  statute  prohibits  the 
use  upon  the  highway  of  an  unregis- 
tered auto,  the  operation  of  the  auto 
upon  the  prohibited  streets  and  high- 
ways is  such  an  unlawful  act  that,  by 
reason  of  the  prohibition,  its  operation 
is  a  trespass,  and  cities  or  towns  are 
not  obliged  to  keep  their  ways  safe  for 
trespassers  to  travel  upon  in  violation 
of  law.  The  language  of  section  1 1 
of  the  act  of  ]911  clearly  and  plainly 
prohibits  their  use  upon  the  highways 
of  the  State  unless  registered,  as  re- 
quired by  the  act,  and  unless  so  con- 
strued the  purpose  of  the  legislature 
to  protect  persons  lawfully  using  the 
highway  will  fail;  and  the  plain  and 
unambiguous    language    of    section    11 


would  be  disregarded,  which  is  a  vio- 
lation of  all  rules  of  law  for  the  con- 
struction of  statutes,  and  we  hold 
that  tlie  plaintiff  was  prohibited  by 
statute  from  using  the  auto  on  the 
highway,  it  being  unregistered  as  re- 
quired by  section  8,  c.  162  of  the  Laws 
of  1911,  and  the  town  owed  him  no 
duty  to  keep  the  way  safe  and  con- 
venient for  him  to  travel  upon.  Hia 
rights  were  only  the  rights  of  a  tres- 
passer upon  the  land  of  another.' 
See  also  Lyons  v.  Jordan,  117  Me.  117, 
102  Atl.  976. 

61.  Blanchard  v.  City  of  Portland 
(Me.),  113  Atl.  18. 

62.  McCarthy  v.  Town  of  Leeds,  116 
Me.  275,  101  Atl.  448. 

63.  Cobb  V.  Cumberland  County 
Power  &  Light  Co.,  117  Me.  455,  104 
Atl.  844. 

64.  See  Constant  v.  Pigott,  15  D.  L. 
R.  (Canada)  358;  Etter  v.  City  of 
Saskatoon,  39  D.  L.  R.  (Canada)  1; 
Greig  v.  Merritt,  11  D.  L.  R.  (Canada) 
852;  Buck  v.  Eaton,  17  O.  W.  N. 
(Canada)  191,  in  effect  following  the 
Massachusetts  rule.  But  see  Godfrey  v. 
Cooper,  46  O.  L.  R.  (Canada)  565,  in- 
dicating a  contrary  rule. 


144 


The  Law  of  Automobiles. 


ga'ted  by  the  courts'  of  Massachusetts.  The  great  weight  of 
authority  supports  'the  view  that  in  cases  of  injury  to  the  ana- 
chine  or  the  occupants  from  the  negligence  of  third  persons, 
the  failure  to  obey  the  law  with  reference  to  the  registration 
and  licensing  .of  the  machine  is  not  a  proximate  cause  of  the 
injury  and  has  no  effect  upon  'the  recovery  for  the  damages 
sustained.''^    And  so,  too,  in  case  of  an  injury  to  another 


65.  Alabama. — Armstrong      v.      Sel- 
lers, 182  Ala.  582,  62  So.   28;   Stovall 
V.  Corey- Highlands  Land  Co.,  189  Ala. 
576,   66  So.   577.     "The  fact  that  the 
plaintiff's    motorcycle    was    not    regis- 
tered  in    compliance   with   the   law   of 
the    State    had    no    causal    connection 
with  the  injury  of  which  the  plaintiff 
complains,     and    can    in    no    way     be 
avoidable   to   the  defendant,  under  the 
issues    presented    in    this    case.      The 
fact  that  the  motorcycle  was  not  reg- 
istered in  no  way  affected  the  general 
duty,    which    the    defendant    owed    to 
the    plaintiff,    to    so    operate   its   auto- 
mobile  while    traveling  upon   the   pub- 
lic  highway  as  not  to  negligently  in- 
jure   the    person    or    property    of    an- 
other."      Stovall     V.     Corey-Highlands 
Land   Co.,    189   Ala.    576,   66    So.    577. 
"It    matters    not    to     the     defendant 
whether    the    automobile    was    or    was 
not   registered   in   compliance  with  the 
laws    of    the    State,    which    require    all 
automobiles   to   be   registered.      If   the 
automobile     was     not     registered,     the 
owner  thereof  may  be  guilty  of  a  vio- 
lation of  one   of  the   criminal  laws   of 
the    State,    but    that   fact    in    no    way 
affected    the    general    duty,    which    the 
defendaat  owes  to  the  law,  so   to  op- 
erate  its    cars    as    not    to    negligently 
injure   the  person   or   property  of   any 
person.      The   mere    fact,    if    it    be    a 
fact,     tliat     the     automobile    was     not 
registered    had    no    causal    connection 
with  th(!  injury  of  which  the  plaintiff 
complains,    and   that    fact,   if   it   be   a 
fact,    in    no    way    contributed    to    the 
injury  io  the   automobile."     Birming- 


ham Railway,  Light  and  Power  Co.  v. 
Aetna  Accident  &  Liability  Co.,  184 
Ala.  601,  64  So.  44. 

California. — Shimoda  v.  Bundy,  24 
Cal.  A])p.  675,  ]42  Pac.  109,  wherein 
it  was  .said:  "Our  conclusion  is  that 
one  who  violates  an  ordinance  wherein 
a  penalty  is  fixed  for  non-compliance 
with  its  j)rovisions,  may  be  sub- 
jected to  the  penalties  therein  pre- 
scribed, but  he  cannot,  in  addition 
thereto,  be  deprived  of  his  civil  right 
to  recover  damages,  perhaps  in  many 
thousands  of  dollars,  sustained  by 
reason  of  the  negligence  or  wrong  of 
another,  whs'e  such  violation  bore  no 
relation  to  the  injury  and  did  not 
contribute  in  the  remotest  degree 
thereto. ' ' 

Florida. — Atlantic  Coast  Line  Rail- 
load  Company  v.  Weir,  63  Fla.  69,  58 
So.  641,  Ann.  Cas.  1914  A.  126,  41 
L.  K.  A.  (N.  S.)  .307;  Porter  v.  Jack- 
sonville Electric  Co.,  64  Fla.  409,  60 
So.  :88. 

Georgia. — Central  of  Georgia  Ry.  Oo. 
v.  Moore,  149  Ga.  581,  101  S.  E.  668; 
Central  of  Georgia  Ry.  Co.  v.  Moore, 
(Ga.  App.)  102  S.  E.  168.  Compare, 
Knight  v.  Savannah  Elec.  Co.,  20  Ga. 
App.  719,  93  S.  E.   17. 

Illinois. — See  Crosson  v.  Chicago, 
etc.,  Co.,  158  111.  App.  42. 

Iowa. — Phipps  V.  City  of  Perry,  178 
Iowa,  173,  159  N.  W.  653  (motors 
c.vcle)  ;  Wolford  v.  City  of  Grinnell, 
179  Iowa  689,  161  N.  W.  686. 

Kansas. — Anderson  v.  Sterrit,  95 
Kan.  483,  148  Pac.  635. 


Licensing  axd  Registration. 


145 


traveler,  the  fact  that  the  defendant's  automobile  was  not 
properly  registered  is  not  to  be  considered  a  proximate  cause 
of  the  injury,  and  the  liability  of  the  owner  of  the  unregis- 


Kentucky. — Moore  v.   Hart,   171  Ky, 
725,  188  S.  W.  861. 

Minnesota. — Aimstcail       v.       Louns- 
beny,    129    Minn.    34,    151    N.    W.    542, 
544,  whcicin  the  court  said:      "Plain- 
tiff  had    not    complied    with   this    law. 
Defendant  contends  that  lu-  was  there- 
fore a  trespasser  upon  the  street,  and 
that  the  only  duty  the  traveling  pub- 
lic   owed    to    him   was    a    duty   not   to 
willfully     or      wantonly     injure     him. 
We   do   not   concur   in   this   contention. 
The   fact   that   a   person   who   sustains 
injury  at   the   hands   of   another   is   at 
the  time  engaged  in  violation  of  some 
law    may    have    an    important   bearing 
upon   his   right   to   recover.     His  viola- 
tion    of    the     law     may    be     evidence 
against   him,    and   in    some    cases   may 
wholly   defeat   recovery.      .      .      .     But 
it    is    not    every    violation    of   the    law 
that  is  even  material  evidence  against 
him.     The  right  of  a  person  to  main- 
tain an  action  for  a  wrong  committed 
upon  him  is  not  taken   away  because 
he  was  at  the  time  of  the  injury  dis- 
Qbe^^ng    a    statute    law    which    in    no 
way  contributed  to  his  injury.     He  is 
not    placed    outside    all    protection    of 
the    law,    nor    does    he    forfeit    all    his 
civil  rights  merely  because  he  is  com- 
mitting     a      statutory      misdemeanor. 
The  wrong   on   the   part  of   the  plain- 
tiff,   which    will    preclude    a    recovery 
for  an  injury  sustained  by  him,   must 
be    some    act    or    conduct    having    the 
relation   to   that   injury  of   a  cause   to 
the  effect  produced  by  it.     ...     A 
collateral   unlawful   act   not   contribut- 
ing  to   the   injury   will   not  bar   a   re- 
covery.     .      .      .      Plaintiff's    violation 
of  law  in  this  case  is  of  this  collateral 
character.      There   was   no    relation   of 
cause  and  effect  between  the  unlawful 
act    and    the    collision.      The    registra- 
tion  of    plaintiff's   automobile   was   of 

10 


no  consequence  to  defendant.  The  law 
providing  for  such  registration  was 
not  for  tiie  prevention  of  collisions 
and  had  no  tendency  to  prevent  col- 
lisions. There  is  no  pretense  that 
the  registration  of  plaintiff's  automo-- 
bile  would  have  had  any  tendency  to 
prevent  this  collision.  Plaintiff's 
failure  to  obey  the  law  in  no  way  con- 
tributed to  his  injury  and  could  not 
V)ar  his  right  of  recovery." 

Missouri. — Luckoy  v.  Kansas  City, 
169  Mo.  App.  666,  155  S.  W.  873; 
Dixon  V.  Boeving  (Mo.  App.),  208  S. 
W.   279. 

Pennsylvania. — Yeager  v.  Winston 
Motor  Carriage  Co.,  53  Pa.  Super.  Ct. 
202. 

Ehode  Island. — Marquis  v.  Messier, 
39  R.  I.  563,  99  Atl.  527. 

Vermont. — Gilman  v.  Central  Ver- 
mont Ry.  Co.,  107  Atl.  122. 

Virgini<i. — Southern  Ry.  v.  Voug- 
hans  Adm'r,  118  Va.  692,  88  S.  E.  305, 
L.  R.  A.  1916  E.  1222. 

Washington. — Switzer  v.  Sherwood, 
80  Wash.  19,  141  Pac.  181,  wherein 
it  was  said :  * '  Had  the  respondent 
violated  some  part  of  the  regulative 
part  of  the  statute,  and  his  injury 
had  resulted  therefrom,  unquestion- 
ably he  could  not  recover,  regardless 
of  the  negligence  of  the  appellants, 
as  long  as  such  negligence  was  not 
wanton.  But  the  violation  of  the 
revenue  part  is  an  offense  against  the 
State,  solely,  and  it  alone  may  en- 
force the  penalties.  In  other  words, 
before  the  violation  of  the  statute  by 
the  person  injured  will  constitute  a 
defense  to  the  negligent  act  of  the 
person  injuring  him,  there  must  be 
shown  some  causal  connection  be- 
tween the  act  involved  in  the  viola- 
tion of  the  statute  and  the  act  caus- 
ing the  injury." 


146 


The  Law  of  Automobiles. 


tered  machine  will  not  be  established  solely  on  that  ground.^^ 
Clearly,  therefore,  the  failure  of  <the  owner  to  register  the 
machine  will  not  bar  the  remedy  of  one  riding  therein  as  a 
passenger  or  guest.^^ 

Sec.  127.  Effect  of  non-registration  in  actions  for  injuries  — 
burden  of  proof. 

In  an  action  by  the  owner  or  occupant  of  an  automobile  to 
recover  for  injuries  alleged  to  be  due  to  the  negligence  of  the 
defendant,  the  plaintiff  is  not  required  to  show  that  the  auto- 
mobile was  duly  registered  according  to  law.  This  is  a 
matter  of  defense,  'the  burden  of  establishing  which  rests 
■upon  the  defendant.^^  Although,  under  the  Massachusetts 
law  declaring  that  no  person,  except  as  therein  provided,  shall 
•operate  an  automobile  upon  a  public  highway  unless  licensed 
BO  to  do,  and  unless  the  automobile  is  registered  under  the 
act,  a  person  without  a  license  so  operating  an  unregistered 
automobile  would  not  be  a  traveler  except  as  a  violator  of  the 
law,  and  could  not  recover  from  the  town  for  a  defect  in  the 


Wisconsin. — Derr  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  163  Wis.  234,  157  N.  W. 
753.  "We  find  nothing  in  these  stat- 
utes to  indicate  that  the  legislature  in- 
tended to  deprive  a  person,  who  is  in- 
jured while  driving  an  unregistered  car 
on  a  highway,  of  the  protection  of  the 
law  that  is  accorded  to  other  travelers 
under  the  same  circumstances.  To  bar 
such  an  injured  person  from  invoking 
his  rights  of  a  traveler  on  the  high- 
way, it  must  appear  that  his  violation 
of  the  law  was  a  proximate  cause  of 
the  injury  suffered.  No  such  relation- 
ship exists  here.  The  plaintiff's  viola- 
tion of  law  had  no  proximate  casual 
relation  as  defined  in  the  law  of  negli- 
gence, and  hence  in  no  way  contributed 
to  cause  the  injury."  Derr  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  163  Wis.  234,  157 
N.  W.  753. 

66.  Lindsay  v.  Cecchi,  3  Boyee 
(Del.)  133,  80  Atl.  523;  Hyde  v.  Me- 
Creery,  145  N.  Y.  App.  Div.  729,  130 
N.  Y.  Suppl.  269;  Black  v.  Moree,  135 


Tenn.  73,  185  S.  W.  682.  Mumme  v. 
Sutherland  (Tex.  Civ.  App.),  198  S. 
W.  395.  See  also  Brovm  v.  Chevrolet 
Motor  Co.,  39  Cal.  App.  738,  179  Pac. 
697 ;  Dervin  v.  Frenier,  91  Vt.  398,  100 
Atl.  760. 

67.  Hiues  v.  Wilson  (Ga.  App.),  102 
S.  E.  646;  Chambers  v.  Minneapolis, 
etc.,  Ey.  Co.,  37  N.  Dak.  377,  163  N.  W. 
824.  See  also,  Godfrey  v.  Cooper,  46 
O.  L.  R.  (Canada)  565. 

68.  Conroy  v.  Mather,  217  Mass. 
91,  104  N.  E.  487;  Dean  v.  Boston 
Elevated  Railway  Co.,  217  Mass.  495, 
105  N.  E.  616;  Doherty  v.  Ayer,  197 
Mass.  241,  83  N.  E.  677,  14  L.  R.  A. 
(N.  S.)  816,  125  Am.  St.  Rep.  355; 
Shaw  V.  Thielbahr,  82  N.  J.  L.  23,  81 
Atl.  4-97;  Lyons  v.  Jordan,  117  Me. 
117,  102  Atl.  976. 

A  complaint  need  not  allege  in  a 
common  law  action  against  the  op- 
erator of  an  automobile  that  it  was 
registered  under  the  statute.  McNeil 
v,  Webeking,  66  Fla.  407,  63  So.  728. 


LiCENSINC;    AND    REGISTRATION.  147 

road,  yet  proof  that  a  jjersoii  is  so  licensed  and  that  his  auto- 
mobile is  registered  is  not  a  condition  precedent  to  his  re- 
covery for  damages  caused  by  a  defect  in  a  road,  but  it  is  a 
matter  of  defense  to  show  a  failure  to  comply,  since  presump- 
tions both  of  law  and  fact  are  in  favor  of  innocence,  and 
where,  one  would  avoid  liability  on  .the  ground  of  a  violation 
of  law  by  the  plaintiff,  he  must  prove  the  violation.''^  And 
in  an  action  against  a  street  railway  company  for  injury  to 
the  occupan'ts  of  an  automobile  struck  by  one  of  its  cars,  the 
burden  of  proof  is  sustained  by  the  prodliction  in  court  of 
public  records  kept  by  a  State  highway  commission  showing 
that  the  automobile  was  unregistered  at  the  time  of  the  in- 
jury, which  records  are  not  attacked  by  the  plaintiff.'"' 

Sec.  128.  Certificate  as  evidence  of  ownership. 

Under  a  statute  requiring  the  owner  of  an  automobile  to 
tile  in  the  office  of  the  Secretary  of  State  a  statement  of  his 
name  and  address,  together  with  a  brief  descripftion  of  every 
such  vehicle  owned  by  him,  and  requiring  him  to  obtain  from 
such  official  a  numbered  certificate  which  shall  contain  the 
name  of  tbe  owner  of  such  vehicle  and  tha^t  he  has  registered 
in  accordance  with  the  law,  the  certificate  so  issued  is  prima 
facie  evidence  of  ownership  and  is  sufficient  to  sustain  a  ver- 
dict against  such  person  for  injuries  caused  by  the  automo- 
bile unless  contradicted  by  competent  evidence.''^    Where  a 

69.  Doherty  v.  Inhabitants  of  Ayer,  A  certified  copy  of  the  application 
197  Mass.  241,  83  N.  E.  677,  14  L.  for  a  State  license  may  be  received 
R.  A.  (N.  S.)  816;  Feeley  v.  City  of  on  the  issue  of  the  ownership  of  an 
Melrose,  205  Mass.  329,  91  N.  E.  306,  automobile,  although  the  application 
27  L.  R.  A.  (N.  S.)  1156,  137  Am.  v  as  not  verified  as  required  by  the  law. 
St.  Rep.  445.  See  also  Dean  v.  Bos-  Windham  v.  Newton,  200  Ala.  258,  76 
ton   Elevated    Railway  Co.,   217    Mass.  So.  24. 

495,  105  N.  E.  616.  In   New    York    it    has   been   decided 

70.  Dean  v.  Boston  Elevated  Rail-  that  proof  that  a  license  number  on 
way  Co.,  217  Mass.  495,  105  N".  E.  an  automobile  was  registered  in  the 
616.  office  of  the  Secretary  of  State  in  the 

71.  Delano  v.  La  Bounty,  62  Wash.  name  of  the  defendant  is  competent 
595,  114  Pac.  434.  As  to  the  Ha-  evidence  of  ownership,  and  raises  a 
bility  of  owner  for  injuries  arising  prima  facie  case  that  the  automobile 
from  the  use  of  the  machine  by  an-  at  the  time  of  the  accident  was  being 
other,  see  chapter  XXIII.  operated    either   by   the   owner   or   his 


148  The  Law  of  Automobiles. 

statute  simply  provides  that  for  "the  purposes  oi'  the  issuance, 
transfer  and  revocation  of  certificates  and  the  enforcement 
of  the  penal  provisions  of  the  act,  automobiles  shall  ])e  identi- 
fied iby  their  register  numbers,  'and  their  owner  or  owners 
ascertained  from 'the  certificate,  :the  common  law  controls  and 
there  is  no  presumption  from  a  person's  mere  physical  pos- 
session and  operating  of  an  automobile  that  he  is  the  owner, 
or  the  servant  or  agent  of  the  owner.  Such  person  may  have 
hired  or  borrowed  it  or  have  wrongfully  appropriated  it  to 
his  own  use,  and  in  either  everit  an  owner  would  not  be  charge- 
able for  the  misconduct  or  negligence  of  such  person  in  operat- 
ing rt.'^  It  is,  however,  held  that  a  li(?ense  tag,  known  as  a 
dealer's  -tag,  issued  and  accepted  at  a  lower  rate  than  an 
ordinary  license  and  upon  condition  that  "it  should  not  be 
used  for  any  other  purpose  'than  tes'ting  or  demonstrating 
the  vehicle  to  a  prospective  purchaser,  or  in  removing  the 
same  from  place  to  place  for  the  purpose  of  sale,"  is  prinm 
facie  evidence  that,  ^at  the  time  of  an  accident,  either  the 
dealer  or  someone  acting  under  his  authority  was  operating 
the  car,  and  he  has  :the  burden  of  showing  that  it  was  not  so 
operated.'^* 

servant.      The   court   said   that  it   was  Div.  522,  130  N.  Y.  Suppl.  473.     In  an 

well  settled  in  that  State  that  owner-  action    for    an    injury   to    an    automo- 

ship    implies    possession    and    control,  bile  it  is  decided  that  testimony  by  the 

and  that  proof  of  ownership  of  a  ve-  one  who  had  operated  the  car  as  chauf- 

hicle    makes    out    a    prima    facie    case  feur   identifying   it  should   not   be   ex- 

against    the    defendant    owner    in    an  eluded   by   the   mere   fact   that  he   did 

action    to    recover    damages    for    inju-  not  recall  the  license  number.     Renault 

ries  sustained  through  the  negligent  use  Taxi  Service  v.  Park  Carriage  Co.,  125 

thereof,    as   it   will   be   presumed  that  N.  Y.  Suppl.  518. 

the    owner    was,    either    in    person    or  72.  Tromley    v.    Stevens-Duryea    Co., 

through    his   agent,    in    control   of   the  206  Mass.  516,  92  N.  E.  764. 
vehicle    at    the    time    of    the    accident.  73.  Haring  v.   Connell,   244   Pa.   439, 

McCann   v.    Davison,    145    N.   Y.   App.  90  Atl.  910. 


Public  Cauui.uik  for  Hiui-:,  Jitneys,  Etc.  149 

CHAPTER  IX. 

PUBLIC  CARRIAGE  FOR  HIRE,  .TITNEYS,  TAXICABS,  ETC. 

Si:CTiON  129.  Scope  of  chapter. 

130.  Definitions. 

131.  Status  of  carriages  for  hire— jitney. 

132.  Status  of  carriages  for  hire — taxicab. 

133    Status  of  carriages  for  hire— sight-seeing  automobile. 

134.  Status  of   carriages   for   hiro-furnishing   of   cars   from   garage   on 

order. 
135    Governmental  regulation  of  carriage  for  hire— in  general. 
13(5.  Governmental   regulation  of  carriage  for  hiro-greater  power  than 

over  other  classes  of  vehicles. 

137.  Governmental  regulation  of  carriage  for  hire-discrimination. 

138.  Powers  of  municiplies— in   general. 

139    Powers  of  municipalities— abrogation   of  municipal  powers. 

140.  Powers  of  municipalities-reasonableness  of  municipal  regulation. 

141.  Powers  of  municipalities— enactment  of  ordinance. 

142.  Powers  of  municipalities— territorial   limits. 

143.  State  regulatory  commissions. 

144.  Licenses — in  general. 

145.  Licenses — application  to  vehicles. 

146.  Licenses— nature  of  license. 
'          147.  Licenses — license  fees. 

148.  Licenses— conflict  of  State  and  municipal  licensing  systems. 

149.  Licenses — plying  for  hire. 

150.  Licenses— effect  of  failure  to  have  license. 

151.  Licenses— transfer  of  license. 

152.  Licenses — licensing  of  chauffeurs. 

153.  Exclusion  from  streets. 

154.  Restriction  to  certain  streets. 

155.  Bonds— power  to  require  proprietor  to  give  bond. 

156.  Bond.s— inability  to   furnish  bond. 

157.  Bonds — character  of  sureties 

158.  Bonds— extent  of  surety's  lia])ility. 

159.  Bonds— liability  for  accident  outside  of  municipality. 

160.  Hack  stands— in  general 

161.  Hack  stands— sight-seeing  automobiles. 

162.  Hack  stands — taxicab  service  for  hotel. 

163.  Hack  stands— soliciting  passengers. 

164.  Routes  and  schedules. 

165.  Punishing  passenger  for  failure  to  pay  fare. 

166.  Taximeters. 

167.  Rate  of  fare. 

168.  Miscellaneous  regulatory  matters. 

169.  Liability  for  injury  to  passenger— in  general. 

170.  Liability  for  injury  to  passenger— assault  on  passenger. 


150  The  Law  of  Automobil?]S. 

Section  171.  Liability  for  conduct  of  driver. 

172.  Imputation  of   negligence   of   driver   to  passenger. 

173.  Eights  of  proprietor  of  vehicle. 

Sec.  129.  Scope  of  chapter. 

It  is  the  purpose  of  this  chapter  to  -contain  a  discussion  of 
cei'tain  matters  which  relate  exclusively  to  vehicles  used  for 
public  hire.  It  includes  jitneys,  taxioabs,  omnibuses,  and  ,all 
other  vehicles  which  are  used  for  the  general  transportation 
of  passengers  for  a  compensation.  Such  subjects  as  the 
governmental  regulation  of  such  vehicles,  their  status,  and  the 
liability  of  their  proprietors  for  injuries  to  passengers,  are 
covered  herein,  but  the  general  powers  of  the  State  and  muni- 
cipal corporations  to  regulate  all  kinds  of  vehicles,  is  the 
subject  of  discussion  in  other  chapters.^  While  the  liability 
for  injuries  to  passengers  is  treated  in  this  chapter,  the  lia- 
bility to  other  travelers  such  .as  pedestrians,^  cyclists,^  and 
persons  in  other  vehicles,*  will  be  found  in  other  parts  of  this 
work.  So,  too,  resource  to  other  chapters  should  be  made  for 
questions  arising  out  of  the  frightening  of  horses,^  and  col- 
lisions with  street  railway^  and  railroad  cars."'  Another 
chapter  is  devoted  to  the  questions  which  arise  out  of  the 
private  hire  of  motor  vehicles.' 

Sec.  130.  Definitions. 

The  term  ''public  automobile"  means  an  automobile  en- 
gaged in  the  service  of  the  public  as  a  common  carrier;  not 
one  that  is  used  by  the  government  in  some  one  of  its  branches 
or  departments,  but  a  motor  vehicle  which  carries  the  public 
for  hire,  like  any  other  common  carrier.  The  term  includes 
t<a:xicabs,  automobile  bus  or  stage  lines,  and  sightseeing  auto- 
mobiles. Besides  these,  there  are  a  number  of  automoblile 
lines  that  make  a  business  of  transporting  freight  between 
points  in  the  United  States. 

1.  See  chapters  V  and  VI.  5.  Chapter  XX. 

2.  Chapters  XVII  and  XVIII.  6.  Chapter  XXII. 
8.  Chapter  XIX.  7.  Chapter  XXI. 
4.  Chapter  XVI.  8.  Chapter  X. 


Public  Carriage  for  Hire,  Jitneys,  Etc.  151 

A  "jitney"  has  been  defined  as  **a  self-proijelled  vehicle, 
other  than  a  street  car,  traversing  the  public  streets  between 
certain  definite  points  or  termini,  and  as  a  common  carrier 
conveying  passengers  at  la  five  cent  or  some  small  fare,  be- 
tween such  termini  or  intermediate  points,  and  so  held  out, 
advertised  and  announced."  ^  And  in  some  regulations  rela- 
tive to  jitneys,  they  are  classed  and  defined  as  common  car- 
riers of  passengers.^** 

The  term  ''taxicab"  is  a  coined  name  "to  describe  a  con- 
veyance similar  to  a  hackney  ^carriage  by  electric  or  steam 
power,  and  held  for  public  hire  at  designated  places,  subject 
to  municipal  control.  "^^  A  public  hack  ordinance  which  de- 
clares "Any  vehicle  that  has  a  taxicab  meter  affixed  and  uses 
the  streets  and  avenues  of  the  city  of  New  York  for  'the  pur- 
pose of  carrying  passengers  for  hire  shall  be  deemed  a  public 
hack  and  licensed  under  this  ordinance,"  is  constitutional.^^ 
There  can  be  no  exclusive  proprietary  right  in  the  use  of  the 
word  "taxicab,"  no  matter  who  coined  the  word.  The  w^ord 
"taxicab"  is  public  property;  it  is  descriptive  of  a  chattel 
and  is  the  commonly  used  name  by  which  automobile  hacks 
possessing  fare  registering  machines  are  known  to  the  public. 
Any  person  or  corporation,  conducting  a  hacking  business 
and  using  taximeters  on  them,  possesses  the  right  to  call  the 
vehicles  "taxicabs,"  and  advertise  the  service  as  conducted 
by  the  use  of  "taxicabs."  The  fact  that  the  word  has  been 
registered  as  a  trademark  does  not  alter  the  case.  With  as 
much  reason  could  a  manufacturer  of  automobile  trucks  call 
his  vehicles  "auto  trucks,"  and  claim  exclusive  rights  to  'the 
use  of  the  abbreviated  word.^' 

9.  City  of  Memphis  v.  State,  133  12.  Mason-Seaman  Transp.  Co.  v. 
Tenn.  83,  179  S.  W.  651.                                   Mitchell,    89    Misc.    (N.    Y.)    230,    153 

"A     jitney     is     an     automobile."—  N.  Y.  Suppl.  461. 
Ex  parte  Bogle,  78  Tex.  Cr.  1,  179  S.  13.  Right  to  use  word  "  taxicab."— 

W,   1193.     See  also  Jitney  Bus  Assoc.  No  sign,  symbol,  or  form  of  words  can 

of  Wilkesbarre  v.  Wilkcsbarre,  256  Pa.  be  appropriated  as  a  valid  trade-mark 

St.  462,  100  Atl.  954.  which,   from   the  fact  conveyed   by  its 

10.  Ex  parte  Bogle,  78  Tex.  Cr.  1,  primary  meaning,  others  may  employ 
179  S.  W.  1193.  with  equal  truth  and  with  equal   right 

11.  Donnelly  v.  Philadelphia  &  for  the  same  purpose.  See  vol.  23  Am. 
Eleading  Co.,  53  Pa.  Super.  Ct.  78.  &  Eng.  Encyc.  Law  (2d  Ed.),  p.  359. 


152  The  Law  of  Automobiles. 

Sec.  131.  Status  of  carriages  for  hire  —  jitney. 

A  conmion  carrier  of  property  is  defined  .as  "one  who,  by 
virtue  of  his  business  or  calling,  undertakes,  for  compensa- 
tion, to  transport  personal  property  from  one  place  to  an- 
other, either  by  land  or  water,  and  deliver  the  same,  for  all 
such  as  may  choose  to  employ  him,  and  every  one,  who  under- 
takes to  carry  and  deliver,  for  compensation,  the  goods  of  all 
persons  indifferently,  is,  as  to  liability,  to  be  deemed  a  com- 
mon carrier.  One  holding  out  to  the  public  as  ready  to  under- 
take for  hire  the  transportation  of  goods,  and  so  inviting  cus- 
tom of  the  public,  is  a  common  carrier. ' ' "  Common  carriers 
of  passengers  are  those  who  undertake  to  carry  all  personis 
indifferently  for  pass'age,  so  long  as  there  is  room  and  there 
is  no  legal  excuse  for  refusing.  To  constitute  one  a  common 
carrier  of  passengers  it  is  necessary  that  he  hold  himself  out 
to  the  public  as  such.  The  distance  to  he  traveled  by  the  pas- 
senger, or  his  destination,  do  not  affect  the  question  as  to 
whether  the  carrier  is  or  is  not  a  conunon  carrier  of  passen- 
gers.^^ But  one  carrying  a  certain  number  of  co-employees  to 
and  from  work  each  day  for  an  agreed  compensation,  and 
carrying  no  other  persons,  is  not  a  "common  carrier. "^"^ 

Within  such  definition,  a  jitney  is  clearly  a  common  carrier 
of  passengers.^^  And,  in  some  jurisdictions,  regulations  gov- 
erning the  use  of  jitneys  expressly  define  a  jitney  as  a  common 
carrier  of  passengers. 

Sec.  132.  Status  of  carriages  for  hire  —  taxicab. 

A  hackney  coach  is  a  term  long  used  in  England,  meaning 
a  public  'Carriage  for  hire  which  stands  in  the  streets  and  also 
those  kept  for  hire  in  stables.  The  test  in  determining  the 
character  of  the  particular  vehicle  engaged  in  transportation 
is,  whether  the  carriage  is  held  out  for  the  general  accommo- 
dation of  the  public.^^     A  taxicab  is  held  to   constitute   a 

14.  1  Moore  on  Carriers,  19.  18.  Hackney     carriages     and     public 

15.  2  Moore  on  Carriers,  944.  conveyances. — In   England   it   has   been 

16.  Towers  v.  Wildason  (Md.),  109  lield  that  an  ordinary  omnibus  running 
Atl.  471.  along  a  fixed  route  is  a  hackney  car- 

17.  Hutson  V.  DesMoines,  176  Iowa,  riage,  within  the  meaning  of  statutes 
455,  156  N.  W.  883.                       .  and  ordinances.     See  Hickman  v.  Birch, 


Public  Carriage  for  Hiric,  Jitneys,  Etc 


lo8 


hackney  coach.^^  Lilve  other  hackney  coaches  or  public  hacks, 
it  is  classed  as  a  common  carrier  of  passengers,-"  and  has  the 
rights  of  common  carriers  and  is  subject  to  public  regulation 
as  such.-^  To  fasten  upon  the  propi^ietor  of  a  taxicab  the 
char'acter  of  a  public  carrier,  it  is  not  material  whether  he 
ply  his  vocation  within  the  limits  of  a  town  or  from  one  town 
to  another." 

A  taxicab  is  not  exempt  property  under  a  statute  exempt- 
ing, ''Two  horses,  tAvo  oxen,  or  two  mules,  and  their  harnesses, 
one  cart  or  wagon,  one  dray  or  truck,  one  coupe,  one  hack  or 
carriage,  for  one  or  two  horses,  by  the  use  of  which  a  cart- 
man,  drayman,  truckman,  liuckster,  peddler,  hackman,  team- 
ster or  other  laborer  habitually  earns  his  living."-^ 


24  Q.  B.  ]).  172.  But  a  hackney  coach 
is  not  a  wagon,  according  to  decisions 
in  California  and  Nevada,  see  Quigley 
V.  Gorham,  5  Cal.  418,  63  Am.  Dec. 
139;  Edgecorab  v.  His  Creditors,  19 
Nev.  149,  154,  7  Pac.  533.  It  has  also 
been  held  in  the  State  of  New  York 
that  a  hotel  omnibus  conveying  guests 
to  and  from  a  station  free  of  charge 
is  not  a  ' '  public  conveyance. ' '  See 
City  of  Oswego  v.  Collins,  38  Hun 
(N.  Y.)  17.  In  Allen  v.  Tunbridge, 
L.  R.  6,  C.  P.  481,  it  was  held  that  a 
brougham,  the  owner  of  which,  by 
agreement  with  a  railway  company,  at- 
tended the  company's  station  for  the 
conveyance  of  passengers,  was  a  hack- 
ney carriage. 

In  the  class  of  common  carriers  of 
passengers  are  included  not  only  rail- 
roads, horse,  dummy,  electric,  and 
cable  street  railways,  and  steamboat 
companies,  but  proprietors  of  stage 
coaches,  city  omnibus  lines,  hacknien, 
and  ferrymen,  including  the  proprietors 
of  taxicabs  and  other  motor  vehicles 
engaged  in  public  transportation.  See 
fi  Am.  &  Eng.  Encyc.  of  Law  (2d  Ed.), 


184.  The  taxicab  is  a  common  earlier, 
and  because  it  is  a  common  carrier, 
there  are  important  rights  and  liabili- 
ties connected  with  its  operation. 

19.  Gassenheimor  v.  District  of  Co- 
lumbia, 26  App.  Cas.   (D.  C.)   557. 

20.  Poland  v.  Gay,  201  111.  App.  359; 
McKellar  v.  Yellow  Cab  Co.  (Minn.), 
181  N.  W.  348;  Van  Hoeffen  v.  Colum- 
bia Taxicab  Co.,  179  Mo.  App.  591.  163 
8.  W.  694;  Andor.son  v.  Fidelity  & 
Casualty  Co.,  228  N.  Y.  47.-.,  127  X.  E. 
584,  9  A.  L.  R.  1544,  affinuing,  Ander- 
son v.  Fidelity  &  Casualty  Co.,  183 
N.  Y.  App.  Div.  170,  reversing  100 
Misc.  411,  166  N.  Y.  Suppl.  640;  Prim- 
rose V.  Casualty  Co.,  232  Pa.  St.  210, 
81  Atl.  212;  Donnelly  v.  Philadelphia 
&  Reading  Co.,  53  Pa.  Super.  Ct.  78; 
State  V.  Jarvis,  89  Vt.  239,  95  Atl. 
541  ;  Allen  v.  City  of  Bellingham,  95 
Wash.  12,  163  Pac.  18:  Brown  Shoe 
Co.  V.  Hardin.  77  W.  Va.  611,  87  S.  E. 
1014. 

21.  Section   135. 

22.  Carlton  v:  Boudar,  118  Va.  521, 
88  S.  E.  174,  4  A.  L.  R.  1480. 

23.  Matter  of  Wilder,  221   Fed.  47/5. 


154  The  Law  of  Automobiles. 

Sec.  133.  Status  of  carriages  for  hire  —  sight-seeing  automo- 
bile. 

Sightseeing  automobiles  by  reason  of  the  services  offered 
and  rendered  are  to  be  regarded  as  common  carriers  and  owe 
to  the  public  the  same  degree  of  care  to  transport  them  in 
safety  as  any  other  common  carrier  of  passengers  owes. 


24 


Sec.  134.  Status  of  carriages  for  hire  —  furnishing  of  cars 
from  garage  on  order. 
The  business  of  a  garageman  furnishing  cars  from  his  place 
of  business  on  the  specific  order  of  a  customer,  is  different 
from  the  general  taxicab  or  jitney  business.  The  garageman 
in  such  a  case  is  not  deemed  to  be  a  common  carrier.^^  The 
business  of  furnishing  cars  for  hire,  however,  is  held  to  be  one 
which  is  subject  to  State  regulation. 


26 


Sec.  135.  Governmental  regulation  of  carriage  for  hire  —  in 
general. 
Under  its  police  power  of  regulation,  there  is  no  doubt  of 

the  general  power  of  the  State  and  municipal  corporations  to 
regulate  the  use  of  motor  vehicles  carrying  passengers  for  a 

compensation.^^    This  general  power  extends  to  the  regula- 

24.  McFadden  v.  Metropolitan  St.  waiting  station,  or  outlay,,  except  the 
Ry.  Co.,  161  Mo.  App.  552,  144  S.  W.  mere  cost  of  vehicles  and  their  opera- 
168,  holding  such  carriers  owe  to  their  tion.  No  doubt  persons  thus  operating 
passengers  the  highest  degree  of  care.  these    conveyances    for    hire    must    be 

25.  Terminal  Taxicab  Co.  v.  Kutz,  classed  and  are  common  carriers.  Being 
241  U.  S.  253,  36  S.  Ct.  583,  modify-  such,  they  are,  of  legal  necessity,  sub- 
ing  43  App.  D.  C.  120.  But  see  State  ject  to  regulation  and  control  as  are 
V.  Jarvis,  89  Vt.  239,  95  Atl.  541.  other    common    carriers    of    passengers 

26.  City  of  San  Antonio  v.  Besteire  for  hire."  Cesser  v.  City  of  Wichita, 
(Tex.  Civ.  App.),  209  S.  W.  472.  Ofi  Kans.  820,  153  Pac.  1194. 

27.  United  States.— Nolan  v.  Riech-  Maryland. — Smith  v.  State,  100  Atl. 
man,  225  Fed.  812.  778. 

Arkansas. — Willis     v.     City    of     Ft.  Massachusetts. —  Commonwealth       v. 

Smith,  121  Ark.  606,  182  S.  W.  275.  Slocum,  230  Mass.  180,  119  N.  E.  687. 

Kansas. — Desser  v.  City  of  Wichita,  Nevada. — Ex  parte  Counts,   39  Nev. 

96   Kans.   820,   153   Pac.    1194.      ''Jit-  61,  153  Pac.  93, 

neys    and    similar    vehicles    run,    not  New    Jersey. — Gillard    v.    Manufac- 

upon  tracks  laid  at  their  owner's  ex-  turers  Casualty  Ins.  Co.,   93   N.  .T.  L. 

pense,    but    upon    the    public    streets,  215,  107  Atl.  446. 

with  no  burden  of  providing  depots  or  New    York. — Mason-Seaman    Transp. 


Puiil.lC    CvUKIAdK     KOi;    jriUK,    JiTNEVS,    KtC. 


155 


tion  of  jitneys,-^  auto  busesj^"  taxicabs/"  and  other  forms  of 
vehicles  used   for   the  carriage   of   persons   for  hire.     The 


Co.  V.  Mitchell,  89  Misc.  2:^0,  153  N.  Y. 

Suppl.  461;  Yellow  Taxicab  Co.  v.  Gay 

iioi,  82  Misc.  94,  143  N.  Y.  Suppl.  279, 

aflfirmed    on    opinion    below,    159    App. 

Div.  893. 

OklahoDia. — Ex     parte     Mayes,      167 

Pae.  749. 

Oregon.—  Cummins      v.      .J  ones,      79 

Oreg.  376,  155  Pac.   171. 

Tea;a^.— Greene  v.  San  Antonio   (Civ. 

App.),  178  S.  W.  6;   Peters  v.  City  of 

San   Antonio    (Civ.   App.),    195    S.   W. 

989;   Ex  parte   Bogle,   78   Tex.   Cr.    1, 

179  S.  W.  1193;  Booth  v.  Dallas  (Civ. 

App.),  179  S.  W.  301;   Ex  parte  Parr, 

82  Tex.  Cr.,  525,  200  S.  W.  404. 

Vermont. — State    v.    Jarvis,    89    Vt. 

239,  95  Atl.  541. 

Washington. — Seattle  v.  King,  71 
Wash.    277,    133    Pac.    442;    State    v. 

Seattle    Taxicab    &    Transfer    Co.,    90 
Wash.    416,    156    Pae.    837;     State    v. 

Ferry  Line   Auto   Bus   Co.,   93    Wash. 

614,    161    Pac.    467;    Allen   v.   City   of 
Bellingham,    95    Wash.     12,    163    Pac. 

18;  Hatfield  v.  Lundin,  98  Wash.  657. 
168  Pac.  516. 

28.  United  States. — Nolan  v.  Biech- 
man,  225  Fed.  812;  Lutz  v.  City  of 
New  Orleans,  235  Fed.  978. 

Arlcansa.t. — Willis  v.  City  of  Ft. 
Smith,  121  Ark.  606,  182  S.  W.  275. 
"The  jitney  bus  business,  transport- 
ing people  for  hire,  for  a  uniform 
five-cent  fare,  in  low-priced  or  second- 
hand automobiles,  over  definite  routes 
in  cities  or  towns,  is  of  but  recent 
origin,  but  the  regulation  of  the  busi- 
ness followed  hard  upon  its  develop- 
ment by  acts  of  the  legislature  in 
Bome  instances  and  by  ordinances  of 
the  municipalities,  in  which  they  op- 
erated in  others."  Willis  v.  City  of 
Ft.  Smith,  121  Ark.  606,  182  S.  W. 
275. 

Georgia. — Hazelton    v.    City    of    At 


lanta,  144  (Ja.  775,  87  S.  E.  1043; 
Hazelton  v.  City  of  Atlanta,  147  Ga. 
207,  93  S.  E.  202. 

Iowa. — Hutson  v.  DcsMoines,  176 
Iowa,  455,  156  N.  W.  883. 

Lo^tisiana. — LeBlanc  v.  New  Or- 
leans, 138  La.  243,  70  So.  212;  New 
Oilcans  V.  Lc  Blanc,  139  La.  113,  71 
So.   248. 

Maryland. — Smith  v.  State,  130  Md. 
482,   100  Atl.   778. 

Nevada. — Ex  parte  Counts,  39  Nev. 
61,  153  Pac.  93. 

New  Jersey. — West  v.  Asbury  Park, 
89  N.  J,  L.  402,  99  Atl.  190. 

New  YorJc. — Public  Service  Cora'n, 
Second  Dist.  v.  Booth,  170  N.  Y.  App. 
Div.  590,  159  N.  Y.  Suppl.  140. 

Oregon. — Thielke  v.  Albee,  76  Oreg. 
449,  150  P.  854;  Cummins  v.  Jones, 
79  Oreg.  276,  155  Pac.  171. 

Pennsylvania. — Jitney  Bus  Assoc,  of 
VVilkesbarre  v.  Wilkesbarre,  256  Pa. 
St.  462,  100  Atl.  954. 

Tennessee. — City  of  Memphis  v. 
State,  133  Tenn.  83,  179  S.  W.  631,  L. 
R.   A.    1916   B.   1151. 

Texas. — Greene  v.  San  Antonio  (Civ. 
App.),  178  S.  W.  6;  Auto  Transit  Co. 
v.  City  of  Ft.  Worth  (Civ.  App.),  182 
S.  W.  685;  Peters  v.  City  of  San  An- 
tonio (Civ.  App.),  195  S.  W.  989;  City 
of  Dallas  v.  Gill  (Civ.  App.),  199  S. 
W.  1144;  Gill  v.  City  of  Dallas  (Civ. 
App.),  209  S.  W.  209;  Ex  parte  Bogle, 
78  Tex.  Cr.   1.  179  S.  W.  1193. 

Washington. — State  ex  rel.  Case  v. 
Howell,  85  Wash.  294,  147  Pac.  1159; 
State  v.  Seattle  Taxicab  &  Transfer 
Co.,  90  Wash.  416,  156  Pac.  837;  State 
V.  Ferry  Line  Auto  Bus  Co.,  93  Wash. 
614,  161  Pac.'  467;  Allen  v.  City  of 
Bellingham,  95  Wash.  12,  163  Pac.  18; 
Hadfield  v.  Lundin,  98  Wash.  657,  168 
Pac.  510;  Puget  Sound  Tract.  L.  &  P. 
Co.  v.  Grassmeyer,  102  Wash.  482,  173 


156 


The  Law  of  Automobiles. 


owners  of  silch  vehicles  are  classed  as  common  carriers,^^  and 
hence  are  under  the  same  governmental  control  as  other  car- 
riers of  passengers  for  hire.^-  Reasonable  regulations  rela- 
tive to  the  carriage  of  passengers  for  hire  in  motor  vehicles, 
do  not  constitute  a  faking  of  property  without  due  process  of 
law,  though  they  may  interfere  with  the  business  of  persons 
engaged  in  that  occupation.^^  The  fact  that  the  regulations 
have  a  tendency  to  give  street  railway  companies  a  monopoly 
of  the  transportation  of  passengers,  is  not  an  objection  to 
their  validity.^* 


Pac.  504;  State  ex  rel.  Shafer  v.  City 
of  Spokane,  109  Wash.  360,  186  Pac. 
864. 

West  Virginia. — Ex  parte  Dickey,  85 
S.  E.  781. 

29.  Ex  parte  Lee,  28  Cal.  App.  719, 
153  Pac.  992;  Booth  v.  Dallas  (Tex.  Civ. 
App.),  179  S.  W.  301;  Auto  Transit  Co, 
V.  City  of  Ft.  Worth  (Tex.  Civ.  App.), 
182  S.  W.  685;  State  v.  Ferry  Line 
Auto  Bus  Co..  99  Wash.  64,  168  Pac. 
893. 

30.  Sanders  v.  City  of  Atlanta,  147 
Ga.  819,  95  S.  E.  695;  Pugh  v.  City  of 
Des  Moines,  176  Iowa,  593,  156  N.  W. 
892;  Swann  v.  City  of  Baltimore,  132 
Md.  256,  103  Atl.  441;  Yellow  Taxicab 
Co.  V.  Gaynor,  82  Misc.  94,  143  N.  Y. 
Suppl.  279,  aflSrmed  on  opinion  below, 
159  App.  Div.  893;  Mason-Seaman 
Transp.  Co.  v.  Mitchell,  89  Misc.  (N. 
Y.)  230,  153  N.  Y.  Suppl.  461;  Ex 
parte  Par,  82  Tex.  Cr.  525,  200  S.  W. 
404;  Seattle  Taxicab  &  Tr.  Co.  v. 
Seattle,  86  Wash.  594,  150  Pac.  1134. 

31.  Sections  131-134. 

32.  Desser  v.  City  of  Wichita,  06 
Kan.  820,  153  Pac.  1194. 

33.  Auto  Transit  Co.  v.  City  of  Ft. 
Worth  (Tex.  Civ.  App.),  182  S.  W.  685; 
Gill  V.  City  of  Dallas  (Tex.  Civ.  App.), 
209  S.  W.  209 ;  State  v.  Seattle  Taxicab 
&  Transfer  Co.,  90  Wash.  416,  156  Pac. 
837;  Hadfield  v.  Lundin,  08  Wash.  657, 
168  Pac.  516.  '*The  principal  conten- 
tion, however,  is  based  on  the  other  jii  n- 


visions  of  the  Constitutions  cited,  which 
provide  that  no  person  shall  be  deprived 
of  his  property  without  due  process  of 
law.  The  courts  have  never  attempted 
to  define  with  precision  the  meaning  of 
the  phrase  'due  process  of  law,'  or  its 
equivalent  from  the  Magna  Charta,  'the 
law  of  the  land.'  This,  not  because  of 
uncertainty  as  to  the  meaning,  but 
rather  because  of  tlie  inability  to  en- 
compass within  the  brief  terms  neces- 
sary to  a  definition  all  of  the  multifari- 
ous matters  to  which  the  phrase  is  ap- 
plicable. Broadly  speaking,  its  purpose 
is  to  protect  the  individual  against  arbi- 
trary action  on  the  part  of  the  State; 
that  is,  to  secure  the  citizen  against 
any  arbitrary  deprivation  of  his  rights 
relating  to  his  life,  liberty,  or  property. 
As  applied  to  legislative  enactments,  it 
was  not  intended  to  subject  them  to  the 
opinion  of  the  court  as  to  their  merit 
or  wisdom,  but  only  in  so  far  as  to  as- 
certain whether  by  the  terms  of  the 
enactment  the  individual  citizen  af- 
fected is  deprived  of  some  right  ex- 
pressed in  the  fundamental  law,  or 
which  'inhere  in  the  very  idea  of  free 
government,  whicli  no  member  of  the 
Union  may  disregard,  as  that  no  man 
shall  be  condemned  in  his  person  or 
property  without  due  notice  and  oppor- 
tunity to  be  heard  in  his  defense.'  " 
State  v.  Seattle  Taxicab  &  Transfer  Co., 
00  Wash.  416,  156  Pac.  837. 

34.  Ex   parte   Bogle,    78    Tex.   Cr.    1, 


Public  Caiuuack  I'oit  TTire,  Jitnkys,  Etc.  157 

Sec.  136.  Governmental   regulation   of   carriage   for   hire  — 
greater  power  than  over  other  classes  of  vehicles. 

The  {State  and  iiiuiiicipal  power  oi"  regulation  is  greater 
over  vehicles  using  the  public  streets  to  convey  passengers 
for  hire,  than  over  vehicles  used  for  the  business  or  pleasure 
jjurposes  of  the  driver.  Regulations  wliich  might  be  an  un- 
reasonable infringement  of  the  connnon  right  to  use  the  high- 
ways in  the  one  case,  would  be  proper  when  applying  to  one 
seeking  to  use  the  highways  as  a  carrier  of  passengers.^  This 
was  well  explained  in  one  case,""'  wherein  it  was  said:  ''The 
right  of  a  citizen  to  travel  upon  a  highway  and  transport  his 
property  thereon,  in  the  ordinary  course  of  life  and  business, 
differs  radically  and  obviously  from  that  of  one  who  makes 
the  highway  his  i)lace  of  business  and  uses  it  for  private  gain, 
in  the  running  of  a  stage  coach  or  omnibus.  The  former  is 
the  usual  and  ordinary  right  of  a  citizen,  a  common  right,  a 
right  common  to  all ;  while  the  latter  is  special,  unusual,  and 
{extraordinary.  As  to  the  former,  the  extent  of  legislative 
power  is  that  of  regulation;  but,  as  to  the  latter,  its  power  is 
broader.  The  right  may  be  w^holly  denied,  or  it  may  be  per- 
mitted to  some  and  denied  to  others,  because  of  its  extra- 

179   S.    W.    1193,  wherein   it  was   said:  so   thau   any  other   like   hazardous   and 
"His   last   contention   is   that,   the   ar-  dangerous  business." 
])itrary  power  preceding  the  issuance  of  Injunction    by    street    railway    com 
licen.se  and  the  power  reserved  by  the  pany. — The  operation  of  a  jitney  in  de- 
city  to  cancel  it  and  throw  him  out  of  fiance  of  lawful  regulations  may  consti- 
business   at   any   time   discourages   the  tute  a  nuisance,  and   a  street  railway 
investment   necessary  to   go  into   busi-  company  injured  by  the  wrongful  acts 
ness,   and   tends   to,  and   does,   prevent  may    procure     an     injunction.       Puget 
competition  and   results  in  building  up  Sound  Tract.  L.  &  P.  Co.  v.  Grassmeyer, 
a  monopoly  in  behalf  of  the  street  car  102  Wash.  482,  173  Pac.  504.     See  also, 
company.     We  think  it  unnecessary  to  to  same  effect:     United  Traction  Co.  v. 
discuss  this  general  attack  of  the  ordi-  Smith,   115  Misc.  73.     But  see.  Public 
nance.    We  see  nothing  in  it  that  would  Service  Ry.  Co.  v.  Reinhardt  (N.  J.  Eq.) 
sustain    the    relator's    contention.      On  112   Atl.   850,   holding  that  an   injunc- 
the   contrary,  we  see   from  it  only  the  tion  would  not  be  granted  at   the  suit 
proper  and  reasonable  regulation  of  the  of  the  street  railway, 
business   and   the   proper    requisites   of  35.  LeBlanc  v.  New  Orleans,  138  La. 
persons  only  who  should  be  authorized  243.  70  So.  212;  Cummins  v.  Jones,  79 
by   the   city   to   operate  jitneys   on    its  Oreg.   276,   155   Pac.   171. 
streets.     It  may  be  that  some  persons  36.  Ex  parte  Dickey,  76  W.  Va.  576, 
would  experience  some  difficulty  in  com-  85  S.  E.  781,  L.  R.  A.  1915  F.  840. 
plying  with  the  ordinance,  but  no  more 


158  The  Law  of  Automobiles. 

ordinary  nature.  This  distinction,  elementary  and  funda- 
mental in  character,  is  recognized  by  all  the  authorities.  A 
distinction  must  be  made  between  the  general  use,  which  all 
of  the  public  are  permitted  to  make  of  the  street  for  ordinar}' 
purposes,  and  the  special  and  peculiar  use,  which  is  made  by 
classes  of  persons  in  the  pursuit  of  their  occupation  or  busi- 
ness, such  as  hackman,  drivers  of  express  wagons,  omnibuses, 
etc."^^  Thus  a  larger  license  Tee  may  be  imposed  on  a  ma- 
chine used  for  hire  than  is  charged  against  other  classes  of 
vehicles.^^  And  jitneys  may  be  excluded  from  certain  streets 
in  a  municipality  when  such  a  regulation  would  be  unreason- 
able as  to  pleasure  oars.^^  So,  too,  municipalities  may  have 
greater  control  over  vehicles  used  for  hire  than  over  others. 
And  the  fact  that  there  is  greater  regulatory  power  over  car- 
riages used  for  hire,  may  justify  a  regulation  prohibiting  the 
granting  of  licenses  for  such  machines  to  aliens.'** 

Sec.  137.  Governmental  regulation  of  carriage  for  hire  —  dis- 
crimination. 
Jitneys  used  for  the  carriage  of  passengers  for  hire  may 
constitute  a  proper  class  for  regulation,  and  the  fact  that  a 
regulation  does  not  apply  to  vehicles  propelled  by  other  forms 
of  power  or  to  motor  vehicles  used  for  other  purposes,  does 
not  constitute  special  or  class  legislation.*^    As  was  said  in 

37.  See  also,  to  the  same  effect:  "It  is  next  contended  that  the  ordi- 
Hutson  V.  Des  Moines,  176  Iowa,  455,  nance  is  discriminatory  class  legislation 
156  N.  W.  883 ;  Hadfield  v.  Lundin,  98  in  restraint  of  trade  and  denying  to  the 
Wash.  657,  168  Pac.  516;  State  ex  rel.  operators  of  jitneys  and  jitney  busses 
Shafer  v.  City  of  Spokane,  109  Wash.  the  equal  protection  of  the  law  con- 
360    186  Pae.  864.  trary  to  provisions  of  the  Constitution. 

38.  Jackson  v.  Neff,  64  Fla.  326,  60  It  is  insisted  that  the  jitneys,  as  opera- 
So.  350.     See  also  section  112.  ted,  are  not  more  dangerous  than  taxi- 

39.  Peters  v.  San  Antonio  (Tex.  Civ.  cabs,  or  other  motor  vehicles  used  and 
App.),  195  S.  W.  989;  Gill  v.  City  of  kept  for  hire,  and  that  they  should  no 
Dp^as  (Tex.  Civ.  App.),  209  S.  W.  209.  more  be  required  to  give  the  bond  than 

40    Morin  v.  Nunan,  91  N.  J.  L.  506,  such  vehicles   and  street  cars   operated 

103  Atl.  378.  upon  the  streets  of  the  city.     When  a 

41.  United  States. — Nolan   v.   Reich-  classification    of    subjects    is    made    by 

man,  225  Fed.  812;  Lutz  v.  City  of  New  legislation,  such  classification  must  rest 

Orleans,  235  Fed.  978.  on  some  substantial  difference  between 

Arkansas. — Willis     v.     City     of     Ft.  the  classes  created  and  others  to  which 

Smith,    121    Ark.   606,    182   S.  W.   275.  it  does  not  apply,  but,  where  the  stat- 


Public  Carriage  for  Hire,  Jitneys^  Etc. 


159 


one  case,^^  when  the  court  distinguished  the  jitney  from  other 
carriers,  "The  record  does  not  disclose  the  character  of  the 
business  conducted  by  the  other  kinds  of  common  carriers 


ute  or  ordinance  appears  to  be  founded 
upon  a  reasonable  basis  and  operates 
uniformly  upon  the  class  to  which  it  ' 
applies,  it  cannot  be  said  to  be  arbi- 
trary and  capricious."  Willis  v.  City 
of  Ft.  Smith,  121  Ark.  606.  182  S.  W. 
275. 

California. — Ex  parte  Cardinal,  170 
Cal.  519,  150  Pac.  348. 

Georgia. — Hazelton  v.  City  of  At- 
lanta, 144  Ga.  775,  87  S.  E.  1043. 

New  Jersey. — West  v.  Asbury  Park, 
89  N.  J.  L.  402,  99  Atl.  190.  "Auto 
busses  as  defined  in  the  act  differ 
.  .  .  from  street  railways  in  that  the 
latter  are  confined  to  a  certain  portion 
of  the  street  where  their  rails  are,  and 
cannot  by  varying  their  course  endanger 
life  or  limb  in  any  other  portion  of  the 
street,  and  run,  moreover,  on  a  way 
fitted  specially  for  their  purpose  at 
their  owu  expense,  while  auto  busses 
may  use  any  portion  of  a  way  provided 
at  public  expense.  These  differences 
are  necessary  and  inherent.  Other  dif- 
ferences exist  in  fact  to  the  common 
knowledge  of  all.  Street  railways  re- 
quire a  considerable,  often  a  very  large 
capital,  and  an  investment  in  fixed 
plant,  which  affords  at  least  some  se- 
curity for  the  payment  of  damages  for 
bodily  injury  or  death  incident  to  their 
operation.  The  owner  of  an  auto  bus 
need  own  nothing  else,  and  in  case  of 
injury  to  others  by  reason  of  his  negli- 
gence may  readily  remove  all  his  prop- 
erty from  the  jurisdiction  of  the  court. 
West  v.  Asbury  Park  (N.  J.),  99  Atl. 
190. 

New  Torlc. — Public  Service  Commis- 
sion V.  Booth.  170  N.  Y.  App.  Div.  590, 
159  N.  Y.  Suppl.  140;  Yellow  Taxicab 
Co.  V.  GajTior,  82  Misc.  (N.  Y.)  94, 
143  N.  Y.  Suppl.  279;  affirmed  on 
opinion  below,  159  App.  Div.  893. 


Oregon. — Thielkc  v.  Albce,  76  Oreg. 
449,  150  P.  854. 

Tennessee. — City  of  Memphis  v. 
State,  133  Tenn.  83,  179  S.  W.  631,  L. 
R.  A.   1916  B.  1151. 

Texas. — Greene  v.  San  Antonio  (Civ. 
App.),  178  S.  W.  6;  Ex  parte  Sullivan 
(Tex.  Cr.),  178  S.  W.  537;  Ex  parte 
Bogle,  78  Tex.  Cir.  1,  179  S.  W.  1193. 
"We  can  readily  understand  that 
greater  danger  may  be  caused  to  the 
public  by  the  operation  of  numerous 
motor  busses  continuously  throughout 
the  day,  over  and  along  crowded  streets 
filled  with  congested  traffic,  and  without 
limitation  as  to  the  street  or  streets,  or 
parts  thereof,  over  which  they  may 
operate,  than  from  the  operation  of 
taxicabs  and  other  rent  cars,  which  are 
required  to  occupy  a  fixed  place  or  stand 
when  not  in  operatiou,  and  which,  when 
transporting  passengers,  do  not  ordi- 
narilj'  run  over  the  streets  on  which  the 
heaviest  traffic  exists,  or  from  the  oper- 
ation of  a  street  railway  along  a  fixed 
track  and  on  steel  rails."  Auto  Transit 
Co.  V.  City  of  Ft.  Worth  (Tex.  Civ. 
App.),   182  S.  W.   685. 

Washington. — State  v.  Seattle  Taxi- 
cab  &  Transfer  Co.,  90  Wash.  416,  156 
Pac.  837;  Allen  v.  City  of  Bellingham, 
95  Wash.  12,  163  Pac.  18;  McGlothern 
V.  City  of  Seattle  (Wash.),  199  Pac. 
457.  "It  is  well  settled  that  the  equal 
protection  of  the  Fourteenth  Amend- 
ment to  the  Federal  Constitution  does 
not  take  from  the  state  the  right  or 
power  to  classify  the  subjects  of  legis- 
lation ;  it  is  only  arbitrary  and  un- 
reasonable classification,  classification 
as  to  which  there  is  no  just  difference 
or  distinction  between  the  class  affected 
and  others,  that  is  thus  prohibited. 
.Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S. 
571,  35  Sup.  Ct.  167,  59  L.  Ed.  364.    So 


160  The  Law  of  Automobiles. 

enumerated  by  the  appellant,  and,  of  course,  the  court  has 
only  such  knowledge  of  the  matter  as  is  possessed  by  the 
generality  of  mankind.  In  so  far  as  we  are  advised,  we  think 
there  is  a  wide  distinction  between  the  class  of  business  done 
by  jitnej^  busses  and  that  done  by  the  other  carriers  named. 
Street  cars  are  so  far  distinct  as  to  be  in  a  dass  by  them- 
selves, and  any  regulation  applicable  to  a  jitney  bus  could 
hardly  be  applicable  to  their  situation.  Auto  stages  operate 
on  regular  schedules  between  fixed  points,  usually  between 
one  city  or  town  and  another.  Auto  busses  and  horse  car- 
riages ordinarily  carry  passengers  between  given  points, 
usuall}'  to  and  from  depots,  docks  or  other  landings,  and 
hotels.  Sightseeing  automobiles  are  operated  more  in  the 
nature  of  private  conveyances  than  as  public  carriers,  and 
their  business  bears  no  relation  to  the  business  of  a  jitney 
bus.  Taxicabs,  livery  rigs,  and  the  like  operate  from  fixed 
stands  and  are  put  into  use  on  hire.  The  jitney  bus  differs 
from  each  of  these.  It  is  operated  continuously  upon  the 
streets,  usually  in  the  most  congested  parts,  'soliciting  and 
taking  up  passengers  wherever  they  can  be  found.  It  is  never 
for  hire  at  all ;  all  that  is  offered  is  a  seat  and  an  opportunity 
to  ride  to  'Some  point  within  the  limit  of  its  operations.  Its 
unrestricted  use  is  fraught  with  danger,  not  only  to  the  pas- 
senger it  carries,  but  to  others  using  the  streets  for  their  own 
purposes.  Being  a  common  carrier,  it  is  a  subject  of  regula- 
tion, and  w^e  are  constrained  to  believe  that  its  business  is 
such  as  to  make  it  a  subject  of  separate  classification.  This 
being  true,  the  city  council  of  a  municipality  may  lawfully 
exact  regulations  applicable  to  its  business  which  it  does  not 
make  applicable  to  the  business  of  other  common  carriers, 
without  violating  either  of  the  constitutional  provisions  be- 
fore cited." 

under  the  State  Constitution  it  is  like-  v.  City  of  Bellingham,  95  Wash.  12,  163. 

wise  well  settled  that  classification  for  Pac.   18. 

the  purposes  of  legislation  is  not  pro-  West  Virginia. — Ex  parte  Dickey,  76 

hibited.     The  limitation  imposed  avoids  W.  Va.  576,  85  S.  E.  781. 

only  that  which  is   done  without  any  42.  Allen  v.  City  of  Bellingham,  95 

reasonable  basis ;  such  classification  as  Wash.  12,  163  Pac.  18. 

is  unreasonable  and  arbitrary."     Allen 


Public  Carriage  for  Hire/ Jitneys,  Etc. 


161 


The  fact  that  a  regulation  applies  to  the  proprietors  of 
vehicles  for  hire,  but  not  to  street  railway  companies,  does 
not  afford  ground  for  an  attack  upon  its  constitutionality.^ 
Nor  does  the  fact  that  carriers  of  the  United  States  mail  are 
exempted  from  the  provisions  of  the  law  render  it  void.*^ 
And  a  jitney  regtilation  may  be  sustained,  though  it  does  not 
apply  to  automobiles  privately  owned  or  used,^^  and  even 


43.  Hutson  v.  Des  Moines,  173  Iowa, 
455,  156  N.  W.  883;  West  v.  Asbury 
Park,  89  N.  J.  L.  402,  99  Atl.  190; 
Thielke  v.  Albee,  76  Oreg.  449,  150  Pac. 
854;  Ex  parte  Begin,  78  Tex.  Cr.  1,  179 
S.  W.  1193;  Auto  Transit  Co.  v.  City  of 
Ft.  Worth  (Tex.  Civ.  App.),  182  S.  W. 
685 ;  State  v.  Seattle  Taxicab  &  Trans 
fer  Co.,  90  Wash.  416,  156  Pac.  837; 
Allen  V.  City  of  Bellingham,  95  Wash. 
12,  163  Pac.  18;  State  ex  rel.  Shafer  v. 
City  of  Spokane,  109  Wash.  360,  186 
Pac.  864.  "Contrasting  the  jitney  with 
street  railway  cars,  to  ascertain  whether 
there  bo  arbitrary  classification:  The 
street  railway,  by  reason  of  its  having 
tracks  at  definite  places  assigned  it  by 
municipal  authority,  on  which  tracks  its 
traffic  must  move,  is  less  liable  to  cause 
injury;  and  the  substantial  nature  of 
its  cars,  and  particularly  the  fixity,  per- 
manency, and  great  cost  of  its  roadbed, 
afford  an  anchored  indemnity  in  respect 
of  its  liability  for  negligence.  Other 
marks  for  differentiation,  appearing  in 
the  above  outline  of  considerations,  im- 
putable to  the  legislative  mind,  need  not 
be  reiterated."  City  of  Memphis  v. 
State,  133  Tenn.  83,  179  S.  W.  631.  L. 
R.  A.  1916  B.  1151. 

44.  State  v.  Seattle  Taxicab  &  Trans- 
fer Co.,  90  Wash.  416,  156  Pac.  837, 
wherein  it  was  said:  ''Nor  does  the 
fact  that  carriers  of  the  United  States 
mails  are  exempted  from  the  provision 
of  the  act  render  it  void.  These  per- 
form a  service  sufficiently  differentiated 
from  the  ordinary  carrier  of  passengers 
as  to  form  a  class  of  themselves,  and 
legislation    affecting    other    t-lassos    of 

11 


carriers  is  not  of  neccsiiy  required  to 
include  them.  The  situation  suggested 
in  the  appellant's  brief,  namely,  that  of 
a  large  corporation  obtaining  a  contract 
to  carry  the  mails  and  thus  monopoliz- 
ing the  jitney  traffic  in  a  city,  because 
not  subject  to  the  burden  of  the  act,  is 
hardly  possible  of  consummation.  The 
act  is  not  capable  of  a  construction 
which  would  permit  the  owner  of  a  ve- 
hicle who  has  a  contract  to  carry  the 
mails  to  run  it  promiscuously  over  the 
streets  of  the  city  in  the  carriage  of 
passengers  when  not  engaged  in  the 
prosecution  of  his  contract.  As  we  view 
the  act,  such  an  owner  can  carry  pas- 
sengers without  a  violation  of  the  pro- 
visions of  the  act  only  while  actually 
transporting  the  mails  over  a  route  most 
convenient  between  the  mail  stations; 
otherwise  he  will  fall  within  its  provi- 
siohs. ' ' 

45.  City  of  Memphis  v.  State,  133 
Tenn.  83,  179  S.  W.  631,  L.  R.  A.  1916 
B.  1151;  Auto  Transit  Co.  v.  City  of 
Ft.  Worth  (Tex.  Civ.  App.),  182  S.  W. 
685.  "We  come  now  to  the  test  of 
the  law  made  by  the  circuit  judge,  and 
which  led  him  to  denounce  the  classifica- 
tion— the  inclusion  of  jitney  automo- 
biles and  the  exclusion  of  automobiles 
privately  owned  and  used.  We  think 
that  such  a  classification  is  easily  sus- 
tainable by  reason  of  the  applicability 
of  many  of  the  considerations  above 
enumerated.  The  privately  owned  vo 
hide  ordinarily  has  but  a  single  destina- 
tion, at  which  it  comes  to  rest.  Its  use 
is  not  urged  to  or  towards  the  limit  in 
order  to  the  reaping  of  profits.    We  are 


162 


The  Law  of  Automobiles. 


though  it  does  not  apply  to  taxicabs  or  imposes  greater  obli- 
gations on  the  jitney.**'  Thus,  it  is  proper  to  pass  a  statute 
which  regulates  merely  the  motor  buses  which  charge  fifteen 


unable  to  see  the  merit  in  the  distinction 
taken  by  the  circuit  judge,  when  he  inti- 
mated the  opinion  that  a  classification 
of  the  jitney  from  privately  used  auto- 
mobiles might  be  sustained  only  so  far 
as  indemnity  for  damages  done  to  pas- 
sengers was  concerned.  Most  of  the 
dangers  that  surround  such  passengers 
in  a  substantial  sense  beset  also  the 
users  of  the  street."  City  of  Memphis 
V.  State,  133  Tenn.  83,  179  S.  W,  631, 
L.  R.  A.  1916  B.  1151. 

46.  United  States. — "While  the  'jit- 
ney' and  the  taxicab  are  physically  the 
same,  yet  the  services  they  perform  ma- 
terially differ.  The  service  of  the  one 
is  designed  to  accommodate  persons 
traveling  along  distinct  routes  and  at  a 
rate  of  fare  common  to  all,  but  the  ser- 
vice of  the  other  is  intended  for  the  ac- 
commodation of  persons  whose  destina- 
tions involve  varying  distances  and  lines 
of  travel  and  presumably  at  varying 
prices.  The  two  kinds  of  services  would 
signify  substantial '  difference  in  num- 
bers of  vehicles  needed  to  meet  the  re- 
spective demands,  and  so  the  dangers 
attending  the  operation  of  the  'jitney' 
presumably  would  materially  exceed 
those  arising  in  the  taxicab  service. ' ' 
Nolan  v.  Riechman,  225  Fed.  812. 

Arkansas. — Willis  v.  City  of  Ft. 
Smith,  121  Ark.  606,  182  S.  W.  275. 

Georgia. — Hazelton  v.  City  of  At- 
lanta, 144  Ga.  775,  87  S.  E.  1043. 

New  Jersey. — ^West  v.  Asbury  Park, 
89  N.  J.  L.  402,  99  Atl.  190.  "The 
business  differs  from  that  of  the  ordi- 
nary hired  cabs  in  that  the  latter  do  not 
stop  between  termini,  charge,  or  arc  sup- 
posed to  charge,  each  passenger  with  the 
cost  of  his  transportation,  and  hence 
may  avoid  crowded  streets,  are  under 
no  temptation  to  race  for  passengers, 
and  do  not  require  a  special  and  expen- 


sive roadway,  while  auto  busses,  defined 
as  they  are  in  the  act,  charge  a  price 
that  can  only  pay  the  necessary  running 
expenses  when  many  passengers  are 
carried,  and  must,  in  order  to  succeed, 
run  where  the  streets  are  crowded,  and 
are  naturally  under  a  temptation  to  se- 
cure as  many  pasengers  as  possible,  even 
by  dangerous  racing  with  one  another, 
and  by  reason  of  size  and  power  require 
a  specially  constructed  and  expensive 
roadway."  West  v.  Asbury  Park  (N. 
J.  Eq.),  99  Atl.  190. 

Oregon. — Thielke  v.  Albee,  76  Oreg. 
449,  150  Pac.  854. 

Tennessee. — City  of  Memphis  v. 
State,  133  Tenn.  83,  179  S.  W.  631,  L. 
R.  A.  1916  B.  1151.  "The  jitney  holds 
itself  out  to  accommodate  persons  who 
purpose  traveling  along  a  distinct  route 
chosen  by  the  operator.  Operators  of 
taxicabs  have  not  the  temptation  or 
necessity,  we  may  assume,  of  choosing 
the  most  traveled  streets,  since  those 
less  traveled  afford  them  better  oppor- 
tunities to  serve  the  object  their  owners 
have  in  view.  It  may  be  that  a  larger 
investment  is  ordinarily  required  to 
enter  the  taxicab  business  than  the 
other,  and  that  the  conveyances  would 
be  less  in  number  on  this  account,  as 
well  as  because  of  the  greater  fare 
charged,  not  to  mention  other  differ- 
ences to  be  drawn  from  the  above  sum- 
mary."  City  of  Memphis  v.  State,  133 
Tenn.  83,  179  S.  W.  631. 

Texas. — Ex  parte  Bogle,  78  Tex.  Cr. 
1,  179  S.  W.  1193;  Booth  v.  Dallas  (Civ. 
App.),  179  S.  W.  301;  Auto  Transit  Co. 
V.  City  of  Ft.  Worth  (Civ.  App.),  183 
S.  W.  685. 

Washington. — Allen  v.  City  of  Bell- 
ingham,  95  Wash.  12,  163  Pac.  18; 
State  ex  rel.  Shafer  v.  City  of  Spokane, 
109  Wash.  360,  186  Pac.  864. 


Public  Carriage  for  Hire,  Jitneys,  Etc. 


163 


cents  or  less."*^  Aliens  may  be  denied  the  right  to  use  the 
streets  for  the  purpose  of  carrying  passengers  for  hire,  al- 
though citizens  are  granted  the  privilege.''^ 

Sec.  138.  Powers  of  municipalities  —  in  general. 

Primarily,  the  control  of  the  public  highways,  including  the 
regulatory  power  over  vehicles  used  for  hire,  is  lodged  in  the 
Legislature.  The  Legislature  sometimes  exercises  this  power 
directly,  by  passing  statutes  covering  the  subject.  But  it  may 
delegate  its  power  in  this  respect  to  local  municipalities,  who 
thereby  become  authorized  to  pass  reasonable  regulations  as 
to  the  conduct  of  jitneys  and  other  vehicles  used  for  hire.*^ 
What  the  Legislature  may  do  itself  in  the  matter  of  regula- 
tion and  control  of  the  streets  in  a  municipality,  it  may  dele- 


47.  Public  Service  Com'n,  Second 
Dist.  V.  Booth,  170  N.  Y.  App.  Div.  590, 
159  N.  Y.  Suppl.  140.  "It  is  further 
urged  that  this  statute,  relating  only 
to  busses  which  charge  fifteen  cents  or 
less,  discriminates  between  them  and 
busses  charging  a  higher  rate,  and  that 
there  is  no  reasonable  ground  for  the 
statutory  discrimination;  that  the  stat- 
ute permits  a  bond  to  be  required  for 
the  safety  not  only  of  the  passengers 
but  the  public,  when  like  provisions  are 
not  made  with  reference  to  other  ve- 
hicles operated  for  hire,  and  that  the 
statute  imposes  a  tax  upon  the  jitney 
which  is  not  imposed  upon  other  ve- 
hicles carrying  passengers  for  hire,  and 
that  these  discriminations  are  illegal 
and  in  violation  of  the  defendant's  con- 
stitutional rights.  Many  circumstances 
exist  which  place  the  jitney  in  a  differ- 
ent class  from  the  motor  vehicle  which 
carries  passengers  by  the  hour,  or  from 
one  fixed  place  to  another.  The  jitnoy, 
by  reason  of  its  low  fare  and  the  man- 
ner of  its  operation,  comes  in  direct 
competition  with  the  street  cars,  which 
are  common  carriers  and  require  a  cer- 
tificate of  convenience  and  necessity. 
The  jitney,  by  moving  rapidly  from 
place  to  place  upon  either  side  of  the 


street,  in  picking  up  passengers  in  com- 
petition with  the  street  carg  or  other 
jitneys,  presents  a  menace  to  its  pas- 
sengers and  the  people  upon  the  street 
which  is  greater  than  that  from  the  or- 
dinary cab  or  vehicle ;  and  other  reasons 
may  have  seemed  to  the  legislature  to 
require  that  these  busses  be  put  in  a 
class  by  themselves.  We  cannot  say 
that  the  classification  is  unreasonable; 
upon  the  contrary,  it  seems  reason- 
able." Public  Service  Commission  v. 
Booth,  170  N.  Y.  App.  Div.  590,  159  N. 
Y.   Suppl.   140. 

48.  Morin  v.  Nunan,  91  N.  J.  L.  506, 
103  Atl.  378. 

49.  Nolan  v.  Riechman,  225  Fed.  812; 
Ex  parte  Cardinal,  170  Cal.  519,  150 
Pac.  348;  Hutson  v.  Des  Moines,  176 
Iowa,  455,  156  N.  W.  883;  Swann  v. 
City  of  Baltimore,  132  Md.  256,  103 
Atl.  441 ;  Commonwealth  v.  Slocum,  230 
Mass.  180,  119  N.  E.  687;  Common- 
wealth V.  Theberge  (Mass.),  121  N.  E. 
30;  Burgess  v.  City  of  Brockton 
(Mass.),  126  N.  E.  456;  Greene  v.  San 
Antonio  (Tex.  Civ.  App.).  178  S.  W.  6; 
City  of  Dallas  v.  Gill  (Tex.  Civ.  App.), 
199  S.  W.  1144;  Ex  parte  Dickey,  76 
W.  Va.  576,  85  S.  E.  781. 


164 


The  Law  of  Automobiles. 


gate  to  a  municipality  to  do  itself/''^  While  iiiuiiicipalities 
have  this  power  only  when  they  have  received  a  delegation 
thereof  from  the  State,  it  will  be  found,  as  a  general  proposi- 
tion, that,  except  where  a  municipality  has  been  expressly 
denied  the  right,  it  can  pass  ordinances  regulating  jitneys 
and  other  motor  vehicles  used  as  carriers.^^  The  obligation 
rests  on  municipalities  to  guard  the  public  from  danger,  and 


50.  Hutson  V.  Des  Moines,  176  Iowa, 
455,  156  N.  W.  883. 

61.  United  States. — Nolan  v.  Riech- 
man,  225  Fed.  812. 

Alabama. — City  of  Montgomery  v. 
Orpheum  Taxi  Co.  (Ala.),  82  So.  117. 

Arkansas. — ' '  Municipal  corporations 
can  only  exercise  such  powers  as  are 
expressly  granted  to  them  hy  the  legisla- 
ture and  as  are  necessarily  implied  for 
effecting  the  purposes  for  which  the 
grant  of  power  was  made  and  as  inci- 
dent thereto."  Willis  v.  City  of  Ft. 
Smith,  121  Ark.  606,  183  S.  W.  275. 

Connecticut.— State  v.  Scheidler,  91 
Conn.  234,  99  Atl.  492. 

Illinois.—City  of  Chicago  v.  Gall,  195 
111.  App.   41. 

Iowa. — Hutson  v.  Des  Moines,  176 
Iowa,  455,  156  N.  W.  883. 

Kansas. — Cesser  v.  City  of  Wichita, 
96  Kan.  820,  153  Pac.  1194. 

Louisiana. — ' '  The  streets  of  the  cities 
and  towns  in  Louisiana  being  among  the 
things  that  are  'public'  and  'for  the 
common  use,'  no  individual  can  have  a 
property  right  in  such  use  for  the  pur- 
poses of  his  private  business,  unless, 
speaking  generally,  that  business  being 
in  the  nature  of  a  public  service  or  con- 
venience, such  as  would  authorize  the 
grant,  the  right  has  been  granted  by 
the  State,  which  alone  has  the  power  to 
make  or  authorize  it,  or,  by  the  particu- 
lar city  or  town  acting  under  the  au- 
thority of  the  State,  and  in  such  case 
the  right  can  be  exercised  only  in  ac- 
cordance with  the  conditions  of  the 
grant;  that  is  to  say,  an  individual 
seeking,  but  not  possessing,  a  right  of 


that  kind,  may  accept  the  grant,  with 
the  conditions  imposed  by  the  offer,  in 
which  case  he  becomes  bound  by  the 
conditions,  or  he  may  refuse  to  accept 
the  conditions,  in  which  case  there  is  no 
grant,  and  without  the  grant  so  offered, 
or  some  other,  from  the  authority  com- 
petent to  make  it,  he  can  never  acquire 
the  right  to  make  use  of  a  street  as  his 
place  of  business.  What  he  may  do,  if 
anything,  in  the  way  of  litigation,  to 
compel  the  municipality  or  the  State 
to  make  him  a  grant  that  will  be  satis- 
factory to  him,  is  apart  from  this  im- 
mediate inquiry."  LeBlanc  v.  City  of 
New  Orleans,  138  La.  243,  70  So.  212. 

Maryland. — Swann  v.  City  of   Balti- 
more, 132  Md.  256,  103  Atl.  441. 

Massachusetts.- — Commonwealth        v. 

Theberge,  231  Mass.  386,  121  N.  E.  30. 
New     Jersey. — Fonsler     v.     Atlantic 

City,  70  N.  J.  L.  125,  56  Atl.  119;  West 

V.   Asbury   Park,   89   N.  J.   L.   402,   99 

Atl.  190;  Morin  v.  Nunan,  91  N.  J.  L. 

506,   103  Atl.   378. 

Netv    York. — Mason-Seaman    Transp. 

Co.   V.   Mitchell,   89    Misc.   235,   153   N. 

Y.  Suppl.  461. 

Oklahoma.-— Ex  parte  Halt,  178  Pac. 

260. 

Oregon. — Cummins  v.  Jones,  79  Oreg. 

276,  155  Pac.  171. 

Pennsylvania. — Jitney  Bus  Assoc,  of 

Wilkesbarre  v.  Wilkesbarre,  256  Pa.  St. 

462,   100  Atl.   954. 

Texas. — Booth  v.  Dallas,  (Civ.  App.), 

179   S.    W.    301;    Auto   Transit   Co.   v. 

City  of  Ft.  Worth  (Civ.  App.),  182  S. 

W.   685 ;    Peters  v.   San  Antonio    (Civ. 

App.),  195  S.  W.  989;  Craddock  v.  City 


Public  Carriage  for  Hire,  Jitneys,  Etc.  165 

therefore  the  regulation  of  vehicles  using  the  streets  as  com- 
mon carriers  is  clearly  within  the  police  power.^-  Thus,  a 
city  or  village  will  have  control  of  the  subject  under  a  gen- 
eral grant  of  the  police  power  to  regulate  the  use  of  the 
streets.^^  And  a  statute  empowering  any  city  mthin  the  State 
to  grant  licenses  for  lawful  purposes  and  fix  the  amount  of 
the  license  fees,  justifies  an  ordinance  licensing  the  use  of 
vehicles  for  hire.^*  So,  too,  a  city  charter  granting  power  to 
impose  a  license  tax  on  and  to  regulate  hacks,  hackney  coaches, 
and  all  other  vehicles  used  for  hire,  is  sufficient  to  justify  an 
ordinance  regulating  jitneys,  although  the  modern  jitney  was 
unknown  at  the  time  of  the  enactment  of  the  charter.^^  A 
municipal  corporation  cannot  itself  engage,  or  contract  with 
another  to  engage,  in  the  business  of  carrying  passengers  for 
hire  without  legislative  authority  ^  or  in  contravention  of  a 
public  statute  prohibiting  it.^^ 

Sec.  139.  Powers  of  municipalities  —  abrogation  of  municipal 
powers. 

Whether  a  municipality  shall  have  the  power  to  regulate 
vehicles  using  the  streets  for  hire,  is,  in  the  absence  of  con- 

of  San  Antonio  (Civ.  App.),  198  S.  W.  reasoning  of  the  opinion  that  a   motor 

634;  Gill  v.  Cit.y  of  Dallas  (Civ.  App.).  vehicle,  because  not  in  existence  at  the 

209  S.  W.  209;  Ex  parte  Bogle,  78  Tex.  time  of  the  passage   of  the  act,  ought 

Cr.  5    179  S.  W.  1193.  not  to  be  considered  as  of  the  same  gen- 

Vermont. — State    v.    .Tarvis,    89    Vt.  oral  character  as  hacks,  cabs,  and  om- 

239    95  Atl.  541.  nibusses  because  of  a  difference  simply 

Washington.— AWen  v.  City   of  Bell-  in  the   motive  power,  does  not  appeal 

ingham,  95  Wash.  12,  163  Pac.  18;  Me-  strongly  to  us.     It  is  a  matter  of  pub- 

Glothern  v.  City  of  Seattle,  199  Pac.  457.  lie   and   general   knowledge    that   these 

52.  New  Orleans  v.  LeBlanc.  139  La.  motor    vehicles   have    very   largely   dis- 
113    71  So.  248.  placed  hacks,  cabs,  and  omnibusses  pro- 

53.  City  of  Chicago  v.  Kluever,  257  pelled  by  horses,  and  that  there  is  little 
III.  317,  100  N.  E.  917;  Booth  v.  Dallas  or  no  distinction  between  the  two 
(Tex.  Civ.  App.),  179  S.  W.  301  ;  classes  of  vehicles,  other  than  in  the 
Seattle  Taxicab  &  Tr.  Co.  v.  Seattle,  86  motive  power  used.  There  is  no  distinc 
Wash.  594,  150  Pac.  1134.  See  also  t ion  whatever  in  the  purpo-se  of  use." 
City  of  Dallas  v.  Gill  (Tex.  Civ.  App.),  56.  Brooklyn  City  R.  Co.  v.  Whalen. 
199  S.  W.  1144.  Ill  Misc.  (N.  Y.)  348,  181  N.  Y.  Snppl. 

54.  City  of  Seattle  v.  King,  74  Wash.  208,   affirmed,    191   App.   Div.   737,   182 
277,  133  Pac.  442.  N.  Y.  Suppl.  283. 

65.  Ex  parte  Counts.  39  Nev.  61,  153  57.  State    v.    Ferry    Line    Auto    Bus 

Pac.    93,   wherein   it   was   said:      "The       Co.,  93  Wash.  614,  161  Pac.  467. 


166  The  Law  of  Automobiles. 

stitutional  limitations,  a  matter  within  the  control  of  the 
Legislature.  It  may  delegate  the  power  to  a  municipality,^^ 
and  may  thereafter  resume  control  of  the  entire  subject  by 
repealing  the  delegation.  Even  after  a  jitney  proprietor  has 
received  a  license  from  a  municipality  to  run  a  jitney,  the 
State  may  step  in  and  abrogate  the  authority  of  the  munici- 
pality and  require  the  jitney  owner  to  procure  a  license  issued 
by  the  State.^^  Or,  it  may  enact  a  law  which  prohibits  muni- 
cipalities from  regulating  motor  vehicles  in  general,  but  never- 
theless permits  them  to  license  and  otherwise  regulate  jitneys 
and  other  vehicles  used  for  hire.*^  In  case  of  a  conflict  be- 
tween a  system  of  licensing  enacted  by  the  State  and  one  by 
a  municipality,  the  State  system  will  prevail.®^ 

Sec.  140.  Powers  of  municipalities  —  reasonableness  of  muni- 
cipal reflation. 

Speaking  in  general  terms,  a  municipal  ordinance  must  be 
reasonable  or  it  w^iH  not  be  enforced.^^  g^t,  when  a  munici- 
pality is  given  power  to  pass  regulations  relative  to  motor 
vehicles  used  for  hire,  ordinances  passed  under  such  authority 
are  presumed  to  be  reasonable,  and  the  courts  will  not  annul 
them  unless  it  clearly  appears  that  they  are  unreasonable.®- 
When  the  Legislature  expressly  authorizes  a  particular  ordi- 
nance, it  is  not  for  the  courts  to  'say  that  it  is  unreasonable, 
for  the  courts  have  no  veto  power  in  such  matters.®*    If  an 

68.  Section  138.  regulatory     power     of     municipalities. 

59.  Public  Service  Commission  v.  City  of  Montgomery  .v.  Orpheum  Taxi 
Booth,  170  N.  Y.  App.  Div.  590,  1.59  N.       Co.   (Ala.),  82  So.   117. 

Y.  Suppl.  140.     See  Ex.  parte  Phillips  62.  Curry  v.  Osborne,  76  Fla.  39,  79 

(Okla.),  167  Pac.  231.  So.   293,   6   A.   L.  E.   108;    Jitney  Bus 

60.  Willis  V.  City  of  Ft.  Smith,  121  Assoc,  of  Wilkesbarre  v.  Wilkesbarre, 
Ark.  606,  182  S.  W.  275;  State  v.  256  Pa.  St.  462,  100  Atl.  954;  Parish 
Scheidler,  91  Conn.  234,  9  Atl.  492;  v.  City  of  Richmond,  119  Va.  180,  89 
State  V.  Fink  (N.  Car.),  103  S.  E.  16;  S.  E.  102.  And  see  section  78. 
Craddock  v.  City  of  San  Antonio  (Tex.  63.  Hutson  v.  Des  Moines,  176  Iowa, 
Civ.  App.),  198  S.  W.  634;  Ex  parte  455,  156  N.  W.  883;  Desser  v.  City  of 
Parr,  82  Tex.  Cr.  525,  200  S.  W.  404;  Wichita,  96  Kans.  820,  153  Pac.  1194; 
Allen  V.  City  of  Bellingham,  95  Wash.  Ex  parte  Parr,  82  Tex.  Cr.  525,  200  S. 
12,  163  Pac.  18.  W.  404. 

61.  Sections  77,  98,  99.  64.  Swann  v.  City  of  Baltimore,  132 
Constitutional  provisions  may  forbid      Md.  256,  1Q3  Atl.  441. 

the   State   legislature   to    abrogate   the 


Public  Caeriage  for  Hire,  Jitneys,  Etc.  167 

ordinance  is  passed  by  virtue  of  an  express  legislative  power 
and  substantially  follows  the  powers  granted,  a  court  will 
sustain  it  regardless  of  its  opinion  as  to  its  reasonableness; 
but,  if  it  is  passed  by  virtue  of  incidental  or  implied  power 
granted  by  the  Legislature,  the  courts  will  review  the  ques- 
tion of  reasonableness.^^  An  ordinance  which  makes  it  unlaw- 
ful for  any  person  to  operate  a  jitney  bus  on  the  streets  of 
the  city  ''unless  said  person  shall  have  had  at  least  thirty 
days  experience  in  the  operation  of  an  automobile  in  the  city 
and  county,"  is  not  unreasonable.^^  But  a  regulation  which 
requires  the  operator  of  a  jitney  to  be  the  owner  thereof,  has 
been  held  to  be  unreasonable  and  ineff ective.'^^  And  an  ordi- 
nance forbidding  the  driver  of  a  taxicab  to  be  more  than  ten 
feet  away  from  his  vehicle  at  any  time,  has  been  condemned 
as  unreasonable.^^ 

Sec.  141.  Powers  of  municipalities  —  enactment  of  ordinance. 
An  ordinance  granting  the  right  to  operate  a  jitney  on  cer- 
tain streets  will  be  ineffective,  unless  it  is  passed  in  the  man- 
ner prescribed  by  statute  and  constitutional  provisions.  If 
the  law  requires  that  ordinances  shall  be  signed  by  the  mayor, 
and  such  procedure  is  not  followed,  a  street  railway  company 
may  attack  the  assumed  grant  of  power  and  enjoin  the  opera- 
tion of  the  jitney.^^ 

Sec.  142.  Powers  of  municipalities  —  territorial  limits. 

A  city  ordinance  imposing  a  license  fee  on  persons  operat- 
ing vehicles  for  hire  within  the  city  limits,  does  not  include 
traffic  between  a  point  within  the  city  and  a  point  outside  its 
boundary.'^  And,  where  a  city  is  authorized  to  license  a  busi- 
ness "transacted  and  carried  on"  in  such  city,  it  has  been 
held  that  it  cannot  require  one  to  procure  a  license  for  carry- 

65.  Hutson  v.  Des  Moines,  176  Iowa,  68.  City  of  New  Orleans  v.  Gilly,  147 
455,  156  N.  W.  883.                                            La.  ,  86  So.  564. 

66.  Ex  parte  Cardinal,  170  Cal.  519,  69.  Memphis  St.  Ry.  Co.  v.  Rapid 
150  Pac.  348.  Transit  Co.,  138  Tenn.  594.  198  S.  W. 

67.  Parish  v.  City  of  Richmond,  119  890. 

Va.  180,  89  S.  E.  102.  70.  McDonald  v.  City  of  Paragould, 

120  Ark.  226,  179  S.  W.  335. 


168 


The  Law  of  Automobiles. 


ing  passengers  between  two  points  without  the  city  though  he 
passes  through  the  city."  But  cities  in  other  States  may 
have  the  power  to  license  jitneys  passing  through  their 
streets."^^  But  the  law  may  authorize  a  city  to  require  a  license 
of  one  using  the  streets  for  the  public  conveyance  of  passen- 
gers, although  the  owner  of  the  machine  resides  in  another 
city  where  he  also  pays  a  license  fee  for  the  use  of  the  ma- 
chine."^^  If  the  vehicle  carries  passengers  over  a  State  line 
as  a  part  of  its  regular  route,  a  serious  question  arises  as  to 
interference  with  interstate  commerce.'* 


Sec.  143.  State  regulatory  commissions. 

The  State  may  delegate  certain  matters  of  control  over 
jitneys  to  public  utility  commissions.  Thus,  in  New  York, 
it  has  been  provided  that  common  carriers,  such  as  jitneys, 


71.  Ex  parte  Smith,  33  Cal.  App.  161, 
164  Pac.  618,  wherein  it  was  said: 
"The  business  conducted  by  petitioner, 
as  alleged  in  violation  of  the  ordinance, 
is  that  of  transporting  passengers  for 
hire,  not  in  the  city,  but  between  termini 
both  of  which  are  outside  thereof,  inci- 
dental to,  connected  with,  and  as  part 
of  which  a  number  of  acts  other  than 
transportation,  such  as  soliciting  busi- 
ness, taking  on  and  discharging  pas- 
sengers, collecting  fares,  and  caring  for 
their  welfare  en  route,  are  necessary  to 
be  performed.  The  transportation  of 
the  passengers  over  any  particular  part 
of  the  public  highway  is  one  of  the  in- 
cidents of  the  business,  but  it  no  more 
constitutes  the  business  than  than  does 
the  collection  of  their  fares.  Hence  it 
cannot  Vjc  said  that  the  carrying  of  pas- 
sengers for  hire  from  Los  Angeles  to 
Bakersfield  liy  means  of  a  motor  vehicle 
operated  over  the  public  highway,  a 
part  of  which  extends  through  Tropico 
where  no  stops  are  made,  nor  any  of  the 
incidental  acts  of  such  transportation 
performed  other  than  traveling  along 
the  streets,  constitutes  a  business 
'transacted  and  carried  on  in  .such  citv.' 


Adopting  the  contrary  view  urged  by 
respondent,  the  conclusion  must  logi- 
cally follow  that  a  physician,  grocer, 
plumber,  indeed,  every  one  engaged  in 
a  professional  calling  or  business  in  one 
city,  having  occasion  to  make  a  profes- 
sional call  or  deliver  goods  to  a  pur- 
chaser, to  do  which  required  him  to 
travel  upon  the  highways  through  other 
cities,  could  under  a  like  provision  of 
the  ordinance  to  that  here  involved  be 
subjected  to  a  tax  in  the  guise  of  a 
license  levied  upon  the  theory  that  such 
use  of  the  streets  constituted  'a  busi- 
ness transacted  or  carried  on'  in  the 
different  cities  through  which  he  passed. 
While  the  use  of  the  streets  may  be 
regulated,  the  city  has  no  power  to  con- 
vert them  into  toll  roads,  and  thus  ex- 
act tribute  from  those  who  in  the  con- 
duct of  business  elsewhere  have  oc- 
casion to  use  them  solely  as  highways. ' ' 

72.  Commonwealth  v.   Theberge,   231 
Mass.  386,  121  N.  E.  30. 

73.  Opdyke  v.  City  of  Anniston  (Ala. 
App.),  78  So.  634. 

74.  Commonwealth     v.     O'Neil,     233 
Ma.s.«.   ."ja").  24   N.  E.  482. 


Public  Carriage  for  Hire,  Jitneys,  Etc. 


169 


shall  procure,  not  only  the  consent  of  the  municipalities 
wherein  they  operate,  but  also  a  certificate  of  convenience  and 
necessity  from  the  Public  Service  Commission  for  the  opera- 
tion of  the  route  or  vehicle  to  be  operated.'^    This  statute  has 


75.  Public  Service  Commission  v. 
Mount  Vernon  Taxicab  Co.,  101  Misc. 
(N.  Y.)  497,  168  N.  Y.  Suppl.  83; 
Niagara  Gorge  R.  Co.  v.  Gaiser,  101) 
Misc.  (N.  Y.)  38,  178  N.  Y.  Suppl.  156; 
Public  Service  Com'n  v.  Hurtgan,  154 
N.  Y.  Suppl.  897,  91  Misc.  432.  Sec  also 
Thiolke  v.  Albee,  76  Oreg.  449,  153  Pac. 
793. 

Bus  line  operated  by  city. — A  city 
cannot  operate  a  bus  line  without  ob 
taining  the  certificate  from  the  Public 
Service  Commission.  Brooklyn  City  R. 
Co.  V.  Whalen,  111  Misc.  (N.  Y.)  348. 
181  N.  Y.  Suppl.  208. 

By  section  25  of  the  Transportation 
Corporations  Law  as  enacted  by  chap- 
ter 495  of  the  Laws  of  1913  it  was  pro- 
vided that : 

Any  person  or  any  corporation  who 
or  which  owns  or  operates  a  stage  route 
or  bus  line  wholly  or  partly  upon  and 
along  a  highway  known  as  a  State 
route  or  any  road  or  highway  construc- 
ted wholly  or  partly  at  the  expense  of 
the  State  or  in,  upon  or  along  any 
highway,  avenue  or  public  place  in  any 
city  of  the  first  class  having  a  popula- 
tion of  seven  hundred  and  fifty  thou- 
sand or  under,  shall  be  deemed  to  be 
included  within  the  meaning  of  the  term 
"common  carrier"  as  used  in  the  pub- 
lic service  commissions  law,  and  shall 
be  required  to  obtain  a  certificate  of 
convenience  and  necessity  for  the  opera 
tion  of  the  route  proposed  to  be  oper- 
ated, and  shall  be  subject  to  all  the 
provisions  of  the  said  law  applicable  to 
common  carriers. 

Chapter  667  of  the  Laws  of  191.5 
amended  this  section  so  that  it  now 
reads  as  follows: 

Any  person  or  any  corporation  who  or 


which  owns  or  operates  n  stage  route, 
bus  line  or  motor  vehicle  line  or  route, 
or  vehicles  described  in  the  next  sue 
(■coding  .sectioji  of  thi.s  act  wholly  or 
party  upon  and  along  any  street,  avenue 
or  public  place  in  any  city  shall  be 
deemed  to  be  included  within  the  mean- 
ing of  the  term  "common  carrier"  as 
used  in  the  public  service  commissions 
hiw,  and  shall  be  required  to  obtain  a 
certificate  of  convenience  of  the  route 
or  vehicles  proposed  to  be  operated,  and 
shall  be  subject  to  all  the  provisions  of 
the  said  law  applicaljle  to  common  car- 
riers. 

Vehicles  covered  by  New  York  stat 
ute. — ''It  is  plain  that  certain  motor 
vehicles  cannot  be  lawfully  operated  in 
a  city  without  obtaining  the  consent 
op  the  local  authorities  and  a  certifi- 
cate from  the  Public  Service  Commis- 
sion certifying  to  the  public  convenience 
and  necessity  thereof.  It  is  believed 
that  the  statute  requires  such  consent 
for  the  operation  in  a  city  of  either: 
(a)  A  bus  line;  (b)  a  stage  route; 
(c)  a  motor  vehicle  line  or  route;  (d) 
a  vehicle  in  connection  with  a  bus  line, 
M  stage  route,  a  motor  vehicle  line  or 
route;  (e)  a  vehicle  carrying  passengers 
at  a  rate  of  faro  of  15  cents  or  less  for 
each  passenger  within  the  limits  of  a 
city;  (f)  a  vehicle  carrying  passengers 
in  competition  with  another  common 
carrier  which  is  required  l)y  law  to  ob- 
tain tlie  consent  of  the  local  authorities 
of  said  city  to  operate  over  tlie  streets 
thereof.  The  statute  is  that  to  law- 
fully operate  any  one  of  the  above  six 
specified  lines,  routes,  or  vehicles  in  a 
city  the  consent  of  the  local  authorities 
nn<]  the  certificate  of  the  Public  Service 
Conimissioii  nuist  be  first  obtained,  pro- 


170  The  Law  of  Automobiles. 

been  held  applicable  to  jitney  proprietors  who  had  procured 
a  license  for  the  operation  of  their  machines  from  a  city  be- 
fore the  statute  went  into  effect.'^*'  Under  this  act  it  has  been 
held  that  in  passing  upon  an  application  for  a  certificate  for 
the  operation  of  a  bus  line  or  stage  route  from  a  point  within 
a  city  over  city  streets  to  the  city  limits  as  a  part  of  a  line 
extending  over  country  highways,  the  consent  of  the  city  for- 
bidding the  carrying  of  passengers  between  any  two  points 
within  the  city,  the  only  question  presented  is  whether  public 
convenience  and  necessity  require  that  the  applicant,  possess- 
ing already  the  right  to  bring  passengers  to  the  city  limits 
and  carry  them  from  the  city  limits  outward,  should  be  per- 
mitted to  bring  them  within  the  city  or  to  pick  them  up  within 
the  city  and  carry  them  over  the  streets  to  the  city  limits." 
It  has  also  been  held  by  the  Public  Service  Commission  in  that 
State  that  where  the  duty  of  protecting  existing  transporta- 
tion companies  against  wasteful  competition  conflicts  with  the 
primary  duty  which  the  Commission  owes  to  the  public,  the 
first-mentioned  duty  must  be  deemed  subordinate  to  the  other, 
and  certificates  of  convenience  and  necessity  must  issue  re- 
gardless of  the  consequence  to  existing  companies.'^^  Other 
States  have  also  given  public  utility  commissions  certain 
powers  over  the  operation  of  jitneys.'^ 

Sec.  144.  Licenses  —  in  general. 

The  Legislature  has  ample  power  to  compel  the  owners  of 
jitneys  and  other  motor  vehicles  used  for  the  carriage  of  pas- 
sengers for  hire  to  procure  licenses.^"    And  a  municipal  divi- 

vided  such  line,  route,  or  vehicles  are  78.  Matter     of     Petition     of     Gray, 

engaged  in  the  business  of  carrying  pas-  Opinion     Public     Service    Commission, 

sengers  for  hire  in  the  city."     Public  Second  District.     Decided  October  20, 

Service  Commission  v.  Hurtgan,  154  N.  1915. 

Y.  Suppl.  897,  91  Misc.  432.  79.  Chicago    Motor   Bus   Co.    v.   Chi- 

76.  Public  Service  Commission  v.  cago  Stage  Co.,  287  111.  320,  122  N.  E. 
Booth,  170  N.  Y.  App.  Div.  590,  159  N.  477;  State  Public  Utilities  Com.  v. 
Y.  Suppl.  140.  Bartonville  Bus  Line,  290  111.  574,  125 

77.  Matter  of  Petition  of  Bartholo-  N.  E.  373;  Public  Utilities  Cora.  v. 
mew.   Opinion   Public   Service   Commis-  Jones  (Utah),  179  Pac.  745. 

sion,  Second  District.    Decided  Feb.  16,  80.  Hutson  v.  Dcs  Moines,  176  Iowa, 

J926.  455.    15fi   N.  W.   883;   Smith  v.   State, 


Public  Carriage  for  Hire,  Jitneys,  Etc. 


171 


sion  of  the  State,  unless  its  power  is  restricted  by  the  T.egis- 
lature,  will  generally  have  the  power  to  license  such  vehicles.^' 
A  license  can  be  required,  not  only  for  jitneys,*^  but  also  for 
taxicabs,  as  well  as  other  vehicles  used  for  hire.^    The  fact 


130  Md.  482,  100  Atl.  778;  Public  Ser- 
vice Commission  v.  Booth,  170  N.  Y. 
App.  Div.  590,  159  N.  Y.  Suppl.  140; 
State  ex  rel.  Case  v.  Howell,  85  Wash. 
294,  147  Pac.  1159;  State  v.  Ferry  Line 
Auto  Bus  Co.,  93  Wash.  614,  161  Pac. 
467.  "It  is  too  clear  for  extended  dis- 
cussion that  it  was  competent  for  the 
legislature  under  the  police  power  to 
regulate  the  use  of  the  streets  and  pub- 
lic places  by  jitney  operators,  who,  as 
common  carriers,  have  no  vested  right 
to  use  the  same  without  complying  with 
a  requirement  as  to  obtaining  a  permit 
or  license.  The  right  to  make  such  use 
is  a  franchise,  to  be  withheld  or  granted 
as  the  legislature  may  see  fit."  City  of 
Memphis  v.  State,  133  Tenn.  83,  179 
S.  W.  631. 

81.  United  .S'fo.fes.— Nolan  v.  Riech- 
man,  225  Fed.  812. 

Arkansas. — Willis  v.  City  of  Ft. 
Smith,  121  Ark.  606,  182  S.  W.  275. 
' '  The  municipal  corporation  therefore 
has  all  the  power  that  belonged  to  the 
State  for  regulation  of  the  operation 
of  machines  and  instrumentalities  of 
the  kind  included  in  the  ordinance,  and, 
unless  such  ordinance  was  beyond  the 
authority  of  the  State  to  grant,  it  was 
not  beyond  the  power  of  the  city  to 
make.  The  regulation  of  such  vehicles 
and  traffic  comes  under  the  police  power, 
and  it  is  generally  recognized  that  such 
regulations  are  a  proper  exercise  of  that 
power.  The  jitney  bus  business,  trans- 
porting people  for  hire,  for  a  uniform 
five-cent  fare,  in  low-priced  or  second- 
hand automobiles,  over  definite  routes 
in  cities  or  towns,  is  of  but  recent  ori- 
gin, but  the  regulation  of  the  business 
followed  hard  upon  its  development  by 
acts  of  the  legislature  in  some  instances 
and  by  ordinances  of  municipalities,  in 


which  they  are  operated  in  others." 
Willis  V.  City  of  Ft.  Smith,  121  Ark. 
606,  182  S.  W.  275. 

California. — Ex  parte  Cardinal,  170 
Cal.  519,  150  Pac.  348. 

Connecticut.— State  v.  Scheidler,  91 
Conn.  234,  99  Atl.  492. 

Georgia. — Hazelton  v.  City  of  At- 
lanta. 207  Ga.  147,  93  S.  E.  202. 

lotva. — Hutson  v.  Des  Moines,  176 
Iowa,  455,  156  N.  W.   883. 

Kansas. — Desser  v.  City  of  Wichita, 
06  Kans.  820,  153  Pac.  1194. 

Massachusetts. — Commonwealth  v. 
Slocum,  230  Mass.  180,  119  N.  E.  687; 
Burgess  v.  City  of  Brockton  (Mass.), 
126  N.  E.    156. 

Nevada.- 'Er  parfr  Counts.  39  Nev. 
61,  153  Pac.  93. 

Netv  Jersey. — Morin  v.  Nunan,  91  N. 
.T.  L.  506,  103  Atl.  378. 

New  York. — People  v.  Milne,  86  Misc. 
417,  149  N.  Y.  Suppl.  283;  Mason-Sea- 
man Transp.  Co.  v.  Mitchell,  89  Misc. 
235,   153   N.  Y.  Suppl.  461. 

Oklahoma. Ex  parte  Halt,  178  Pac 

260. 

Texa^. — Ex  parte  Bogle,  78  Tex.  Cr. 
5,  179  S.  W.  1193;  Ex  parte  Parr,  82 
Tex.  Cr.  525,  200  S.  W.  404;  Greene 
v.  San  Antonio  (Civ.  App.),  178  S.  W. 
6;  Craddock  v.  City  of  San  Antonio 
(Civ.  App.),  198  S.  W.  634;  City  of 
Dallas  v.  Gill  (Civ.  App.),  199  S.  W. 
1144. 

Washington. — City  of  Seattle  v. 
King,  74  Wash.  277,  133  Pac.  442: 
Allen  V.  City  of  Bellingham,  95  Wash. 
12,  163  Pac.  18;  City  of  Spokane  v. 
Knight  (Wash.).  172  Pac.  823. 

And  see  section  138. 

82.  See  the  cases  cited  in  previous 
notes. 

83.  Craddock  v.  Citv  of  San  Antonio 


172  The  Law  of  Automobiles. 

that  other  classes  of  vehicles  are  not  required  to  be  licensed 
does  not  affect  the  validity  of  the  regiilation.^^  The  power  to 
grant  licenses  to  vehicles  used  for  hire  implies  the  power  to 
refuse  a  license  to  an  operator  who  does  not  bring  himself 
within  the  terms  of  the  regulation.^ 

Sec.  145.  Licenses  —  application  to  vehicles. 

Wlien  it  is  sought  to  enforce  a  statute  or  regulation  im- 
posing a  license  tax  on  a  vehicle  used  for  hire,  the  question 
is  presented  whether  the  machine  involved  in  the  particular 
case  is  within  the  terms  of  the  regulation.^*^  The  fact  that  the 
operator  of  a  vehicle  has  taken  out  a  license  to  operate  it  for 
hire  does  not  raise  any  presumption  that  he  is  actually  en- 
gaged in  that  business.^^  In  proceedings  to  punish  for  a  vio- 
lation of  the  regiilation,  the  burden  is  upon  the  prosecution 
to  show  that  the  defendant  is  within  the  terms  of  the  regula- 
tion and  has  violated  it.^^  A  regulation  imposing  a  license  tax 
against  vehicles  used  for  hire  is,  under  the  general  canons  of 
construction,  to  be  construed,  in  case  of  doubt,  against  the 
government  and  in  favor  of  the  citizen.  Hence  it  has  been 
held  that  a  regulation  aimed  at  "hacks,  cabs,  omnibuses  and 
other  vehicles  used  for  the  transportation  of  passengers  for 
hire,"  did  not  cover  the  case  of  the  automobile  which  was  un- 
known at  the  time  the  regulation  was  passed."  On  the  other 
hand,  it  has  been  held  that  a  motor  vehicle  furnished  by  a 
garage  keeper  for  hire  is  within  an  ordinance  requiring  a  li- 
cense of  ''hackney  carriages,"  although  the  ordinance  was 

(Tex.  Civ.  App.),  198  S.  W.  634;  State  undertaker  uses  an  automobile  for  the 

V.  Jarvis,  89  Vt.  239,  95  Atl.  541.  purposes  of   carrying  the  family   of   a 

84.  See  section  112.  deceased  to  and  from  the  cemetery,  it 

85.  Commonwealth  v.  Slocuiii  may  be  said  that  the  machine  is  used 
(Mass.),   119   N.  E.   687.  "for  hire."    City  of  Spokane  v.  Knight 

86.  Smith  v.  State,  130  Md.  482,  10(»  (Wash.),  172  Pae.  823. 

Atl.  778;  State  v.  Ferry  Line  Auto  Bu!i  87.  City  of  Chicago   v.  Gall,  195  111. 

Co.,  93  Wash.  614,  161  Pac.  467;  Stat*;  App.  41. 

V.  Ferry  Line  Auto  Bus  Co.,  99  Wash.  88.  City  of  Chicago  v.  Gall,  195  111. 

64,  168  Pac.  893;   Puget  Sound  Tract.  App.  41. 

L.  &  P.  Co.  V.  Grassmeyer.   102  Wash.  89.  Washington  Elec.  Vehicle  Transp. 

482,  173  Pac.  504.  Co.   v.   District    of   Columbia,    19    App. 

Machines  of  undertaker. — Where  an  D.  C.  462.  . 


Public  Carriaor  for  Hire,  Jitneys.  Etc. 


173 


enacted  before  automobiles  were  in  use.^  And  the  fact  that 
the  vehicle  does  not  stand  in  the  street  when  not  in  use,  but  is 
left  in  a  garage,  does  not  make  it  any  the  less  a  ''hackney 
carriage.  "^^  Under  a  statute  giving  a  city  the  power  to  im- 
pose a  license  tax  on  ''hackney  coaches,"  and  all  other  vehi- 
cles used  for  hire,  an  ordinance  may  be  passed  licensing 
jitneys.^'  The  requirement  of  a  license  may  apply  to  an  auto 
bus  which  is  operating  under  a  contract  to  carry  passengers 
between  a  military  encampment  and  a  nearby  city.  An  ordi- 
nance prohibiting  the  operation  of  trucks  "for  hire  or  re- 
ward" does  not  apply  to  a  delivery  truck  used  by  a  baker.^^ 

Sec.  146.  Licenses  —  nature  of  license. 

A  license  to  use  the  public  highways  for  the  carriage  of 
passengers  for  hire  is  merely  a  permit  to  carry  on  a  business 
which  would  otherwise  be  prohibited.^^    The  license  is  not  ordi- 


90.  state  v.  Jarvis,  80  Vt.  239,  95 
Atl.  541,  where  it  was  said:  "It  re- 
mains to  consider  whether  the  respond- 
ent's business  of  carrying  passengers 
for  hire  was  covered  by  the  ordinance. 
He  says  that  the  ordinances  do  not  re- 
fer to  automobiles ;  that  they  were 
enacted  before  automobiles  were  in  use, 
and  have  not  since  been  changed  to  in- 
clude them.  That  the  automobile  is  a 
carriage  needs  no  argument.  Whether 
it  is  a  hackney  carriage  depends  upon 
the  use  made  of  it,  and  not  upon  its  mo- 
tive power.  Such  a  use  as  would  make 
a  horse-drawn  A-ehicle  a  hackney  car- 
riage would  give  the  same  character  to 
an  automobile,  whether  called  an  auto 
hack,  'jitney,'  or  what  not.  The  fact 
that  the  ordinances  are  older  than  the 
automobile  is  without  force.  The  busi- 
ness of  operating  a  carriage  over  the 
streets  of  the  city  for  carrying  per- 
sons for  hire  from  place  to  place  within 
the  city  has  all  along  been  the  thing  to 
be  regulated.  Happily  the  language 
employed  was  comprehensive  enough  to 
adapt  the  ordinance  to  changed  condi- 
tions   without    amendment.      Reference 


to  horses  in  other  sections  does  not  re- 
strict the  section  in  question  to  horse- 
diawn  vehicles." 

91.  State  V.  Jarvis,  89  Vt.  239,  95 
Atl.  541,  wherein  it  was  said:  "Nor 
does  the  fact  that  the  machines  em- 
ployed by  the  respondent  in  the  busi- 
ness did  not  stand  upon  the  street  when 
not  in  use,  nor  the  fact  that  the  re- 
spondent did  not  solicit  business  on  the 
street,  affect  the  result.  While  hackney 
carriages  may  commonly  be  let  for  hire 
at  stands  on  the  street,  they  are  no  less 
such  if  kept  on  private  grounds  or  in  a 
garage.  ...  As  alreadj'  indicated, 
it  is  the  use  made  of  carriages,  and  not 
the  place  where  they  are  kept,  or  the 
manner  of  soliciting  the  business,  that 
brings  them  within  the  purview  of  the 
statute. '  ■ 

92.  Ex  parto  Counts.  .'50  Nov.  61,  153 
Pac.  93. 

93.  F.r  pnrtc  Mar.*hall  CFla.),  77  So. 
R69. 

94.  City  of  Chicago  v.  Gall,  195  111. 
App.  41  ;  Burgess  v.  City  of  Brockton 
rMass.).  126  N.  E.  456;  Public  Service 
Commission    v.   Booth,    170  N.   Y.  App. 


174 


The  Law  of  Automobiles. 


narily  a  contract.^^  Those  who  make  investments  for  the  pur- 
pose of  using  the  streets  for  jitneys  under  a  license  to  do  so, 
are  subject  to  such  other  and  different  burdens  as  the  Legis- 
lature may  reasonably  impose  for  the  safety,  convenience  or 
welfare  of  the  public.^^  Hence,  after  the  payment  of  a  license 
fee  charged  by  a  municipality,  the  State  may  intervene  and 
abrogate  the  authority  of  the  municipality  in  the  matter  or 
may  impose  an  additional  fee  witiiout  interfering  with  any 
vested  rights  of  the  license  holder.^'^  Or  a  jitney  license  or  a 
license  to  use  certain  hack  stands  may  be  revoked  by  a  munici- 
pality,^^ without  even  notice  to  the  licensee  in  some  cases.^'* 
And  the  fact  that  the  license  is  not  a  contract  does  not  require 
that  the  holder  carry  out  the  business  for  which  he  is  licensed.^ 
A  jitney  or  motorbus  license  is  not  a  franchise.^    Hence,  it  is 


Piv.  590,  159  N.  Y.  Suppl.  140;  Yellow 
Taxicab  Co.  v.  Gayuor,  82  Misc.  94,  143 
N.  Y.  Suppl.  279,  affirmed  on  opinion 
below,  159  App.  Div.  893;  Auto  Transit 
Co.  V.  City  of  Ft.  Worth  (Tex.  Civ. 
App.),   182  S.  W.  685. 

95.  City  of  Chicago  v.  Gall,  195  III. 
App.  41;  Burgess  v.  City  of  Brockton 
(Mass.),  126  N.  E.  456;  Public  Service 
Commission  v.  Booth,  170  N.  Y.  App. 
Div.  590,  159  N.  Y.  Suppl.  140;  Yellow 
Taxicab  Co.  v.  Gaynor,  82  Misc.  94,  143 
N.  Y.  Suppl.  279,  affirmed  on  opinion 
below,  159  App.  Div.  893;  Auto  Transit 
Co.  V.  City  of  Ft.  Worth  (Tex.  Civ. 
App.),  182  S.  W.  685. 

96.  Nolan  v.  Riechman,  225  Fed.  812. 
In  Canada,  it  has  been  held  that  a 

by-law  of  city  police  commissioners 
placing  further  restrictions  on  the  op- 
eration of  automobiles  for  hire  within 
the  city  will  not  be  effective  to  control 
an  unqualified  license  already  held  by 
the  accused  which  remains  unrevoked. 
Rex  V.  Aitcheson,  25  Can.  Cr.  Cas.  36. 
9  O.  W.  N.  65. 

97.  Public  Service  Commission  v. 
Booth,  170  N.  Y.  App.  Div.  590,  155 
N.  Y.  Suppl  568,  wherein  it  was  said: 
"By  the  charter  and  ordinances  of  the 
city  of  Rochester,  a  hackman  or  vehicle 


for  transporting  people  from  place  to 
place  for  hire  cannot  operate  in  the  city 
without  a  license,  and  the  common 
council  had  power  to  grant  such  a  li- 
cense by  §  86  of  the  charter  of  said 
city  (Laws  of  1907,  chap.  755,  as  amd. 
by  Laws  of  1910,  chap.  250).  The  only 
effect  of  the  license  was  to  make  legal 
that  which  without  it  would  be  illegal. 
The  legislature  of  the  State  therefore, 
under  the  police  poWer,  in  providing  for 
the  safety  and  welfare  of  the  public, 
may  make  laws  defining  what  vehicles 
may  be  operated  in  the  cities  as  pub- 
lic conveyances  and  the  terms  of  oper- 
ation. The  legislature  cannot  bargain 
away  the  police  power  of  the  State." 

98.  Burgess  v.  City  of  Brockton 
(Mass.),  126  N.  E.  456;  Yellow  Taxi- 
cab  Co.  V.  Gaynor,  82  Misc.  94,  143  N. 
Y.  Suppl.  279,  affirmed  on  opinion  be- 
low, 159  App.  Div.  893. 

99.  Burgess  v.  City  of  Brockton 
rMass.),  126  N.  E.  456. 

1.  City  of  Chicago  v.  Gall,  195  111. 
App.  41. 

2.  City  of  Dallas  v.  Gill  (Tex.  Civ. 
App.),  199  S.  W.  1144;  McCutcheon  v. 
Wozencraft  (Tex.  Civ.  App.),  230  S. 
W.  733.  Compare  City  of  Memphis  v. 
State,  133  Tenn.  83,  179  S.  W.  651. 


Public  Carriage  for  Hire,  Jitneys,  Etc.  175 

not  necessary  that  a  municipal  ordinance  regulating  jitneys 
and  requiring  a  license,  be  passed  with  the  formalities  which 
are  required  by  the  Constitutions  and  statutes  of  some  States 
for  the  granting  of  franchises.^ 

Sec.  147.  Licenses  —  license  fees. 

The  power  to  license  motor  vehicles  for  hire  carries  with  it 
the  power  to  impose  a  reasonable  license  fee  for  such  vehi- 
cles.* The  presumption  is  that  a  license  fee  is  reasonable  in 
amount,  and  the  burden  is  placed  on  the  one  attacking  the 
regulation  to  show  its  unreasonableness.^  And,  inasmuch  as 
governmental  control  permits  the  exclusion  of  jitneys  from 
certain  streets,*'  it  may  impose  on  one  desiring  to  use  specific 
streets  for  that  purpose  a  fee  which  is  so  large  as  practically 
to  be  prohibitive.''  Regulations  fixing  a  different  rate  of  fee 
for  different  classes  of  vehicles  do  not  constitute  special  or 
class  legislation  so  long  as  the  members  of  a  class  receive  the 
same  treatment.^  Thus,  an  ordinance  imposing  a  larger  fee 
on  the  operators  of  jitneys  than  is  required  of  the  proprietor 
of  a  taxicab  or  other  vehicle  used  for  hire  is  not  invalid.^ 
Nor  is  a  regulation  deemed  discriminatory  because  it  grades 
different   jitneys   according   to   their    seating   capacity    and 

3.  City  of  Dallas  v.  Gill  (Tex.  Civ.  tificate  or  from  u  change  of  the  route 
App.),  199  S.  W.  1144.  or    seating    capacity    of    the    machine. 

4.  Ex  parte  Cardinal,  170  Cal.  519,  Booth  v.  Dallas  (Tex.  Civ.  App.),  179 
150  Pac.  348;   Hutson  v.  Des  Moines,  S.  W.  301. 

176  Iowa,  455,  156  N.W.  883;  Common-  5.  Ex  parte   Parr,   82   Tex.   Cr.   525, 

wealth  V.  Slocum,   230  Mass.   180,   119  200  S.  W.  404. 

N.  E.  687;  Greene  v.  San  Antonio  (Tex.  6.  Section   153. 

Civ.  App.),  178  S.  W.  6;  Booth  v.  Dal-  7.  Desser    v.     City    of    Wichita,    96 

las   (Tex.  Civ.  App.),   179   S.   W.   301;  Kans.   820,   153  Pac.   1194. 

Ex  parte  Parr,  82  Tex.  Cr.  525,  200  S.  8.  Auto    Transit  Co.   v.   City   of   Ft. 

W.    404;    City   of   Seattle   v.   King,   74  Worth  (Tex.  Civ.  App.),  182  S.  W.  685. 

Wash.  277,  133  Pac.  442;  Allen  v.  City  9.  Jackson   v.   Neff,   64   Fla.   326,   60 

of  Bellingham,  95  Wash.   12,  163   Pac.  So.   350;   Hazelton  v.  City  of  Atlanta, 

18.  144  Ga.  775,   87  S.  E.   1043;   Booth  v. 

Additional  charge  on  change  of  situa  Dallas  (Tex.  Civ.  App.),  179  S.  W^  301 ; 

tion.— A  municipality  having  the  power  Auto  Transit  Co.  v.  City  of  Ft.  Worth 

to     charge    a    license    fee    for    motor  (Tex.  Civ.  App.),  182  S.  W.  685;  Allen 

busses,  may  make  a  further  charge  of  v.  City  of  Bellingham,  95  Wash.  12,  163 

one  dollar  for  additional  expenses  re-  Pac.  18. 
suiting  from  a  loss  of  the  original  cer- 


176 


The  Law  of  Automobiles. 


charges  a  larger  fee  for  those  with  the  larger  capacity.^''  An 
ordinance  imposing  jitney  license  fees  according  to  the  seat- 
ing capacity  of  the  conveyance  is  valid,  though  the  municipal 
charter  provides  that  licenses  shall  be  graduated  according 
to  the  amount  of  business  done."  One  license  fee  may  be  im- 
posed on  vehicles  using  the  streets  as  common  carriers,  and 
another  be  imposed  on  the  owner  thereof  for  the  mainten- 
ance of  an  establishment  where  vehicles  are  kept  for  hire.^ 
A  provision  of  the  constitution  requiring  uniformity  of  taxa- 
tion applies  only  to  property  taxes,  not  to  license  fees.^^  A 
license  fee  is  not  classed  as  a  tax  unless  its  main  purpose  is 
the  production  of  revenue."  If  intended  as  a  tax  for  the  pro- 
duction of  revenue,  its  validity  is  determined  according  to 
different  principles,  for  exactions  under  the  guise  of  license 
fees  cannot  be  sustained  in  some  States,  when  their  purpose 
is  the  raising  of  revenue.^^  It  is  not  deemed  an  occupation 
tax  on  the  business  of  the  owner  of  the  vehicle.^^ 


10.  Hazelton  v.  City  of  Atlanta,  144 
Ga.  775,  87  S.  E.  1043 ;  Ex  parte  Bogle, 
78  Tex.  Cr.  1,  179  S.  W.  1193;  Allen  v. 
City  of  Bellingham,  95  Wash.  12,  163 
Pac.   18. 

11.  Ex  parte  Counts,  39  Nev.  61,  153 
Pac.  93. 

12.  District  of  Columbia  v.  Fickling, 
33  App.  D.  C.  371. 

13.  Ex  parte  Bogle,  78  Tex.  Cir.  1, 
179  S.  W.  1193;  City  of  Seattle  v. 
King,  74  Wash.  277,  133  Pac.  442. 
' '  The  uniform  taxation  rule  enjoined 
by  the  Constitution  applies  only  to  taxes 
upon  property ;  it  does  not  require  the 
uniform  taxation  of  business.  It  would, 
of  course,  violate  the  rule  against  dis- 
crimination to  tax  one  individual  or 
one  set  of  individuals  engaging  in  a 
given  business  and  exempt  another  or 
others  engaging  in  the  same  business 
under  like  circumstances,  but  it  does 
not  forbid  the  taxation  of  one  business 


while  others  are  left  exempt  when  there 
is  such  a  just  difference  between  the 
businesses  as  to  permit  of  classification. 
Here,  as  we  have  found,  there  is  such  a 
just  distinction,  and  we  cannot  hold 
the  ordinance  void  because  discrimina- 
tory." Allen  V.  City  of  Bellingham,  95 
AVash.   12,  163  Pac.   18. 

14.  Hutson  V.  Des  Moines,  176  Iowa. 
455,  156  N.  W.  883;  Commonwealth  v. 
Slocuni,  230  Mass.  180,  119  N.  E.  687; 
Booth  V.  Dallas  (Tex.  Civ.  App.),  179 
S.  W.  301 ;  State  v.  Jarvis,  89  Vt.  239, 
95  Atl.  541. 

15.  Ex  parte  Mayes  (Okla.),  167  Pac. 
749;  City  of  Muskogee  v.  Wilkins 
t'Okla.),  175  Pac.  497;  Ex  parte  Holt 
YOkla.),  178  Pac.  260. 

And  see  section  105. 

16.  Ex  parte  Phillips  (Okla.),  167 
Pac.  221;  Auto  Transit  Co.  v.  City  of 
Ft.  Worth  (Tex.  Civ.  App.),  182  S.  W. 
685. 


Public  Carriage  for  Hire^  Jitneys,  Etc.  177 

Sec.  148.  Licenses  —  conflict  of  State  and  municipal  licensing 
systems. 
It  is  fundamental  that  a  municipal  ordinance  is  ineffective 
in  so  far  as  it  conflicts  with,  a  State  statute.^^  But  where  a 
municipal  corporation  adopts  certain  regulations  for  the 
licensing  of  motor  vehicles  for  hire,  it  is  a  question  of  some 
difficulty  whether  a  motor  vehicle  law  passed  by  the  Legis- 
lature is  in  conflict.  Some  general  statutes  for  the  regulation 
of  motor  vehicles  have  had  the  effect  of  annuling  licensing 
systems  established  in  municipalities  for  the  regulation  of 
vehicles  used  for  hire.^^  But  a  motor  vehicle  law  which  pro- 
hibits in  general  terms  the  regulation  of  automobiles  by  muni- 
cipalities has  been  held  not  to  bar  local  regulations  requiring 
the  procurement  of  licenses  and  the  payment  of  license  fees 
for  the  operation  of  vehicles  for  hire."  And  the  fact  that  the 
owner  of  a  vehicle  has  a  State  license  granted  in  accordance 
with  a  motor  vehicle  law,  does  not  exempt  him  from  the  pay- 
ment of  a  municipal  license  fee  for  the  use  of  such  vehicle  in 
the  transportation  of  passengers  for  hire.^''  So,  too,  a  State 
statute  providing  that  persons  who  have  paid  the  registration 
fee  required  by  the  State  law  shall  be  exempt  from  other 
taxation  on  a  motor  vehicle,  has  been  held  not  to  forbid  the 
imposition  of  a  license  fee  by  a  municipality  when  the  ma- 
chine is  used  as  a  common  carrier.^^    Nor  is  such  the  effect 

17.  State  V.  Fink  (N.  Car.),  103  S.  E.  The  fact  that  automobiles  are  exempt 
16;  Ex  parte  Phillips  (Okla.),  167  Pac.  from  taxation  (No.  99,  Acts  of  1908, 
221.     And  see  section  77.  §  3))  other  than  the  pajTnent  of  a  regis- 

18.  Ex  parte  Shaw  (Okla.),  157  Pac.  tration  fee  gives  them  no  such  standing 
900 ;  E.r  pa7te  Phillips  (Okla.),  167  Pac,  as  the  respondent  suggests.  The  stat- 
221.  ute    merely    exempts    them    from    the 

19.  State  V.  Scheidler,  91  Conn.  234,  local  property  tax.  The  right  to  op- 
9  Atl.  492.  See  also  City  of  Spokane  erate  an  automobile  on  the  highways  of 
V.  Knight  (Wash.),  172  Pac.  823.  the  State  acquired  by  payment  or  the 

20.  Ex  parte  Counts,  39  Nev.  61,  If) 3  registration  fee  is  not  an  absolute  right. 
Pac.  93 ;  State  v.  Jarvis,  89  Vt.  239,  95  There  is  nothing  found  in  the  statutes 
Atl.   541.  relating  to    registration   and   operation 

21.  State  V.  Jarvis,  89  Vt.  239,  95  of  automobiles  that  in  any  way  abridges 
Atl.  541,  wherein  it  was  said:  "The  the  power  conferred  upon  the  city  coun- 
respondent  contends  that  persons  who  oil  to  regulate  hackney  carriages  within 
pay  automobile  taxes  under  the  general  the  city  of  Burlington,  if  they  chance 
law    have    the    right    to    operate    them  to  be  automobiles." 

without  the  further  payment  of  taxes. 

12 


178  The  Law  of  Automobiles. 

of  a  statutory  provision  providing  that  local  ordinances  shall 
not  be  passed  prohibiting  the  free  use  of  the  public  high- 
ways.^^  Moreover,  it  has  been  held  that  the  promulgation  of 
regulations  by  the  State  with  reference  to  vehicles  used  for 
hire,  does  not  prohibit  a  municipality  from  imposing  addi 
tional  regulations.^^ 

Sec.  149.  Licenses  —  plying  for  hire. 

On  the  trial  of  a  charge  of  violating  a  provision  of  a  public 
hack  ordinance  forbidding  the  ''plying  for  hire"  of  such  a 
vehicle  without  a  license,  it  is  necessary  to  prove  that  the 
accused  was  ''plying  for  hire."  On  the  question  of  what  con- 
stitutes a  "plying  for  hire,"  it  has  been  said:  "The  con- 
junction of  a  given  purpose  with  given  conduct  appropriate 
to  effectuate  it  constitutes  'a  plying  for  hire'  within  the  mean- 
ing of  the  ordinance,  namely,  the  conjunction  of  the  purpose 
to  accept  whenever  the  cab  is  vacant  and  unengaged  persons 
who  may  offer  themselves  as  passengers  for  hire,  coupled  with 
conduct  which  evidences  this  purpose — as,  for  example,  the 
placing  of  such  cab  on  a  public  street  where  it  is  accessible  to 
those  who  may  wish  to  hire  it,  and  the  solicitation  of  passen- 
gers for  hire  by  the  one  operating  it,  by  word,  act,  or  by  the 
exhibition  of  appropriate  signs  or  devices.  In  this  case  the 
defendant's  purpose  was  inferable  from  his  conduct  and  his 
conduct  was  conducive  to  the  effectuation  of  his  purpose. 
Being  actually  hired  is  not  the  test  of  whether  or  not  there  is 
a  plying  for  hire.  One  may  ply  for  hire  without  being  hired. 
A  taxicab,  not  a  public  hack,  can  doubtless  lawfully  be  called 
for  an  ascertained  patron  or  hirer  to  a  given  place,  and  may 
proceed  to  such  place  and  stop  there,  although  such  place  be 
a  public  hack  stand,  and  remain  there  subject  to  the  orders 
of  such  person  so  engaging  it,  provided  that  no  unreasonable 
use  be  made  by  such  taxicab  of  such  public  stand,  and  pro- 
vided that  such  taxicab  is  not  subject  to  hire  by  any  person 
other  than  such  ascertained  person  or  hirer  from  the  time  that 
it  is  called  until  the  time  when  it  returns  to  the  garage  in 

22.  Allen  v.  City  of  Bellingham,  95  23.  Allen  v.  City  of  Bellingham,  95 

Wash  12,  163  Pac.  18.  Wash.  12,  163  Pac.  18. 


Public  Carriage  for  Hire,  Jitneys,  Etc.  179 

which  it  is  kept;  and,  for  the  purpose  of  securing  customers 
taxicab  companies  may,  by  agreement,  keep  representatives 
in  hotels,  public  restaurants,  and  other  jjlaces,  but  such  repre- 
sentatives cannot  be  permitted  to  evade  the  ordinance  in  ques- 
tion by  summoning  taxicabs,  not  public  hacks,  from  such 
garages  to  such  places  ostensibly  for  ascertained  patrons  or 
hirers,  but  in  reality  without  such,  but  with  a  view  to  having 
them  hired  by  any  one  from  the  public  streets.  "^4 

Sec.  150.  Licenses  —  effect  of  failure  to  have  license. 

If  one  operates  a  motor  vehicle  for  the  carriage  of  passen- 
gers for  hire  without  procuring  a  license  as  required  by  a 
State  or  municipal  regulation,  he  may  be  subjected  to  a 
criminal  prosecution.  Moreover,  the  failure  of  the  owner 
to  procure  a  jitney  license  may  subject  his  chauffeur  to 
punishment.^  And,  if  the  proprietor  has  failed  to  secure  the 
proper  license,  he  may  be  unable  to  maintain  a  civil  action  to 
recover  the  fare  due  for  the  carriage  of  a  passenger.^^  But 
according  to  the  view  generally  prevailing,  the  absence  of  the 
proper  license  is  not  a  defense  to  an  action  by  the  driver  for 
injuries  sustained  through  the  negligence  of  a  third  person.^^ 
This  situation  is  analogous  to  that  where  the  owner  of  a  ma- 
chine has  failed  to  register  the  same  or  the  chauffeur  has 
failed  to  procure  a  license,  and  it  is  generally  held  that  the 
failure  in  this  respect  is  not  the  proximate  cause  of  an  injury 
sustained  by  the  driver,  and  he  can  nevertheless  recover  for 
injuries  sustained  from  a  defective  highway,  or  from  a  col- 
lision with  another  vehicle  or  conveyance.^^  Municipal  au- 
thorities may  be  required  by  mandamus  to  enforce  the  laM^ 
so  as  to  exclude  from  the  streets  jitneys  which  have  not  pro- 
cured the  necessary  consent." 

24.  People  v.  Milne,  87  Misc.  109,  149  City  v.  Fousler  (N.  J.),  56  Atl.  119. 
N.  Y.  Suppl.  283.  27.  Southern    Ry.    Co.    v.    Vaughn's 

25.  State  v.  Ferry  Line  Auto  Bus  Co.,  Adra'r,  118  Va.  692,  88  S.  E.  305,  L.  R. 
93  Wash.  614,  161  Pac.  467.  A.  1916  E.  1222. 

26.  Ferdon  v.  Cunningham,  20  How.  28.  See  sections  125-127,  226. 

Prac.   (N.  Y.)   154;  Best  v.  Bauder,  29  29.  People     ex     rel.    Weatherwax    v. 

How.    Prac.    (N.    Y.)    489;    Miller    v.      Watt,  115  Misc.  (N.  Y.)   120. 
Burke,  6  Daly   {is.  Y.)    171;  Atlantic 


180  The  Law  of  Automobiles. 

Sec.  151.  Licenses  —  transfer  of  license. 

Whether  a  license  to  operate  a  jitney  or  other  motor  vehicle 
is  transferable  from  one  vehicle  to  another  depends  upon 
the  language  of  the  regulation.  It  is  Avithin  the  power  of  the 
body  enacting  the  regulation  to  provide  that  the  license  shall 
not  be  thus  transferred.^*^  Or  the  transfer  of  the  license  from 
one  car  to  another  car  maj^  be  permitted,  although  the  trans- 
fer from  one  owTier  to  another  is  forbidden.^^ 

Sec.  152.  Licenses  —  licensing  of  chauffeurs. 

Not  only  may  a  municipality,  as  a  general  rule,  require  the 
licensing  of  machines  used  for  the  carriage  of  passengers  for 
hire,  but  it  may  also  require  that  the  drivers  of  such  machines 
obtain  a  special  license.^^  A  municipal  ordinance  regulating 
taxicabs  and  other  hacks  may  properly  contain  a  requirement 
that  applicants  for  a  driver's  license  shall  present  a  sworn 
testimonial  as  to  his  character  by  two  reputable  citizens  and 
a  further  testimonial  from  his  last  employer,  unless  a  suffi- 
cient reason  is  given  for  its  omission.^  Or  he  may  be  required 
to  undergo  a  physical  and  mechanical  examination  before  he 
will  be  allowed  to  drive  a  public  vehicle.^*  And  a  municipal 
ordinance  may  give  the  mayor  the  power  to  suspend  or  revoke 
a  driver's  license,  for  such  practice  is  only  a  reasonable 
method  of  securing  such  continued  control  over  such  drivers 
as  is  essential  to  the  protection  of  passengers.^ 

Sec.  153.  Exclusion  from  streets. 

The  right  of  a  citizen  to  travel  upon  the  highway  and  trans- 
port his  property  thereon,  in  the  ordinary  course  of  life  and 

30.  City  of  Dallas  v.  Gill  (Tex.  Civ.  Morin  v.  Nunan,  91  N.  J.  L.  506,  103 
App.),  199  S.  W.  1144.  Atl.   378. 

31.  Young  V.  Wilson,  99  Wash.  159,  33.  Yellow  Taxicab  Co.  v.  Gaynor, 
168  Pac.  1137.  82  Misc.   (N.  Y.)   94,  143  N.  Y.  Suppl. 

32.  City  of  Montgomery  v.  Orpheum  279,  affirmed  on  opinion  below,  159  N. 
Taxi  Co.   (Ala.),  82  So.  117;  Ex  parte  Y.  App.  Div.  893. 

Sullivan,   77  Tex.   Cr.  App.   72,  178   S.  34.  Booth  v.  Dallas  (Tex.  Civ.  App.), 

W.   357.     See   also  City  of  Chicago   v.  179  S.   W.  301. 

Kluever,  257  111.  317,  100  N.  E.  917.  35.  Yellow  Taxicab  Co.  v.  Gaynor,  82 

Aliens  may  be  denied  the  right  to  a  Misc.  94,  143  N.  Y.  Suppl.  279,  affirmed 

license    to    drive    a    vehicle    for    hire.  on  opinion  below,  159  App.  Div.  893. 


Public  Carriage  for  Hire,  Jitneys,  Etc.  181 

business,  differs  radically  and  obviously  from  that  of  one  who 
makes  the  highway  his  place  of  business  and  uses  it  for  private 
gain,  in  the  running  of  a  stage  coach  or  omnibus.  The  former 
is  the  usual  and  ordinary  right  of  a  citizen,  a  common  right, 
a  right  conmion  to  all,  while  the  latter  is  special,  unusual  and 
extraordinary.  As  to  the  former  the  extent  of  legislative 
power  is  that  of  regulation,  but,  as  to  the  latter,  its  power  is 
broader,  the  right  may  be  wholly  denied,  or  it  may  be  per- 
mitted to  some  and  denied  to  others,  because  of  its  extra- 
•  ordinary  nature.^^  In  other  words,  while  the  right  to  use  the 
highways  for  the  motor  vehicular  traffic  in  the  ordinary  man- 
ner may  not  be  absolutefy  prohibited,''^  the  use  of  the  high- 
ways for  jitneys  and  other  vehicles  for  hire  may  be  denied.^ 
Thus,  a  municipality  may  ordinarily  pass  an  ordinance  for- 
bidding the  operation  of  jitneys  until  further  ordinances  are 
enacted  on  the  subject.^^  But  it  has  been  said  that  the  regu- 
lation of  jitneys  is  not  to  be  carried  to  the  extent  of  exclusion. 
**A  jitney  is  an  automobile,  and  by  universal  custom  automo- 
biles are  permitted  to  use  the  streets  of  cities,  as  are  other 
vehicles.  The  fact  that  the  owners  of  jitneys  derive  a  profit 
from  their  operation  makes  no  difference  in  their  legal  status. 
Much  of  the  traffic  upon  the  city  streets  is  a  matter  of  profit 
directly  or  indirectly  to  those  engaged  therein.  The  public 
highways  are  for  the  use  of  those  engaged  in  commerce  or 
industrial  pursuits,  no  less  than  for  pleasure  cars."*^ 

Sec.  154.  Restriction  to  certain  streets. 

In  view  of  the  holding  in  some  States  that  jitneys  may  be 
excluded  from  all  of  the  streets  of  a  municipality,*^  it  is  clear 

36.  Hadfield  v.  Lundin,  98  Wash.  657,  (Tex.  Civ.  App.),  195  S.  W.  989;  Had- 
168  Pac.  516;  Ex  parte  Dickey,  76  W.  field  v.  Lundiu,  98  Wash.  657.  168  Pac. 
Va.  576,  85  S.  E.  781.  r,]6.      See   also   Gill   v.   City   of   Dallas 

37.  Section  48.  (Tex.  Civ.  App.),  209  S.  W.  209. 

38.  Hutsou  V.  Des  Moiues,  176  Iowa,  39.  Cummins  v.  Jones,  79  Oreg.  276, 
455,  156  N.  W.  883;  Fifth  Ave.  Coach  155  Pac.  171. 

Co.  V.  City  of  New  York,  194  N.  Y.  19,  40.  Jitney  Bus  Assoc,  of  Wilkosbarre 

86  N.  E.  824,  21  L.  R.  A.  (N.  S.)  744,  v.    Wilkesbarre,    256    Pa.    St.    462,    100 

16   Ann.   Cas.   695;    Greene   v.   City   of  Atl.   954. 

San  Antonio    (I'ex.  Civ.   App.).   178   S.  41.  Section  15,1. 

W.   6;    Peters   v.  City   of  San   Antonio 


182 


The  Law  of  Automobiles. 


that  it  is  within  the  power  of  a  municipality,  unless  its  au- 
thority is  abridged  by  State  statutes,  to  restrict  the  operation 
of  such  machines  to  certain  designated  streets.''^  This  may 
be  done  indirectly,  as  by  imposing  a  license  fee  for  the  use  of 
certain  streets  which  is  so  high  that  a  jitney  proprietor  is 
unable  to  pay  it  as  a  business  proposition.*'  It  may  be  proper 
to  restrict  jitneys  to  those  streets  which  are  not  occupied  by 
street  car  tracks.**    And  such  vehicles  may  be  excluded  from 


42.  Hutson  v.  Des  Moines,  176  Iowa, 
455,  156  N.  W.  883;  Desser  v.  City  of 
Wichita,  96  Kans.  820,  153  Pac.  1194; 
Commonwealth  v.  Sloeum  (Mass.),  119 
N.  E.  687;  Peters  v.  City  of  San  An- 
tonio (Tex.  Civ.  App.),  195  S.  W.  989: 
Gill  V.  City  of  Dallas  (Tex.  Civ.  App.), 
209  S.  W.  209;  State  ex  rel  Shafer  v. 
City  of  Spokane,  109  Wash.  360,  186 
Pac.  864.  "If  the  municipality  has 
absolute  control  over  the  streets,  as 
impliedly  admitted  by  appellants  and 
as  decided  by  almost  every  court  pass- 
ing upon  the  question,  and  the  owners 
of  motor  vehicles  have  no  right  to  en- 
gage in  the  business  of  carriers  for  hire 
on  the  streets  without  permission  from 
the  municipality,  it  follows  in  the  line 
of  reason  and  logic  that  the  city  can 
refuse  such  permit  or  can  grant  a  li- 
cense or  franchise  under  such  conditions 
and  regulations  as  may  be  deemed  fit 
and  proper.  If  the  city  can  ordain  that 
no  jitneys  can  be  run  for  hire  in  San 
Antonio,  as  the  authorities  unite  in  say- 
ing it  can,  it  certainly  can  grant  the 
use  of  some  streets  and  refuse  the  use 
of  others,  for  jitney  purposes.  The 
power  to  prohibit  certainly  carries  with 
it  the  right  to  regulate  as  it  may  deem 
proper  and  reasonable.  The  owners  of 
jitneys  are  permitted  to  conduct  their 
business  on  the  streets  through  the 
grace  of  the  city,  and  because  they  have 
been  permitted  to  use  certain  streets  at 
one  time  does  not  give  any  vested  right 
to  use  them  forever.  The  power  that 
gave  the  right  can  take  it  away  when 
not    invading   some   vested   or   contract 


right.  When  the  use  of  the  street  is 
given,  the  convenience  of  the  city,  or 
what  is  deemed  best  for  the  people,  is 
to  be  consulted,  and  not  the  desires  of 
those  who  desire  to  convert  the  streets 
into  their  places  of  business.  If  the 
people,  the  voters  of  San  Antonio,  do 
not  approve  of  the  manner  of  regula- 
tion of  jitneys,  they  can  elect  officers 
and  instruct  them  to  carry  out  their  de- 
sires. It  is  a  political  question  to  be 
determined  by  the  ballots  of  the  people 
and  not  by  the  judiciary."  Peters  v. 
City  of  San  Antonio  (Tex.  Civ.  App.), 
195  S.  W.  989. 

43.  Desser  v.  City  of  Wichita,  06 
Kans.  820,  153  Pac.  1194 

44.  "Beyond  question,  the  city  could 
vacate  one  or  more  of  the  streets  over 
which  he  might  desire  to  operate.  It 
cannot  only  require  him  to  pay  a  license 
tax,  l)ut  it  may  regulate  the  manner  of 
his  carrying  on  his  enterprise.  Why 
may  it  not  classify  motor  vehicles  by 
themselves  and  refuse  to  jjermit  them 
to  crowd  congested  portions  of  the  busi- 
ness streets  where  patrons  of  another 
class  of  vehicles — street  cars — must 
alight  and  take  passage?  Suppose,  in- 
deed, a  company  or  corporation  owning 
motor  vehicles  had  the  facilities  and  the 
desire  to  occupy  all  the  streets  to  the 
utter  destruction  of  the  street  car  busi- 
ness. Would  the  city  have  nothing  to 
say?  Is  the  municipality  a  mere  auto- 
maton, helpless  in  the  presence  of  crowd- 
ing and  conflicting  enterprises  and 
scrambles  for  business  which  involve  the 
comfort,     the     convenience,     and      the 


Public  Carriage  for  Hire,  Jitneys,  Etc 


183 


congested  business  sections/^  But  it  has  been  said  that  an 
exclusion  from  certain  streets  without  justification  upon  a 
reasonable  basis  may  be  illegal.'*^ 


Sec.  155.  Bonds  —  power  to  require  proprietor  to  give  bond. 
As  a  condition  for  the  issuance  of  a  license  for  the  use  ol" 
the  public  highways  by  a  jitney  or  other  vehicle  for  hire,  there 
is  no  dispute  from  the  general  proposition  that  the  proprietor 
may  be  required  to  give  a  bond  or  insurance  policy  to  in- 
demnify the  municipality  and  other  travelers.^'^    The  fact  that 


safety  of  the  traveling  public?  Not 
so."  Desser  v.  City  of  Wichita,  96 
Kans.  820,  153  Pac.  1194. 

45.  McGlothern  v.  City  of  Seatth' 
(Wash.),   199  Pac.  457. 

46.  Curry  v.  Osborne.  76  Fla.  39,  79 
So.  293,  6  A.  L.  R.  108. 

47.  United  States. — Nolan  v.  Riech- 
man,  225  Fed.  812;  Lutz  v.  City  of 
New  Orleans,  235  Fed.  978. 

Arkansas.— WiWis  v.  City  of  Ft. 
Smith,  121  Ark.  606,  182  S.  W.  275. 

Georgia. — Hazelton  v.  City  of  At- 
lanta, 144  Ga.  775,  87  S.  E.  1043; 
Hazelton  v.  City  of  Atlanta,  147  Ga. 
207,  93  S.  E.  202. 

Iowa. — Hutson  v.  Des  Moines,  176 
Iowa.  456,  156  N.  W.  883. 

Louisiana. — New  Orleans  v.  Le  Blanc. 
139  La.   113,  71  So.  248. 

MassacMsetts. — Commonwealth  v. 
Slocum,  230  Mass.  180,  119  N.  E.  687; 
Commonwealth  v.  Theberge,  131  Mass. 
386,  112  N.  E.  30. 

Nevada. — Ex  parte  Counts,  39  Nev. 
61,  153  Pac.  93. 

New  Jersey. — West  v.  Asbury  Park, 
89  N.  J.  L.  402,  99  Atl.  190. 

Pennsylvania. — Jitney  Bus  Assoc,  of 
Wilkesbarre  v.  Wilkesbarre,  256  Pa.  St. 
462,  100  Atl.  954. 

Tennessee. — City  of  Memphis  v. 
State,  1-33  Tenn.  83,  179  S.  W.  651. 

Texas. — Greene  v.  City  of  San  An- 
tonio (Civ.  App.),  178  S.  W.  6;  Ex 
parte  Bogle,  78  Tex.  Cr.   1,   179  S.  W. 


1193;  Auto  Tran.sit  Co.  v.  City  of  Ft. 
Worth  (Civ.  App.),  182  S.  W.  685; 
Craddock  v.  City  of  San  Antonio  (Civ. 
App.),  198  S.  W.  634;  City  of  Dallas  v. 
Gill  (Civ.  App.),  199  S.  W.  1144; 
Western  Indemnity  Co.  v.  Berry  (Civ. 
App.),  200  S.  W.  245  ;£a;  parte  Parr,  82 
Tex.  Cr.  525,  200  S.  W.  404.  "We  dis- 
cern nothing  in  the  indemnity  obliga- 
tion required  which  would  condemn  the 
ordinance  as  unreasonable.  It  creates 
no  liability  against  the  operators  of 
automobiles  for  hire,  but  simply  pro- 
vides a  limited  security  for  the  satisfac- 
tion of  liabilities  that  may  be  incurred 
by  the  negligence  of  the  licensee  or 
those  operating  the  automobile  for  him. 
The  tendency  of  such  a  provision  mani- 
festly is  to  protect  the  citizens  of  the 
city  using  the  streets  in  the  ordinary 
way  by  stimulating  caution  on  the  part 
of  those  operating  the  vehicle."  Ex 
parte  Parr,  82  Tex.  Cr.  525,  200  S.  W. 
404. 

Washington.- — State  ex  rcl.  Case  v. 
Howell,  85  Wash.  294,  147  Pac.  1159; 
State  V.  Seattle  Taxicab  &  Transfer 
Co.,  90  Wash.  416,  156  Par.  837;  Salo 
V.  Pacific  Coast  Casualty  Co.,  95  Wash. 
109,  163  Pac.  384;  Singer  v.  Martin,  96 
Wash.  231,  164  Pac.  1105;  Iladfield  v. 
Lundin,  98  Wash.  657,  168  Par.  5.16-; 
Puget  Sound  Tract.  L.  &  P.  Co.  v. 
Gra.ssmeycr,  102  Wash.  482.  173  Pac. 
504. 

Vehicles  other  than  jitneys.-- An  or- 


184 


The  Law  of  Automobiles. 


jitneys  are  required  to  furnisli  such  an  undertaking,  while 
other  carriers  are  exempt  from  the  obligation,  does  not  afford 
ground  for  the  complaint  of  class  legislation/*  The  require- 
ment is  justified  on  the  theory  that  the  investment  required 
for  the  operation  of  a  jitney  is  so  inconsiderable  that  persons 
of  small  financial  responsibility  are  able  to  engage  in  the 
business,  and  a  bond  may  therefore  be  the  only  method  of 
securing  redress  to  persons  who  may  be  injured  by  the  care- 
lessness of  the  jitney  operator.*^  Another  reason  warranting 
the  requirement  of  a  bond  is  the  fact  that  it  will  tend  to  make 
the  owner  more  prudent  as  to  the  skill  of  the  drivers  he  may 


dinance  requiring  that  the  proprietors 
of  motor  vehicles,  other  than  jitneys, 
used  for  hire,  shall  give  a  bond,  is  sus- 
tainable to  the  same  extent  as  a  similar 
regulation  relative  to  jitneys.  Craddock 
V.  City  of  San  Antonio  (Tex.  Civ. 
App.),  198  S.  W.  634,  wherein  it  was 
said :  ' '  The  ordinance  of  which  com- 
plaint is  made  was  passed  for  the  pur- 
pose of  regulating  the  use  of  the  streets 
of  the  city  by  corporations  or  indi- 
viduals with  public  service  automobiles, 
not  operating  under  the  jitney  ordi- 
nance, which  prescribes  the  streets  on 
which  they  shall  or  shall  not  operate, 
and  is  not  open  to  any  of  the  objections 
urged  against  it.  Tlie  city  seek.s  to 
regulate  this  class  of  automobiles  just 
as  it  regulates  the  class  kno\%ni  as 
jitneys,  and  it  has  the  same  right  over 
its  streets  in  connection  with  public 
service  cars  that  transport  passengers 
when  and  where  they  may  choose,  as 
it  has  ,over  those  whose  routes  arc 
prescribed  and  licenses  and  bonds  pro- 
vided for.  If  the  city  can  require  a 
jitney  to  take  out  a  license  and  give 
an  indemnity  bond,  why  should  it  not 
require  the  same  or  similar  things  of 
the  public  service  cars?  They  are  fully 
as  dangerous,  use  the  streets  for  a  simi- 
lar business,  and  no  reason  can  be 
offered  for  not  regulating  their  use  of 
the  streets  that  has  not  been  given 
many  times  in  connection  with  jitneys. 


The  jitney  transports  its  passengers 
along  certain  named  streets  of  the  city 
at  a  charge  of  five  cents  a  passenger. 
The  jitney  is  required  to  give  a  bond  in 
a  certain  sum  for  the  protection  of 
those  who  ride  upon  it.  This  court  has 
lield,  and  perhaps  every  court  of  the 
Union,  considering  the  question,  has 
lield,  that  cities  under  their  charters 
have  absolute  control  of  their  streets 
so  far  as  the  regulation  thereof  is  con  - 
corned  in  connection  with  the  opera- 
tion of  a  private  business.  The  ser- 
vice car  has  no  more  rights  and  privi- 
leges upon  the  streets  than  have  jitneys, 
the  rights  and  privileges  of  each  de- 
pending upon  grants  made  to  them  by 
the  municipality  in  which  they  oper- 
ate." 

48.  Nolan  v.  Reichman,  225  Fed. 
812;  Lutz  V.  City  of  New  Orleans,  235 
Fed.  978;  Hazelton  v.  City  of  Atlanta, 
144  Ga.  775,  87  S.  E.  1043;  West  v. 
Asbury  Park,  89  N.  J.  L.  402,  99  Atl. 
190;  Greene  v.  San  Antonio  (Tex. 
Civ.  App.),  178  S.  W.  6;  Ex  parte 
Bogle,  78  Tex.  Cr.  1,  179  S.  W.  1193; 
Auto  Transit  Co.  v.  City  of  Ft.  Worth 
(Tex.  Civ.  App.),  182  S.  W.  685;  State 
V.  Seattle  Taxicab  &  Transfer  Co.,  90 
Wash.  416,  156  Pac.  837. 

49.  West  V.  Asbury  Park,  89  N.  J.  L. 
402.  99  Atl.  190 ;  State  v.  Seattle  Taxi- 
cab  &  Transfer  Co.,  90  Wash.  416,  156 
Pac.  837. 


Public  Carriage  for  Hire,  Jitneys,  Etc.  185 

employ  to  operate  the  machines.^^  The  intention  of  the  bond 
being  to  protect  other  travelers,  the  regulation  may  properly 
provide  that  a  person  injured  by  the  operation  of  the  machine 
shall  have  a  cause  of  action  against  the  principal  and  surety 
in  the  same  manner  as  though  the  bond  ran  directly  to  him.^^ 
An  ordinance  fixing  the  amount  of  the  bond  as  $5,000  is  not 
unreasonable  or  oppressive.^^ 

Sec.  156.  Bonds  —  inability  to  furnish  bond. 

The  fact  that  the  ow^ner  of  a  jitney  is  unable  to  furnish  the 
bond  which  may  be  required  by  a  municipal  regulation  and 
cannot  therefore  engage  in  the  business,  furnishes  no  reason 
why  the  ordinance  should  not  be  enforced,  nor  are  the  con- 
stitutional rights  of  the  jitney  owner  thereby  infringed.^^ 

Sec.  157.  Bonds  —  character  oi  sureties. 

The  governmental  power  over  the  regulation  of  jitneys  is 
so  extensive  that  it  is  generally  held  that  the  regulation  may 
provide  for  a  particular  form  of  bond,  as,  for  example,  one 
furnished  by  a  surety  company  licensed  to  do  business  within 
the  State."    Such  a  requirement  does  not  violate  the  consti- 

50.  Lutz  V.  City  of  New  Orleans,  field  v.  Lundiii,  98  Wash.  ().-)7,  1(>S  I'ai^. 
235  Fed.  978;  Auto  Transit  Co.  v.  516;  Puget  Sound  Tract.  L.  &  P.  Co. 
City  of  Ft.  Worth  (Tex.  Civ.  App.),  v.  Grassmeyer.  102  Wii.sli.  4S2,  \7:\  Pac. 
182  S.  W.  685.  504. 

51.  Hutson  V.  Des  Moines,  176  54.  Lutz  v.  City  of  New  Orleans.  235 
Iowa,  456,  1.56  N.  W.  883;  City  of  Fed.  978;  New  Orleans  v.  LeBlanc,  139 
Providence  v.  Paine,  41  R.  I.  333,  103  La.  113,  71  So.  248;  Auto  Transit  Co. 
Atl.  786;  State  ex  rel.  Case  v.  Howell,  v.  City  of  Ft.  Worth  (Tex.  Civ.  App.), 
85  Wash.  294,  147  Pac:  1159;  Singer  182  S.  W.  685;  State  v.  Seattle  Taxi- 
V.  Martin,  96  Wash.  231,  164  Pac.  1105.  cab  &  Transfer  Co..  90  Wash.  416,  156 

52.  Hazelton  v.  City  of  .\tlanta.  Pac.  837.  "It  is  further  contended,  in 
144  Ga.  775,  87  S.  E.  1043.  this  connection,  that  the  act  is  invalid 

$2500     bond,     is     not     unreasonable.  because  of  the  particular  character  of 

Commonwealth  v.   Theberge,   231   Mass.  the  bond  required.     The  requirement  is, 

386,  121  N.  E.  30.  it  will  be  noticed,  that  the  bond  be  ol>- 

53.  Lutz  v.  City  of  New  Orleans,  235  tained  from  a  'good  and  sufficient 
Fed.  978;  Greene  v.  City  of  San  An-  .suretty  company  licensed  to  do  busi- 
tonio  (Tex.  Civ.  App.),  178  S.  W.  6;  ness  in  this  State,'  making  no  ])rovi- 
Auto  Transit  Co.  v.  City  of  Ft.  Worth  sion  for  .substitutes  in  any  form,  or 
(Tex.  Civ.  App.),  182  S.  W.  685 ;  Had-  for  bonds  with  other  sureties  of  equal 


186 


The  Law  or  Automobiles. 


tutional  right  of  the  jitney  owner  to  liberty  of  contract.^'^ 
And  the  fact  that  a  particular  operator  cannot,  by  reason  of 
limited  financial  resources  or  standing,  secure  a  surety  bond, 
will  not  present  ground  for  the  courts  to  release  him  from  the 
requirement.^*'  But  a  contrary  conclusion  has  been  reached 
as  to  such  a  requirement,  and  it  has  been  held  in  one  State 
that  a  municipal  ordinance  requiring  the  bond  of  a  jitney 
operator  to  be  signed  by  a  surety  company  is  unreasonable.^^ 


responsibility.  But  we  know  of  no 
constitutional  right  which  such  a  pro- 
vision violates.  The  power  to  regulate 
necessarily  implies  the  power  to  pre- 
scribe the  form  of  regulation,  and  the 
most  that  can  be  successfully  contended 
for,  conceding  even  that  it  was  without 
the  power  of  the  legislature  to  actually 
prohibit  this  form  of  traffic,  is  that  the 
requirement  be  a  reasonable  one.  It  is 
not  shown  that  there  were  no  such  com- 
panies authorized  to  do  business  in  this 
State,  and,  since  the  legislature  pre- 
scribed this  form  of  bond,  the  court 
must  presume  that  they  had  knowledge 
of  the  subject-matter  upon  which  it 
legislated,  and  must  presume,  in  con- 
sequence, that  there  are  such  companies, 
and  that  bonds  are  obtainable  from 
them  without  undue  icstrictions  or  un- 
reasonable cost.  We  cannot  therefore 
know  judicially  that  the  requirement 
is  unreasonable."  State  v.  Seattle 
Taxicab  &  Transfer  Co.,  90  Wash.  416, 
156  Pac.  837. 

55.  Lutz  V.  City  of  New  Orleans,  235 
Fed.  978.  "Does  the  requirement  that 
the  bond  be  signed  by  a  surety  com 
pany  violate  plaintiffs'  liberty  of  con 
tract?  Assuredly  not.  It  is  shown  that 
a  number  of  surety  companies  are  au- 
thorized to  do  business  in  the  State.  It 
is  not  shown  they  exact  exorbitant  fees, 
or  that  the  plaintiffs  could  procure  per- 
sonal surety  on  a  better  basis  or  at  all. 
The  only  reason  plaintiffs  cannot  pro 
cure  the  surety  bonds  in  compliance 
with  the  ordinance  is  because  they  can- 
not deposit  cash  or  collateral  equal  to 


the  amount  of  the  bond.  Personal 
surotj-  might  make  the  same  require- 
ment. In  any  event  the  contrary  is 
neither  alleged  or  proved.  Considering 
the  greater  desirability  of  corporate 
surety  .  in  any  case,  a  superiority 
sometimes  recognized  by  the  law  it- 
self. ...  it  can  hardly  be  said 
that  the  provision  that  the  bond  must 
be  signed  by  a  surety  company  is  more 
onerous  than  would  be  a  requirement  of 
personal  surety  of  equal  responsi- 
bility." Lutz  V.  City  of  New  Orleans, 
235  Fed.  978. 

56.  Lutz  V.  City  of  New  Orleans,  235 
Fed.  978;  Auto  Transit  Co.  v.  City  of 
Ft.  Worth  (Tex.  Civ.  App.),  182  S.  W. 
685. 

57.  Jitney  Bus  Assoc,  of  Wilkes- 
barre  v.  Wilkesbarre,  256  Pa.  St.  462, 
100  Atl.  954,  wherein  the  court  said: 
*  *  In  the  present  case  the  bond  re- 
quired is  restricted  to  one  furnished  by 
;i  surety  company,  while  the  evidence 
shows  that  it  is  difficult  to  procure  such 
a  bond  from  a  surety  company.  Under 
the  circumstances,  we  think  the  exclu- 
sion of  personal  sureties  is  not  justi- 
fiable or  reasonable.  The  municipality 
is  entitled  to  require  good  and  suffi- 
cient security,  but  beyond  that  it  should 
not  go.  The  terms  of  the  ordinance  in 
this  respect  would  forbid  the  deposit  of 
cash,  or  a  certified  check,  or  municipal 
bonds,  as  security  by  the  applicant  for 
a  permit,  or  the  acceptance  as  sureties 
upon  his  bond  of  individual  freeholders 
of  unquestioned  financial  responsibility. 
We  know  of  no  other  instance  in  which, 


PuiJLic  Carriage  for  Hire,  Jitneys,  Etc.  187 

And  it  has  been  held  proper  to  vest  the  municipal  officials 
with  po^^^r  to  require  further  sureties  upon  the  bond,  after 
determining-  that  the  existing  ones  are  insufficient.^ 

Sec.  158.  Bonds  — extent  of  surety's  liability. 

In  an  action  for  injuries  received  by  a  traveler  from  the 
operation  of  a  jitney,  the  plaintiff  is  entitled  to  recover  of 
the  surety  on  the  bond  the  same  items  of  damages  as  he  is 
entitled  to  receive  from  the  principal.^^  The  liability  of  the 
surety  may  run  to  a  passenger  in  the  vehicle  as  well  as  to 
pedestrians  and  travelers  in  other  vehicles,''*^  although  the 
amount  of  the  bond  is  regulated  according  to  the  seating 
capacity  of  the  vehicle.^^  The  bond  may  be  one  of  liability 
instead  of  indemnity  merely.^^  tj^^  surety  may  be  liable,  al- 
though the  machine  was  operated  at  the  time  in  question,  not 
by  the  jitney  owner,  but  by  a  driver  who  received  a  share  of 
the  proceeds  for  his  compensation.^  Or  the  bond  may  cover 
an  accident  while  the  driver  is  running  the  machine  to  a  re- 
pair shop  for  repairs  and  is  not  carrying  passengers.^*  But 
the  surety  mil  not  ordinarily  be  liable  when  the  machine  is 
off  its  usual  route  and  the  driver  has  temporarily  discontinued 

where  security  is  required  by  law  to  be  Pac.  31,  where  it  was  said:     "The  test 

giveu,    an   attempt   has   been   made    to  as  to  whether  this  is  a  liability  or  an 

confine    such    security    to    surety    com-  indemnity  bond  seems  to  be:      If   the 

panies,  to  the  exclusion  of  solvent  and  intention  of  the  parties  thereto  was  to 

responsible  personal  sureties. ' '  protect   the   assured   from   liability   for 

58.  Commonwealth  v.  Slocum,  230  damages,  or  to  protect  persons  damaged 
Mass.  180,  119  N.  E.  687.  by   injuries   occasioned   by  the  assured 

59.  Singer  v.  Martin,  96  Wash.  231,  as  specified  in  the  contract,  when  such 
164  Pac.   1105.  liability  should  accrue,  and  be  imposed 

Damage  to  property,  as  well  as  per  by  law  (as  by  a  judgment  of  a  compe- 

sonal      injuries,      may      be      recovered  tent  court),  it  is  a  liability  bond;   if, 

against   the   surety.     Gilland  v.   Manu-  on  the  other  hand,  it  is  only  tq  indem- 

facturer's  Casualty  Ins.  Co.,  93  N.  J.  L.  nify  tlie  assured  against  actual  loss  by 

146,  104  Atl.  709.  them,    that    is,    for    reimbursement    to 

60.  City  of  Providence  v.  Paine  (R.  them  for  moneys  they  had  been  obliged 
I.),  103  Atl.  786;  Interstate  Casualty  to  pay  and  had  paid,  it  would  be  an  in- 
Co.  V.  Hogan  (Tex.  Civ.  App.),  232  S  denudty  bond  only,  protecting  only  the 
W.    354;    Singer   v.    Martin,   96    Wash.  assured." 

231,  164  Pac.  1105.  63.  McDonald      v.      Lawrence,      170 

61.  City   of   Providence  v.  Paine,    II       Wash.  576,  170  Pac.  576. 

R.  I.  333,  103  Atl.  786.  64.  Ehlers  v.  Gold,  169  Wis,  494,  173 

62.  Fenton    v.   Postou    (Wash.),    J 95       N.  W.  325. 


188 


The  Law  of  Automobiles. 


the  jitney  business.^    And,  generally  the  liability  of  the  com- 
pany extends  only  to  the  vehicle  mentioned  in  the  bond.'^*' 

The  liability  on  the  bond  may  survive  the  death  of  the  in- 
jured person  so  that  his  representative  or  a  member  of  his 
family  may  maintain  an  action  thereon.^''  It  is  not  necessary, 
in  order  to  resort  to  the  remedy  against  the  surety,  that  a 
judgment  be  first  recovered  against  the  jitney  owner.^'^  Or 
the  person  injured  may  sue  the  surety  on  the  judgment  he  has 
recovered  against  the  proprietor ;  "^  but,  where  the  bond  is  not 
to  pay  a  judgment  recovered  against  the  principal  the  surety 
may  contest  the  liability  of  the  principal,  although  judgment 
has  been  rendered  against  him.'"  Under  the  regulations  in 
some  States,  the  bond  is  a  continuing  liability  and  each  person 
injured  by  the  operation  of  the  jitney  is  entitled  to  recover 
from  the  surety  up  to  the  full  amount  of  the  bondJ^    But,  on 


65.  Motor  Car  Indemnity  Exch.  v. 
Lilienthal  (Tex.  Civ.  App.),  229  S.  W. 
703;  Hemphill  v.  Romano  (Tex.  Civ. 
App.),  233  S.  W.  125. 

66.  Downs  v.  Georgia  Casualty  Co., 
271  Fed.  310. 

Marshaling  funds. — When  the  sums 
due  to  various  persons  exceed  the 
amount  of  the  bond,  the  court  has  no 
authority  to  marshal  the  funds  for 
division  pro  rata  among  such  persons. 
Turk  V.  Goldberg  (N.  J.),  109  Atl.  732. 

67.  Bruner  v.  Little,  97  Wash.  319, 
166  Pac.  1166. 

68.  Gugliemetti  v.  Graham  (Cal. 
App.),  195  Pac.  64;  City  of  Providence 
V.  Paine,  41  R.  I.  333,  103  Atl.  786. 
"There  is  nothing  in  the  statute  ex- 
pressly or  impliedly  requiring  the  bring- 
ing of  an  action  against  the  principal 
to  determine  his  liability  before  an  ac- 
tion is  commenced  on  the  bond.  And 
there  is  nothing  in  the  bond  which 
makes  the  sureties  liable  only  in  the 
event  that  the  principal  fails  to  pay. 
On  the  contrary,  their  liability  is  un- 
conditional, and,  as  has  already  been 
stated,  they  may  be  proceeded  against 
alone.  It  follows  that  a  person  injured 
by  the  negligence  of  a  motor  bus  li- 
censee in  the  operation  of  his  motor  car 


has  the  choice  of  proceeding  in  the  re- 
covery of  damages  in  whichever  man- 
ner he  considers  will  be  for  his  advan- 
tage, either  by  bringing  an  action  of 
trespass  on  the  case,  if  the  licensee  be 
financially  responsible,  or  an  action  of 
debt  on  bond,  if  he  deem  that  the  more 
prudent  course.  City  of  Providence  v. 
Paine,  41  R.  L  333,  103  Atl.  786. 

69.  Gillard  v.  Manufacturers  Casu- 
alty Ins.  Co.,  93  N.  J.  L.  215,  107  Atl. 
446. 

70.  Calvitt  V.  City  of  Savannah  (Ga. 
App.),  101  S.  E.  129. 

71.  Salo  V.  Pacific  Coast  Casualty 
Co.,  95  Wash.  109,  163  Pac.  384;  Nel 
son  V.  Pacific  Coast  Casualty  Co.,  96 
Wash.  43,  164  Pac.  594.  "Much  dis- 
cussion is  found  in  the  briefs  over  the 
question  whether  a  surety  can  be  held 
liable  for  a  greater  amount  than  the 
penalty  named  in  the  bond.  There  is 
a  line  of  cases  which  hold  that,  where 
the  action  is  brought  upon  a  covenant 
found  in  the  bond,  and  is  not  brought 
for  the  penalty,  wjiich  at  common  law 
would  have  been  an  action  of  debt,  the 
recovery  may  exceed  the  amount  of  the 
penalty.  It  is  unnecessary  to  review 
these  cases,  as  they  are  not  here  appli- 
cable.    In  this  case,  the  action  against 


Public  Caeriage  for  Hire^  Jh\neys,  Etc. 


189 


the  othi^r  hand,  it  has  been  held  that  a  municipality  cannot 
require  a  jitney  proprietor  to  furnish  a  bond  which  shall  have 
a  continuing  liability  so  as  to  render  the  surety  liable  for  a 
sum  beyond  the  penal  sum  mentioned  thereinJ^  If  bonds  in 
excess  of  the  amount  actually  required  are  given  by  the  jitney 
proprietor,  a  recovery  may  be  had  thereon  to  their  full 
amount.'^ 

Sec.  159.  Bonds  —  liability  for  accident  outside  of  munici- 
pality. 
Under  a  statute  forbidding  the  operation  of  jitneys  within 
certain  cities  unless  the  owner  procures  a  license  and  fur- 
nishes a  bond,  it  has  been  held  that  the  surety  is  not  liable 
for  injuries  occurring  outside  of  the  territorial  limits  of  a 
city.'''*    The  bond  may  be  required  so  that  it  applies  only  to 


the  surety  company  is  not  upon  a  cove- 
nant in  the  bond  other  than  the  stipu- 
lated penalty.  If  the  bond  in  this  case 
does  not  furnish  protection  to  each  in- 
dividual injured,  to  the  extent  of  the 
penalty  named,  then  the  judgment 
should  be  reversed.  On  the  other  hand, 
if  it  was  the  intention  of  the  statute, 
under  which  the  bond  is  given,  to  fur- 
nish protection  to  each  individual  in- 
jured, to  the  extent  of  the  penalty 
named  in  the  bond,  then  the  judgment 
should  be  affirmed.  In  a  statutory 
bond,  in  order  to  determine  the  extent 
of  the  liability,  the  provisions  of  the 
act  under  which  the  bond  is  given  are 
read  into,  and  become  a  part  of,  such 
bond."  Salo  v.  Pacific  Coast  Casualty 
Co.,  95  Wash.  109,  163  Pac.  384. 

Damages  to  "  two  "  persons. — Where 
a  widow  shows  damages  in  an  action  for 
his  death  to  the  deceaseed  and  his  es- 
tate and  also  her  own  pecuniary  loss, 
the  circumstances  may  constitute  dam- 
ages to  "two  persons"  within  the 
meaning  of  a  bond  conditioned  for  the 
payment  of  damage  not  exceeding  $2,- 
500  to  any  one  person,  or  $5,000  for 
any  one  accident.  Ehlers  v.  Gold,  169 
Wis.  494,  173  N.  W.  325. 


72.  Jitney  Bus  Assoc,  of  Wilkes- 
barre  v.  Wilkesbarre,  256  Pa.  St.  462, 
100  Atl.  954. 

73.  Western  Indemnity  Co.  v.  Mur- 
ray  (Tex.  Civ.   App.),  208   S.  W.   696. 

74.  Bartlett  v.  Lanphier,  94  Wash. 
354,  162  Pac.  533,  wherein  it  was  said: 
"If  one  reads  these  sections  without 
having  in  mind  the  dominant  purpose 
of  the  act,  which  manifestly  is  to  pre- 
vent the  operation  of  motor  vehicles  by 
carrying  passengers  for  hire  in  cities  of 
the  first  class  without  a  permit  so  to 
do,  and  to  secure  compensation  to  those 
negligently  injured  by  such  operation 
in  cities  of  the  first  class,  there  will  be 
suggested  to  the  mind  of  the  reader 
many  uncertainties  and  much  ambiguity 
in  the  meaning  of  the  language  used; 
but,  having  this  evident  dominant  pur- 
pose of  the  act  in  view,  we  think  it 
must  be  held  that  no  permit  for  so 
operating  motor  vehicles  outside  the 
corporate  limits  of  cities  of  the  first 
class  is  required  and  that  the  bond  re- 
quired as  a  condition  precedent  to  the 
issuance  of  such  permit  is  not  to  secure 
compensation  for  injuries  other  than 
such  as  occur  within  the  corporate- 
limits  of  such  cities.     In  other  words, 


190 


The  Law  of  Automobiles. 


the  municipality  granting  the  license,  although  the  line  ex- 
tends beyond  the  municipal  limits.''^ 

Sec.  160.  Hack  stands  —  in  general. 

It  is  within  the  power  of  nmnicipal  corporations  to  regulate 
the  place  where  taxicabs,  motor  hacks  and  similar  vehicles 
shall  stand  when  not  in  employment.''^  Outside  of  the  nature 
of  such  vehicles  as  common  carriers  which  justifies  their  regu- 
lation, a  city  has  power  to  make  reasonable  regulations  to 
avoid  the  obstruction  of  the  streets.''^  As  a  general  proposi- 
tion, it  may  select  certain  places  for  stands  and  adopt  a  form 
of  license  to  use  such  places,  and  it  may  thereafter  revoke 
such  licenses  and  make  other  provisions  with  regard  to  the 
hack  stands.''^ 


Sec.  161.  Hack  stands  —  sight-seeing  automobiles. 

In  New  York  it  is  decided  that  as  a  general  proposition,  an 
owner  or  tenant  of  premises  abutting  on  a  public  street  in  the 
city  of  New  York  cannot  use  the  street  for  private  gain,  as  the 
streets  are  for  the  use  of  the  public,  subject  to  such  regula- 
tions as  the  Legislature  may  adopt  or  may  empower  the  muni- 
cipality to  make.'^^   So,  it  has  been  held  that  the  lease  of  a  store 


that  neither  the  permit  nor  the  bond 
has  anything  to  do  with  the  operation 
of  motor  vehicles  outside  the  corporate 
limits  of  such  cities."  See  also  Bog- 
dan  V.  Pappas,  95  Wash.  579,  164  Pac. 
208. 

75.  Fi.scher   v.    Pallitt    (N.    J.),    112 
Atl    305. 

76.  Sanders  v.  City  of  Atlanta,  147 
Ga.  819,  95  S.  E.  695;  Pugh  v.  City  of 
Drs  Moines,  176  Iowa,  593,  156  N.  W. 
802;  Swann  v.  City  of  Baltimore,  132 
Md.  256,  103  Atl.  441;  Yellow  Taxicab 
Co.  V.  Gaynor,  82  Misc.  94,  143  N.  Y. 
Snpnl.  279,  affirmed  on  opinion  below, 
159  App.  Div.  893;  Ex  parte  Stallcups 
(Tex.  Cr.),  220  S.  W.  547. 

77.  Sanders  v.  City  of  Atlanta,  147 
Ga.  819,  95  S.  E.  695;  Pugh  v.  City  of 


Des  Moines,  176  Iowa,  593,  156  N.  W. 
892. 

Standing  taxicab  as  nuisance. — If  a 
taxicab  company  unreasonably  and  un- 
lawfully obstructs  a  public  highway  it 
is  guilty  of  a  public  nuisance,  but  no 
action  to  abate  it  exists  in  favor  of  a 
private  suitor  in  the  absence  of  some 
showing  of  injury  or  damage  peculiar 
to  him.  Hefferon  v.  New  York  Taxi- 
cab  Co.,  146  N.  Y.  App.  Div.  311,  130 
N.  Y.  Suppl.  710. 

78.  Yellow  Taxicab  Co.  v.  Gaynor,  82 
Misc.  94,  143  N.  Y.  Suppl.  379,  affirmed 
on  opinion  below,  159  App.  Div.  893; 
Ex  parte  Stallcups  (Tex.  Cr.),  220  S. 
W.  547. 

79.  United  States  Restaurant  Co.  v. 
Schulte,  67  Misc.  (N.  Y.)  633,  124 
N.  Y.  Suppl.  835. 


Public  Carriage  for  Hire,  Jitneys,  Etc.  191 

under  a  hotel  carries  with  it  the  easements  of  light,  air  and 
access  through  the  public  street  in  front  of  the  premises,  but 
does  not  include  the  right  to  grant  a  privilege  of  maintaining 
a  sightseeing  automobile  at  the  curb.  Although,  by  reason  of 
a  prior  license  given  by  the  landlord  who  owns  a  hotel  to  a 
taxicab  company  to  maintain  a  cab  stand  in  front  of  said 
premises  and  a  municipal  license  granted  in  conformity  there- 
with, if  the  use  of  the  street  by  a  sightseeing  automobile  is 
interefered  with,  the  tenant  of  the  store  cannot  be  held  thereby 
to  suffer  a  partial  eviction.  Such  a  stand  is  an  incident  to 
the  use  of  the  premises  as  a  hotel,  but  a  sightseeing  automo- 
bile is  not  incidental  to  the  use  of  the  store.*^ 

Sec.  162.  Hack  stands  —  taxicab  service  for  hotel. 

Although  a  hotel  proprietor  may  have  no  right  to  rent  an 
automobile  kept  standing  in  front  of  his  hotel  except  to  his 
guests,  he  is  not  to  be  convicted  of  unnecessarily  obstructing 
the  streets  because  a  machine  happened  to  be  rented  to  one 
coming  into  the  hotel  who  proved  not  to  be  a  guest,  w^here 
there  is  no  evidence  that  the  machine  delayed  or  hindered 
traffic  along  the  street.^^  It  has  been  held  that  an  agreement 
by  a  hotel  company  purporting  to  ''lease''  the  privilege  of 
taxicab  service  for  the  hotel  for  a  specified  sum  is  not  a  lease, 
but  a  license,  and  where  such  license  is  not  exclusive  and  it 
is  not  shown  that  irreparable  damage  will  ensue  from  a  breach 
thereof,  and  the  license  has  been  surrendered  by  one  of  the 
licensees,  the  plaintiff's  partner,  his  suit  for  an  injunction 
restraining  the  hotel  from  granting  a  like  license  to  other 
parties  does  not  lie,  for  if  there  was  any  breach  of  the  agree- 
ment the  remedy  at  law  is  adequate.^* 

Sec.  163.  Hack  stands  —  soliciting  passengers. 

A  municipal  ordinance  may  forbid  the  operators  of  taxicabs 
from  soliciting  customers  or  passengers  for  hire  upon  rail- 
so.  United  States  Restaurant  Co.  v.      Columbia,  25  App.  D.  C.  179. 
Schulte.    67    Misc.    (N.    Y.)    633,    124  82.  Lynch  v.  Murphy  Hotel  Co.,  130 

N.  Y.  Suppl.  835.  X.  Y.  App.  Div.  691.  115  N.  Y.  Suppl. 

81.  Gassenheimer      v.      District      of       465. 


192  The  Law  of  Automobiles. 

road  premises  or  docks  of  transportation  companies,  or  other 
places.  Or  it  may  be  required  that  no  person  shall  solicit 
passengers  for  a  public  hack  upon  the  streets  except  the  driver 
when  sitting  on  the  box  of  his  vehicle.^  It  is  the  intent  of 
such  a  regulation  to  protect  the  traveling  public  from  annoy- 
ance by  drivers  of  taxicabs,  and  to  prevent  such  drivers  from 
annoying  prospective  passengers.**  Such  a  regulation  does 
not  necessarily  prohibit  drivers  from  standing  their  vehicles 
at  such  places  when  they  are  not  soliciting  patronage.^  It 
may,  therefore,  be  important  to  determine  the  exact  meaning 
of  the  term  ' '  soliciting. ' '  In  one  case,  a  charge  was  sustained 
which  defined  '^ soliciting"  as  follows:  ''  'Soliciting'  within 
the  meaning  of  said  ordinances,  is  to  ask  for  and  to  seek  to 
obtain  the  right  and  privilege  of  passengers  to  transfer  such 
passengers  or  their  baggage  for  hire  by  actual  persuasion  or 
persistent  entreaty,  and  that  the  presence  of  any  of  the  plain- 
tiff's officers,  agents,  servants,  or  employees,  either  in  or  not 
in  uniform  of  the  plaintiff,  along,  or  accompanied  by  any 
vehicle  of  the  plaintiff,  with  or  without  its  name  thereon,  is 
not  'soliciting'  within  the  meaning  of  said  ordinance. " ^^ 

83.  Yellow  Taxicab  Co.  v.  Gaynor,  82  the  street,  mute,  with  his  cab,  could 
Misc.  94,  143  N.  Y.  Suppl.  279,  atfirmed  not  be  construed  as  soliciting,  under 
on  opinion  below,  159  App.  Div.  893.  the   terms  of  the  ordinance.     The  city 

84.  Seattle  Taxicab  &  Tr.  Co.  v.  plainly  did  not  intend  that,  if  a  taxi- 
Seattle,  86  Wash.  594,  150  Pac.  1134.  cab  driver  was  sitting  upon  the  seat  of 

85.  Seattle  Taxicab  &  Tr.  Co.  v.  his  cab  at  some  other  place  in  the  city, 
Seattle,  86  Wash.  594,  150  Pac.  1134.  saying  nothing,  he  would  be  subject  to 

86.  Seattle  Taxicab  &  Tr.  Co.  v.  arrest  because  he  was  without  the 
Seattle,  86  Wash.  594,  150  Pac.  1134,  places  named  in  the  ordinance.  The 
wherein  it  was  said:  "We  think  no  police  oflficers  of  the  city  of  Seattle, 
valid  objection  can  be  made  to  this  prior  to  the  bringing  of  this  action, 
definition  of  the  word  'soliciting,'  as  had  construed  the  ordinance  to  pro- 
the  same  is  used  in  the  ordinance  in  hibit  taxicab  drivers  from  being  at  any 
question.  As  stated  above,  the  purpose  other  place  than  the  places  mentioned 
of  this  ordinance  was  to  protect  trav-  in  the  ordinance,  whether  they  were  ac- 
elers  so  that  they  might  not  be  sub-  tively  soliciting  or  not.  The  fact  that 
jected  to  inconvenience  or  annoyance,  the  driver  wore  a  cap  or  uniform,  or 
and  the  words  'soliciting  customers  or  upon  his  cab  was  a  designation  of  the 
passengers  for  hire'  mean  that  drivers,  fact  that  the  cab  was  for  hire,  was  con- 
when  asking  persons  to  become  pratrons  strued  by  the  police  officers  as  an  act 
of  their  cabs,  shall  be  at  a  certain  of  solicitation,  for  which  the  driver  was 
place  or  places.  The  mere  fact  that  arrested.  It  was  to  prevent  this  that 
the  driver  of  a  cab  was  standing  upon  the  action  was  brought.     We  think  the 


Public  Cakriage  for  Hire,  Jitneys,  Etc. 


193 


Sec.  164.  Routes  and  schedules. 

The  fixing  of  routes  and  schedules  for  jitneys  is  an  appro- 
priate exercise  of  the  regulatory  power  of  States  and  muni- 
cipalities.^^ A  jitney  regulation  may  properly  require  the 
proprietor  to  maintain  a  regular  schedule  of  his  trips  for 
certain  hours.^  And  a  jitney  owner  may  be  required  to  oper- 
ate over  a  designated  route  and  no  other,  and  on  a  fixed 
schedule  without  repetition  in  whole  or  in  part  of  the  sched- 
uled trips,  and  that  the  machines  shall  be  operated  a  certain 
number  of  hours  during  each  day.^  And  it  may  also  be  re- 
quired that  the  jitney  shall  not  stop  to  accept  or  discharge 
passengers  in  congested  parts  of  the  city  at  points  other  than 
near  the  middle  of  blocks.''*' 

Sec.  165.  Punishing  passenger  for  failure  to  pay  fare. 

A  municipal  ordinance  making  it  a  misdemeanor  to  ride  in 
a  vehicle  used  for  hire  and  to  refuse  to  pay  the  fare  therefor, 
is  contrary  to  a  constitutional  provision  forbidding  imprison- 
ment for  debt.^^ 


court  very  properly  defined  what  con- 
stituted 'soliciting,'  within  the  mean- 
ing of  the  ordinance." 

Solicitation. — Solicitation  of  patron- 
age in  order  to  give  a  vehicle  a  public 
character,  may  be  practiced  by  other 
moans  than  voice.  Any  acts  or  conduct 
intended  and  calculated  to  invite  the 
patronage  of  intending  passengers 
amounts  to  solicitation.  State  v.  Shif- 
frin,  78  Conn.  220,  103  Atl.  899. 

87.  Hutson  v.  Des  Moines,  176  Iowa, 
455,  156  N.  W.  883. 

88.  Ex  parte  Lee,  28  Cal.  App.  719, 
153  Pac.  992;  Ex  parte  Dickey,  76  W. 
Va.  576,  85  S.  E.  781 ;  Booth  v.  Dallas 
(Tex.  Civ.  App.),  179  S.  W.  301. 

89.  Hutson  v.  Des  Moines,  176  Iowa, 
455,  156  N.  W.  883;  Commonwealth  v. 
Slocum,  230  Mass.  180,  119  N.  E.  687; 
West  v.  Asbury  Park  (N.  J.),  99  Atl. 
190;  Booth  v.  Dallas  (Tex.  Civ.  App.), 
179  S.  W.  301 ;  Allen  v.  City  of  Belling- 
ham,  95  Wash.  12,  163  Pac.  18. 

13 


90.  West  V.  Asbury  Park,  89  N.  J.  L. 
402,  99  Atl.  190;  Allen  v.  City  of  Bel- 
lingham,  95  Wash.  12,  163  Pac.  18. 

91.  Kansas  City  v.  Pengilley,  269 
Mo.  59,  189  S.  W.  380,  wherein  it  was 
said:  "It  is  urged  the  fact  the  taxi- 
cab  company  was  a  common  carrier 
ought  to  induce  a  different  conclusion. 
There  is  no  direct  proof  supporting  the 
fact  assumed.  The  taxicab  company  is 
in  no  wise  at  the  mercy  of  its  patrons. 
It  may  require  payment  in  advance  if 
it  so  desires,  and  thus  protect  itself. 
Regulations  may  be  imposed  upon 
patrons  of  carriers  and  fines  may  be 
assessed  for  their  violation,  but  such 
regulations  must  accord  with  applicable 
constitutional  provisions.  Further,  the 
ordinance  is  not  limited  to  common  car- 
riers, but  applies,  by  its  terms,  to  every 
horse-drawn  or  power-propelled  vehicle 
hired  for  the  conveyance  of  goods  or 
passengers.  Again,  it  is  not  confined 
to  licensed  vehicles." 


194  The  Law  of  Automobiles. 

Sec.  166.  Taximeters. 

For  some  time  there  have  been  in  operation  public  vehicles 
with  instruments  called  "taximeters''  attached,  that  compute 
the  fare  to  be  paid  by  those  carried  according  to  the  distance 
traveled  and  the  time  for  which  the  vehicle  is  engaged.    Pre- 
sumably these  instruments  are  fairly  accurate,  although  there 
is  no  safeguard  against  "short  measure"  other  than  that 
which  may  be  found  in  the  criminal  statutes.    A  taximeter 
may  be  too  fast  or  too  slow.    By  municipal  ordinances  in  some 
cities  the  matter  of  taximeters  is  regulated,  provisions  being 
made  as  to  the  appointment  of  inspectors  to  test  and  inspect 
them,  as  to  sealing  up  the  case  containing  the  working  parts 
of  the  taximeter,  as  to  a  certificate  of  inspection  as  prere- 
quisite to  a  license,  as  to  a  record  being  kept  of  the  owner  of 
the  vehicle,  and  of  the  description  of  the  taximeter  and  the 
vehicle,  and  also  numerous  other  details. 

In  regulating  taxicabs  and  public  hacks,  it  has  been  held 
that  a  municipal  corporation  may  require  the  installation  of 
correct  taximeters  and  may  impose  a  punishment  for  a  failure 
to  obey  the  regulation.^^  rpj^^  purpose  of  such  a  requirement 
is  to  enable  the  passenger  to  determine  the  distance  traveled 
and  the  rate  of  fare  due  therefor.»»  And  a  municipality  may 
make  a  distinction  between  classes  of  vehicles  on  which  taxi- 
meters are  necessary.  Thus,  it  may  impose  the  requirement 
as  to  motor-driven  vehicles  designed  to  carry  not  more  than 
four  persons,  while  the  same  requirement  is  not  made  as  to 
vehicles  having  a  larger  carrying  capacity." 

92.  Yellow  Taxieab  Co.  v.  Qaynor,  82  pointed  by  the  mayor  of  the  city  to  in- 
Misc.  (N.  Y.)  94,  143  N.  Y.  Suppl.  279,  vestigate  this  whole  subject  of  taxieab 
affirmed  on  opinion  below,  159  App.  regulation  have  both  reported  that  such 
Div.  893.  frauds  have  been  commonly  committed. 

93.  Yellow  Taxieab  Co.  v.  Gaynor,  82  The  requirement  that  meters  shall  be 
Misc.  (N.  Y.)  94,  143  N.  Y.  Suppl.  279,  used  is  not  only  necessary  if  the  frauds 
affirmed  on  opinion  below,  159  N.  Y.  heretofore  practiced  are  to  be  pre- 
App.  Div.  893.  "  The  requirement  that  vented,  but  is  obviously  so  just  and 
meters  shall  be  used  has  been  shown  reasonable  a  regulation  as  not  to  jus- 
by  experience  to  be  essential  in  order  tify  further  discussion."  Yellow  Taxi- 
to  check  the  frauds  which  might  easily  cab  Co.  v.  Gaynor,  82  Misc.  94,  143 
be  perpetrated  upon  passengers.  The  N.  Y.  Suppl.  279,  affirmed  on  opinion 
commissioner  of  accounts  of  the  city  of  below,  159  N.  Y.  App.  Div.  893. 

New    York    and    the    commission    ap-  94.  Yellow  Taxieab  Co.  v.  Gaynor,  82 


Public  Cabeiagb  fob  HlrE;  Jitneys^  Etc. 


195 


Sec.  167.  Rate  of  fare. 

The  common  law  duty  is  imposed  on  all  carriers  of  pas- 
sengers for  hire  to  charge  for  the  service  not  more  than  a 
** reasonable"  rate.  Within  reasonable  limitations  a  muni- 
cipal corporation  generally  has  the  power  to  fix  the  rates  of 
fare  which  shall  be  charged  within  its  limits  for  the  carriage 
of  passengers  for  hire  in  motor  vehicles.'^  And  when  such  a 
regulation  is  enacted,  the  common  law  right  of  the  vehicle 
owner  is  abridged  so  that,  while  the  rate  must  still  not  ex- 
ceed a  reasonable  limit,  it  must  also  not  exceed  the  specified 
rate.  It  may  be  that  a  regulation  which  made  the  rate  so  low 
that  it  was  impossible  to  operate  motor  vehicles  under  them 
at  a  profit  would  be  unreasonable  and  ineffective,  but  the 
burden  is  upon  the  person  attacking  the  ordinance  to  show 
the  unreasonableness  of  the  rate  permitted.**  It  is  not  neces- 
sarily objectionable  for  an  ordinance  to  fix  a  lower  rate  of 
fare  for  passengers  in  motor-driven  vehicles  than  for  those  in 
horse-drawn  carriages." 


Misc.  94,  143  N.  Y.  Suppl.  279,  wherein 
it  was  said:  "The  purpose  of  a  taxi- 
meter is  to  enable  the  occupant  of  the 
cab  to  determine  the  distance  traveled 
and  the  rates  of  fare  therefor.  It  is 
a  matter  of  common  knowledge  that  the 
distance  traveled  is  more  easily  ascer- 
tainable in  the  case  of  horse-drawn  than 
in  the  case  of  motor-driven  vehicles. 
The  fact  that  motor-driven  vehicles  de- 
signed to  carrj'  not  more  than  four  per- 
sons are  required  to  have  taximeters, 
while  the  same  requirement  is  not  made 
as  to  motor-driven  vehicles  of  greater 
carrying  capacity,  cannot  be  said  to 
be  unreasonably  discriminatory.  The 
smaller  cabs  designed  to  carry  a  few 
persons  are  more  generally  engaged  in 
transit  business,  while  touring  cars  and 
sight-seeing  vehicles  designed  to  carry 
a  larger  number  of  persons  are  more 
generally  employed  to  travel  a  fixed 
route  between  known  points  or  are  om 
ployed  for  a  definite  time  at  an  agreed 
rate.     In   determining  whether  or   riot 


a  provision  of  an  ordinance  is  dis- 
criminatory, it  is  always  to  be  borne  in 
mind  that  regulations  which  are  de- 
signed to  promote  public  convenience 
are  not  to  be  condemned,  and  whether 
or  not  such  regulations  are  adapted  to 
this  end  rests  largely  within  the  dis- 
cretion of  the  governing  body  of  the 
city." 

95.  Commonwealth  v.  Slocum,  230 
Mass.  180,  110  N.  E.  687;  Fonsler  v. 
Atlantic  City,  70  N.  J.  Law,  125,  56 
Atl.  110;  Y'ellow  Taxicab  Co.  v.  Gay- 
nor.  82  Misc.  (N.  Y.)  94,  143  N.  Y. 
Suppl.  279.  affirmed  on  opinion  below, 
159  App.  Div.  893;  Ex  parte  Dickey, 
76  W.  Va.  576,  85  S.  E.  781. 

96.  Yellow  Taxicab  Co.  v.  Caynor,  82 
Misc.  (N.  Y.)  94,  143  N.  Y.  Suppl.  279, 
affirmed  nn  opinion  below,  IS^  App. 
Div.  893. 

97.  Yellow  Taxicab  Co.  v.  Gajmor,  82 
Misc!  (if.  Y.)  94,  143  N.  Y.  Suppl.  279, 
affirmed  on  opinion  below.  159'  App. 
tiiy.  803. 


196  The  Law  of  Automobijijes. 

Sec.  168.  Miscellaneous  regulatory  matters. 

Various  regulations  not  specifically  discussed  in  the  fore- 
going paragraphs  have  been  imposed  on  the  operation  of 
jitneys  and  other  vehicles  used  for  hire  and  have  been  sus- 
tained by  the  courts.  Thus,  it  is  proper  to  require  a  licensed 
vehicle  to  carry  all  persons  applying  for  passage  and  tender- 
ing the  legal  fare.^^  A  tax  of  five  per  cent,  of  the  gross  re- 
ceipts may  be  imposed  on  jitney  owners  in  some  jurisdic- 
tions.^^ And  a  regulation  which  provides  for  a  convenient 
notification  to  intending  passengers  whether  the  vehicle  is  in 
use,  is  not  unreasonable.^  So,  too,  it  may  be  unlawful  for  the 
operator  to  allow  any  one  to  ride  on  the  same  seat  with  him.^ 
Or  passengers  rtiay  be  prohibited  from  riding  on  the  doors  of 
motor  buses.^  And  a  jitney  operator  may  be  forbidden  to 
carry  passengers  beyond  the  seating  capacity  of  the  machine, 
and  to  maintain  a  light  in  the  tonneau  during  the  hours  of 
darkness.^  The  proprietor  of  a  jitney  route  may  be  required 
to  submit  his  machines  once  each  week  for  the  inspection  of 
a  municipal  official.^  The  use  of  trailers,^  dangerous  speed,' 
or  the  passage  of  a  railway  crossing  without  stopping,*  may 
be  forbidden.  The  jitney  owner  may  be  required  to  display 
his  license,  a  number  plate  issued  by  the  municipality,  or  a 
sign  with  information  concerning  its  route,  schedules,  and 
other  matters.'    He  may  be  required  to  execute  a  power  .of 

98.  Fonsler  v.  Atlantic  City,  70  N.  J.  190;  Booth  v.  Dallas  (Tex.  Civ.  App.), 
Law,  125,  56  Atl.  119;  West  v.  Asbury  179  S.  W.  301;  Allen  v.  City  of  Belling- 
Park,  89  N.  J.  L.  402,  99  Atl.  190.  ham,  95  Wash.  12,  163  Pac.  18. 

99.  West  V.  Asbury  Park,  89  N.  J.  L.  5.  Booth  v.  Dallas  (Tex.  Civ.  App.), 
402,  99  Atl.  190.  179  S.  W.  301. 

1.  Fonsler  v.  Atlantic  City,  70  N.  J.  6.  Hutson  v.  Des  Moines,  176  Iowa, 
Law,  125,  56  Atl.  119.  455,  156  N.  W.  883. 

2.  Yellow  Taxicab  Co.  v.  Gaynor,  82  7.  West  v.  Asbury  Park,  89  N.  J.  L. 
Misc.  (N.  Y.)  94,  143  N.  Y.  Suppl.  279,  402,  99  Atl.  190. 

affirmed   on   opinion  below,   159   N.  Y.  8.  Hutson  v.  Des  Moines,  176  Iowa, 

App.  Div.  893.  455,  156  N.  W.  883. 

3.  City  ..f  Dallas  v.  Gill  (Tex.  Civ.  9.  Hutson  v.  Des  Moines,  176  Iowa, 
App.),  199  S.  W.  1144.  455,  156  N.  W.  883;  Commonwealth  v. 

4.  Hutson  V.  Des  Moines,  176  Iowa,  Slocum,  230  Mass.  180,  119  N.  E.  687; 
455,  156  N.  W.  883;  Commonwealth  v.  West  v.  Asbury  Park,  89  N.  J,  L.  402, 
Slocum,  230  Mass.  180,  119  N.  E.  687;  99  Atl.  190;  Allen  v.  City  of  Belling- 
Weat  V.  Asbury  Park  (N.  J.),  99  Atl.  ham,  96  Waah.  12,  163  Pac.  18. 


Public  Camiiage  for  Hiee,  Jitneys,  Etc. 


197 


attorney  authorizing  one  to  acknowledge  service  of  process  in 
actions  against  him,^"  A  municipality  may  impose  a  penalty 
on  the  jitney  owner  for  a  violation  of  the  regulations." 

Sec.  169.  Liability  for  injury  to  passenger  —  in  general. 

Common  carriers  of  passengers,  among  which  are  to  be 
classed  jitneys,  taxicabs,  and  other  motor  vehicles  carrying 
passengers  for  hire,  are  bound  to  exercise  a  high  degree  of 
care  for  the  safety  of  their  passengers.^  In  this  respect,  their 
legal  situation  may  be  different  from  that  of  other  vehicular 
travelers,  who  are  required  to  exercise  merely  ordinary  care 
under  the  circumstances."    If,  by  reason  of  their  failure  to 


10.  West  V.  Asbury  Park,  89  N.  J.  L. 
402,  90  Atl.  190.  See  also  Gillard  v. 
Manufacturer's  Casualty  Ins.  Co.,  93 
N.  J.  L.  215,  107  Atl.  446. 

11.  Hutson  V.  Des  Moines,  176  Iowa, 
455,  156  N.  W.  883. 

12.  Todd  V.  Chicago  City  Ry.  Co.,  197 
m.  App.  544;  Boland  v.  Gay,  201  111. 
App.  359 ;  TMcKellar  v.  Yellow  Cab  Co. 
(Minn.),  181  N.  W.  348;  Carlton  v. 
Boudar,  118  Va.  521,  88  S.  E.  174,  4 
A.  L.  R.  1480;  Singer  v.  Martin,  96 
Wash.  231,  164  Pac.  1105;  McDorman 
V.  Dunn,  101  Wash.  120,  172  Pac.  244, 
4  A.  L.  R.  1500.  "Appellant  Martin 
as  a  common  carrier  owed  to  respond- 
ent as  his  passenger  the  duty  of  exer- 
cising the  highest  degree  of  care  com- 
patible with  the  practical  operation  of 
the  car.  That  duty  would  not  be  met 
as  a  matter  of  law  by  a  mere  observ- 
ance of  the  law  of  the  road.  His  negli- 
gence, if  any,  as  between  him  and  his 
passenger,  is  to  be  measured  by  his 
duty  as  a  common  carrier,  not  by  his 
duty  to  other  users  of  the  highway." 
Singer  v.  Martin,  96  Wash.  231,  164 
Pac.  1105. 

Instnictions. — In  an  action  for  per- 
sonal injuries  sustained  by  a  passenger 
riding  in  a  taxicab,  an  instruction  that 
"common  carriers  of  persons  for  hire 
are  required  to  do  all  that  human  care. 


vigilance  and  foresight  can  reasonably 
do,  consistent  with  the  character  and 
mode  of  conveyance  adopted  and  the 
practical  prosecution  of  the  business, 
to  prevent  accidents  to  passengers  while 
being  carried  by  them,"  held  to  state 
the  correct  rule  as  to  the  liability  of  a 
carrier  of  passengers  by  taxicab.  Bo- 
land V.  Gay,  201  111.  App.  359. 

Sightseeing  automobiles  are  regarded 
as  common  carriers  and  owe  to  the  pub- 
lic the  same  degree  of  care  to  transport 
them  in  safety  as  other  common  car- 
riers of  passengers  owe.  McFadden  v. 
Metropolitan  St.  Ry.  Co.,  161  Mo.  App. 
552,  144  S.  W.  168. 

Between  chauffeur  and  railroad  com- 
pany.— While,  as  between  the  chauff'eur 
of  a  taxicab  and  a  passenger  therein, 
the  chauffeur  is  required  to  exercise  a 
high  degree  of  care,  no  such  degree  of 
care  is  required  as  between  the  chauf- 
feur and  a  railroad  company  in  an  ac- 
tion for  injuries  received  by  the  chauf- 
feur at  a  grade  crossing.  Southern  Ry. 
Co.  V.  Vaughn's  Adm'r,  118  Va.  693, 
88  S.  E.  305,  L.  R.  A.  1916  E.  1222. 

Extending   arm    out    of    window    of 
jitney,     not     necessarily     contributory 
negligence.     Thibodeau  v.  Hamley   fN. 
J.),  112  Atl.  320. 
IS.  Section  277. 


198 


The  Law  of  Automobiles. 


perform  this  duty,  a  passenger  receives  an  injury,  the  carrier 
may  be  liable."  Where  a  collision  occurs  by  reason  of  the 
concurring  negligence  of  the  operator  and  the  driver  of  an- 
other vehicle  on  the  highway,  a  passenger  who  is  thereby  in- 
jured may  maintain  an  action  against  both  drivers  jointly .^^ 
And  this  is  true  although  the  high  degree  of  care  required  of 
the  carrier  of  passengers  is  different  from  that  required  of 
the  one  driving  the  other  vehicle."  So,  in  the  case  of  a  col- 
lision between  a  street  car  and  a  taxicab,  a  passenger  in  the 
taxicab  may  join  as  defendants  both  the  operator  of  the  taxi- 
cab  and  the  street  railway  company;  and  if  he  shows  negli- 
gence on  the  part  both  of  the  motorman  and  the  taxi  driver, 
he  may  recover  against  both."  One  traveling  in  an  autobus 
used  for  carrying  passengers  is,  in  the  absence  of  counter- 
vailing circumstances,  presumed  to  be  a  passenger  for  hire.^^ 


14.  California. — i^aker  v.  Western 
Auto  Stage  Co.  (Cal.  App.),  192  Pac. 
73. 

Colorado. — Seeing  Denver  Co.  v. 
Morgan  (Colo.),  185  Pac.  339. 

Illinois. — Johnson  v.  Coey,  237  111. 
88,  86  N.  E.  678;  Swancutt  v.  Trout 
Auto  Livery  Co.,  176  HI.  App.  606; 
Todd  V.  Chicago  City  Ey.  Co.,  197  111. 
App.  544;  Dunne  v.  Boland,  199  111. 
App.  308. 

Kansas. — Bean-Hogan  v.  Kloehr,  103 
Kans.  731,  175  Pac.  976. 

Kentucky. — See  Denker  Transfer  Co. 
V.  Pugh,  162  Ky.  818,  173  S.  W.  139. 

New  YorTc. — Piper  v.  New  York  State 
Bys.,  185  N.  Y.  App.  Div.  184,  172  N. 
y.  Suppl.  838. 

Pennsylvania. — Muncey  v.  Pullman 
Taxi  Service  Co.,  112  Atl.  30. 

Texas. — Routledge  v.  Rambler  Auto 
Co.  (Civ.  App.),  95  S.  W.  749. 

Vermont. — See  Desmarchier  v.  Frost, 
91  Vt.  138,  99  Atl.  782. 

Virginia. — Carlton  v.  Boudar,  118  Va. 
&21,  88  S.  E.  174,  4  A.  L.  R.  1480. 

Washington. — Bogdan  v.  Pappas,  95 
Wash.  579,  164  Pac.  208. 

Wisconsin. — Hannon    v.    Van    Dycke 


Co.,  154  Wis.  454,  143  N.  W.  150. 

Canada. — Hughes  v.  Exchange  Taxi- 
cab,  11  D.  L.  E.  314. 

Route. — A  taxicab  driver  may  be 
guilty  of  negligence  in  taking  a  dan- 
gerous route  to  go  to  the  passenger's 
destination  instead  of  following  a  safer 
course.  Hathaway  v.  Coleman,  35  Cal. 
App.  107,  169  Pac.  414. 

15.  Cairns  v.  Pittsburgh,  etc.,  Ey.  Co., 
66  Pitts.  Leg.  Joum.  (Pa.)  817;  Carl- 
ton V.  Boudar,  118  Va.  521,  88  S.  E. 
174;  McDorman  v.  Dunn,  101  Wash. 
120,  4  A.  L.  R.  1500.  "We  are  of 
opinion  that  the  plaintiffs  in  error  were 
jointly  and  severally  liable;  that  their 
negligence  concurred  and  produced  a 
single  indivisible  result,  and  they  were 
properly  joined  as  defendants,  although 
there  was  no  common  duty,  common  de- 
sign, or  concert  of  action  between 
them."  Carlton  v.  Boudar,  118  Va. 
521,  88  S.  E.  174. 

16.  Carlton  v.  Boudar,  118  Va.  521, 
88  S.  E.  174,  4  A.  L.  R.  1480. 

17.  Shields  v.  F.  Johnson  &  Son  Co., 
132  La.  773,61  So.  787. 

18.  Meier  v.  Golden  State  Auto  Tour 
Corp.  (Cal.  App.),  195  Pac.  290. 


Public  Carriage  for  Hire^  Jitneys,  Etc.  199 

Sec.  170.  Liability  for  injury  to  passenger  —  assault  on  pas- 
senger. 

A  taxicab  passenger  is  entitled  to  proper  and  decorous 
treatment  from  the  carrier  and  his  servants  during  the  course 
of  transportation,  and  this  involves  an  assurance  that  the 
servant  in  charge  of  the  conveyance  will  neither  assault  nor 
insult  him.^ 

Sec.  171.  Liability  for  conduct  of  driver. 

One  who  rides  in  a  jitney  or  taxicab  as  a  passenger  is  not 
generally  liable  for  the  negligent  acts  of  the  chauffeur  caus- 
ing injury  to  a  third  person.^  The  chauffeur  is  the  servant 
of  the  proprietor  of  the  machine,  not  of  the  passenger,  and 
the  general  rule  is  that  the  proprietor  alone  is  responsible  for 
his  carelessness.^^  One  who  hires  a  public  hack  and  gives  the 
driver  instructions  where  to  go,  but  exercises  no  other  control 
over  the  conduct  of  the  driver,  is  not  responsible  for  the 
driver's  negligence.^^  There  may  be  exceptions  to  the  gen- 
eral rule,  as  when  the  passenger  interferes  with  the  operation 
of  the  machine.  Thus,  if  the  chauffeur  exceeds  the  speed 
limit  at  the  request  of  the  passenger,  the  latter  may  be  liable 
for  criminal  prosecution.^    And  a  passenger  may  be  liable 

19.  Fornoff  v.  Columbia  Taxicab  Co.,  ney  was  ended,   plaintiff  wa^  not  dis- 
179    Mo.    App.    620,    162    S.    W.    699,  charged  by  the  carrier  at  the  time  the 
wherein   the   court  said:      "When  the  assault  was  made  upon  him." 
relation    of    passenger    and    carrier    is  20.  Little  v.  Hackett,  116  IT.  8.  366, 
established,    the    passenger    surrenders  29  L.  Ed.  652,   6  Sup.  Ct.  391 ;  Dria- 
himself  iaito   the  care  and  custody  of  coll  v.  Towle,  181  Mass.  416,  63  N.  E. 
the  carrier.     This  implies  an  obligation  923 ;  Donnelly  v.  Philadelphia  &  Read- 
on  the  part  of  the  carrier,  not  only  to  ing  Co.^  53  Pa.  Super.  Ct.  78 ;  Cairns  v. 
transport  the  passenger  to  destination,  Pittsburgh,  etc.,  Ry.  Co.,  66  Pitts.  Leg. 
if  he  properly  deports  himself,  but  to  Journ.     (Pa.)     817;    Hannon    v.    Van 
discharge  him  on  arrival  free  from  as-  Dycke  Co.,    154   Wis.   454,    143   N.  W. 
sault  on  the  part  of  its  servants;  that  150;     Donovan     v.    Syndicate,    L.     B. 
is,   in    the   proper  manner.     The   mere  (1893),  1  Q.  B.  (Eng.)  629. 
stepping    of    the    passenger    from    the  21.  Nell  v.  Godstrey  (K.  J.),  101  Atl. 
vehicle   into   the  street  at  the  end   of  50.     And  see  sections  628,  643,  645. 
his  journey  is  not  enough  to  acquit  this  22.  Little  v,  Hackett,  116  U.  S.  366, 
obligation,  for  the  passenger  is  to  be  29  L.  Ed.  653,  6  Sup.  Ct.  391. 
discharged  and  protected  from  assault  23.  Commonwealth    v.    Sherman,    191 
by  the  servants  while  being  discharged  Mass.  439,  78  N.  E.  98.     And  see  see- 
by  the  carrier.     Even  though  the  jour-  tion  726. 


200  The  Law  of  Automobiles. 

where  he  participates  in  or  sanctions  the  negligence  of  the 
driver ;  but  such  a  situation  is  not  shown  merelj'  by  evidence 
that  the  passenger  at  one  time  told  the  chauffeur  to  **be  care- 
ful. "^^  Responsibility  is  charged  against  the  proprietor  of 
a  jitney  route  or  taxicab,  although  the  driver  receives  for  his 
compensation  a  share  of  the  proceeds  earned  by  the  vehicle.^^ 
And  the  fact  that  the  driver  hires  the-  car  at  a  prescribed  rate 
per  diem,  does  not  relieve  the  owner  from  responsibility  for 
the  acts  of  the  driver.^"  Public  policy  forbids  the  jitney  pro- 
prietor to  make  a  contract  with  his  drivers  so  as  to  relieve 
him  from  responsibility  for  their  negligent  conduct.  But, 
when  a  jitney  driver  is  directed  to  adhere  to  a  certain  route 
but  he  deviates  therefrom  to  a  street  where  the  license  does 
not  authorize  the  operation  of  the  jitney,  he  is  not  acting 
within  the  scope  of  his  employment  and  his  employer  is  not 
liable  for  his  negligent  acts  while  he  is  so  deviating.^^  But, 
when  he  is  returning,  he  may  be  thought  to  be  within  the  scope 
of  his  employment.^ 

Sec.  172.  Imputation  of  negligence  of  driver  to  passenger. 

The  general  rule  that  a  passenger  in  a  public  hack  is  not 
chargeable  with  the  negligence  of  the  driver,  applies  when  an 
injury  is  caused  to  the  passenger  by  the  negligence  of  a  third 
person,  such  as  a  railroad  or  street  railway  company  or  per- 
son using  another  vehicle,  who  seeks  to  escape  liability  by 
charging  the  contributory  negligence  of  the  driver  to  the  pas- 
senger.^ As  a  general  proposition,  the  negligence  of  the 
driver  is  not  to  be  imputed  to  the  passenger,  and  the  latter 's 
freedom  from  contributory  negligence  is  to  be  determined 

24.  Hannon  v.  Van  Dyeke  Co.,  154  28.  Smith  v.  Yellow  Cab  Co.  (Wis.), 
Wis.  454,  143  N.  W.  150.  180  N.  W.  125.     And  see  section  633. 

25.  Edwards  v.  Yarbiough  (Mo.  29.  Thompson  v.  Los  Angeles,  etc., 
App.),  201  S.  W.  972;  Fitzgerald  v.  R.  Co.,  165  Cal.  748,  134  Pac.  709; 
Cardwell  (Mo.  App.),  226  S.  W.  971;  Eckels  v.  Mitsehall,  230  111.  462,  82 
King  V.  Breham  Auto  Co.  (Tex.  Civ.  N.  E.  872;  Zalotuchin  v.  Metropolitan 
App.),  145  S.  W.  278.  St.  Ry.  Co.,   127  Mo.  App.  577,  106  S. 

26.  McDonald  v.  Lawrence,  170  W.  548;  Wolf  v.  Sweeney  (Pa.),  112 
Wash.  576,  170  Pac.  576.  Atl.  869 ;  Cairns  v.  Pittsburgh,  etc.,  Ry. 

27.  Youngguist  v.  L.  J.  Droese  Co.,  Co.,  66  Pitts.  Leg.  Jour.  817;  Zucht  v. 
167  Wis.  458,  167  N.  W.  736.  Brooks  (Tex.  Civ.  App.),  216  S.  W.  684. 


Public  Cahriage  for  Hire,  Jitneys,  Etc, 


201 


solely  from  his  own  acts  and  omissions.^**  The  question  is 
quite  similar  to  that  involved  when  a  guest  riding  in  a  pleasure 
car  receives  an  injury  from  the  joint  negligence  of  the  owner 
and  of  the  driver  of  another  vehicle;  in  that  class  of  cases, 
the  negligence  of  the  owner  or  driver  is  not  imputed,  as  a  gen- 
eral rule,  to  a  guest  in  a  machine.^^ 

Sec.  173.  Rights  of  proprietor  of  vehicle. 

The  proprietor  of  a  motor  vehicle  used  for  the  carriage  of 
passengers  for  hire  is  entitled  to  recover  the  legal  fare  from 
the  passenger.22  ^^^5  obligation  is  so  clear  that  there  has 
been  little  occasion  for  court  decisions.  The  proprietor  of  a 
public  hack  also  has  a  right  of  recovery  against  other  travelers 
whose  negligence  has  occasioned  injury  to  the  machine.  And, 
when  the  proprietor  is  riding  in  the  carriage  at  the  time  of  a 
collision  with  another  motor  vehicle  and  thereby  receives  per- 
sonal injuries,  he  may  have  a  cause  of  action  against  the 
operator  of  the  other  conveyance.^^    The  fact  that  the  owner 


30.  Thompson  v.  Los  Angeles,  etc.. 
B.  Co.,  165  Cal.  748,  134  Pac.  709; 
Broussard  v.  Louisiana  Western  R.  Co., 
140  La.  517,  73  So.  606;  Rush  v.  Metro- 
politan St.  Ry.  Co.,  157  Mo.  App.  504, 
137  S.  W.  1029;  Cairns  v.  Pittsburgh, 
etc.,  Ry.  Co.,  66  Pitts.  Leg.  Jour.  817; 
Chicago,  etc.,  R.  Co.  v.  Wentzel  (Tex. 
Civ.  App.),  214  S.  W.  710;  Dallas  Ry. 
Co.  V.  Eaton  (Tex.  Civ.  App.),  222  S. 
W.  318;  Wentworth  v.  Waterbury,  90 
Vt.  60,  96  Atl.  334;  Bancroft  v.  Cote, 
90  Vt.  358,  98  Atl.  915.  Sec  also 
United  States  v.  Manabat,  28  Philip- 
pine, 560. 

31.  Section  679. 

32.  Liability  to  pay  fare.— It  sliould 
be  understood  that  the  liability  of  a 
passenger  to  pay  the  rate  named  on  the 
taximeter  or  otherwise  posted,  arises  out 
of  contract.  When  one  engages  a  taxi- 
cab  he  impliedly  agrees  to  abide  by  the 
posted  rates  provided  they  do  not  ex- 
ceed the   legal   limit. 

33.  Moore  v.  Hart,  171  Ky.  725,  188 


S.  W.  861 ;  McClung  v.  Pennsylvania 
Taximeter  Cab  Co.,  252  Pa.  478,  97  Atl. 
694. 

34.  Moore  v.  Hart,  171  Ky.  725,  188 
S.  W.  861,  wherein  the  court  said:  "It 
is  urgently  insisted  upon  us  that  the 
fact  of  plaintiff  riding  upon  the  steps 
is  not  only  contributory  negligence,  but 
such  as  to  prevent  recovery  herein,  and 
to  havQ  authorized  a  peremptory  in- 
struction for  the  defendant.  The  rule 
as  to  causal  connection  between  the  act 
complained  of  and  the  effect  produced, 
to  which  we  have  hereinbefore  averted, 
has  peculiar  application  here.  It  is 
perfectly  manifest  that  the  place  where 
plaintiff  was  riding  was  altogether  safe, 
and  no  injury  would  have  happened  to 
him  if  his  car  had  not  been  overturned. 
His  position  is  entirely  unlike  that  of 
a  passenger  protruding  his  arm  or  some 
parts  of  his  body,  out  from  the  car, 
and  thereby  sustaining  injuries.  In 
such  a  case  it  is  the  universal  rule  that 
such  acts  on  the  part  of  the  passenger 


202 


Thf:  Law  of  Automobiles. 


was  standing  on  a  step  at  the  rear,^*  or  was  sitting  on  the 
floor,^^  at  the  time  of  the  collision,  does  not  bar  his  remedy. 


constitute  such  contributory  negligence 
as  to  prevent  a  recovery  in  a  suit  be- 
tween him  and  the  railroad  company, 
there  being  no  negligent  act  of  the  de- 
fendant shown;  but  it  could  hardly  be 
contended  that  if  the  passenger  thus 
offending  is  injured  through  a  negligent 
collision,  or  because  of  a  defective  track 
whereby  a  wreck  was  precipitated,  ho 
would  be  deprived  of  recovering  from 
the  defendant  because  of  his  negligence, 
as  stated  above.  It  will  at  once  be 
Been  that  his  negligence,  of  the  char- 
acter stated,  was  no  part  of  the  proxi- 
mate cause  of  the  injury  which  he 
might  sustain  in  the  collision  or  the  de- 
railment of  the  car.  But  the  case  of  a 
passenger  becoming  injured  while 
wrongfully  exposing  himself  to  danger 
has  no  analogy  to  the  instant  case.  The 
one  deals  with  contractual  relations  be- 
tween passenger  and  carrier,  while  the 
other  sounds  altogether  in  tort.  The 
analogy  would  be  more  marked  if  a 
third  party,  while  the  passenger  was  oc- 
cupying a  dangerous  or  careless  posi- 
tion on  the  train,  should  negligently  in- 
jure him.  Surely  it  could  not  be  con- 
tended that  because  the  passenger  was 
negligent  as  between  himself  and  car- 
rier such  negligence  would  prevent  his 
recovering  damages  for  such  injuries 
from  the  one  committing  the  tort.  In 
the  instant  case  the  position  of  plain- 


tiff on  his  automobile  truck  is  an  inci- 
dent which  afforded  an  opportunity  for 
the  negligence  of  the  defendant  co  have 
the  more  easily  produced  the  injury, 
but  this  is  the  only  effect  that  can  be 
given  to  it.  It,  in  no  view  of  the  case, 
justified  the  collision,  or  furnished  a  de- 
fense to  a  suit  to  recover  damages  for 
the  injuries." 

35.  McClung  v.  Pennsylvania  Taxi- 
meter Cab  Co.,  252  Pa.  478,  97  Atl. 
694,  wherein  it  was  said:  "Plaintiff 
was  the  owner  and  in  charge  of  his  car, 
and  it  is  not  clear  that  his  position 
thereon  was  one  of  danger,  or  that  he 
was  more  liable  to  injury  there  than 
elsewhere.  It  bears  no  analogy  to  the 
case  of  a  passenger  voluntarily  stand- 
ing on  the  bumpers  or  footboard  of  a 
car,  or  riding  with  his  feet  between  a 
car  and  the  engine.  The  cause  of  the 
accident  was  the  violent  collision,  re- 
sulting as  the  jury  found  from  defend- 
ant's negligence,  and  not  because  of 
the  place  plaintiff  occupied  on  his  car. 
His  being  there  was  merely  a  condition, 
not  the  cause  of  the  accident.  A  per- 
son injured  by  the  negligence  of  an- 
other is  not  deprived  of  all  remedy 
merely  because  at  the  time  he  was  oc- 
cupying an  unusual  position  in  a  con- 
veyance, unless  he  thereby  co-operated 
in  causing  his  injury." 


Private  Hire  of  Automobiles.  203 


CHAPTER  X. 

PRIVATE  HIRE  OF  AUTOMOBILES. 

Section  174,  Scope  of  chapter. 

175.  Nature  of  contract. 

176.  Liability  for  injury  from  oporation  of  machine — liability  of  owner 

for  operation  by  hirer. 

177.  Liability  for  injury  from  operation  of  machine — liability  for  acta 

of  driver  furnished  by  owner. 

178.  Liability  for  injury  from  operation  of  machine— liability  for  acta 

of  driver  furnished  by  hirer. 

179.  Liability  for  injury  from  operation  of  machine — injury  to  passenger. 

180.  Injury  to  machine — care  to  be  exercised  by  hirer. 

181.  Injury  to  machine — loss  of  machine. 

182.  Injury  to  machine — conversion  of  machine  by  hirer. 

183.  Injury  to  machine — deviation  from  agreed  route. 

184.  Injury  to  machine — right  of  action  by  hirer  for  injury. 

185.  Duties  and  liabilities  of  parties — possession  of  machine. 

186.  Duties  and  liabilities  of  parties — duty  to  carry  to  destination. 

187.  Duties  and  liabilities  of  parties — termination  of  hiring. 

188.  Duties  and  liabilities  of  parties — surrender  of  machine. 

189.  Duties  and  liabilities  of  parties — compensation  for  hire. 

Sec.  174.  Scope  of  chapter. 

This  chapter  is  intended  to  cover  the  nature  of  the  contract 
between  the  o^mer  of  a  motor  vehicle  and  one  to  whom  he 
hires  the  same  for  a  consideration,  and  the  legal  results  which 
follow  such  relationship.  In  another  chapter  is  discussed  the 
public  carriage  of  passengers  for  hire,  such  as  jitneys,  taxi- 
cabs,  omnibuses,  etc.^  This  chapter  relates  to  the  private  use 
of  another's  machine  and  not  to  the  public  use.  The  pro- 
prietor of  the  hired  machine  is  described  in  this  chapter  as 
the  ** owner,"  and  the  one  procuring  the  use  thereof  as  the 
^' hirer." 

Sec.  175.  Nature  of  contract. 

The  hiring  of  an  automobile  from  the  owner  creates  in  law 
a  form  of  bailment  known  as  locatio  rei.  Where  the  owner 
of  personal  property  lets  it  to  another  party,  who  is  to  pay 

1.  Chapter  IX. 


204 


The  Law  of  Automobiles. 


for  the  use  of  it,  the  contract  is*  for  their  mutual  benefit, 
which  fact  is  important  in  determining  the  rights  and  liabili- 
ties of  the  parties.^ 

Sec.  176.  Liability  for  injury  from  operation  of  machine  — 
liability  of  owner  for  operation  by  hirer. 

The  owner  of  an  automobile  who  has  let  it  to  another  is  not 
generally  responsible  for  any  negligence  of  the  latter  in  the 
operation  of  the  machine.*  The  fact  that  the  hirer  may  be 
unskilled  is  held  not  to  change  the  rule  in  this  respect;  ex- 
cept it  might  appear  that  the  latter  is  an  immature  child,  or 
clearly  lacking  in  mental  capacity  or  intoxicated,  or  the  like.* 


2.  Parsons  on  Contracts,  Vol.  II  (9th 
Ed.),  134. 

According  to  the  foreign  and  Bomau 
law,  the  letter,  in  virtue  of  the  con- 
tract, impliedly  engages  to  allow  to 
the  hirer  the  full  use  and  enjoyment 
of  the  thing  hired,  and  to  fulfill  all  hia 
own  engagements  and  trusts  in  respect 
to  it,  according  to  the  original  inten- 
tion of  the  parties:  " Proestroe  fnii 
licere,  uti  licere."  This  implies  an  ob- 
ligation to  deliver  the  thing  to  the 
hirer;  to  refrain  from  every  obstruc- 
tion to  the  use  of  it  by  the  hirer  during 
the  period  of  the  bailment;  to  do  no 
act  which  shall  deprive  the  hirer  of  the 
thing;  to  warrant  the  title  and  right 
of  possession  to  the  hirer,  in  order  to 
enable  him  to  use  the  thing,  or  to  per- 
form the  service;  to  keep  the  thing  in 
suitable  order  and  repair  for  the  pur- 
poses of  the  bailment;  and,  finally,  to 
warrant  the  thing  free  from  any  fault, 
inconsistent  with  the  proper  use  or  en- 
joyment of  it.  These  are  the  main  ob- 
ligations deduced  by  Pothier  from  the 
nature  of  contract;  and  they  seem  gen- 
erally founded  in  unexceptionable  rea- 
soning.    Story  on  Bailments,  p.  317. 

3.  Neubrand  v.  Kraft,  169  Iowa,  444, 
151  N.  W.  455,  L.  R.  A.  1915  D.  691; 
Atkins  V.  Points,  148  La.  — ,  88  So.  231. 
Sections  642,  643,  666. 

4.  Neubrand  "v.  Kraft,  169  Iowa,  444, 


151  N.  W.  455,  L.  B.  A.  1915  D.  691, 
wherein  the  court  said:  "Tn  an  argu- 
ment for  appellant  counsel  contends 
that  one  who  lets  an  automobile  for 
hire  is  responsible  for  the  proper  skill 
and  care  of  the  person  to  whom  he  in- 
trusts it.  In  support  of  this  position 
we  are  cited  to  certain  English  cases 
where  the  owner  of  a  cab  is  held  liable 
for  injuries  resulting  from  the  negli- 
gence of  the  driver.  But  such  cases 
are  parallel  neither  in  fact  nor  in  prin- 
ciple with  the  one  now  before  us.  The 
proprietor  of  a  car  or  hack  stand  lets 
his  carriages  supplied  with  drivers  of 
liis  own  selection  and  in  his  own  em- 
plojTuent.  /WTiile  to  a  certain  extent 
the  driver  under  such  circumstances  be- 
comes the  servant  of  the  hirer,  he  dOea 
not  cease  to  be  the  servant  and  repre- 
sentative of  the  cab-owner  so  far  as  the 
immediate  care  and  management  of  the 
carriage  and  its  motive  power  is  con- 
cerned, and  if  by  his  careless  or  reck- 
less driving  a  collision  occurs  upon  the 
street,  and  a  third  person  is  thereby  in- 
jured without  fault  on  his  own  part, 
the  owner  is  very  reasonably  and  prop- 
erly held  to  respond  in  damages.  But 
the  owner  of  a  livery  stable  or  garage 
making  a  business  of  letting  teams  or 
carriages  or  motor  cars  to  customers 
who  propose  and  expect  to  do  their  own 
driving  has  never  been  held  to  any  such 


Private  Hire  of  Automobiles. 


205 


Where  the  owner  of  an  automobile  delivered  it  to  another 
under  an  agreement  that  the  latter  was  to  use  it  for  hire  and 
to  pay  the  purchase  price  out  of  the  monej^  derived  from  its 
use,  and  the  former  owner  never  had  the  control  of  the  ma- 
chine after  it  left  his  possession  and  never  rode  in  it,  and 
such  hirer  was  not  in  his  employ  or  under  his  control  or 
direction,  the  negligence  of  the  hirer  is  not  chargeable  to  such 
owner.^ 


Sec.  177.  Liability  for  injury  from  operation  of  machine  — 
liability  for  acts  of  driver  furnished  by  owner. 
When  an  automobile  is  hired  and  a  chauffeur  is  also  fur- 
nished by  the  OAvner,  in  whose  employ  he  is  and  by  whom  he 
is  paid,  and  the  hirer  has  no  authority  over  him  except  to 
direct  him  where  he  wishes  to  go,  the  chauffeur  is  considered 
the  servant  of  the  o^Tier ;  and  the  owner,  not  the  hirer,  is  re- 
sponsible for  his  acts  of  negligence.^    The  principle  involved 


rule  of  responsibility  by  any  court  so 
far  as  the  precedents  have  been  called 
to, our  attention,  and  we  think  there  is 
no  general  rule  or  principle  necessitat- 
ing such  conclusion.  Cases  may  be 
imagined,  perhaps,  where  an  owner  reck- 
lessly lets  his  spirited  team  or  his  auto- 
mobile to  an  immature  child,  or  to  a 
person  who  is  intoxicated  or  otherwise 
manifestly  incompetent  to  manage  or 
control  it,  with  the  natural  result  of  a 
collision  upon  the  public  street  and  con- 
sequent injury  to  others.  It  may  well 
be  that  under  such  circumstances  the 
owner  would  be  held  liable  in  damages 
not  because  the  hirer  is  his  servant  or 
because  as  owner  he  is  required  to  vouch 
to  the  public  for  the  competency  of  all 
persons  to  whom  he  may  let  his  teams 
or  his  cars  for  hire,  but  because  he 
knew  the  incompetency  of  this  particu- 
lar driver  and  the  imminent  peril  to 
which  he  thereby  exposed  others  who 
were  in  the  lawful  use  of  the  streets, 
and  as  a  person  of  ordinary  prudence 
should  '.have  refrained  from  so  doing. 
Nothing  of  this  manifest  want  of  pru- 


dence is  shown  in  this  case  now  under 
consideration." 

5.  Braverman  v.  Hart,  105  N.  Y. 
Suppl.   107. 

6.  United  States. — Little  v.  Hackett, 
116  U.  S.  366,  29  L.  Ed.  652,  6  Sup.  Ct. 
391. 

Arkansas. — Forbes  v.  Reinman,  112 
Ark.  417,  166  S.  W.  563,  51  L.  R.  A. 
(N.  S.)   1164. 

Illinois.— Bnnne  v.  Bolnnd,  199  HI. 
App.  308.  See  also  Johnson  v.  Coey, 
237  111.  88,  86  N.  E.  678,  21  L.  E.  A. 
(N.  S.)   81. 

Louisiana. — Wilkinson  v.  Myati- 
Dicks  Motor  Co.,  136  La.  977,  68  So. 
96;  Broussard  v.  Louisiana  Western  R. 
Co.,  140  La.  517,  73  So.  606. 

Massachusetts. — Driscoll  v.  Towle, 
181  Mass.  416,  63  N.  E.  922;  Shepard 
V.  Jacobs,  204  Mass.  110,  90  N.  E.  302, 
26  L.  R.  A.  (N.  S.)  442;  Tornroos  v. 
R.  H.  White  Co.,  220  Mass.  336.  107 
N.  E.  1015. 

Minnesota.— Myers  v.  Tri-State  Au- 
tomobile Co.,  121  Minn.  68,  140  N,  W. 
184,  44  L.  R.  A.   (N.  S.)   113.     "Both 


206 


The  Law  of  Automobiles. 


is  the  same  as  if  the  owner  of  the  machine  were  letting  a 
horse  and  carriage  together  with  his  driver  for  the  hire  of 
another."  The  hirer,  however,  and  not  the  owner,  may  become 
chargeable  if  the  hirer  assumes  the  management  of  the  vehicle, 
so  that  the  driver  becomes  his  servant.^  One  who  lets  an  auto- 
mobile and  furnishes  a  c^hauffeur  for  the  purpose  of  convey- 
ing the  hirer  and  his  guests  enters  into  a  contract  of  hire  for 


on  principle  and  authority  we  decline 
to  follow  the  rule  that  the  defendant 
is  liable  only  for  the  exercise  of  care 
in  the  selection  of  the  driver.  We  ap- 
ply the  ordinary  rule  of  respondeat 
superior  to  this  case,  and  hold  that 
where  a  dealer  in  automobiles  and 
owner  of  a  garage  lets  a  car  for  hire 
and  furnishes  a  driver,  and  the  hirer 
exercises  no  control  or  supervision  over 
the  driver  except  to  direct  him  where 
to  go  and  what  route  to  take,  and  to 
caution  him  against  improper  driving, 
the  owner  is  responsible  for  the  negli- 
gence of  the  driver,  and  the  hirer  may 
recover  from  the  owner  in  damages 
for  an  injury  caused  by  the  driver's 
negligence.  The  fact  that  the  defend- 
ant only  occasionally  let  automobiles 
for  hire  does  not  appeal  to  us  as  im- 
portant. The  rule  does  not  depend  on 
the  frequency  with  which  such  an  act 
is  done."  Myers  v.  Tri-State  Auto 
Co.,  121  Minn.  68,  140  N.  W.  184. 

New  Jersey. — Eodenburg  v.  Clinton 
Auto  &  Garage  Co.,  85  N.  J.  L.  729, 
91  Atl.  1070. 

New  YorTc. — Waldman  v.  Picker 
Bros.,  140  N.  T.  Suppl.  1019. 

North  CarolirM. — Cates  v.  Hall,  171 
N.  Car.  360,  88  S.  E.  5^4. 

Pennsylvania. — Wallace  v.  Keystone 
Automobile,  239  Pa.  110,  86  Atl.  699; 
Neumiller  v.  Acme  Motor  Car  Co.,  49 
Pa.  Super.  Ot.  183. 

Texas. — Boutledge  v.  Rambler  Auto 
Co.  (Civ.  App.),  95  S.  W.  749. 

Wisconsin. — Gerretson  v.  Rambler 
Garage  Co.,  149  Wis.  528,  136  X.  W. 
182,  40  L.  E.  A.  (N.  S.)  457. 

England. — Donovan  v.  Syndicate,  L. 


B.   (1893),  1  Q.  B.  629. 

See  also  section  643. 

7.  Shepard  v.  Jacobs,  204  Mass.  110, 
90  N.  E.  392,  26  L.  R.  A.  (N.  S.)  442, 
wherein  the  court  said:  "If  the  de- 
fendants had  furnished  horses,  a  car- 
riage and  a  driver  under  a  similar  con- 
tract, instead  of  an  automobile  and  a 
driver,  there  would  be  no  doubt  of  their 
liability  for  the  negligence  of  the  driver 
in  the  management  of  the  team.  The 
question  is  whether  the  same  result 
should  be  reached  upon  the  facts  of 
this  case.  Tlie  analogy  between  the 
two  kinds  of  contract  is  very  close. 
The  management  of  an  automobile 
properly  can  be  trusted  only  to  a  skilled 
expert.  The  law  will  not  permit  such 
a  vehicle  to  be  run  in  the  streets  ex- 
cept by  a  licensed  chauffeur  of  ap- 
proved competency.  The  danger  of 
great  loss  of  property  by  the  owner,  as 
well  as  injury  to  the  chauffeur,  his  ser- 
vant, is  such  as  to  make  it  of  the 
highest  importance  that  care  should  be 
exercised  in  his  interest,  and  that  the 
control  and  management  of  the  ma- 
chine should  not  be  given  up  to  the 
hirer.  The  reasons  for  applying  thia 
rule  in  a  case  like  the  present  are  fully 
as  strong  as  when  a  carriage  and 
horses  are  let  with  a  driver." 

8.  Burns  v.  Southern  Pac.  Co.  (Cal. 
App.),  185  Pac.  875;  Sargent  Paint 
Co.  V.  Petrovitsky,  (Ind.  App.),  124  N. 
K.  881;  Myers  v.  Tri-State  Auto  Co., 
121  Minn.  68,  140  N.  W.  184;  Diamond 
V.  Sternberg,  etc.,  Co..  87  Misc.  (N. 
Y.)  305.  149  N.  Y.  Suppl.  1000.  See 
also  Carr  v.  Burke,  183  N.  Y.  App.  Div. 
361,  169  N.  Y.  Suppl.  981. 


Private  Hire  of'  Automobiles.  207 

the  benefit  of  the  guests  as  well  as  the  hirer,  and  owes  the 
same  duty  to  each,  without  regard  to  the  fact  that  he  does  not 
know  the  names  or  number  of  the  guests.® 

Sec.  178.  Liability  for  injury  from  operation  of  machine  — 
liability  for  acts  of  driver  furnished  by  hirer. 

While  the  owner  of  the  machine  is  genorally  liable  for  the 
negligence  of  the  driver  in  his  general  employ,^"  the  situation 
is  entirely  different  when  the  owner  furnishes  only  the  ma- 
chine, and  the  chauffeur  is  furnished  by  the  hirer.  When  one 
rents  an  automobile  to  another  and  the  latter  furnishes  the 
driver  thereof,  such  driver  is  not  deemed  to  be  the  servant 
of  the  owner  of  the  machine  but  of  the  hirer,  and  the  hirer 
alone  is  liable  for  his  negligence.^^  In  such  a  case,  it  is  pos- 
sible for  the  owner  to  ride  as  a  guest  of  the  hirer,  and  never- 
theless escape  liability.^^ 

Sec.  179.  Liability  for  injury  from  operation  of  machine  — 
injury  to  passenger. 
Where  a  dealer  in  automobiles  and  owner  of  a  garage  lets 
a  car  for  hire  and  furnishes  a  driver,  and  the  hirer  exercises 
no  control  or  supervision  over  the  driver,  except  to  direct 
him  where  to  go,  and  what  route  to  take  and  to  caution  him 
against  improper  driving,  the  owner  is  responsible  for  the 
negligence  of  the  driver,  and  the  hirer  may  recover  from  the 
owner  in  damages  for  an  injury  caused  by  the  driver's  negli- 
gence.^2  In  such  a  case  the  negligence  of  the  driver  is  im- 
puted to  the  owner  and  not  to  the  hirer  of  the  vehicle."    But 

9.  Greenberg  &  Bond  Co,  v.  Yar-  Meyers  v.  Tri-State  Auto  Co.,  131  Minn, 
borough  (Ga.  App.),  106  S.  E.  624;  68,  140  N.  W.  184;  Cates  v.  Hall,  171 
Dunne  v.  Boland,  199  HI.  App.  308.  N.   C.    360,    88    S.   E.   534.     See    also, 

10.  Section  628.  Buckingham    v.    Eagle    Warehouse    & 

11.  Pease  v.  Gardner,  113  Me.  264,  Storage  Co.,  189  N.  Y.  App.  Div.  760. 
93    Atl.    550;    Hornstein    v.    Southern       179  N.  Y.  Suppl.  218. 

Boulevard  R.  Co.,  79  Misc.  (N.  Y.)  34,  Burden   of   proof.— In   an   action   by 

138  N.  Y.  Suppl.  1080.  the   hirer   against   the   owner   for   per- 

12.  Pease  v.  Montgomery,  111  Me.  sonal  injuries,  the  burden  is  upon  the 
582,  88  Atl.  973.  See  also  sections  plaintiff  to  show  the  negligence  of  the 
642-644.  defendant.     Wallace  v.  Keystone  Auto- 

13.  Johnson  v.  Coey,  237  111.  88,  86  mobile  Co.,  230  Pa.  St.  110,  86  Atl.  699. 
N.   E.   678,   21   L.   R.  A.    (N.   S.)    81;  14.  Broussard   v.   Louisiana  Weetem 


208  The  Law  of  Automobiles. 

if  the  carriage  of  passengers  by  a  chauffeur  is  an  individual 
enterprise  of  the  driver  without  the  knowledge  of  the  owner, 
the  latter  is  not  liable.^^  But,  although  the  negligence  of  the 
driver  is  not  to  be  imputed  to  the  passenger  in  such  cases, 
nevertheless  the  duty  is  on  him  of  using  reasonable  care  for 
his  own  safety;  and,  if  he  fails  in  this  respect,  he  cannot  re- 
cover of  the  owner  for  his  injuries.^*'  But,  though  riding  be- 
side the  driver,  he  is  not  guilty  of  contributory  negligence 
because  he  fails  to  warn,  advise  or  direct  the  driver  in  cases 
of  emergency  or  because  he  fails  to  control  the  acts  of  the 
driver  in  passing  other  cars."  The  owner  impliedly  warrants 
that  the  machine  is  in  proper  condition  for  the  purpose  con- 
templated, and  he  must  exercise  reasonable  care  to  see  that 
the  machine  is  in  proper  repair.^ 

Sec.  180.  Injury  to  machine  —  care  to  be  exercised  by  hirer. 
A  party  who  hires  an  automobile  from  another  is  bound  to 
take  only  ordinary  care  of  the  machine,  and  he  is  not  respon- 
sible for  damage  inflicted  to  the  automobile,  if  ordinary  pru- 
dence has  been  exercised  while  the  machine  was  in  his  custody 
as  a  bailee.^^  The  degree  of  care,  of  course,  which  the  hirer 
of  an  automobile  should  exercise  depends  upon  all  the  facts 
and  circumstances  of  the  case,  but  still  it  is  only  ordinary  care 
as  the  law  defines  this  term.  The  hirer  is  bound  to  render 
such  care  in  the  case  as  the  owner  has  a  right  to  expect  that 
a  man  of  ordinary  capacity  and  caution  would  take  of  the 
automobile,  if  it  were  his  own  under  the  same  circumstances.^** 
As  a  general  rule,  if  the  machine  is  injured  or  destroyed 
through  the  alleged  negligence  of  the  hirer,  it  is  a  question  for 
the  jury  to  determine  whether  negligence  has  been  estab- 
lished.^^ 

E.  Co.,  140  La.  517,  73  So.  606;  Meyers  17.  Wilson  v.  Puget  Sound  Elee.  Ry, 

V.   Tri-State  Auto   Co.,   121   Minn.   68,  52  Wash.  522,  101  Pac.  50. 

140  N.  W.  184;  Bancroft  v.  Cote,  90  18.  Collette  v.  Page  (R.  I.)  114  Atl. 

Vt.  358,  98  Atl.  915.     See  section  679,  136. 

et   seq.,   as   to   imputation   of   driver's  19.  Parsons    on    Contracts,    vol.    II 

negligence  to  passenger.  (9th  Ed.),  134,  135. 

15.  Nicholson   v.    Houston   Elee.   Co.  20    Parsons    on    Contracts,    vol.    II 
(Tex.  Civ.  App.),  220  S.  W.  632.  (9th  Ed.),  134,  135. 

16.  Sections  688-695.  21.  Brown  v.  Freeman,   84  N.  J.  L. 

360.   86  Atl.  384. 


Private  Hire  of  Automobiles.  201) 

Sec.  181.  Injury  to  machine  —  loss  of  machine. 

If  an  automobile  is  lost  through  theft,  or  is  injured  as  a 
result  of  violence,  the  hirer  is  only  answerable  when  im- 
prudence or  negligence  caused  or  facilitated  the  injurious 
act.^^  However,  where  a  hired  automobile  is  lost  or  injured, 
the  hirer  is  bound  to  account  for  such  loss  or  injury.  When 
this  is  done,  the  proof  of  negligence  or  want  of  due  care  is 
thrown  upon  the  bailor,  and  the  hirer  is  not  bound  to  prove 
affirmatively  that  he  used  reasonable  care.^  If  the  employee 
of  the  hirer  uses  the  machine  for  an  unauthorized  purpose, 
and  while  it  is  so  used,  it  is  stolen  through  the  negligence  of 
such  employee,  the  hirer  may  be  liable.^* 

Sec.  182.  Injury   to   machine  —  conversion   of   machine   by 
hirer. 

If  the  hirer  of  an  autpmobile  should  sell  it  without  au- 
thority to  a  third  party,  the  owmer  or  bailor  may  institute  an 
action  of  trover  against  even  a  bona  fide  purchaser,  one  who 
purchases  the  machine  innocently  believing  that  the  hirer  had 
the  title  and  power  to  sell.^^ 

Sec.  183.  Injury  to  machine  —  deviation  from  agreed  route. 

There  is  an  implied  obligation  on  the  part  of  the  hirer  of  a 
motor  vehicle  to  use  the  machine  only  for  the  purpose  and  in 
the  manner  for  which  it  was  hired.  If  the  automobile  is  used 
in  a  different  way,  or  for  a  longer  time,  the  hirer  may  be 
responsible  for  a  loss  then  accruing,  although  by  inevitable 
casualty.^ 

Sec.  184.  Injury  to  machine  —  right  of  action  by  hirer  for 
injury. 

Upon  the  assumption  that  the  hirer  of  an  automobile  is 
under  the  obligation  to  return  it  to  the  hirer  in  as  good  condi- 

22.  Parsons    on    Contracts,    vol.    II       (N.  J.),  110  Atl.  690. 

(9th  Ed.),  138.  25.  Parsons    on    Contracts,    vol.     II 

23.  Parsons     on    Contracts,    vol.    II       (9th  Ed.),  138. 

(9th  Ed.),  138.  26.  Parsons    on    Contracts,    vol.    11 

24.  Donaldson   v.    Ludlow   &    Squier,       (9th  Ed.),  141,  142. 

14 


iilO  The  Law  of  Automobiles. 

tion  as  at  the  commencement  of  the  bailment,  reasonable  wear 
and  tear  excepted,  it  has  been  decided  that  in  case  of  an  in- 
jury to  an  automobile  by  the  negligence  of  a  third  party,  the 
hirer  may  recover  therefor.^  If  the  owner  brings  the  action 
against  the  third  party,  the  negligence  of  the  hirer  is  not  im- 
puted to  such  owner.^ 

Sec.  185.  Duties   and  liabilities   of  parties  —  possession  of 
machine. 

The  owner  of  the  automobile,  or  the  party  letting  it  out, 
is  obliged  to  deliver  the  automobile  hired  in  a  condition  to 
be  used  as  contemplated  by  the  parties;  and  the  owner  may 
not. interfere  with  the  hirer's  use  of  the  automobile  while  the 
hirer's  interest  continues.  Even  if  the  hirer  abuses  the  auto- 
mobile, although  the  owner  may  then,  as  it  is  said,  repossess 
himself  of  his  property  if  he  can  d()  so  peaceably,  he  may  not 
do  so  forcibly,  but  must  bring  an  action.  If  such  misuse  of 
the  automobile  terminates  the  original  contract  of  bailment 
the  owner  may  demand  the  automobile,  and,  on  refusal,  bring 
trover ;  or,  in  some  cases,  he  may  bring  the  action  of  trover, 
without  demand.^^  By  the  contract  of  hire,  the  hirer  of  the 
automobile  acquires  a  qualified  property  in  it  which  he  may 
maintain  against  all  persons  except  the  owner,  and  against 
him  as  far  as  the  terms  and  conditions  of  the  contract,  ex- 
press or  implied,  may  warrant.  During  the  time  for  which 
the  hirer  is  entitled  to  the  use  of  the  automobile,  the  owner 
is  not  only  bound  not  to  disturb  him  in  that  use,  but  if  the 
hirer  returns  it  to  the  owner  for  a  temporary  purpose,  he  is 
bound  to  return  it  to  the  hirer.** 

Sec.  186.  Duties  and  liabilities  of  parties  —  duty  to  carry  to 
destination. 

Where  a  person  enters  into  a  contract  of  hiring  with  the 
owner  of  an  automobile  by  which  the  latter  undertakes  to 

27.  Manion    v.    Loomis    Sanitarium,      Suppl.  313. 

162  N.  Y.  App.  Div.  421,   147  N.  Y.  29.  Parsons    on    Contracts,    vol.    II 

Suppl.  761.  (9th  Ed.),  139,  140. 

28.  Fischer  v.  International  By.  Co.,  30.  Parsons    on    Contracts,    vol.    II 
112    Misc.    (N.    Y.)    212,    182    N.    Y.  (9th  Ed.),  142. 


Private  IIuie  of  Automobii.es.  211 

convey  the  former  to  a  certain  destination,  and,  while  on  the 
way,  in  the  perrormaiice  of  such  agreement,  the  automobile 
breaks  down,  if  the  mechanism  cannot  be  properly  adjusted 
at  the  time  and  the  ownei*  is  able  to  furnish  another  machine 
so  as  to  complete  his  contract  of  carriage,  it  is  his  duty  to 
do  so.^^ 

Sec.  187.  Duties  and  liabilities  of  parties  —  termination  of 
hiring. 

The  contract  for  the  hire  of  an  automobile  may  be  termi- 
nated by  the  expiration  of  the  time  for  which  the  vehicle  was 
hired,  or  by  the  act  of  either  party  within  a  reasonable  time, 
if  no  time  is  fixed  by  the  contract,  as  by  the  agreement  of  both 
parties  at  any  time;  or  by  operation  of  law  if,  for  instance, 
the  hirer  becomes  the  owner  of  the  automobile,  or  by  the  de- 
struction of  the  automobile.  If  it  is  destroyed  without  the 
fault  of  either  party,  before  any  use  of  it  by  the  hirer,  he  has 
nothing  to  pay ;  if  after  some  use,  it  may  be  doubted  how  far 
the  aversion  of  the  law  of  apportionment  would  prevent  the 
owner  from  recovering  pro  tanto;  probably,  however,  where 
the  nature  of  the  case  admitted  a  distinct  and  just  apportion- 
ment, it  would  be  applied.  Either  party  being  in  fault  would, 
of  course,  be  amenable  to  the  other.  The  contract  might  wisely 
provide  for  such  a  contingency  as  the  destruction  of  the  auto- 
mobile in  such  manner.^ 

Sec.  188.  Duties   and   liabilities    of   parties  —  surrender   of 
machine. 

The  hirer  of  an  automobile  must  surrender  the  machine  at 
the  appointed  time,  and  if  no  time  is  specified  in  the  contract, 
then  whenever  called  upon  after  a  reasonable  time.  What 
constitutes  a  reasonable  time  is  to  be  determined  from  all  of 
the  facts  and  circumstances  of  each  particular  case.^ 

31.  Taxicab    Co.    v.    Grant,    3    Ala.       (9th  Ed.),  143. 

App.  393,  57  8o.  141.  33.  Parsons    on    Contracts,    vol.    II 

32.  Parsons    on    Contracts,    vol.     II       (9th  Ed.),  142. 


212 


The  Law  of  Automobiles. 


Sec.  189.  Duties  and  liabilities  of  parties  —  compensation  for 
hire. 

The  owner  of  a  motor  vehicle  is,  of  course,  entitled  to  com- 
pensation for  the  use  of  the  machine,  "unless  it  is  intended  that 
the  use  shall  he  gratuitous.^''  If  a  definite  sum  is  not  stated 
in  the  contract  between  the  parties,  there  arises  an  implied 
undertaking  that  the  hirer  shall  pay  a  reasonable  amount.^-^ 
One  who  uses  another's  automobile  without  consent  or  knowl- 
edge of  the  owner,  may  be  liable  to  pay  a  reasonable  hire 
therefor.^*^  In  case  the  hirer  is  a  corporation,  there  may  arise 
the  question  whether  the  agent  of  the  company  making  the 
contract,  has  authority  to  bind  the  company.^^    Where  a  ma- 


34.  O'Brien  v.  L.  E.  White  Lumber 
Co.  (Cal.  App.),  185  Pac.  514. 

35.  Kentucky  Glycerine  Co.  v. 
Clouse,  187  Ky.  484,  219  S.  W.  788. 
And  see  Parsons  on  Contracts,  vol.  II 
(9th  Ed.),  143. 

36.  Bush  V.  Fourcher,  3  Ga.  App.  43, 
59  S.  E.  459. 

37.  Lake  County  Agr.  Soc.  v.  Ver- 
plank  (Ind.  App.),  124  N.  E.  494;  Mer- 
rill V.  Caro  Ins.  Co.,  70  Wash.  482,  127 
Pac.  122. 

38.  Jones  v.  Belle  Isle,  13  Ga..  App. 
437.  79  S.  E.  357,  wherein  it  was  said: 
"The  court  will  not  enforce  a  contract 
made  on  Sunday  in  furtherance  of  one 's 
ordinary  business.  .  .  .  Generally  if 
a  contract  founded  upon  an  illegal  con- 
sideration is  executed,  it  will  be  left  to 
stand.  If  it  be  executory,  neither 
party  can  enforce  it.  .  .  .  As  letting 
automobiles  for  pleasure  rides  was  a 
work  neither  of  charity  nor  of  neces- 
sity, the  contract  as  to  the  automobile 
hired  on  Sunday  was  void  ah  initio. 
.  .  .  If  one's  ordinary  calling  is  law- 
ful, a  contract  made  in  furtherance 
thereof  is  neither  illegal  nor  immoral: 
If  made  on  Sunday,  it  is  unenforceable 
sole'y  because  the  State,  in  the  exercise 
of  its  police  power  has  prohibited  the 
citizen  from  pursuing  h's  usual  business 
or  calling  on  the  Sabbath  day.    A  con- 


tract founded  upon  a  consideration 
which  is  neither  illegal  nor  immoral 
may  be  subsequently  ratified,  even 
though  it  is  unenforceable  ai  initio  be- 
cause made  on  a  day  on  which  the  law 
prohibits  it  from  being  executed. 
Hence,  if  a  contract  of  sale  be  made 
on  Sunday  and  the  property  delivered 
to  the  purchaser,  his  retention  of  it 
after  the  expiration  of  Sunday  would 
amount  to  a  ratification  and  render 
him  liable  for  the  purchase  price.  And 
where  a  contract  is  made  on  Sunday, 
and  the  parties  proceed  to  carry  it  out 
on  a  subsequent  day,  both  will  be 
bound.  .  .  .  The  owner  of  the  auto- 
mobile knew  it  was  illegal  to  let  his 
machine  on  Sunday.  With  this  knowl- 
edge he  took  the  risk  of  voluntary  pay- 
ment by  the  defendant.  The  contract 
was  wholly  executed  on  Sunday;  noth- 
ing remained  to  be  done  but  to  pay  for 
the  use  of  the  machine.  The  new 
promise  to  pay  was  founded  upon  no 
new  consideration,  and  there  was  no 
such  obligation  to  pay  as  would  sup- 
port the  new  promise.  The  hirer  of 
the  automobile  was  engaged  in  an  ille- 
gal act,  one  which  is  denounced  by  our 
law  as  a  crime.  The  original  promise 
to  pay  was  made  in  furtherance  of  a 
crime.  Therefore  it  could  not  furnish 
a  consideration  for  a  new  promise  made 


Pkivate  Hirk  of  Automoblles. 


213 


chine  is  hired  for  "joy  riding"  on  Sunday,  it  has  been  held 
that  the  contract  is  illegal  and  the  hirer  cannot  recover  for 
the  use  of  the  automobile.^ 


on  a  secular  day.  Catlett  v.  M.  E. 
Church,  62  Ind,  365,  30  Am.  Rep.  197. 
There  is  no  reason  why  the  courts 
should  be  solicitous  to  aid  one  who 
violates  the  Sunday  law  to  reap  the 
fruits  from  his  illegal  act.  It  is  the 
declared  policy  of  this  State  that  no 
one  shall  pursue  the  work  of  his  ordi- 


nary calling  on  Sunday.  To  allow  the 
plaintiff  to  recover  in  this  case  would 
encourage  the  violation  of  the  Sunday 
law.  The  purpose  of  the  law  is  to  dis- 
courage and,  as  far  as  possible,  prohibit 
work  on  the  Sabbath  day  save  that 
which  is  done  of  necessity  or  for 
charity. ' ' 


214.  The  Law  of  Alttomobilrs. 


CHAPTER  XI. 

GARAGES  AND  GARAGE  KEEPERS. 

Section  190.  Scope  of  chapter. 

191.  Garage  defined. 

192.  btatus  of  garage  keeper.  .  - 

193.  Garage  as  a  nuisance. 

194.  Restrictive  covenant  forbidding  garage. 

195.  Regulatory  power  over  garages — in  general. 

196.  Regulatory  power  over  garages — licensing. 

197.  Regulatory  power  over  garages — location. 

198.  Regulatory  power  over  garages— manner  of  construction. 

199.  Regulatory  power  over  garages — storage  of  gasoline. 

200.  Regulatory  power  over  garages — keeping  register  of  repairs. 

201.  Rights  of  garage  keeper. 

202.  Liability  of  garage  keeper — in  general. 

203.  Liability  of  garage  keeper — gratuitous  bailee. 

204.  Liability  of  garage  keeper — injury  by  fire. 

205.  Liability  of  garage  keeper — property  stolen  from  garage. 

206.  Liability  of  garage  keeper — use  of  macliino   without  owner's   con- 

sent. 

207.  Liability  of  garage  keeper — damages   to    machine   while   driven    by 

bailee. 

208.  Liability  of  garage  keeper — conversion  of  customer's  automobile. 

209.  Liability  of  garage  keeper — delay  in  making  repairs. 

210.  Liability  of  garage  keeper — improper  performance  of  work  on  ma- 

chine. 

211.  Liability  of  garage,  keeper — sale  of  inferior  supplies. 

212.  Liability  of  garage  keeper — burden  of  proof. 

213.  Liability  of   garage  keeper — acts   of  driver   injuring   third   person. 

214.  Liability  of  garage  keeper — acts   of    servant   tomng   disabled   ma- 

chine. 

215.  Liability  of  garage  keeper — defective  premises. 

Sec.  190.  Scope  of  chapter. 

This  chapter  is  designed  to  include  certain  matters  relat- 
ing peculiarly  to  garages  and  garage  keepers^  such  as  the 
regulations  which  the  State  or  municipal  divisions  may  make 
with  reference  to  the  construction  and  management  of  garages, 
and  the  powers  and  liabilities  of  garage  keepers.  In  another 
chapter  are  treated  the  questions  which  arise  out  of  the  car- 
riage of  passengers  for  hire  hy  garage  keepers.^    And  refer- 

1.  Chapters  IX  and  X. 


Garages  and  Garage  Keepers.  215 

ence  is  also  to  be  made  to  another  part  of  this  work  for  a  dis- 
cussion of  the  liens  of  garage  keepers  for  storage,  repairs  and 
supplies.^ 

Sec.  191.  Garage  defined. 

The  garage  has  been  said  to  be  the  modern  substitute  for 
the  ancient  livery  stable.^  The  term  was  appropriated  from 
the  French  language,  there  meaning  "keeping  under  cover," 
or  a  ** place  for  keeping."  As  used  in  this  country  the  term 
means  a  place  where  a  motor  vehicle  is  housed  and  cared  for.* 
The  term  '*  public  garage, "  as  used  in  a  tax  law,  has  been  con- 
strued as  including  an  automobile  repair  shop.^  A  building 
constructed  by  a  tenant  and  used  for  a  garage  and  repair 
shop,  though  connected  with  an  existing  building  by  a  shed, 
is  a  trade  fixture  which  may  be  removed  by  the  tenant  after 
the  expiration  of  the  tenancy.*' 

Sec.  192.  Status  of  garage  keeper. 

A  garageman  who  receives  the  motor  vehicle  of  another  for 
the  purpose  of  repairing  or  taking  care  of  it,  the  owner  to  pay 
a  compensation  for  such  service,  is  a  bailee  for  hire.'^  The 
relation  between  the  parties  is  that  of  bailor  and  bailee,  and 

2.  Sections  875-881.  another  building,  as  a  barn  or  corncrib 

3.  Smith  V.  O'Brien,  46  Misc.  R.  (N.  constructed  for  the  purpose,  or  having 
Y.)  325,  94  N.  Y.  Suppl.  673,  affirmed  been  erected,  is  set  apart  for  the  hous- 
103  App.  Div.  596,  92  N.  Y.  Suppl.  ing  of  the  automobile,  it  is  none  the 
J 146.  less  a  'garage.'  within  the  meaning  of 

4.  White  V.  Home  Mut.  Ins.  Assoc.  that  word  in  either  language.  In 
(Iowa),  179  N.  W.  315,  wherein  it  was  French  the  word  has  reference  to  the 
said:  "The  word  'garage'  was  re-  place  of  keeping  wagons  and  other  vehi- 
cently  appropriated  from  the  French  cles  of  transportation,  as  well  as  auto- 
language,  there  meaning  keeping  under  mobiles;  but  in  English  it  appears  to 
cover,  or  a  place  for  keeping,  and,  as  have  been  restricted  to  motor  vehicles." 
employed  in  English,  is  accurately  de-  5.  Laurence  v.  Middleton.  103  Miss, 
fined  by  Webster's  dictionary,  substan-  173,  60  So.  130. 

tially  like  that  of  the  Century  diction-  6.  Ray  v.  Young,  160  Iowa,  613,  142 

ary,  as  'a  place  where  a  motor  vehicle  N.  W.  393,  Ann.  Cas.  1915  D.  258. 

is  housed  and  cared  for.*    To  be  such,  7.  Woods  v.   Bowman,  200  III.  App. 

the  place  need  not  bo  apart  from  other  -.  612;  Warren  v.  Finn,  84  N.  J.  L.  206, 

buildings,  though  that  may  \ye  the  more  86  Atl.    530 ;    Perry  v.   Fox,   93   Misc. 

common  and  appropriate  way.     If  the  (N.  Y.)  89,  156  N.  Y.  Suppl.  369. 

'place'   be   in  .a  'lean-to'   attached  to  jfc,     Garage  keeper  as  a  "  wheel  right. "-— 


216  The  Law  of  Automobiles. 

their  rights  and  liabilities  are  to  be  determined  according  to 
such  relation.^  The  relation  of  landlord  and  tenant  does  not 
exist.^  The  status  of  bailee  enables  the  garageman  to  main- 
tain an  action  of  replevin  to  recover  the  property  from  the 
possession  of  any  one  except  the  bailor.^"  But,  nevertheless, 
such  custody  does  not  constitute  ownership  for  the  purpose 
of  the  allegation  of  ownership  in  a  prosecution  for  theft  of  a 
part  of  the  machine."  So  long  as  the  relation  between  the 
owner  and  the  garage  keeper  is  that  of  bailor  and  bailee,  the 
owner  is  not  ordinarily  responsible  for  the  negligence  of  the 
garageman  or  his  servants  in  the  care  or  operation  of  the 
vehicle.^2  Qne  who  undertakes  to  repair  an  automobile  for 
another  is  regarded  as  an  independent  contractor  where  there 
is  no  right  on  the  part  of  the  owner  to  control  the  work.^^ 

Sec.  193.  Garage  as  a  nuisance. 

A  public  garage  is  not  a  nuisance  per  se}^  And  it  has  been 
said  that  the  business  of  a  garage  keeper  ''appears  perfectly 
lawful  and  legitimate. "  ^^  Even  the  storage  of  gasoline  in 
suitable  tanks  set  well  down  in  the  earth  is  not  a  nuisance 
per  se}^    But,  although  the  business  of  the  garage  keeper  is 

It  has  been   held  that   a    garage  man  Ala.    635,    75    So.    25;    People    ex   rel. 

who    makes    a    business    of    repairing  Busehing  v.  Ericson,  263  111.  368,  105 

motor    vehicles,     is    a     "  wheelright. "  N.  E.  315;  Wolfschlager  v.  Applebaum 

Shelton  v.   Little  Rock  Auto   Co.,   103  (Mich.),    182    N.    W.    47;    Diocese    of 

Ark.  142,  146  S.  W.  129.  Trenton  v.  Toman,  74  N.  J.  Eq.  702,  70 

8.  Woods  V.  Bowman,  200  111.  App.  Atl.  606;  Ronan  v.  Barr,  82  N.  J.  Eq. 
612.  583,   89    Atl.    282;    Stein   v.   Lyon,   91 

9.  White  V.  Lokey,  7  Boyces  (30  N.  Y.  App.  Div.  593,  87  N.  Y.  Suppl. 
Del.)   598,  110  Atl.  560.  125;    Hanes   v.   Caroline   Cadillac   Co., 

10.  Warren  v.  Finn,  84  N.  J.  L.  206,  176  N.  Car.  350,  97  S.  E.  162;  Sher- 
86  Atl.  530.  man  v.  Livingston,   128   N.  Y.   Suppl. 

11.  Staha  V.  State,  69  Tex.  Crim.  356,  581;  Phillips  v.  Donaldson  (Pa.),  112 
151  S.  W.  543.  Atl.   236;  Lewis  v.   Berney    (Tex.  Civ. 

12.  Woods  V.  Bowman,  200  111.  App.  App.),  230  S.  W.  246. 

612;  Neff  v.  Brandeis,  91  Neb.  11,  135  15.  Stein  v.  Lyon,  91  N.  Y.  App.  Div. 

N.  W.  232,  39  L.  R.  A.    (N.  S.)   933;  593,  87  N.  Y.  Suppl.  125. 
Perry  v.  Fox,  93  Misc.  (N.  Y.)  89,  156  16.  See   Hanes  v.   Caroline    Cadillac 

N.  Y.  Suppl.  369.    And  see  also  section  Co.,  176  N.  Car,  350,  97  S.  E.  162, 
g46_  Painting    and   upholstering    automo- 

13.  Woodcock  V.  Sartle,  84  Misc.  R.  biles  is  a  legitimate  business.— Wolf - 
488,  146  N.  Y.  Suppl.  540.  schlager  v.  Applebaum  (Mich.),  182  N. 

14.  Radney  v.  Town  of  Ashland,  199  W.  47. 


Garages  axd  Garage  Keepers. 


217 


not  necessarily  a  nuisance,  it  maj^  become  so  when  conducted 
in  certain  localities,  such  as  a  strictly  residential  section,  or 
when  it  is  conducted  in  an  improper  manner.^^  Thus,  the 
operation  of  a  public  garage  may  be  enjoined  in  a  purely 
residential  section  within  a  short  distance  of  large  churches, 
a  parochial  school,  and  modern  houses.^^  But  a  garage  is  not 
necessarily  a  nuisance  because  it  is  a  wooden  construction, 
more  or  less  old  and  dilapidated;  or  because  of  the  storage 
of  gasoline  and  inflammable  oils,  neighboring  buildings  are 
exposed  to  a  fire  hazard.^^ 


Sec.  194.  Restrictive  covenant  forbidding  garage. 

Whether  a  restrictive  covenant  in  a  deed  will  preclude  the 
construction  of  a  public  or  private  garage  on  certain  premises, 
depends,  of  course,  upon  the  language  of  the  covenant.  As  a 
garage  is  not  a  nuisance  per  se^  it  is  held  that  a  deed  for- 
bidding the  maintenance  of  a  ''nuisance,"  Avill  not  bar  a 


17.  People  ex  rel.  Busching  v.  Eric- 
son,  263  111.  368,  105  N.  E.  315; 
Wright  V.  Lyons,  224  Mass.  167,  112 
N.  E.  876;  Diocese  of  Trenton  v.  To- 
man, 74  N.  J.  Eq.  702,  70  Atl.  606; 
Prendergast  v.  Walls,  257  Pa.  547,  101 
Atl.  826;  Phillips  v.  Donaldson  (Pa.), 
112  Atl.  236;  Lewis  v.  Bemey  (Tex. 
Civ.  App.),  230  S.  W.  246.  "These 
garages  occupy  with  relation  to  auto- 
mobiles the  same  place  that  stables  do 
with  regard  to  horses,  and  stables  have 
not  been  held  to  be  nuisances."  Dio- 
cese of  Trenton  v.  Toman.  74  N.  .T.  Eq. 
702,   70  Atl.  606. 

Injunction  against  garage  keeper, — 
The  owner  of  an  automobile  garage, 
licensed  to  store  one  barrel  of  gasoline 
in  the  building,  which  is  a  frame  build- 
ing and  adjacent  to  other  frame  build- 
ings, will  be  enjoined  from  introducing 
gasoline  into  tanks  of  the  automobile 
xnBidte  the  building,  and  restrained 
from  storing  automobiles  with  gasoline 
in     the     tanks     inside     the     building. 


O'liara  v.  Nelson,  71  N.  J.  Eq.  161,  63 
Atl.  836. 

Lease  of  a  building  for  garage  held 
equivalent  to  an  ejection  of  ips^-oo  of 
adjoining  property  used  for  lodging 
house.  Blaustein  v.  Pincus,  47  Mont. 
202,  131  Pac.  1064. 

A  lease  providing  that  premises  are 
to  be  used  only  as  a  store,  to  handle 
and  sell  automobile  accessories  and  as 
a  showroom  for  new  automobiles,  but  no 
repairs  of  any  kind  will  be  allowed  on 
the  premises,  cannot  be  construed  as 
meaning  that  the  premises  demised 
should  be  used  as  a  garage.  Winograd 
V.  Olson,  207  111.  App.  343. 

18.  Prendergast  v.  Walls,  257  Pn. 
547,  101  Atl,  826. 

19.  Radney  v.  Town  of  Ashland,  190 
Ala.  635,  75  So.  25. 

20.  Section   193. 

By  whota  enforced. — The  asaijinee  or 
heir  of  the  original  grantor  in  some 
cases  cannot  enforce  the  covenant. 
Ringgold  V.  Dcnhardt  (Md.),  110  Atl. 
321. 


218 


The  Law  of  Automobiles, 


garage.^^  Nor  is  a  garage  a  "stable"  within  the  meaning  of 
a  covenant  providing  that,  if  a  stable  should  be  built  on  cer- 
tain premises,  it  would  be  on  a  certain  corner  of  the  premises.^ 
But  the  maintenance  of  a  public  garage  may  be  prescribed  by 
a  covenant  which  forbids  anv  *' offensive"  business. ^^    Coven- 


21.  Diocese  of  Trenton  v.  Toman,  74 
N.  J.  Eq.  702,  70  Atl.  606;  Eonan  v. 
Barr,  82  N.  J.  Eq.  583,  89  Atl.  282; 
Goldstein  v.  Hirsch,  108  Misc.  (N.  Y.) 
294,  178  N.  Y.  Suppl.  325,  affirmed  191 
App.  Div.  492,  181  N.  Y.  Suppl.  559. 
"The  second  paragraph  of  the  cove- 
nant prescribes  the  use  of  the  lots  for 
purposes  therein  specifically  mentioned 
'or  any  other  nuisance  whatsoever. 
The  erection  of  a  public  garage  eo 
nomvnie  is  not  prohibited,  but  it  is  in- 
sisted that  to  permit  one  to  be  erected 
and  operated  would  create  a  nuisance. 
To  read  this  into  the  clause  inhibiting 
nuisances  necessarily  requires  a  finding 
that  a  public  garage  is  a  nuisance  per 
se.  This  it  surely  is  not.  It  is  a  place 
for  the  housing  of  automobiles.  The 
business  is  a  lawful  one  and  the  pre- 
sumption is  that  it  will  bo  lawfully 
carried  on.  In  such  circumstances  a 
court  of  equity  will  not  interfere.  If, 
in  the  prosecution  of  the  business,  a 
nuisance  is  created,  it  may  interpose. ' ' 
Ronan  v.  Barr,  82  N.  J.  Eq.  583,  89 
Atl.  282. 

22.  Asbury  v.  Carroll,  54  Pa.  Super. 
Ct.  97. 

23.  Hohl  V.  Modell,  264  Pa.  St.  516, 
107  Atl.  885;  Phillips  v.  Donaldson 
(Pa.),  112  Atl.  236. 

Restriction  in  a  deed  construed. — 
Where  the  erection  of  "any  tavern, 
drinking  saloon,  slaughterhouse,  skin- 
dressing  establishment,  or  any  other 
building  for  offensive  purpose  or  occu- 
pation" is  forbidden  by  the  terms  of  a 
deed  it  is  decided  that  a  public  garage 
is  within  the  meaning  of  the  restric- 
tion. Hibberd  v.  Edwards,  235  Pa.  454, 
84  Atl.  437.  A  garage  is  not  a 
"stable,"   neither   is   it   a  dangerous, 


noxious,  unwholesome  or  offensive  es- 
tablishment, trade,  calling  or  business 
offensive  to  the  neighborhood  within 
the  meaning  of  a  restrictive  covenant 
which  provides  that  there  shall  not  be 
erected  or  carried  on  or  upon  the 
premises  any  "omnibus,  livery  or  cow 
stable  ...  or  other  dangerous, 
noxious,  unwholesome  or  offensive  es- 
tablishment, trade,  calling  or  business 
whatsoever  offensive  to  the  neighbor- 
hood." It  is  inconceivable  that  when 
said  covenant  was  made  in  1850  and 
repeated  in  subsequent  deeds  in  1852 
and  1853  and  referred  to  in  deeds  down 
to  1896,  the  parties  interested  had  in 
contemplation  a  garage.  Goldstein  v. 
Hirsch,  108  Misc.  (N.  Y.)  294,  178  N. 
Y.  Suppl.  325,  affirmed  191  App.  Div. 
492,  181  N.  Y.  Suppl.  559. 

Business  of  garage  is  offensive. — An 
owner  of  land  divided  it  into  building 
lots,  and  in  each  deed  inserted  a  re- 
striction that  the  property  should  not 
be  used  for  any  business  "offensive  to 
the  neighborhood  for  dwelling  houses. ' ' 
In  a  suit  by  one  of  the  grantees  to  re- 
strain the  erection  of  an  automobile 
garage,  it  appeared  that  the  building 
was  designed  to  accommodate  about  125 
large  automobiles,  a  part  of  one  story 
being  designed  for  a  repair  shop,  and 
it  being  intended  to  place  in  the  build- 
ing a  portable  forge;  that  demonstra- 
tion cars  were  to  be  kept,  with  demon- 
strators to  run  them,  and  that  about 
seventy-five  or  a  hundred  customers 
were  expected  to  store  automobiles 
there,  such  machines  to  go  in  and  out 
on  an  average  of  once  a  day.  The 
Supreme  Judicial  Court  of  Massachu- 
setts held  that  the  maintenance  of  such 
a  building  would  constitute  a  violation 


Garages  and  Garage  Keepers. 


219 


ants  made  since  the  popularity  of  automobiles  sometimes  ex- 
pressly forbid  a  "garage."  When  such  is  the  case,  the  ques- 
tion involved  is  whether  a  particular  structure  is  a  *' gar- 
age."-* It  has  been  held  that  it  is  not  a  violation  of  a  re- 
strictive covenant  limiting  the  use  of  property  to  residential 
purposes  and  prohibiting  public  or  private  stables  for  horses 
or  other  animals,  or  nuisances  of  any  kind,  description  or  na- 
ture, for  an  owner  to  erect  a  small  building  connected  with  his 
dwelling  to  be  used  as  a  private  garage.^^  And,  although  a 
restrictive  covenant  running  with  the  land  forbids  the  grantee 
from  erecting  a  ''garage,"  an  adjoining  landowner,  for  whose 
benefit  the  covenant  exists,  cannot  enjoin  the  erection  of  a 
*Uean-to"  against  the  side  of  a  dwelling  for  the  purpose  of 
protecting  an  automobile,  used  only  for  private  purposes, 
where  the  restrictive  covenant  taken  as  a  whole  shows  merely 
an  intention  to  prohibit  offensive  trades  or  any  business 
which  would  detract  from  the  residential  character  of  the 
neighborhood.^^     But  a  portable  sheet  metal  garage  placed 


of  the  restriction  against  carrying  on 
offensive  business.  See  Evans  v.  Foss, 
194  Mass.  513,  80  N.  E.  587,  9  L.  R.  A. 
(N.  S.)  1039,  11  Ann.  Caa.  171. 

24.  A  porte-cochere,  although  the 
front  and  rear  openings  are  fitted  with 
doors,  and  the  enclosure  is  used  for  the 
housing  of  an  automobile,  may  still  be 
considered  a  porte-cochere.  Conrad  v. 
Boogher,  201  Mo.  App.  644,  214  S.  W. 
211. 

25.  Beckwith  v.  Firing,  134  N.  Y. 
App.  Div.  608,  119  N.  Y.  Suppl.  444, 
wherein  it  was  said :  "Is  either  the 
spirit  and  intent  or  the  letter  of  the 
covenant  violated  by  the  erection  of  a 
garage  such  as  this  one  is  intended  to 
be?  There  is  no  allegation  that  it  is  to 
be  a  public  character.  Its  dimensions 
would  hardly  make  that  possible.  If 
after  its  erection  an  attempt  should  be 
made  to  use  it  for  such  a  purpose,  and 
to  thus  carry  on  the  business  of  stor- 
ing automobiles  for  hire,  a  different 
question  would  be  presented.  We  think 
that  this  structure  is  incidental  to  the 


reasonable  use  of  property  for  resi- 
dential purposes.  If  one  having  a  fond- 
ness for  flowers  should  attach  to  hia 
residence  a  small  extension  for  the  pur- 
pose of  conservatory  or  greenhouse,  or 
a  lover  of  music,  should  attach  a  simi- 
lar extension  to  be  used  as  a  private 
music  room,  or  being  a  patron  of  art, 
should  in  like  manner  construct  a  build- 
ing to  be  used  as  an  art  gallery,  we 
think  it  could  hardly  be  claimed  that 
this  was  a  violation  of  the  covenant. 
However  much  we  may  differ  upon  a 
question  of  taste,  it  seems  to  us  that  if 
one  has  a  fondness  for  automobiles,  and 
desires  to  build  an  addition  to  his 
dwelling  house  for  the  storing  of  his 
own  automobiles,  it  cannot  be  claimed 
that  ho  is  destroying  the  character  of 
the  property  as  residential  property,  or 
devoting  any  portion  of  it  to  a  use 
which  is  not  fairly  incidental  thereto." 
26.  Sullivan  v.  Sprung,  170  App.  Div. 
237,  156  N.  Y.  Suppl.  332,  wherein  the 
court  said:  "While  the  courts  carry 
out  and  enforce  such  covenants  restrict- 


220 


The  Law  of  Automobiles. 


on  a  lot  has  "been  held  to  be  contrary  to  a  covenant  providing, 
"No  stable  or  garage  shall  be  built  unless  appurtenant  to  a 
house  on  a  plot  not  less  than  100  feet  in  width  by  150  feet  in 
depth.  "^  And  a  covenant  forbidding  the  construction  of  an 
''outbuilding"  is  broad  enough  to  include  a  garage.^ 


Sec.  195.  Regulatory  power  over  garages  —  in  general. 

The  odors,  the  noise,  and  the  fire  hazard,  which  are  oc- 
casioned by  the  construction  and  management  of  a  garage. 


ing  the  enjoyment  of  land  such  re- 
strictions are  not  to  be  enlarged  or  ex- 
tended by  judicial  construction.  (11 
Cyc.  1078.)  The  present  structure, 
paintdd  to  conform  to  the  house  to 
which  it  is  attached,  is  simply  an  addi- 
tion to  the  dwelling.  While  used  to 
house  a  motor  car  it  might  serve  as  a 
storeroom  or  for  other  needs  of  a  pri- 
vate dwelling.  .  .  .  It  is  a  familiar 
principle  that  separate  terms  in  the 
enumeration  of  things  and  uses  prohi- 
bited or  limited  by  such  restrictions  are 
to  be  taken  subject  to  the  general  quali- 
fying words  expressive  of  the  scope 
and  purpose  of  the  covenant  as  a  whole. 
.  .  ..  This  entire  covenant  is  directed 
against  offensive  trades  and  further 
toward  quasi-public  uses,  such  as  trade 
or  business,  which  would  detract  from 
the  private  residential  character  of  the 
occupation.  Under  the  ejusdem  generis 
rule  the  latter  portion  of  the  covenant 
against  buildings  or  structures  'for  any 
hospital,  cemetery,  asj'lum,  manufac- 
tory, trade  shop,  store,  hotel,  clubhouse, 
boarding  house,  stable  or  garage,'  does 
not  apply  to  this  structure  attached  to 
defendant's  residence,  in  which  is  kept 
her  private  motor  car.  * '  And  see  White 
v.  Home  Mut.  Ins.  Assoc.  (Iowa),  179 
N.  W.  315,  holding  that  an  automobile 
kept  in  a  "  lean-to ' '  connected  with  a 
bam  was  kept  in  a  "garago"  within  the 
meaning  of  an  insurance  application. 
27.  Seibert  v.  Ware,  158  N.  Y.  Suppl. 
229,  wherein  it  was  said:     "Here  the 


garage  was  a  separate,  complete  and  en- 
tire building,  with  its  own  walls  and 
roof,  and  built  so  as  not  to  be  incorpor- 
ated in  the  dwelling.  It  was  a  portable 
building,  placed  on  the  defendant's  lot 
and  intended  for  use  as  a  garage,  and 
for  no  other  purpose.  .  .  .  The  de- 
fendant's breach  of  the  covenant  seems 
to  have  been  deliberate.  She  evidently 
thought  or  was  advised  that  by  adopt- 
ing the  plan  of  usinng  a  portable  build- 
ing, instead  of  one  permanently  aflSxed 
to  the  freehold,  she  could  disregard  an 
agreement  which  had  become  irksome. 
It  is  none  the  less  an  unlawful  act,  in 
that  she  has  put  in  place  on  the  prop- 
erty a  so-called  portable  building,  con- 
structed elsewhere,  instead  of  causing 
a  building  to  be  erected  thereon  in  ac- 
cordance with  her  first  design.  Porta- 
bility does  not  necessarily  imply  tran- 
siency, and  a  violation  docs  not  need 
to  be  permanent  before  equity  can  in- 
tervene. The  end  sought  to  be  ac- 
complished by  the  restriction  was  to 
prevent  the  building  of  any  garage 
upon  plots  of  less  than  a  certain  size. 
The  motive  may  have  been  to  avoid  fire 
hazard  or  noise  from  the  operation  of 
cars  in  close  proximity  to  houses  on  ad- 
joining lots.  Whatever  the  motive,  the 
covenant  is  plain,  and  a  temporary  vio- 
lation, whila  it  lasts,  is  within  its  pur- 
view just  as  much  as  a  more  permanent 
one.  * ' 

28.  Ringgold     v.     Denhardt      (Md. ;. 
110  Atl.  321. 


GakaGtES  and  Gai^age  Keepers.  221 

create  a  situation  wliicli  justifies  public  regulation,^  As  was 
said  in  one  case,^*^  "Conceding,  as  the  parties  do,  that  the  busi- 
ness oi*  conducting  a  public  garage  does  not  constitute  a 
nuisance  per  se,  it  is  a  matter  of  common  knowledge  that  the 
automobile  propelled  by  the  use  of  gasoline  is  a  large  and 
sometimes  noisy  machine,  which  frequently,  when  in  opera- 
tion, emits  an  offensive  odor.  Automobiles  go  in  and  out  of 
public  garages  at  all  hours  of  the  day  and  night,  producing 
noises  which  must  necessarily  interfere  with  the  comfort  and 
welfare  of  those  in  the  immediate  vicinity.  In  the  starting  of 
these  machines  and  in  the  testing  and  repair  of  their  engines 
a  considerable  noise  is  unavoidable.  Gasoline  and  oil  are 
used  in  places  of  this  kind,  and  it  is  necessary  to  keep  a  con- 
siderable quantity  of  gasoline  constantly  on  hand,  which  is 
transferred  to  the  tanks  of  automobiles  propelled  by  this 
means.  In  making  this  transfer  a  portion  of  it  necessarily 
becomes  vapor,  thus  creating  a  menace  both  because  of  the 
odor  of  the  fmnes  and  their  inflammable  character.  The 
power  of  the  Legislature  to  regulate  such  a  business  is  in  no 
way  dependent  upon  the  question  whether  it  is  a  nuisance 
per  se.  It  is  of  such  a  character  that  it  becomes  a  nuisance 
when  conducted  in  particular  localities  and  under  certain  con- 
ditions, and  it  is  clearly  within  the  province  of  the  Legislature, 
in  the  exercise  of  the  police  power,  to  authorize  the  munici- 
palities of  the  State  to  direct  the  location  of  public  garages." 
Thus,  a  city  may  pass  an  ordinance  forbidding  the  construc- 
tion of  a  garage  except  on  the  authorization  of  the  board  of 
aldermen.^^  If  one  attempts  to  erect  a  garage  without  a 
proper  permit  or  attempts  to  construct  one  in  violation  of  the 
permit,  an  injunction  may  be  granted  upon  the  prayer  of  an 
adjoining  owner.^^  Municipal  ordinances  for  the  regulation 
of  garages  must  be  reasonable,  but  they  are  presumed  to  be 
valid,  and  it  is  incumbent  on  the  party  complaining  to  show 

29.  Ninth    St.    Improvement    Co.    v.  31.  Storer  v.  Downey,  215  Maa3.  273, 
Ocean  City,  90  N.  J.  L.,  106,  100  Atl.       102  N.  E.  321. 

568.  32.  Trauernicht  v.  Richter,  141  Minn. 

30.  People  ex  rel.  Busching  v.  Erica-       496,   169  N.  W.  701 ;   Page  v.  Brooks 
son,  263  111.  368,  105  N.  E.  315.  (N.  H.),  104  Atl.  786. 


222  The  Law  or  Automobiles. 

their  invalidity .^^  A  municipal  regulation  may  be  invalid  if 
it  discriminates  between  different  garage  keepers  similarly 
situated.^* 

Sec.  196.  Regulatory  power  over  garages  —  licensing. 

Municipal  corporations  in  some  States  may  require  the 
licensing  of  garages  and  impose  a  license  fee  of  their  owners.^^ 
A  license  fee  of  a  specified  smn  for  each  tank  or  filling  ap- 
paratus may  be  imposed.^^  So,  too,  under  certain  circum- 
stances, licenses  for  the  storage  of  gasoline  or  inflammable 
oils  may  be  granted  or  withheld  from  garages.^^  A  motor 
club  organized  as  a  corporation  not  for  profit,  to  own,  run 
and  maintain  a  club  house  and  garage  to  be  enjoyed  by  mem- 
bers of  the  club,  has  been  held  to  be  maintaining  a  garage 
within  the  meaning  of  a  city  ordinance  requiring  a  garage 
license.^^ 

Sec.  197.  Regulatory  power  over  garages  —  location. 

On  account  of  the  offensive  noises  and  odors  which  arise 
from  the  maintenance  of  a  garage,  as  well  as  the  danger  of 
fire  from  gasoline  and  inflammable  oils  kept  on  such  premises, 
the  location  of  a  public  garage  is  a  matter  of  municipal  regu- 
lation.39  Thus,  it  is  proper  to  prohibit  the  maintenance  of  a 
public  garage  within  a  prescribed  distance,  which  is  reason- 
able, of  a  church  or  hospital  or  school.*"  Filling  stations  may 
not  be  excluded  from  certain  streets,  if  there  is  no  adequate 
reason  for  the  discrimination.'"    It  is  held  that  a  municipality 

33.  Dangel  v.  Williams,  11  Del.  Ch.  39.  People  ex  rel.  Busching  v.  Erica- 
213,  99  Atl.  84;  People  ex  rel.  Busching  sob,  263  111.  368,  105  N.  E.  315.  See 
V.  Ericsson,  263  111.  368,  105  N.  E.  315;  also  State  v.  Harper,  166  Wis.  303,  165 
People  V.  Oak  Park,  266  111.  365,   107  N.  W.  281. 

N.   E.   636.  Zoning  ordinance  held  invalid.     Vil- 

34.  Kenney  v.  Village  of  Dorchester,  lage  of  S.  Orange  v.  Hellen  (N.  J.  Eq.), 
101  Neb.  425,  163  N.  W.  762.  113  Atl.  697. 

35.  Louisville  Lozier  Co.  v.  City  of  40.  People  ex  rel.  Busching  v.  Erics- 
Louisville,  159  Ky.  178,  166  S.  W.  767.  son.  263  111.  368,  105  N.  E.  315;  People 

36.  Levels  v.  City  of  Savannah  (Ga.),  v.  Thompson,  209  111.  App.  570;  People 
107  S.  E.  588.  ex  rel.  Sondern  v.  Walsh,  108  Misc.  (N. 

37.  Section  199.  Y.)  193.  178  N.  Y.  Supp.  192. 

38.  City  of  Chicago  v.  Logan  Square  41  Standard  Oil  Co.  v.  City  of  Kear- 
Motor  Club,  189  111.  App.  142.  ney   (Neb.),  184  N.  W.  109. 


Gakages  and  Garage  Keepers.  223 

may  pass  an  ordinance  forbidding  the  construction  of  a  gar- 
age in  a  residential  part  of  the  municipality  without  the  con- 
sent of  the  adjoining  owners  or  of  a  certain  proportion  of 
the  residents  within  a  given  distance.^  An  ordinance  which 
makes  it  unlawful  to  "build,  construct  or  maintain"  a  jjublic 
garage  in  a  residence  district  \\dthout  obtaining  frontage  con- 
sents applies  to  such  garages  as  are  already  being  maintained 
as  well  as  to  those  proposed  to  be  constructed  in  the  future, 
and  is  therefore  not  void  as  discriminating  between  persons 
already  engaged  in  the  business  and  those  intending  to  en- 
gage.'*^ In  determining  whether  consent  of  the  requisite  num- 
ber of  nearby  owners  has  been  given,  the  follomng  holdings 
have  been  made:  The  ruins  left  by  a  building  destroyed  by 
fire  are  not  to  be  counted  at  all ;  a  structure  divided  by  frame 
partitions  into  three  small  shops  is  to  be  counted  as  one  busi- 
ness building;  a  structure  having  two  street  numbers  may  be 
counted  as  one  residence  building;  a  building  at  a  corner 
having  shops  on  the  street  level  with  their  entrances  on  an- 
other street,  but  its  main  entrance  on  the  street  in  question, 
may  be  counted  as  a  flat  building  on  the  street  in  question: 
and,  where  a  court  extending  from  the  street  to  a  front  yard 
for  residents,  is  used  in  common  for  light  and  air  and  egress 
and  ingress  to  the  street,  two  court  buildings  abutting  the 
street  and  two  buildings  at  the  rear  of  the  court  and  facing 
the  street  are  to  be  counted.**  In  determining  the  proportion 
of  buildings  used  exclusively  for  residence  purposes  within  a 
given  radius  of  the  site  of  a  proposed  public  garage,  barns 
and  private  garages  used  in  connection  with  residences  arc 

42.  Myers   v.   Fortunate    (Del.),    110  nearby  owners   as   required  by  a  local 

Atl.   847;  United  States  exrel.  Early  v.  regulation,  the  owner  of  premises  a  few 

Richards,  35  App.  D.  C.  540 ;  Weeks  v.  feet  away  may  invoke  injunctive  relief. 

Heurich,  40  App.  D.  C.  46;    People  ex  Weeks  v.  Heurich,  40  App.  D.  C.  40. 

rel.  Busching  v.  Erecsson.  263  111.  368,  Notice    to    co-tenants    of    adjoining 

105  N.  E.  315 ;  People  v.  Oak  Park,  266  premises  of  petition  for  permit  to  erect 

111.    365,    107   N.    E.    636;     People    v.  a  public  garage.     See  Wright  v.  Lyons. 

Stroebel,  156  N.  Y.  App.  Div.  457,  141  224  Mass.  167.  ]12  N.  E.  867. 

N.  Y.  Suppl.  1014.    Compare,  Dangel  v.  43.  People  v.  Oak  Park,  266  111.  365. 

Williams.  11  Del.  Ch.  213,  99  Atl.  84.  107   N.   E.   636. 

Injunction  by  nearby  owner. — When  44.  "Wise   v.   Chicago,    18."^    111.    App. 

one   seeks   to    construct    or   maintain    a  215. 
garage    without    the    consent    of    the 


224  The  Law  of  Automobiles. 

not  to  be  counted  as  buildings  not  used  exclusively  for  resi- 
dence purposes.'^  Where  a  regulation  provides  that  no  gar- 
age shall  be  built  on  a  street  where  a  certain  per  cent,  of  the 
buildings  on  both  sides  of  the  block  are  residences,  a  "block" 
is  construed  not  to  extend  between  two  streets  that  completely 
cross  the  street  in  question,  but  to  stop  at  a  street  running 
into  it  though  not  across  it.'"'  The  power  to  regulate  the  loca- 
tion of  public  garages  within  a  municipality  will  not  give  the 
right  to  prohibit  them  within  its  territorial  bounds.^''  And 
it  has  been  held  that  a  municipal  regulation  prohibiting  ga- 
rages and  certain  other  structures  without  the  consent  of  the 
real  estate  owners  within  300  feet  is  invalid.*^ 

Sec.  198.  Regulatory  power  over  garages  —  manner  of  con- 
struction. 

The  manner  of  construction  of  garages  is  a  matter  within 
the  regulatory  power  of  the  State  and  generally  of  municipal 
divisions.  Thus,  a  municipality  may  pass  an  ordinance  pro- 
viding that  only  fire  proof  buildings  shall  be  used  for  garages."*^ 

Sec.  199.  Regulatory  power  over  garages  —  storage  of  gaso- 
line. 
On  account  of  the  danger  of  fire,  the  storage  of  gasoline 
and  other  inflammable  oils  and  materials  in  a  garage  is  a 

45.  People  v.  Oak  Park,  266  111.  365,  nance  permitting  the  location  and  main- 
107  N.  E.  636.  tenance  of  a  garage  in  residential  dis- 

46.  Wise  V.  Chicago,  183  111.  App.  tricts  under  the  conditions  prescribed 
215.  by  this  ordinance  cannot  be  said  to  be 

47.  People  ex  rel.  Busching  v.  Erics-  unreasonable.  The  requirement  that  the 
son,  263  111.  368,  105  N.  E.  315,  wherein  person  desiring  to  construct  or  maintain 
it  was  said:  "We  do  not  agree  with  a  garage  in  any  block  in  which  two- 
counsel  for  appellant  that  under  this  thirds  of  the  buildings  on  both  sides  of 
statute  the  city  is  given  the  power  to  the  street  are  used  exclusively  for  resi- 
prohibit  the  location  of  a  garage  any-  deuces  procure  the  written  consent  of  a 
where  within  its  corporate  limits.  Such  majority  of  the  property  owners,  ac- 
legislation  by  the  city  authorities  would  cording  to  frontage,  on  both  sides  of  the 
be  so  unreasonable  as  to  render  it  in-  street,  is  not  unreasonable. ' ' 

valid.     Under  this  statute  the  city  un-  48.  State  ex  rel.  Nehrbass  v.  Harper, 

doubtedly  has  the  power,  if  it  should  162  Wis.  589,  156  N.  W.  941. 

see   fit,  to   prohibit  the   location   of   a  49.  McNamara  v.  Rings,  80  Misc.  (N. 

garage  in  a  strictly  residential  district,  Y.)   239,  140  N.  Y.  Suppl.  934. 

and  it  necessarily  follows  that  an  ordi- 


Garages  and  Garage  Keepers.  225 

proper  .subject  oi"  governmental  regulation.'^  Thus  a  city 
ordinance  providing  that  no  garage  permit  allowing  the  stor- 
age of  volatile  inflammable  oil  shall  be  issued  for  any  build- 
ing, shed  or  inclosure  which  is  situated  within  fifty  feet  of  the 
nearest  wall  of  a  building  occupied  as  a  school,  has  been  sus- 
tained though  it  applies  to  property  used  as  a  garage  for  a 
number  of  years  prior  to  the  enactment  of  the  ordinance.^' 
So,  too,  a  regulation  requiring  that  all  lights  on  motor  vehi- 
cles except  electric  lights  shall  be  extinguished  before  volatile 
inflammable  oil  is  delivered  to  fuel  tanks,  is  proper,  and  places 
an  obligation  upon  garage  keepers  to  extinguish  lights  on  a 
machine  before  delivering  gasoline  into  the  tank  of  a  motor 
vehicle.^-  And  regulations  adopted  l)y  the  Commissioner  of 
the  District  of  Columbia  prohibiting  the  storage  or  keeping 
for  sale  of  inflammable  oils  "without  a  license  and  prescribing 
the  conditions  under  which  licenses  shall  be  granted,  have 
been  sustained.^  And  it  has  been  held  a  part  of  such  regula- 
tions recpiring  every  person  storing  gasoline  in  the  city  of 
Washington  to  take  out  a  license,  which  requires  every  such 
application  to  be  referred  to  the  inspectors  of  buildings  and 
the  chief  engineer  of  the  fire  department  for  examination  of 
the  building  described  in  the  application,  who  shall  transmit 
the  application  with,  the  recommendation  to  the  assessor  of 

50.  Gulf  Refining  Co.   v.  McKenian,      tional  rights,  because  it  deprives  him 
179  N.  Car.  314,  102  S.  E.  505.  of  his  property  without  due  process  of 

Discrimination.- — ^A    munifipal    regri-  ]aw,  and  denies  to  him  the  equal  pro- 

lation  requiring  one  dealer  to  remove  a  tection  of  the  law.    It  seems  to  me  that 

tank  and  gasoline  pump  at  the  curb  in  the  regulation  is  not  objectionable  on 

front  of  his  place  of  business,  consti-  the  score  stated  by  the  relator.    The  ob- 

tutes  an  unlawful  discrimination  where  ject  sought  is  the  preservation  of  public 

his  competitor  a  short  distance  away  is  safety  and  the  welfare  of  the  communi- 

permitted  to  maintain  a  similar  appar-  ty.     The  enactment  is  not  an  arbitrary 

atus.    Kenney  v.  Village  of  Dorchester,  interference  with  the  rights  of  the  in- 

101  Neb.  435,  163  N.  W.  762.  dividual,  but  is  a  fair,  reasonable  and 

Licensing  of  gasoline  filling  stations.  appropriate     exercise     of     the     police 

— Invader  Oil  &  Refining  Co.  v.  City  of  power." 

Ft.  Wortli  (Tex.  Civ.  App.),  220  S.  W.  52.  Karg  v.  Seventy-ninth  St.  Garage 

616.  Corp.,  102  Misc.  (N.  Y.)  114,  168  N.  Y. 

51.  Mcintosh  v.  Johnson,   211  N.  Y.  Suppl.  164. 

265,  105  N.  E.  416,  wherein  it  was  said:  53.  Cahill  v.  District  of  Columbia,  23 

"He   challenges  the   regulation  quoted       Wash.  L.  Rep.  750. 
as   being   in    violation    of  liis   constitu- 

15 


226  The  Law  of  Automobiles. 

the  district,  who  shall,  if  such  officials  recommend,  issue  a 
license  unless  otherwise  ordered  by  the  commissioners,  is  not 
void  as  an  unauthorized  delegation  of  the  powers  conferred 
upon  the  commissioners;  it  not  being  a  delegation  of  their 
authority  to  commit  to  the  expert  agents  named,  a  duty  to 
ascertain  and  report  information  important  to  the  exercise 
of  their  power  to  issue  the  license,  the  propriety  of  which 
issue  must  depend  upon  the  character  and  surroundings  of 
the  building  occupied.  The  word  "recommendation"  in  the 
regulation  is  used  in  the  sense  of  report.^*  An  information  in 
the  police  court  against  the  proprietor  of  an  automobile  stor- 
age and  repair  house,  charging  him  with  storage  and  keeping 
gasoline  for  sale  without  a  license,  is  not  supported  by  evi- 
dence which  shows  that  the  defendant  had  a  license  to  conduct 
such  a  business  but  had  been  refused  a  special  license  for  the 
storage  and  sale  of  gasoline  on  the  premises ;  that  he  did  not 
have  a  permit  to  store  gasoline  in  an  underground  tank  half 
a  block  from  his  establishment;  that  from  time  to  time  each 
day  as  needed  he  procured  gasoline  from  such  tank  for  the 
supply  of  automobiles  in  his  establishment,  which  remained 
therein  from  ten  minutes  to  an  hour  awaiting  the  arrival  of 
their  owners,  who  had  ordered  them  made  ready  for  use ;  there 
being  nothing  in  such  evidence  from  which  the  sale  of  gasoline 
could  be  inferred  and  nothing  to  show  that  it  was  stored  upon 
the  premises  within  the  meaning  of  the  regulation.^^ 

Sec.  200.  Regulatory  powef  over  gara;g-es  —  keeping  register 
of  repairs. 
A  statute  requiring  that  ' '  every  repair  shop  of  whatsoever 
kind,  or  garage,  within  this  State,  engaged  in  the  repairing, 
rebuilding  or  repainting  of  automobiles  of  every  description; 
or  any  repair  shop,  within  the  State,  engaged  in  electrical 
work  in  connection  with  automobiles  of  every  description, 
shall  keep  a  well  bound  book  in  which  they  shall  register,  in 
an  intelligent  manner,  each  and  every  material  repair  or 
change  in  or  on  any  automobile  or  automobiles  of  every  de- 

54.  District   of  Columbia  v.  Weston,  55.  Weston  v.  District  of  Columbia, 

23     App.     D.     C.     363,     distinguishing       23  App.  D.  C.  367. 
United  States  v.  Eoss,  5  App.  D.  C.  241. 


Garages  and  Garage  Keepers. 


'2-27 


scription,"  applies  to  the  "garage"  or  ''repair  shop,"  l)ut 
the  persons  engaged  in  operating  thom  aro  not  amenable  to 
prosecution.^ 


Sec.  201.  Rights  of  garage  keeper. 

A  garage  keeper  is  generally  allowed  a  lien  on  a  motor 
vehicle  for  the  storage  thereof  and  for  repairs  made  to  it.^' 
But,  even  if  his  lien  is  ineffective  for  some  reason,  he  is  en- 
titled to  recover  of  the  owner  the  agreed  price  for  storage  or 
for  supplies  and  repairs.  Or,  in  the  absence  of  agreed  price 
for  repairs,  the  garage  keeper  is  entitled  to  recover  of  the 
owner  the  reasonable  value  of  the  services  and  materials  fur- 
nished;^^ even  though  the  value  of  the  repairs  exceeds  the 


56.  Fowler  v.  State.  81  Tex.  Cr.  574. 
196  S.  W.  951,  wherein  the  court  said: 
"Following  these  rules,  taking  the 
language  employed  and  its  meaning,  it 
will  be  readily  seen  and  observed  that 
by  no  sort  of  ordinary  language  such 
as  is  commonly  understood  can  a  garage 
be  a  person,  nor  is  the  individual  citi- 
zen of  Texas  to  be  regarded  by  the 
language  of  this  statute  as  a  repair 
shop  or  electrical  works.  He  may  be 
the  manager  or  owner,  luit  he  is  not  the 
shop — he  is  not  the  garage.  It  will  be 
observed  further  the  legislature  does  not 
undertake,  which  perhaps  they  might 
have  done  had  they  desired,  to  define  a 
garage  with  such  meaning  as  would  do 
violence  to  the  ordinary  language  and 
understood  words.  It  cannot  be  held 
with  any  degree  of  accuracy  that  the 
word  'garage'  is  synonymous  witli 
'person'  or  a  'citizen.'  Somctimo? 
where  ambiguous  language  is  used  by 
the  legislature,  looking  to  the  whole  act, 
it  may  be  held  that  the  language  con- 
veys or  includes  things  not  specifically 
designated,  but  this  is  a  stretch  of  the 
rule  or  construction  unless  the  legisla- 
ture has  specially  so  defined  it.  Eecog- 
niziug  the  fact,  however,  that  perhaps 
a  garage  and  an  individual  are  ditferont 
things,  or  that  a  repair  shop  is  not  a  liu- 


maii  lioing,  they  did  not  undertake  to 
make  a  garage,  repair  shop,  and  electri- 
lal  works  synonymous  with  the  term 
'citizen'  or  a  'person.'  This  law  would 
not  justify,  from  this  viewpoint,  the 
complaint  and  information.  We  have  a 
law  also  to  the  effect,  that  before  a 
man  can  be  punished  in  Texas  there 
must  be  an  offense  defined  by  the  legis- 
lature, and  it  must  affect  the  individual 
and  include  him  within  its  terms.  No 
one  looking  at  this  statute  would  under- 
take to  believe  that  by  the  plain  im- 
port of  the  language  in  which  it  is 
written  a  garage  would  be  an  individual 
or  a  citizen." 

57.  Sections  875-8S1. 

58.  Helber  v.  Schaible.  183  Mich. 
379.  150  X.  W.  145.  See  also,  Macin 
tosli  V.  Chicago  Elec.  Motor  Car  Co. 
(Cal.),  186  Pac.  364. 

Time  cards  showing  tlie  number  of 
luiurs  of  labor  devoted  to  tiie  repair  of 
an  automobile  may  be  shown  to  witness 
to  refresh  liis  recollection  on  the  sub- 
ject. Xew  York  Motor  Car  Co.  v. 
Greenfield.  145  N.  Y.  Suppl.  33,  whercir; 
it  was  paid:  "In  endeavoring  to  show 
the  luinibcr  iif  hours  of  labor  devoted  to 
tiie  repair  of  the  automobile  and  the 
materials  furnished  thereon,  plaintiff 
called  its  former  foreman  who  had  been 


228 


The  Law  of  Automobiles. 


orig-inal  cost  of  the  machine.^^  The  circumstances  may  how- 
ever, be  such  that  an  implied  contract  to  pay  for  repairs  will 
not  he  made/'°  When  the  machine  is  brought  to  the  garage 
by  a  chauffeur,  the  garage  keeper  should  assure  himself  of 
the  authority  of  the  chauffeur  to  order  repairs,  especially 
Avhere  they  are  of  a  permanent  nature.^^  If  the  garageman 
undertakes  to  make  repairs  so  as  to  put  the  machine  in  good 


in  charge  of  this  work,     lie  testified  in 
substance  that  he  could  not  remember 
the  details  without  having  his  memory 
refreshed.      A    large    number    of    daily 
time    cards    were    then    shown    to    him 
which  he  recollected  that  he  had  made 
out.    These  cards,  which  were  signed  by 
the  witness,  showed  the  materials  fur- 
nished and  the  number  of  hours  of  labor 
which   had   been   put  into   this   repair 
work.     The  witness  testified  repeatedly 
on  his  direct  and  cross-examination  that 
he  personally  knew  what  materials  had 
been   furnished   and   what   labor    done, 
and    that    he    had    constantly    superin- 
tended the  work  or  was  with  the  work- 
men when  they  did  it.    He  also  said  that 
before    making    the    entries    he    would 
each    evening   ask    each    workman    the 
number  of  hours  which  he  had  devoted 
to    the    work.      Basing    his    contention 
upon   this   last   statement  alone,  which 
was  evidently  a  statement  by  the  wit- 
ness of  an  additional  precaution  which 
he  took  to  verify  his  knowledge,  the  re- 
spondent claims  that  the  entries  on  the 
cards    were    founded    on    hearsay,    and 
that    the    cards,    therefore,    were    not 
rendered  admissible.     To  this  view  we 
cannot  assent  without  doing  violence  to 
the   letter    and   spirit    of    the   witness' 
testimony,  which  showed  ample  detailed 
knowledge  of  both  the  hours  of   labor 
applied     and     of     the     materials     fur- 
nished. ' ' 

Evidence  in  action  for  repairs.  See 
Randlo  v.  Borden  (Tex.  Civ.  App.),  UU 
S.  W.   1063. 

59.  Hoi  ton  V.  Phillips  (Mass.),  131 
N.  E.  324. 


60.  llelbor  v.  Schaible,  183  Mich.  379, 
1.-)0  N.  W.  145. 

61.  Gage   v.   Callanan,   57   Misc.    (N. 
Y.)  479,  109  N.  Y.  Suppl.  844,  reversed 
on  other  grounds,   128  N.  Y.  App.  Div. 
752,  113  N.  Y.  Suppl.  227.    In  the  lower 
court,    it    was    said:      ''Evidently    the 
chauffeur   had  no  implied  or  apparent 
authority  to  order  permanent  repairs,  or 
any    repairs    other    than   such   as   were 
necessary  to  enable  him  to  proceed  upon 
hi."  journey.     This  was   evident  to   the 
plaintiff  himself,  for  he  placed  no  re- 
liance upon  the  word  of  the  chauffeur, 
writing  the  owner  himself  for  instruc- 
tions.    The   owner  ignored  his  letters. 
Clearly  the  plaintiff  was  in  no  way  de- 
ceived as  to  the  chauffeur's  authority. 
Clearly   he   knew   that    he    had   no    au- 
thority to  order  the  repairs  in  question. 
Thn  case,  therefore,  is  precise,  as  if  the 
chauffeur  had  not  given  the  orders  in 
question,    merely    leaving    the    car    in 
plaintiff's  shop  for  safe  keeping.  If  the 
plaintiff  had  then  suggested  repairs  to 
the  defendant,  and  received  no  response 
to  his  suggestion,  he  could  not  then  have 
made  repairs  except  at  his  own  cost  and 
risk.     So  in  this  case.     The  plaintiff  is, 
therefore,   not   entitled   to   recover  his 
repair  bill.     It  is  otherwise  as  to  his 
bill  for  storage.     The  chauffeur  had  the 
right  to  place  the  broken  down  car  in 
the  plaintiff's  custody  for  safe  keeping. 
Thp   defendant   was   informed  that  he 
had  done  so.    He  did  not  interfere  with 
the  plaintiff's  custody  of  the  car,  but 
left   it   with  him  for  a  long  period  of 
time.      He    certainly    is   liable   for   the 
keep  of  the  car." 


Garages  and  Garage  Keepers. 


229 


running  condition,  though  he  is  not  bound  to  put  the 
machine  in  perfect  mechanical  condition,  he  must  at  least 
substantially  perform  his  part  of  the  contract  before  he  can 
recover  from  the  owner  for  his  services.^^  Under  a  provision 
of  a  Penal  Code  making  it  a  misdemeanor  for  one  selling 


62.  A  decision  bj'  the  municipal 
court  of  New  York  city  is  of  interest 
in  this  connection  and  the  following 
opinion  is  given: 

Lauer,  J. — This  action  is  hrought  to 
recover  the  sum  of  $267.12,  representing 
three  items,  first,  the  item  of  .$160,  the 
agreed  price  of  certain  repairs  to  de- 
fendant's electric  automobile;  secondly, 
the  price  of  $78.12,  the  cost,  as  per 
agreement  of  the  parties,  of  placing  in 
the  defendant's  automobile  a  new  arma- 
ture; and  thirdly,  the  item  of  $29,  rep- 
resenting certain  work,  labor  and  ser- 
vices performed  by  the  plaintiff  upon 
the  same  automobile  at  the  defendant's 
request. 

I  find  great  difficulty  in  reaching  a 
decision  in  this  case,  realizing  that  if  I 
decide  the  issues  in  favor  of  the  de- 
fendant the  plaintiff  must  suffer  a  con- 
siderable loss,  in  view  of  the  fact  that 
it  has  expended  time  and  money  in  the 
repairs  which  it  undertook  to  make  upon 
this  automobile.  But,  on  the  other 
hand,  if  I  decide  in  plaintiff's  favor  the 
defendant  would  be  put  to  great  ex- 
pense with  comparatively  little,  if  any, 
gain  by  reason  of  the  work  which  the 
plaintiff  undertook. 

I  think  it  may  fairly  be  said  that 
it  was  the  understanding  between  the 
parties  that  by  reason  of  the  repairs 
which  the  plaintiff  undertook  to  do 
the  automobile  of  the  defendant  was  to 
be  put  in  first  class  running  condition, 
or  at  least  in  good  running  condition. 
As  I  understand  it,  this  does  not  neces 
sarily  mean  that  it  should  be  put  in  per- 
fect mechanical  condition.  The  ques- 
tion, is,  however,  can  it  fairly  be  said 
that  this  automobile  was  by  reason  of 


the  it-pftirs  whifli  tho  plaintiff  made 
put  ill  running  condition?  Admittedly, 
while  the  automobile  was  in  the  posses- 
sion of  the  plaintiff,  the  onh-  tost  of 
its  runniiic:  finalities  was  made  about 
the  garage  tioor.  Besides  this  the  auto- 
mobile was  operated  only  from  the 
garag*^  to  tli(>  pier  in  Xcw  York  and 
from  the  pier  to  the  garage  in  Hunt- 
ington, a  distance  of  but  a  few  miles, 
over  good  roads,  and  after  that  the  car 
could  not  be  and  was  not,  operated  satis- 
factorily. It  is  undisputed  that  when 
the  attempt  was  made  to  recharge  the 
batteries,  which  had  in  part  been  ex- 
hausted by  the  trip  to  Huntington,  it 
was  found  that  there  was  an  interrupted 
circuit  in  the  shape  of  the  breaking  of 
certain  metal  straps  connecting  the 
cells  of  the  batteries.  While  this  in 
itself  may  not  have  been  a  matter  of 
very  great  importance,  and  a  repair 
which  could  be  made,  it  indicates  to  my 
mind  that  the  work  was  not  done  in  that 
workmanlike  manner  which  the  defend- 
ant had  a  right  to  expect.  I  take  it 
that  a  car  is  not  put  in  first  class  or  in 
good  running  condition  merely  because 
it  happens  to  run  a  few  miles.  There 
must  be  at  least  some  reasonable  period 
of  time  when,  with  fair  and  reasonable 
usage,  under  ordinary  conditions,  the 
car  should  continue  to  be  capable  of 
operation.  In  this  instance  such  was 
not  the  case.  I  do  not  mean  to  decide 
that  the  party  undertaking  repairs  of 
an  automobile  guarantees  the  duration 
of  those  repairs,  but  where,  as  here, 
without  any  hard  usage,  and  with  only 
a  few  miles  of  operation,  the  car  is 
found  unfit  for  further  operation,  I 
do   not   think   it  can  be  said   that  the 


230 


The  Law  of  Automobiles. 


goods  to  an  employee  or  servant  acting  for  another  or  who 
renders  service  or  labor  to  give  a  commission,  discomit  or 
bonus  to  such  employee,  where  a  plaintiif  sued  for  supplies 
and  work  in  repairing  defendant's  automobile  and  the  giving 
to  the  chauffeur  of  a  discount  on  such  materials  and  work  was 
proved,  it  was  held  that  the  contract  was  void  and  that  the 
plaintiff  could  not  recover.^ 


Sec.  202.  Liability  of  garage  keeper  —  in  general. 

A  garage  keeper  storing  the  car  of  another  for  compensa- 
tion is  classed  as  a  bailee  for  hire,"^  and  as  such,  he  is  bound 
to  furnish  reasonably  safe  accoimnodations  and  to  exercise 
reasonable  care  and  prudence  to  keep  the  machine  in  a  safe 
manner.^^  If  guilty  of  negligence  resulting  in  loss  or  injury 
to  the  machine,  he  may  be  charged  with  the  damage.^*^    The 


plaintiff  has  reasonably  complied  with 
its  contract  to  put  the  car  in  first  class 
or  even  in  good  running  condition.  So 
far,  therefore,  as  the  item  of  $160,  the 
contract  work,  is  concerned,  I  have  con- 
cluded that  the  plaintiff  must  fail  in 
its  recovery.  In  regard  to  the  items 
representing  the  labor  of  the  plaintiff's 
employees  in  attempting  to  make  the  re- 
pairs in  Huntington  I  do  not  think  tho 
plaintiff  is  entitled  to  recover,  for  tliey 
were  mere  attempts  to  remedy  the  de- 
fective condition  of  the  car.  So  far  as 
the  price  of  the  armature  is  concerned 
I  believe  that  it  is  but  fair  to  permit 
the  plaintiff  to  recover  for  the  cost 
thereof,  as  this  armature  was  purchased 
by  the  plaintiff  for  the  defendant,  at 
the  defendant's  request,  and  was  put 
into  the  defendant's  car,  and  the  de- 
fendant iindoubtedly  received  the  bene- 
fit  thereof. 

If  follows  from  these  expressions  of 
my  opinion  that  judgment  must  be  for 
'  the  plaintiff  in  the  sum  of  $78.12.     See 
New  York  Law  Journal,  Dec.  4,  1908. 

63.  General  Fire  Repair  Co.  v.  Price. 
115  N.  T.  Suppl.   171. 

64.  Section  192. 


65.  Morgan  Millwork  Co.  v.  Dover 
Garage  Co.  7  Boyce's  (30  Del.)  383, 
108  Atl.  62;  Stevens  v.  Stewart-Warner 
Speedometer  Corp.,  223  Mass.  44,  111 
N.  E.  771;  Hayes  v.  Maykel  Automobile 
Co.,  234  Mass.  198,  125  N.  E.  165. 

Temperature. — Garageman  may  be 
liable  if  the  temperature  of  the  garage 
is  permitted  to  fall  so  that  the  water  in 
the  cooling  system  freezes  and  bursts 
the  water  jacket  or  other  parts.  Smith 
V.  Economical  Garage,  Inc.,  107  Misc. 
430,  176  N.  Y.  Supp.  479;  Simms  v. 
Sullivan   (Oreg.),  198  Pac.  240. 

66.  Illinois. — Ford  Motor  Co.  v.  Os- 
burn,  140  111.  App.  633. 

Kansas. — Roberts  v.  Kinley,  80  Kans. 
885,  132  Pac.  1180.  45  L.  R.  A.  (N.  S.) 
938. 

Massachusetts.— Stevens  v.  Stewart- 
Warner  Speedometer  Corp.,  223  Mass. 
44,  111  N.  E.  771. 

Michigan. — Smith  v.  Bailey,  195 
:\rich.  105,  161  N".  W.  822. 

New  York. — Allen  v.  Fulton  Motor 
Co.,  71  Misc.  190,  128  N.  Y.  Suppl.  419. 

North  Carolvna. — Beck  v.  Wilkins- 
Ricks  Co.,  179  N.  C.  231,  102  S.  E.  313. 


Garages  and  Garage  Keepers. 


231 


liability  of  a  garage  keeper  for  hire  is  not  affected  by  reason 
of  the  knowledge  of  the  owner  as  to  the  place  where  the  prop- 
erty is  kept."  Its  acceptance  b\-  the  garageman  imposes  on 
him  the  duty  of  exercising  due  care  for  its  safety  and  pro- 
tection.*"'^ In  the  absence  of  statute  affecting  his  lial)ility,  he 
is  not  an  insurer  of  the  safety  of  the  machine.'^''  Nor  is  he 
liable  for  deterioration  in  value  owing  to  the  inroads  of 
time.'"'  Upon  the  expiration  of  the  bailment,  the  bailee  must 
return  the  machine  to  the  bailor,''^  though,  if  the  machine  has 
been  stolen,  he  may  return  it  to  the  true  owner.'^^ 

Sec.  203.  Liability  of  garage  keeper  —  gratuitous  bailee. 

One  who  cares  for  the  vehicle  of  another  without  compen- 
sation, may  be  classed  as  a  ''gratuitous"  bailee.''^  A  gratui- 
tous bailee  is  sometimes  said  to  be  obligated  to  the  bailor  only 
for  an  exercise  of  slight  care,  and  is  liable  only  for  gross 
neglect  or  bad  faith.*^*  Thus,  if  a  garage  keeper  permits  the 
owner  of  a  motorcycle  to  leave  the  machine  in  the  garage  over 
night  without  compensation,  the  garage  keeper  is  a  gratuitous 
bailee  and  liable  only  for  gross  negligence."^ 


Oregon. — Simms  v.  Sullivan.  198  Pac. 
240. 

West  Virginia. — McLain  v.  West 
Virginia  Automobile  Co.,  72  W.  Va 
728,  79  S.  E.  731. 

Washington. — Tacoma  Auto  Livery 
Co.  V.  Union  Motor  Car  Co.,  87  Wash 
102,    151    Pac.   243. 

Negligent  operation  of  elevator  car 
rying  car  from  one  floor  to  another 
Einhorn  v.  West  67th  St.  Garage,  191 
N.  y.  App.  Div.  1,  177  N.  Y.  Suppl 
887. 

67.  Stevens  v.  Stewart- Warner  Speed 
ometer  Corp.,  223  Mass.  44,  111  N.  E 
771;  Simms  v.  Sullivan  (Oreg.),  198 
Pac.  240. 

68.  Stevens  v.  Stewart- Warner  Speed- 
ometer Corp.,  223  Mass.  44,  111  N.  E. 
771. 

69.  Renfroe  v.  Fouche  (Ga.  App.), 
106  S.  E.  303;  Ford  Motor  Co.  v.  Os- 
burn,    140    111.    App.    633;    Roberts   v. 


KJnley,  80  Kans.  885.  132  Pac.  1180,  45 
L.  R.  A.  (X.  S.)  938;  Allen  v.  Fulton 
Motor  Co.,  71  Misc.  (N.  Y.)  190,  128 
X.  Y.  Suppl.  419;  Beck  v.  Wilkins-Ricks 
Co.  (N.  Car.),  102  S.  E.  313. 

70.  Wimpfheimer  v.  Demarent  &  Co., 
78  Misc.  (N.  Y.)  171,  137  N.  Y.  Suppl. 
908. 

71.  Morgan  Millwork  Co.  v.  Dover 
Garage  Co.,  7  Boycc's  (30  Del.)  383, 
108  Atl.  62;  Drew  v.  King,  76  X.  H. 
184,    80,   Atl.   642. 

72.  Hancock  v.  Anchors  (Ga.  App.), 
105  S.  E.  631. 

73.  Glende  v.  Spraner,  198  111.  App. 
584. 

74.  Thomas  v.  Hackney,  192  Ala.  27, 
68  So.  296;  Renfroe  v.  Fouche  (Ga. 
App.).  106  S.  E.  303;  Glende  v. 
Spraner,  198  HI.  App.  584. 

75.  Glende  v.  Spraner,  198  111.  App. 
584. 


232 


The  Law  of  Automobiles. 


Sec.  204.  Liability  of  garage  keeper  —  injury  by  fire. 

In  the  absence  of  special  statute  on  the  subject  or  special 
contract  between  the  parties,  a  garageman  is  bound  to  exer- 
cise reasonable  care,  but  does  not  insure  a  vehicle  in  his  cus- 
tody against  damage  from  fire  in  the  garage.  He  is  liable  for 
the  injury,  only  when  his  negligence  has  contributed  thereto.''^ 
If  an  employee  at  a  service  station  is  negligent  in  filling  the 
tank  of  a  car  with  gasoline,  and  as  a  result  the  gasoline  is 
ignited  and  the  car  is  damaged,  a  recovery  may  be  had.'"  The 
tender  to  the  garageman  of  the  storage  charges  is  not  a  pre- 
requisite to  the  suit.'^^ 

Sec.  205.  Liability  of  garage  keeper  —  property  stolen  from 
garage. 

The  owner  of  a  garage  is  bound  to  exercise  reasonable  care 
to  protect  property  stored  in  his  place  of  business  against  loss 
from  theft.'^  Thus,  the  garageman  may  be  liable  if  he  as- 
sumes the  custody  of  an  automobile  and  thereafter  permits 
it  to  remain  in  an  alley  without  using  any  precautions  to  pro- 
tect it  from  being  stolen.^''  But  he  is  not  an  insurer  and  does 
not,  in  the  absence  of  peculiar  statutory  provisions  or  special 
circumstances,  guarantee  the  OA\mer  that  the  property  will  not 
be  stolen.^^    In  an  action  against  a  garage  keeper  to  recover 


76.  Parris  v.  .Taquitli  (Colo.),  197 
Pac.  750;  Ford  Motor  Co.  v.  Osburn, 
140  111.  App.  633 ;  Allen  v.  Fulton  Mo- 
tor Car  Co.,  71  Misc.  (N.  Y.)  190,  128 
N.  Y.  Suppl.  419 ;  Beck  v.  Wilkins,  179 
N.  Car.  231,  102  S.  E.  313.  See  also 
Hobson  V.  Silvea  (Cal.  App.),  19-1  Pac. 
525;  Eoberts  v.  Kinley,  80  Kan.s.  885, 
132  Pac.  1180,  45  L.  R.  A.  (N.  S.)   938. 

77.  Sanders  v.  Austin,  180  Cal.  664. 
182  Pac.  449.  See  also,  Pinter  v. 
Wenzel  (Wis.),  180  N.  W.  120. 

78.  Hobson  v.  Silvea  (Cal.  App.),  194 
Pac.  525. 

79.  Steenson  v.  Flour  City  Fuel  & 
Transfer  Co.,  144  Minn.  375.  175  N". 
W.  681 ;  Stevens  v.  Stewart-Warner 
Speedometer  Corp.,  223  Mass.  44,  111 
N.  E.  771  ;  Hoel  v.  Flour  ritr  Fuel  * 


Iransfer  Co..  144  Minn.  280,  175  N. 
W.  300;  Rubin  v.  Forwarders  Auto 
Trucking  Corp..  Ill  Misc.  (N.  Y.)  376, 
181  N.  Y.  Suppl.  451;  Farrell  v.  Uni- 
versal Garage  Co.,  179  N".  C.  389,  102 
S    E.  617. 

Where  a  part  is  stolen  while  in  the 
custody  of  the  keeper  of  the  garage 
;md  he  agrees  to  replace  it,  its  value 
slumlJ  he  allowed  in  adjusting  the 
(■]ai.:i  of  the  garage  keeper.  Univer- 
sity n.irage  v.  Heiser,  142  N.  Y.  Suppl. 
315. 

80.  Stevens  v.  Stewart-Warner 
Sj>oodometor  Corp.,  223  Mass.  44.  Ill 
X.   E.   771. 

81.  Clondo  v.  Sprancr,  198  111.  App. 
:><»•.  r?urgo  v.  Englewood.  etc.,  213  111. 
.^np.  ?,ry7. 


I 


Gakages  and  Garage  Keepers.  233 

for  the  loss  of  plaintiff's  motorcycle,  where  the  evidence 
shows  that  plaintiff  had  left  the  machine  in  defendant's  gar- 
age over  night,  that  he  had  advertised  it  for  sale  and  had  so 
informed  defendant,  also  informing  the  latter  that  the  ma- 
chine could  not  be  operated  until  repairs  were  made,  and  had 
left  his  name  and  address  with  defendant  and  had  requested 
the  latter  to  permit  anyone  to  inspect  the  machine  whom  he 
might  send  around,  defendant  is  not  liable  for  the  theft  of  the 
machine  by  one  who  presented  a  written  permit  from  plaintiff 
to  inspect  and,  under  the  pretext  of  inspecting  it,  stole  it, 
riding  it  away.^^ 

In  the  absence  of  any  evidence  showing  or  raising  a  pre- 
sumption of  agency  between  the  owner  of  a  garage  and  a 
porter  employed  there,  by  which  the  latter  is  authorized  to 
receive  personal  property  of  one  who  keeps  his  automobile 
in  such  garage,  the  garage  owner  wall  not  be  liable  for  the 
loss  of  property  which  has  been  left  with  such  porter.  Thus, 
where  a  salesman  who  traveled  in  the  automobile  of  his  em- 
ployer left  a  case  of  samples  with  the  porter  of  the  garage 
where  the  automobile  was  kept,  saying  he  would  call  for  it 
later,  but  he  did  not  call  for  it  until  about  three  months  had 
elapsed,  and  in  the  meantime  the  garage  business  had  been 
moved  to  another  place  and  the  porter  had  quit  his  position, 
and  the  ease  w^as  lost,  in  an  action  to  recover  for  the  same,  a 
judgment  was  rendered  in  favor  of  the  defendant,  the  court 
declaring  that  there  was  no  evidence  showing  the  porter  was 
acting  Avithin  the  scope  of  his  employment  or  any  knowledge 
on  the  part  of  the  defendant  or  its  office  force  as  to  the  cus- 
tody or  even  existence  of  the  sample  case  until  after  its  loss 
and  complaint  was  made.^' 

Sec.  206.  Liability  of  garage  keeper  —  use  of  machine  with- 
out owner's  consent. 
Where  a  garage  owner  by  the  terms  of  his  contract  is  not 
to  permit  an  automobile  to  leave  the  garage  without  a  written 
order  from  the  owner,  it  is  the  duty  of  the  former  to  use 

82.  nieiulc  V.  Spranen  108  111.  App.  83.  Chesley    v.    Woods    Motor    Vehi- 

.584.  clo  Co..    147    111.   App.   588. 


234  The  Law  of  Automobiles. 

proper  diligence  in  devising  and  putting  into  effect  some 
method  which  will  prevent  chanffenrs  taking  out  ears  im- 
properly.^* Thus,  where  a  person  placed  his  automobile  in 
the  care  of  a  garage  owmer  under  a  written  contract,  one  of 
the  stipulations  of  which  was  that  the  machine  was  not  to  be 
taken  from  the  garage  at  night  without  the  former's  written 
order,  a  verdict  finding  the  garage  owner  guilty  of  lack  of 
due  care  in  failing  to  adopt  proper  methods  to  prevent 
chauffeurs  taking  out  motor  cars  without  due  authority,  was 
held  to  be  justified  upon  evidence  that  the  plaintiff's  chauffeur 
during  the  height  of  the  evening  rush  hour  was  seen  by  the 
defendant's  watchman  in  plaintiif's  machine  to  come  up 
quickly  behind  an  outgoing  machine;  that  the  watchman  held 
up  his  hand  and  shouted  to  him  to  stop  and  produce  his  order 
to  take  out  the  machine,  and  that  the  chauffeur,  instead  of  so 
doing,  put  on  speed,  dashed  through  the  doorway  and  turn- 
ing the  corner  was  out  of  sight  almost  immediately.^^  Inde- 
pendently, however,  of  any  express  agreement  in  respect  to 
this,  it  would  seem  that  the  garage  keeper  should  be  held  to  the 
exercise  of  reasonable  care  to  prevent  the  car  from  being 
used  without  the  owner's  consent.^"  And  he  sliould  use 
reasonable  care  in  the  selection  of  servants  to  assist  in  the 
management  of  the  garage,  and  negligence  may  be  based  on 
employment  of  an  incompetent  employee  or  one  w^ho  is  habit- 
ually intoxicated.^''  Moreover,  outside  of  the  question  of 
negligence,  if  the  machine  is  taken  and  damaged  by  his  em- 
ployee, the  garage  keeper  may  be  liable  on  the  theory  that 
he  has  failed  to  perform  his  contract  with  the  owner  of  the 
machine.^ 

84.  Wilson  v.  Wyckoff,  Church  &  87.  Corbott  v.  Smeraldo,  91  N.  J.  L. 
Partridge,  133  N.  Y.\\pp.  Div.  92,  117       30.  102  Atl.  889. 

N.   Y.   Suppl.   783,  affirmed   200  N.   Y.  88.  Corbett.  v.  Smeraldo.  91  N.  J.  L. 

561,  93  N.  E.   1135.  29.    102    Atl.    889.      "The    jury    could 

85.  Wilson  v.  Wyckoff,  Church  &  liardly  avoid  the  inference  that  the  au- 
Partridge,  133  N.  Y.  App.  Div.  92.  117  Inmohile  was  left  with  the  defendant 
N.  Y.  Suppl.  783,  affirmed  200  N.  Y.  tnr  storage  in  hia  garage.  Storage  in- 
561,  93  N.  E.  1135.  volved    keeping    the    automobile    there 

86.  Mcl^in  v.  West  Virginia  Auto-  and  not  permitting  it  to  go  out  with- 
mobile  Co.,  72  W.  Va.  738,  79  S.  E.  .,u1  the  plaintifl's  authority.  If  the 
731.  defendant    cliose    to    intrust   that    duty 


> 


92 


Garages  and  Garage  Keepers.  235 

Sec.  207.  Liability  of  garage  keeper  —  damage  to  machine 
while  driven  by  bailee. 

Where  the  garage  keeper  or  his  servant  runs  a  machine  left 
in  his  custody  for  storage  or  repairs  and  the  driver  is  guilty 
of  negligence  causing  an  injury  to  the  machine,  the  garage- 
man  is  generally  liable  for  the  damages  sustained  hy  the 
owner .^  Where  a  machine  is  damaged  through  the  use  of  the 
bailee,  the  burden  is  generally  upon  him  of  showing  that  he 
exercised  due  care.^  After  the  completion  of  repairs  on  the 
machine,  if  the  repairer  undertakes  to  deliver  it  by  one  of  his 
employees  to  the  owner,  such  employee's  negligence  causing 
injury  vnW  be  considered  as  that  of  his  master.^^  And  where 
such  an  employee  is  testing  the  machine  before  delivering  it 
to  the  owner,  his  employer  will  be  liable  for  damages  result 
ing  from  a  collision  due  to  his  negligent  operation  of  the  car 
Where,  by  the  terms  of  the  agreement  between  the  garage 
keeper  and  the  owner  the  garage  keeper  is  to  deliver  the 
automobile  to  the  owner  when  called  upon  to  do  so,  the  chauf- 
feur being  furnished  by  the  former,  if,  while  the  automobile 
is  in  charge  of  the  chauffeur,  it  is  injured  owing  to  his  care- 
lessness or  Avantonness,  he  will  be  considered  as  acting  within 
the  scope  of  his  employment  and  the  garage  keeper  vnW  be 
liable  therefor.^^  P^ven  if  the  chauffeur  deviates  from  the  cus- 
tomary^ route  and  takes  considerably  longer  than  is  ordinarily 
taken,  the  court  vri\\  not  say  as  a  matter  of  law  that  the  chauf- 
feur is  not  acting  in  the  scope  of  his  employment.^* 

to   his   night  man,   he   was   liable,    not  91.  Williamson     v.     National     Cash 

because  the  night  man  was  negligent,  Register   Co..   157  Ky.  836,   164  S.  W. 

but  because  the  defendant  himself  had  112. 

been  guilty  of  a  breach  of  his  contract  92.  Segler  v.  Callister.  167  Cal.  377, 

of  storage.'"     Corbett  v.   Smeraldo,  91  139  Pac.  819. 

N.  J.  L.  29,  102  Atl.  888.  93.  Firemen's     Fund     Ins.     Co.     v. 

89.  Southern  Garage  Co.  v.  Brown,  Schreiber,  150  Wis.  42,  135  N.  W.  507. 
187  Ala.  484,  65  So.  400;  Gibson  v.  45  L.  R.  A.  (N.  S.)  314.  Ann.  C-as. 
Dupree,   26    Colo.    App.   324,    144   Pac.  1913  E.  823. 

1133;    National    Cash    Register    Co.    v.  94.  Southern    Garage    Co.    v.    Brown. 

Williams,  161  Ky.  550,  171  S.  W.  162:  187    Ala.    48-1.    65    So.    400.      See    also 

Banks  v.  Strong.  197  Mich.  544.  164  N.  Luckett   v.    R«ighard,    248    Pa.    24.    93 

W.  398.     See  also  Travelers  Indemnity  Atl.     7  73.     wlierein     the     court     said: 

Co.  V.  Fawkes,  120  Minn.  353,  139  N.  ''While   the    employee   was    performing 

W.  703.  this  duty,  especially  in  the  absence  of 

90.  Section  212.  the  owner,  he  was  manifestly  not  the 


236 


The  Law  of  Automobiles. 


Sec.  208.  Liability  of  garage  keeper  —  conversion   of  cus- 
tomer's automobile. 

A  garage  keeper  must  so  handle  the  machine  of  another  that 
he  cannot  be  charged  with  conversion.  He  must  deliver  the 
machine  to  the  owner  upon  the  expiration  of  the  bailment,  and 


servant  of  Schmeltz,  but  of  the  defend- 
ant, who  employed  him  and  paid  him 
for  the  service.  He  was  under  the  de- 
fendant's control  and  was  subject  to 
his  orders  and  directions.  When  the 
machine  was  being  returned  to  the 
garage  from  the  Schmeltz  residence  by 
the  employee  on  the  night  of  the  ac- 
cident it  was  as  much  in  the  custody  of 
the  defendant  as  when  it  was  stored 
in  the  garage.  While  the  employee, 
therefore,  Avas  operating  the  machine 
between  those  tv.o  places  he  was  doing 
so  in  furtherance  of  the  business  of  his 
employer,  who  was  responsible  for  his 
acts.  .  .  .  When  the  car  left  the 
Schmeltz  residence  at  9  o'clock  that 
evening  it  was  in  cliarge  of  and  being 
ci>erated  by  defendant's  servant,  who 
was  acting  in  the  line  of  his  employ- 
ment, and  in  about  one  hour  later  it 
collided  with  the  plaintiff  on  one  of  the 
public  thoroughfares  of  the  city.  We 
think  tlie  presumption  arises  that  Car- 
ter was  still  operating  the  car  at  the 
time  it  struck  the  plaintiff.  His  duty 
required  him  to  return  the  car  to  the 
garage,  and  in  the  absence  of  evidence 
showing  the  contrary,  we  must  assume 
that  he  was  in  the  performance  of  that 
duty  and  in  charge  of  the  car  when 
it  was  going  in  the  direction  of  the 
garage  at  the  time  of  the  accident. 
There  is  no  question  that  Carter  was 
an  employee  of  the  defendant,  engaged 
at  the  garage,  and  that  he  had  fre- 
quently taken  the  car  to  the  Schmeltz 
home  and  returned  it  to  the  garage. 
We  think,  therefore,  the  jury  under  the 
evidence  was  justified  in  finding  that 
the  automobile  which  injured  the 
plaintiff  was  in  charge  of  and  being 
operated   by   the  defendant's   employee 


at  the  time  of  the  accident.  The  de- 
fendant further  contends  that  if  his 
employee  was  in  charge  of  the  car 
wliich  struck  the  plaintiff,  he  was  not 
at  that  time  acting  within  the  scope  of 
his  employment.  The  defendant  sup- 
ports this  contention  by  pointing  to 
tlie  testimony,  wliicli  shows  that  it 
only  reqiiired  fifteen  minutes  over  the 
direct  route  to  take  the  machine  from 
Ihe  Schmeltz  residence  to  the  garage, 
and  that  the  accident  did  not  occur  un- 
til more  than  an  hour  after  the  chauf- 
feur started  to  make  the  return,  and, 
further,  tliat  the  machine  at  the  time 
of  tiie  accident  was  coming  from  the 
direction  of  the  city,  and  not  from  the 
direction  of  the  Schmeltz  home.  Con- 
ceding the  truth  of  this  testimony,  we 
do  not  think  it  sufficient  to  warrant 
the  court  in  saying  as  a  matter  of  law 
that  the  chauffeur  was  not  acting  in 
the  scope  of  his  employment  when  he 
was  running  the  machine  on  Center 
avenue  and  it  struck  the  plaintiff. 
There  is  nothing  outside  of  this  evi- 
dence which  would  warrant  an  infer- 
ence that  the  chauffeur  had  gone  on  an 
errand  of  his  own  or  was  operating  the 
car  for  his  own  pleasure  at  the  time  of 
the  collision  with  the  plaintiff".  The 
facts  shown  by  the  testimony  just  re- 
ferred to  are  not  necessarily  inconsist- 
ent with  the  contention  of  the  plain- 
tiff that  the  chauffeur  was  taking  the 
car  to  the  garage,  as  his  duty  required 
him  to  do,  when  he  struck  the  plain- 
tiff*. The  deviation  from  the  direct 
route  by  the  chauffeur  or  the  time 
elapsing  between  his  departure  for  the 
garage  and  the  accident  was  not  so 
great  as  to  necessarily  warrant  the 
conclusion  that  he  was  acting  outside 


Garages  and  Garage  EIeepers.  237 

if  he  fails  to  make  any  delivery  or  if  lie  makes  a  delivery  to 
an  unauthorized  person,  he  may  be  liable  for  the  conversion 
of  the  machine.^^  If  one  having  the  custody  of  an  automobile 
belonging  to  another,  intrusts  it  to  a  third  person  without  the 
knowledge  or  consent  of  the  owner,  and  as  a  result  thereof 
the  machine  is  destroyed,  the  bailee  may  be  held  guilty  of  con- 
version.^ If  by  his  contract  he  is  to  keep  the  machine  in  a 
certain  place  and  he  removes  it  to  another  without  the  owner's 
consent,  where  it  is  damaged,  and  the  injury  would  not  have 
occurred  if  it  had  been  kept  in  the  place  agreed  upon,  he  will 
be  liable  therefor.^"^  The  owner's  right  of  action  for  such  con- 
version, is  not  lost  because  a  chattel  mortgage  on  the  machine 
is  subsequently  foreclosed,  nor  does  it  pass  to  the  purchaser 
on  the  foreclosure  sale.^^  But  where  a  motor  car  company- 
reduces  its  claim  of  loss  for  repairs  to  an  automobile  and  the 
owner  makes  no  tender  of  said  amount,  but  offers  a  lesser 
amount,  the  insistence  of  the  company  on  receiving  the  amount 
of  its  reduced  claim  of  lien  does  not  constitute  a  conversion.^' 
Where  a  plaintiff  having  a  lien  upon  an  automobile  chassis 
for  money  loaned,  allowed  his  debtor  to  deliver  it  to  the  de- 
fendant for  the  purpose  of  having  a  body  placed  on  the  ma- 
chine on  the  condition  that  the  debtor  should  obtain  a  receipt 

the    scope    of    his    employment.       He  latter    is    required    to    recompense    the 

might  have  been  detained  by  an   acoi-  owner   on   the   theory   that  the   taking 

dent  to  his  car,  or  by  stopping  to  as-  constitutes  a  conversion.  Beacon  Motor- 

sist  a  fellow  chauffeur   in   trouble,  as  car  Co.  v.  Shadman,  226  Mass.  570.  116 

is  quite  customary,  or  the  direct  route  N.  E.  559. 

might  have  been  obstructed  by  the  con-  Conversion  of  tools  and  parts. — See 

dition  of  some  of  the  streets  which  re-  J.   C.  Killgore  v.  VVhitaker    (Tex.  Civ. 

quired    him  to  go   a  circuitous   route.  App. ),  217  S.  W.  445. 

These  and  other   reasons  will   at  once  96.  Doyle  v.  Peerless  Motor  Car  Co., 

suggest   themselves   why   the   chauffeur  226   Mass.   561,   116  N.   E.   257;   Geren 

might  be  in  the  discharge  of  his  duty  v.   Hallenbeck,   66   Oreg.    104.    132   Pac. 

in  returning  the  car  to  the  garage  at  1164. 

the  time  the  accident  occurred."     And  97.  Pilson    v.    Tip-Top    Auto   Co.,   67 

see  also  section  632.  Oreg.   528,   136  Pac.  642. 

95.  Morgan    Millwork    Co.    v.    Dover  98.  Geren     v.    Hallenbcck,    66    Oreg. 

Garage   Co.,   7   Boyce's    (30   Del.)    383,  104,  132  Pac.   1164. 

108  Atl.   62;    Doyle   v.   Peerless   Motor  99.  Macumber     v.     Detroit     Cadillac 

Car  Co..  226  Mass.  561.  116  N.  E.  257.  Motor  Car  Co.,  173  App.  Div.  724,  159 

Liability   of   unauthorized    person.—  N.  Y.  Suppl.  890.     See  also  KnaufT  v. 

The   one   taking   the   machine    may   lie  Yarbray,  21  Ga.  App.  94,  94  S.  E.  75. 

liable  to  the  garage  keeper,  in  case  the  See  also  chapter  XXXI,  as  to  liens. 


238  The  Law  of  Automobiles. 

from  the  defendant  and  deliver  it  to  the  plaintiff,  and  tlie 
defendant  gave  the  debtor  the  receipt,  stating  that  tlio  chassis 
Avas  to  be  delivered  only  on  return  of  the  receipt  ]:)r()p('rly  in- 
dorsed, and  the  debtor  in  his  turn  indorsed  the  receipt,  "De- 
liver to  the  order  of"  the  plaintiff,  and  subseqnently  the  de- 
fendant returned  the  machine  to  the  debtor  equipped  with  a 
body  without  requiring  a  surrender  of  the  receipt,  it  was  held 
in  an  action  by  the  plaintiff  for  the  conversion  of  the  machine, 
he  having  failed  to  collect  his  claim  of  the  debtor,  that  the 
defendant  was  not  liable,  it  having  been  shown  that  the  de- 
fendant- had  no  knowledge  of  the  transactions  between  the 
plaintiff  and  the  debtor  or  that  the  plaintiff  had  a  claim  on 
the  chassis.^ 

Sec.  209.  Liability  of  garage  keeper  —  delay  in  making  re- 
pairs. 

If  one  agreeing  to  make  repairs  to  a  motor  vehicle  unreason- 
ably delays  the  completion  of  the  work,  he  may  be  liable  to  the 
owner  for  damages  sustained  by  reason  of  the  delay.  Thus, 
in  an  action  for  the  work  and  labor  on  the  machine,  the  owner 
may  set-off  for  the  delay  in  making  the  repairs.-  But  one  in- 
jured by  the  delay  in  making  the  repairs  must  make  a  reason- 
able effort  to  reduce  or  minimize  the  loss,  and  he  cannot  re- 
cover the  rental  value  of  anotlier  machine  during  the  delay, 
where  he  had  another  machine  of  his  own  which,  instead  of 
using  in  place  of  the  machine  receiving  repairs,  he  sold  and 
delivered  to  another  person. 


3 


Sec.  210.  Liability  of  garage  keeper  —  improper  performance 
of  work  on  machine. 

Where  one  undertaking  to  repair  a  motor  vehicle  fails  to 
do  the  work  properly,  the  owner  may  maintain  an  action  for 
the  recovery  of  his  damages  or  may  off-set  such  damages 
against  the  claim  of  the  repairman,*  whether  the  work  is 

1.  Manny  v.  Wilson.  137  N.  Y.  App.  3.  Woodward  v.  Pierce  Co..  147  111. 
Div.  140.  122  N.  Y.  Suppl.   16.  App.  339. 

2.  Bertschy  Motor  Co.  v.  Brady,  168  4.  Holcomb  to.  v.  Clark,  86  Conn. 
Iowa,  609,  149  N.  W.  42.  -19,   S.l   Atl.   37C;    Ruasell's   Express  v. 

Bray's  Garage    (Conn.),  109  Ati.   732. 


Gakages  and  Garage  Keepers.  239 

done  by  the  repairiuaii  or  by  special  employee/'  Where  one 
for  a  stated  sum  agreed  to  build  a  body  on  the  chassis  of  an 
automobile  furnished  by  the  plaintiff,  but  the  work  was  not 
properly  done,  it  has  been  held  the  plaintiff  is  not  entitled 
to  recover  the  difference  between  the  value  of  the  whole  ma- 
chine if  the  work  had  ])een  properly  done  and  the  value  of  the 
machine  as  delivered  to  the  defendant,  but  that  the  true 
measure  of  damage  is  the  cost  reasonably  necessary  to  make 
the  work  and  materials  conform  to  the  contract.''  Expert 
evidence  may  be  received  as  to  the  cost  of  repainting  the  ma- 
chine and  renewing  certain  woodwork  and  trimming,  which 
work  was  claimed  to  be  necessary  by  reason  of  the  repair- 
]nan's  negligent  treatment  of  it.' 

Sec.  211.  Liability  of  garage  keeper  — sale  of  inferior  sup- 
plies. 

In  an  action  by  the  owner  of  an  automobile  for  damages 
alleged  to  have  been  caused  by  the  use  in  his  machine  of 
lubricating  oil  furnished  by  the  defendant,  the  evidence  was 
examined  and  it  was  held  that  the  plaintiff  had  failed  to  show- 
that  the  oil  was  defective,  the  only  evidence  of  a  defect  in  the 
oil  being  the  presence  in  the  cylinders  and  crank  case  of  a 
carbon  deposit  w^hich  might  have  been  occasioned  by  an  over- 
flow of  the  oil  in  the  combustion  chambers,  due  to  wear  in  the 

5.  Russell's  Express  v.  Bray's  Gar-  plaintiff  at  the  end  of  December,  1906, 
age  (Conn.),  109  Atl.  732.  and  what  its  value  would  have  been  if 

6.  Anthony  v.  Moore  &  Munger  Co.,  the  agreed  work  had  been  properly 
135  N.  Y.  App.  Div.  203,  120  N.  Y.  done.'  Such  testimony  was  improperly 
Suppl.  402,  wherein  it  was  said:  "The  admitted  and  the  instructions  were 
court  charged,  in  submitting  the  case  erroneous.  Had  the  defendant  con- 
to  the  jury  (to  which  tlic  defendant  tracted  to  build  an  automobile,  this 
e.Kcepted)  :  'If.  liowever,  you  believe  would  have  been  the  proper  measure 
tliat  the  work  which  the  defendant  had  of  damage,  but  that  was  not  the  con- 
agreed  to  do  was  not  workmanlike  or  tract.  What  the  defendant  agreed  to 
that  the  materials  furnished  were  not  do  was  to  build  a  body  and  place  it 
as  agreed,  or  both,  in  some  or  all  of  the  upon  a  chassis  furnished  by  the  plain- 
matters  claimed  by  the  plaintiff,  he  tiff  and  also  to  furnish  other  materials 
would  be  entitled  to  your  verdict  in  an  and  make  certain  repairs  upon  the  ma- 
amount  which  would  fairly  and  reason-  chine." 

ably   represent    the    difference    between  7.  Holcomb    Co.    v.    Clark.    R6    Conn, 

the  value  of  the  automobile  as   it  was       319,  85  .Atl.  376. 
when   the  defendant  dcllvird    it   to  the 


240 


The  Law  of  Automobiles. 


cylinders,  and  there  being  no  evidence  that  the  wear  was  oc- 
casioned by  the  oil  in  question  rather  than  by  the  ordinary 
use  of  the  machine.^ 

Sec.  212.  Liability  of  garage  keeper  —  burden  of  proof. 

A  serious  question  is  presented  as  to  whether,  in  case  of  in- 
jury to  a  vehicle  which  is  the  subject  of  a  bailment,  the  burden 
of  proof  is  on  the  owner  to  show  that  the  injury  was  the  re- 
sult of  the  bailee's  negligence,  or  whether  the  burden  is  on 
the  bailee  to  show  his  freedom  from  negligence.  Where,  upon 
return  of  the  vehicle  of  the  owner,  it  appears  that  unusual 
injury  has  resulted  to  it,  the  burden  is  generally  placed  on 
the  bailee  to  show  that  such  injury  was  not  the  result  of  his 
negligence.^  But,  when  the  cause  of  action  is  not  based  on 
an  injury  to  the  machine  but  upon  the  failure,  of  the  bailee 
to  redeliver  the  property,  if  the  bailee  shows  that  it  was  lost 
or  stolen  or  was  destroyed  by  fire,  then  the  burden  is  gen- 
erally placed  upon  the  owner  to  show  that  the  loss  was  due 
to  the  negligence  of  the  bailee.^^  The  burden  of  proof  in  such 
cases  has  occasioned  a  divergence  of  opinion,  and  decisions 


8   Knight    v.    Willard,    26    N.    Dak. 
140,  143  N.  W.  346. 

9.  Alabama. — Southern  Garage  Co 
V  Brown,  187  Ala.  484,  65  So.  400; 
Thomas  v.  Hackney.  192  Ala.  27,  68 
So.  296.  "The  evidence,  however,  hav- 
ing established  the  injury  to  the  car 
while  in  the  custody  of  the  plaintiff, 
the  burden  of  proof  was  upon  him  to 
show  at  least  that  degree  of  care  on 
his  part  that  the  law  required  of  him 
when  the  car  was  injured.  He  simply 
proved  a  collision  and,  from  aught 
that  appears,  it  may  have  resulted 
solely  from  his  fault  and  while  not  in 
the  exercise  of  even  slight  care.  He 
had  the  custody  of  the  car  and  was  in 
the  same  when  it  was  injured,  and 
should  have  shown  enough  facts  con- 
nected with  the  collision  as  would  have 
acquitted  him  of  the  failure  to  exer- 
cise that  degree  of  care  owing  to  the 


defendant."  Thomas  v.  Hackney,  192 
Ala.  27,  68  So.  296. 

Colorado. — Gibson  v.  Dupree,  26 
Colo.  App.  324,  144  Pae.   1133. 

Kentucky. — ^National  Cash  Register 
Co.  V.  Williams.  161  Ky.  550,  171  S. 
W.   162. 

Michigan. — S(mith  v.  Bailey,  195 
Mich.  105,  161  N.  W.  822. 

Minnesota. — See  Travelers  Indemnity 
Co.  v.  Fawkes,  120  Minn.  353,  139  N. 
W.  703. 

New  York. — Wimpfheimer  v.  Demar- 
tnt  &  Co.,  78  Misc.  (N.  Y.)  171,  137 
K.  Y.  Suppl.  908. 

South  Dakota. — Gilbert  v.  Hardi- 
mon,  40  S.  Dak.  482,  168  N.  W.  25. 

10.  Glende  v.  Spraner,  198  111.  App. 
584;  Allen  v.  Fulton  Motor  Car  Co., 
71  Misc.  (N.  Y.)  190,  128  N.  Y.  Suppl. 
419. 


Garages  and  Garage  Keepers.  241 

may  be  found  placing  the  burden  on  the  garageman  of  sho-^^ng 
that  his  negligence  did  not  contribute  to  the  loss." 

Sec.  213.  Liability  of  garage  keeper  —  acts  of  driver  injury- 
ing  third  person. 

Where  a  garage  keeper  has  control  of  the  motor  vehicle  of 
another  so  that  the  relation  of  bailor  and  bailee  exists  be- 
tween the  parties,  the  garageman,  not  the  owner,  is  the  per- 
son responsible  for  the  chauffeur '.s  negligence  which  results 
in  an  injury  to  a  third  person.^^  Of  course,  if  the  driver  of 
the  car  was  acting  without  the  scope  of  his  authority  and  was 
using  the  car  for  his  personal  purposes,  neither  the  garage 
keeper  nor  the  owner  would  be  liable  for  his  negligence." 
Where  the  owner  of  an  automobile  stored  it  at  a  garage  under 
an  agreement  by  which  the  garage  keeper,  for  an  agreed  com- 
pensation, was  to  furnish  a  chauffeur  from  time  to  time  as 
requested  to  drive  the  car  (it  being  left  to  the  garage  keeper 
to  select  the  driver  and  pay  him  his  compensation  and  to  hire 
and  discharge  him  at  pleasure),  the  relation  of  master  and 
servant  existed  between  the  garage  keeper  and  the  driver, 
and  the  garage  keeper  was  liable  for  negligence  of  the  driver 
while  operating  the  car  at  a  time  when  the  owmer  was  an 
occupant  thereof,  if  such  owner  did  not  assume  to  direct  or 
control  the  method  or  manner  of  driving,  further  than  to  tell 
the  driver  where  he  desired  to  go."  But,  where  an  owmer  of 
an  automobile  took  it  to  an  automobile  company  to  have  a 

11.  Morgan  Millwork  Co.  v.  Dover  66  Oreg.  533,  135  Pac.  91,  48  L.  R.  A. 
Garage  Co..  7  Boyce  (30  Del.)  383.  108  (X.  S.)  424;  OueUette  v.  Superior 
Atl.  62;  Hight  Accessory  Place  v.  Lam  Motor  &  M.  Works,  157  Wis.  531,  147 
(Ga.  App.),  105  S.  E.  872;  Renfroe  v.  N.  W.  1014.  And  see  section  646. 
Fouche  (Ga.  App. ) ,  106  S.  E.  303 ;  Hocl  13.  Luekett  v.  Reighard,  248  Pa.  24, 
V.  Flour  City  Fuel  &  Transfer  Co.,  144  93  Atl.  773.  See  also  Spradlin  v. 
Minn.  280,  175  N.  W.  300;  ,Steenson  v.  Wright  Motorcar  Co.,  178  Ky.  772,  IftO 
Flour  City  Fuel  &  Transfer  Co.,  144  S  W.  1087.  And  see  section  627,  et 
Minn.    375,    175    N.    W.    681;    Beck    v.  seq. 

Wilkins-Ricks    Co.     (N.    Car.),    102    S.  14.  Neff  v.  Brandois.  91  Neb.  11,  135 

E.   313.  N.  W.  232,  39  L.  R.  A.    (N.   S.)    933; 

12.  Roach  V.  Hinchcliff,  214  Mass.  Dalrymple  v.  Covey,  etc.  Co.,  66  Oreg. 
267,  101  N.  E.  383;  Geiss  v.  Twin  City  533.  135  Pao.  91,  48  L.  R.  A.  (N.  S.) 
Taxicab  Co.,  120  Minn.  368,  139  N,  424;  Ouellcttc  v.  Superior  Motor  &  M. 
W.   611;    Dalrymple  v.   Covev.  etc.   Co.,  Works,  157  Wis.  531.  147  N.  W.  1014. 

16 


242  The  Law  of  Automobiles. 

*' rattle"  in  the  car  located,  and  an  emx)loyee  of  the  company 
got  in  the  car  and  rode  with  the  owner  and  later,  at  the  sug- 
gestion of  the  owner,  the  employee  drove  the  machine  until  it 
collided  vnih  a  street  car  and  the  owner  was  injured,  it  was 
held  that  the  negligence  of  the  employee,  if  any,  in  driving  the 
car  could  not  be  imputed  to  the  automobile  company  so  as  to 
make  it  liable  to  the  owner  for  his  injuries,  it  appearing  that 
the  owner  was  directing  the  employee  where  to  drive  the  ma- 
chine, that  the  company  had  no  authority  to  control  the  em- 
ployee in  driving  it  and  that  the  company  had  not  assumed 
the  service  of  driving  or  operating  it.^^ 

Sec.  214.  Liability  of  garage  keeper  —  acts  of  servant  towing 
disabled  machine. 

Where  a  part  of  the  business  of  a  garage  is  to  tow  for  hire 
automobiles  requiring  that  service,  if  the  real  or  apparent 
authority  of  an  agent  who  is  requested  to  send  a  machine  for 
such  purpose  is  limited  to  the  selection  of  only  the  necessary 
number  of  men  and  he  selects  more,  it  is  held  that  the  surplus 
men  cannot  be  regarded  as  the  servants  of  the  garage  0A^^ler. 
If,  however,  such  agent  is  empowered  to  send  as  many  men 
as  he  thinks  necessary  and  acting  under  such  authority  he 
sends  such  men  as  he  thinks  necessary,  but  more  than  in  fact 
are  necessary,  or  if  he  is  empowered  to  send  as  many  men 
as  he  pleases,  and  he  sends  more  than  are  necessary,  then  it 
is  held  that  the  men  so  sent  are  the  servants  of  the  garage 
owner,  whether  or  not  they  are  in  fact  needed.^^  Where  two 
persons  were  taking  a  drive  together  in  an  automobile  owned 
by  one  of  them,  having  agreed  to  share  equally  the  expenses 
of  the  trip,  and  the  automobile,  which  was  kept  at  defendant's 
garage  became  disabled,  and  the  owner  sent  to  the  defendant 
garage  for  a  tow,  and  a  person  was  sent  with  a  machine  to 
which  the  disabled  car  was  hitched,  and  while  proceeding  at 
a  rate  of  speed  alleged  to  be  high,  the  car  being  towed  was 
thrown  against  a  telephone  pole,  causing  both  personal  in- 
juries and  injuries  to  the  automobile  for  which  it  was'  claimed 

15.  Bastien  v.   Ford  Motor  Car  Co.,  16.  Beaucage   v.    Mercer,    206    Mass. 

189  111.  App.  367.  492,  92- N.  E.  774. 


Gaeages  and  Garage  Keepers.  243 

the  defendant  was  liable,  both  on  the  ground  of  a  negligent 
hitching  of  the  cars  together  and  that  there  was  negligence  in 
the  towing,  and  it  appeared  that  the  owner  of  the  automobile 
had  protested  against  the  nianiier  in  which  the  hitching  was 
done,  an  instruction  was  held  to  be  erroneous,  which  stated 
that,  if  he  had  so  protested  with  a  full  appreciation  and  knowl- 
edge of  the  dangers  involved  in  riding  in  the  machine,  under 
those  circumstances,  neither  of  the  plaintiffs  would  bo  entitled 
to  recover  since  the  effect  of  the  instruction  was  to  authorize 
the  jury  to  fmd  for  the  defendant,  even  if  the  accident  was 
due  not  to  the  defective  hitching,  but  solely  to  the  manner  in 
which  the  towing  car  was  managed." 

Sec.  215.  Liability  of  garage  keeper  —  defective  premises. 

The  owner  of  a  garage  is  liound  to  furnish  a  reasonal)ly 
safe  working  place  for  his  servants,  and  in  case  of  a  failui-e 
in  this  respect,  he  is  liable,  even  under  the  common  law  sys- 
tem, for  the  injuries  resulting  from  his  failure.  Thus,  one  of 
his  employees  may  recover  for  injuries  sustained  in  falling 
down  ail  unguarded  elevator  shaft.'^  The  owner  of  a  garage 
must  also  use  reasonable  care  in  providing  its  workmen  with 
safe  and  suitable  appliances  for  use  in  their  work.^^    The  lia- 

17.  Beaucage  v.  Mercer,  206  Mass.  iutendent  was  poured  under  the  rear 
492,  92  N.  E.  774.  wlieels  of  the  car  to  make  it  skid,  and 

18.  Kinsey  v.  Locomobile  Co.,  23.")  was  injured,  and  his  testimony  that  in 
Pa.  St.  95,  83  Atl.  682,  wherein  it  wa?  other  garages  where  he  had  worked 
said:  "The  principle  of  law  which  there  was  either  a  turn-table  or  skids 
controls  this  case  is  that  one  who  main  used  to  turn  the  cars  around  was  cor- 
tains  a  building  for  the  purpose  of  loborated,  it  was  held  that  a  dismissal 
trade  or  doing  business  with  other  per-  of  the  complnint  mi  the  ground  that 
sons,  no  matter  what  the  business  is.  is  plaintiff  had  failed  to  prove  a  cause 
bound  to  use  reasonable  care  in  keep-  of  action  was  reversible  error.  It  was 
ing  the  premises  safe."  the   duty  of  the  di'feiidant  to  use   rea- 

19.  Bowers  v.  Columbia  Garage  Co.,  sonable  care  in  pro^^ding  its  workmen 
93  Misc.  (N.  Y.)  49.  156  N.  Y.  Suppl.  with  safe  and  suitable  appliances  in 
286.  their  work,  and  it  being  inferred  that, 

Turn-table. — While  plaintiff,  after  if  skids  or  a  turn-table  had  been  pro- 
washing  an  automobile  in  defendant's  \  Uled,  the  superintendent  would  not 
garage  where  ho  was  employed,  was  have  ordered  kerosene  oil  to  be  thrown 
skidding  the  car  around  on  tlie  wash-  under  the  wheels  of  the  automobile, 
stand  so  as  to  get  it  back  in  its  place,  and  if  the  oil  used  because  of  the  ab- 
when  he  slipped  on  some  kerosene  oil,  senoe  of  appliances  created  a  dangerous 
which   by   order    of   defendant's    super-  condition    in    the    prosecution    of    the 


244  The  Law  of  Automobiles. 

bility  in  case  of  defective  premises  may  extend  so  as  to  create 
a  cause  of  action  in  favor  of  a  person,  not  an  employee  of  the 
garage  keeper,  but  entering  the  premises  to  do  business  with 
the  owner  or  for  some  other  lawful  purpose.  Thus,  one  struck 
by  a  motor  vehicle  as  he  is  entering  a  garage  may  have  a 
cause  of  action  against  the  garageman  or  the  driver  of  the 
vehicle.^  Where  a  prospective  purchaser  of  an  automobile 
while  inspecting  the  machine  in  the  owner's  garage  is  injured 
by  its  sudden  and  unexpected  motion  against  him  while  it  is 
being  manipulated  and  operated  by  the  ovmeT,  the  doctrine  of 
res  ipsa  loquitor  applies,  and  the  burden  is  placed  on  the 
owner  of  explaining  the  accident.^^ 

■work,    the    defendant    was    chargeable  154  N.  W.  877;  Jewison  v.  Dieudonne, 

with  negligence.     Bowers  v.  Columhia  127  Minn.  163,  149  N.  W.  20. 
Garage  Co.,  93  Misc.    (N.  Y.)    49,  156  21.  Barnes  v.  Kirk   Bros.   Auto  Co., 

N.  Y.  Suppl.  286.  32  Ohio  Circuit  Rep.  233. 
20.  Stodgel  V.  Elder,  172  Iowa,  739, 


ClIAUFJ-EUliS.  245 


CHAPTER  XII. 

CHAUFFEURS. 
Section.  216.  Scope  of  chapter. 

217.  Chauffeur  defiucd. 

218.  Origin   of  term  "  cliaufteur. " 

219.  Status  of  chauffeur. 

220.  Regulation  of  chauffours — in  general. 

221.  Regulation  of  chauft'eur.s — powers  of  municipalities. 

222.  Regulation  of  chauffeurs— age   limit. 

223.  Licensing  of  chauffeurs^ — in   general. 

224.  Licensing  of  chauffeur.* — discrimination    between    paid    chauffeurs 

and  other  operators. 

225.  Licensing  of  chauffeurs- — unlicensed  chauffeur  receiving  instruction. 

226.  Licensing  of  chauffeurs — effect    of    failure    of    chauffeur    to    have 

license. 

227.  Rights  of  chauffeur. 

228.  Liability  of  master  for  injuiy  to  ciiaulVeur. 
229. ■  Liability  of  chauffeur  to  owner. 

Sec.  216.  Scope  of  chapter. 

The  discussion  in  this  chapter  covers  a  few  topics  which 
relate  peculiarly  to  the  drivers  of  motor  vehicles,  as  dis- 
tinguished from  their  o^Tiers.  Thus,  at  this  place  are  treated 
such  subjects  as  the  regulation  and  liceiising  of  chauffeurs, 
and  the  liability  of  the  owner  for  injuries  to  his  chauffeur. 
The  general  power  of  the  State  and  of  municipal  corporations 
to  regulate  the  operation  of  motor  vehicles,  is  included  in 
other  chapters.^  And  the  liability  of  the  owner  for  injuries 
to  third  persons  caused  by  the  negligent  operation  of  the  ma- 
chine, is  treated  in  another  chapter."  A  distinction  is  to  be 
drawn  between  the  licensing  of  motor  vehicles  and  the 
licensing  of  the  operators  of  such  machines.  Statutes  in  most 
States  require  that  both  the  machine  and  the  chauffeur  be 
licensed.  In  other  States  statutes  have  been  enacted  which 
contemplate  the  licensing  of  the  owners  or  operators  of  ma- 
chines rather  than  the  machines.^ 

1.  See  chapters  V  and  VI.  Afontg.    Co.    L.    Rep.    (Pa.)    203.     See 

2.  Chapter  XXIIL  also  In  rr  Automobile  Acts,  15  Pa.  Dist. 
S.  Commonwealth    v.    Templeton,    22       Rop.   8?>. 


246 


The  Law  of  Automobiles. 


Sec.  217.  Chauifeur  defined. 

The  term  chauffeur  uieans  one  who  niaua^e.^  the  rumiing 
of  an  automobile.  The  term  in  legal  significance  may  be  said 
to  mean  any  person  operating  or  driving  a  motor  vehicle,  as 
an  employee,  or  for  hire.  This  is  the  definition  of  the  term 
contained  in  the  motor  vehicle  laAvs  of  some  States.* 


The  Pennsylvania  Automobile  Act  of 
April  19,  1905,  P.  L.  217,  applies  to 
the  operator  of  an  automobile  and  not 
to  the  owner.  Commonwealth  v.  David, 
33  Pa.  Co.  Ct.  12. 

Carrying  license. — Wliere  an  auto- 
mobile is  owned  by  two  partners,  both 
of  whom  are  licensed,  and  the  machine 
carries  the  numiber  of  one  of  the 
licensed  partners,  and  both  partners 
are  occupants  of  the  machine,  the  oper- 
ation of  the  machine  by  the  partner 
whose  license  is  not  carried,  is  not  a 
violation  of  the  act  of  April  19.  1905, 
P.  L.  217.  Yeager  v.  Winton  Motor 
Carriage  Co.,  53  Pa.  Super.  Ct.  202. 

4.  "  By  a  '  chauffeur '  is  meant  ane 
who  operates  an  automobile  for  hire." 
Staack  v.  General  Baking  Co.  (Mo.), 
223  S.  W.  89.  Probably  the  best  defini- 
tion of  the  term  chauffeur  is  that  the 
word  designates  a  person  who  habitu- 
ally and  as  an  ocupation  drives  a  mo- 
tor vehicle  commonly  calletl  an  auto- 
mobile, for  hire  generally,  or  for  a 
master  or  employer  who  engages  the 
services  of  the  employee  at  regular 
wages.  A  person  who  owns  an  auto- 
mofbile  and  carries  on  a  hacking  busi- 
ness personally  operating  the  machine, 
although  he  drives  "for  hire"  and  may 
bp  said  to  be  a  chauffeur,  nevertheless, 
is  not  a  "chauffeur"  within  the  mean- 
ing of  many  automobile  enactments  and 
does  not  come  within  the  commonly  ac- 
cepted understanding  of  the  word.  In 
an  automobile  law  of  the  Province  of 
Quebec  the  word  "chauffeur"  has  been 
defined  as  meaning  a  person  skilled  in 
operating  motor  vehicles  who  habitu- 
ally drives  such  vehicles  as  a  means  of 
livelihood.     See   section    1,   subdivision 


;?.  of  tlio  Victor  Vehicle  Law  of  Quebec 
1906. 

In  New  York,  as  is  the  case  in  sev- 
eral of  the  States,  the  term  has  been 
expressly  defined  by  the  Motor  Ve- 
hicle Law  as  meaning  any  person  op- 
erating or  driving  a  motor  vehicle  as 
an  employee,  or  for  hire.  See  ch.  374. 
N.  Y.  Laws.  1910,  §  281,  p.  674. 

A  salesman  for  an  oil  company  who 
uses  the  company's  truck  for  the  sale 
and  delivei-y  of  oil,  is  not  a  "chauf- 
feur" within  the  meaning  of  the  Texas 
statute  relating  to  the  licensing  of 
chauffeurs.  Matthews  v.  State,  85  Tex. 
Cr.  469,  214  S.  W.  339. 

The  chauffeur  is  engaged  in  manual 
labor. — Smitli  v.  A^soiiatod  Omnibus 
Co.,  Div.  Ct.  916. 

Legal  result  of  definition  of  terra.- — 
All  persons  coming  within  the  defini- 
tions of  the  term  "chauffeur,"  as  pro- 
vided in  tho  various  automobile  enact- 
ments, are  subject  to  the  regulations 
intended  to  govern  chauffeurs.  Con- 
vorselv,  nil  persons  who  do  not  come 
within  the  definition  are  exempt  from 
those  provisions  of  law  intended  to  gov- 
ern that  class  of  individuals.  The  im- 
]>ortance  of  the  term  including  every 
person  intended  and  who  should  be  re- 
yvilated  as  a  ehauffexir,  and  excluding 
every  individual  who  should  not  be  so 
regulated,  is  apparent.  Take,  for  ex- 
ample, the  New  York  Motor  Vehicle 
Law  of  1904,  which  lias  been  copied  ex- 
tensively by  automobile  legislation 
throughout  the  United  States.  Three 
classes  of  persons  were  required  to 
register  with  the  Secretary  of  State; 
namely,  owners,  chauffeurs,  manu- 
facturers,   and    dealers.      Tf    a    person 


I 


Chauffeurs. 


24' 


Sec.  218.  Origin  of  term  "chauffeur." 

A  "chauifeur"  \vas  a  meniber  ol"  the  bands  of  outlaws,  dur- 
ing the  reign  of  terror  in  France,  who  roamed  over  the  north- 
eastern part  of  the  country  under  the  lead  of  John  the  Skinner, 
or  Schinderhaunes.  They  garroted  nieii  and  women,  and 
roasted  their  feet  to  compel  them  to  disclose  hidden  treasure. 
In  1803  rigorous  measures  were  taken  which  resulted  in  their 
suppression.  AVith  the  increasing  use  of  the  automobile  as  a 
means  of  recreation  and  transportation,  the  term  chauffeur 
was  applied  to  the  driver  who  operated  the  carriage  and  the 
mechanic  w^ho  was  carried  to  look  after  the  machinery  and 
fuel.  The  origin  ot*  this  use  of  the  term  is  Touiid  in  France, 
where  automobiling  first  found  favor  as  a  s])ort,  the  word 
chauffeur  being  there  employed  to  designate  a  fireman  or 
stoker.^ 


Sec.  219.  Status  of  chauffeur. 

The  legal  status,  duties,  and  responsibilities  of  th(^  chauf- 
feur or  oijerator  of  a  motor  car  are  of  vital  interest,  not  only 
to  the  motorist,  but  to  others.  Those  who  employ  chauffeurs 
have  interests  at  stake.  Those  who  are  employed  as  chauf- 
feurs not  only  have  serious  responsibilities  of  a  personal  na- 
ture, but  are.  to  a  great  extent,  the  guardians  of  their  em- 
ployer's interests.  The  chauffeur  or  operator  of  an  automo- 
bile occupies  towards  his  employer  and  the  public  a  serious 
position,  one  Avhich  compares  favorably  in  the  necessity  for 
prudence,  diligence,  and  intelligence  w'ith  that  of  the  railroad 


does  not  l)olong  to  eitlier  one  of  these 
classes  of  individuals,  he  is  not  subject 
to  the  regulations.  A  person  may  be 
neither  an  owner  nor  a  chauffeur  un- 
der the  1904  New  York  law,  in  which 
case  he  is  at  liberty  to  drive  a  hired  or 
borrowed  automobile  without  a  license. 
This  is  a  defect  in  laws  similar  to  tlie 
one  mentioned  and  should  be  remedietl. 
The  true  purpose  of  regulations  con- 
trolling the  chauffeur  is  to  regulate  all 
automobile  drivers  who  are  not  other- 
wise permitted  by  license  to  drive  an 
automobile.      Some    of   the    State    laws 


cfimpel  owners  to  obtain  a  driver's  li- 
cense before  they  can  operate  a  motor 
vehicle  wliich  lias  been  registered. 
Other  State  laws  permit  the  owner  to 
drive  his  automobile  upon  registration 
of  the  machine  with  the  proper  oflBce. 
It  will  be  seen  that  the  term  "chauf- 
feur" should  be  as  comprehensive  in  its 
meaning  as  is  intended  by  the  law.  All 
(hauffeiirs  arc  necessarily  automobile 
drivers,  but  all  automobile  drivers  are 
not  chaufTeurs. 

5.  The    New    International    Encyclo- 
pedia, vol.  IV,  p.  427. 


248  The  Law  of  Automobiles. 

engineer  or  master  of  a  ship.  As  between  the  owner  of  a 
motor  vehicle  and  a  paid  chauffeur,  the  relation  is  that  of 
master  and  servant,  and  the  liability  of  the  parties  to  each 
other,  as  well  as  to  third  persons,  is  determined  according  to 
the  principles  of  that  relation.* 

Sec.  220.  Regulation  of  chauffeurs  —  in  general. 

The  occupation  of  a  chauffeur  for  hire  is  one  which,  under 
the  police  power  inhering  in  legislative  bodies,  may  properly 
be  a  subject  for  government  regulation."  When  a  calling  or 
profession  or  business  is  attended  with  danger  and  requires 
a  certain  amount  of  scientific  knowledge  upon  which  others 
must  rely,  then  legislation  properly  steps  in  and  imposes  con- 
ditions upon  its  exercise.'*  That  the  occupation  of  a  chauffeur 
is  of  this  character  may  not  he  questioned  and  has  been  de- 
cided.^ As  was  said  in  one  case,^  ' '  If  any  subject  can  be  con- 
ceived of  which  requires  the  exercise  of  the  powers  assumed 
by  this  ordinance  for  the  safety  of  the  public  it  is  the  ascer- 
tainment of  the  qualifications  and  fitness  of  operators  of  auto- 
mobiles and  other  motor  vehicles  driven  through  the  streets 
of  a  city  like  Chicago.  These  ponderous  vehicles,  driven  by 
powerful  engines,  are  a  menace  to  the  public  safety  unless 
managed  and  driven  by  persons  who  ar€  competent  and  quali- 
fied to  operate  them.  Those  used  for  transporting  heavy  mer- 
chandise are  practically  engine-driven  freight  cars.  The 
owners  of  such  vehicles  are  not  different  from  other  persons — 
no  better,  no  worse.  They  include  not  only  the  prudent  and 
those  considerate  of  the  rights  of  others,  but  also  the  incom- 
petent, the  careless,  reckless  and  lawless.  The  great  majority 
are  prudent  and  careful,  but  it  is  only  human  nature  that 
arbitrary  power  should  beget  arbitrary  act,  and  the  symptoms 
and  conduct  before  and  after  ownership  are  frequently  well 

6.  See  sections  627-654.  as  to  liabil-  8.  Christy  v.  Elliott,  216  111.  31,  108 
ity  to  third  persons.  Am.   St.  Rep.   196,  3  Ann.   Cas.  487,   1 

7.  Matter  of  Stork,  167  Cal.  294,  139  L.  R.  A.  (N.  S.)  215,  74  N.  E.  1035; 
Pac.  684;.  Ruggles  v.  State,  120  Md.  State  v.  Swagerty,  203  Mo.  517,  102 
553,  87  Atl.  1080.  S.   W.  483. 

7a.  Minneapolis,  etc.  Railroad  Co.  v.  9.  Chicago  v.  Kluever,   257   111.   317, 

Beckwith,  129  U.  S.  29,  32  L.  Ed.  585,       100  N.  E.  917. 
9  Sup.  Ct.  Rep.  207. 


Chaufffatrs.  -4!' 

marked.  Careless  and  ineoiupetonl  (Operators  ciidangcT  the 
public  safety,  and  with  another  class  the  tooting  of  the  horn 
is  a  warning  to  get  off  the  highway  or  street,  directed  to  the 
citizen  for  whose  use  it  was  originally  laid  out.  Naturally 
enough,  there  has  been  a  great  loss  of  life  on  the  pul)lic  streets 
because  of  these  vehicles,  and  very  frequently  in  the  darkness 
and  excitement  or  tumult  the  operator  has  escaped.  Every- 
one knows  the  dangers  of  the  operation  of  these  machines  on 
the  public  streets,  and  especially  in  a  metropolitan  city,  when 
the  streets  and  crossings  are  thronged  with  citizens." 

Among  provisions  which  are  considered  a  valid  exercise  of 
the  police  power  are  those  forbidding  the  carrying  of  a  person 
on  a  motor  vehicle  in  front  of  the  operator.^^*  Or  a  chauffeur 
may  be  compelled  to  wear  his  badge  in  sight,  but  in  an  action 
for  injuries  to  an  automobile  occasioned  through  a  collision 
at  a  raUroad  crossing,  it  is:  no  defense  that  the  badge  of  the 
chauffeur  was  not  in  sight." 

Sec.  221.  Reflation  of  chauffeurs— powers  of  municipalities. 
Municipalities  are  generally  invested  with  powm-  to  regu- 
late the  operation  of  motor  vehicles  A\'ithin  their  territorial 
limits.^  Under  its  power  to  regulate  the  use  of  streets  and 
pass  and  enforce  all  necessary  police  regulations,  a  city  nun- 
require  the  drivers  of  automobiles  used  in  transporting  per- 
sons or  property  for  hire  to  be  examined  and  licensed  by  the 
city,  notwithstanding  such  drivers  have  licenses  under  the 
State  law,  where  a  proviso  to  the  State  law  or  the  State  con- 
stitution reserves  such  power  to  the  city.^^  ^  tax  imposed  by 
the  State  on  the  vehicle  does  not  necessarily  abridge  the  power 
of  a  municipality  to  charge  a  license  fee  on  chauffeurs."  But 
where  the  State  statute  expressly  pro^adeg  that  local  authori- 
ties shall  have  no  power  to  pass  ordinances  requiring  licenses 
from  chauffeurs,  a  local  regulation  to  that  effect  is  not  en- 

10.  In    re   Wickstrum,    92   Neb.    523.       Taxi   Co.    (Ala.).   82  So.    117;    Oity  of 
138  N.  W.  733.  (liicago  v.   Kliicver,   257   Til.   317.    100 

11.  Latham  v.   Cleveland,   Cincinnati      N.  E.  917. 

C.  &  St.  L.  R.  Co.,  164  111.  App.  659.  14.  Wasson     v.     City     of    (ir.M'nville 

12.  Chapter  VI.  (Mi.se.),  86  So.  450. 

13.  Oity  of  Montgomery  v.  Orpheum 


250  The  Law  of  Automobiles. 

forceable.^  And  it  lias  been  held,  applying  the  general  rule 
that  municii^al  corporations  have  only  such  power  as  may  be 
granted  by  the  Legislature  unless  otherwise  provided  in  the 
constitution,  that  a  city  having  only  authority  "to  license, 
tax,  and  regulate  hacknien,  draymen,  omnibus  drivers  and 
drivers  of  baggage  wagons,"  has  no  power  to  jjrovide  that  it 
shall  be  unlawful  for  any  person  under  the  age  of  sixteen 
years  to  operate  any  automobile  or  motor  vehicle  upon  the 
streets  of  the  city,  as  the  power  conferred  by  such  a  statute 
is  one  of  regulation,  not  of  prohibition.^^  Moreover,  it  has 
been  held  that,  as  a  prerequisite  to  one  operating  his  automo- 
bile for  pleasure  on  the  public  ways,  the  city  of  Chicago  has 
no  power  to  require  a  party  who  uses  his  automobile  for  his 
private  business  and  pleasure  only,  to  submit  to  an  examina- 
tion and  to  take  out  a  license,  for  such  is  imposing  a  burden 
upon  one  elass  of  citizens  in  the  use  of  the  streets,  which  is 
not  imposed  upon  others,  and  such  an  ordinance  is  beyond  the 
power  of  the  city  council  and  is  therefore,  void." 

Sec.  222.  Regulation  of  chauffeurs  —  age  limit. 

Statutes  have  been  passed  in  many  States  forbidding  the 
operation  of  motor  vehicles  by  minors  under  a  prescribed 
age.^^  Regulations  of  this  'character  are  proper,  and  are  de- 
signed for  the  protection  of  other  travelers  on  the  highway." 
A  statute  of  this  character  constitutes  a  legislative  declara- 
tion that  persons  below  the  limited  age  are  incompetent  to 
operate   a   motor  vehicle   upon   the   public  highways.^*^     If, 

15.  Barrett  v.  City  of  Xew  York,  180  of  itself,  to  be  deemed  a  dangerous 
Fed.  268.  machine,   nevertheless   it  becomes   such 

16.  Ex  parte  Epperson,  61  Tex.  Cr.  in  the  hands  of  a  careless  and  inex 
App.  237,  134  S.  W.  685.  perienced  person.     The  statute  has,  in 

17.  Chicago  v.  Banker.  112  Til.  App.  effect,  so  declared  when  it  forbids  its 
94.  operation  by  persons  under  the  age  of 

18.  Mannheimer  Bros.  v.  Kansas  eighteen.  It,  in  substance,  declares 
Casualty   &    Surety    Co.     (Minn.),    180  that   such    persons   do   not   possess   the 

■  N.  W.  229.  requisite    care    and    judgment    to    run 

19.  Schultz  V.  Morrison,  91  Misc.  R.  motor  vehicles  on  the  public  highways 
248,  154  N.  Y.  Suppl.  257,  wherein  it  without  endangering  the  lives  and 
was    said:      "The   object   and    purpose  limbs  of  others." 

of  the  statute  is  to  promote  the  safety  20.  Daily  v.  Maxwell.   152  Mo.  App. 

of  those  traveling  the  public  highways.      415,  133  S.  W.  351. 
While  a  motor  vehicle  is  not,  in  and 


CllAL  IFEUKS.  251 

(lieroforo,  tlie  owner  oi'  .^ucli  a  veliick'  jjeniiits  an  int'aiit  under 
the  given  age  to  drive  the  machine,  and  an  injury  is  thereby 
occasioned  to  a  third  person,  the  violation  of  the  statute  by 
the  owner  may  be  a  ground  for  liokling  him  liable  for  the  in- 
jnries.^^  Although  the  driving  of  a  motor  vehicle  l)y  an  infant 
under  the  preseri])ed  age  may  be  negligence  per  se,  there  may 
be  a  question  for  the  jury  as  to  whether  the  violation  of  the 
law  is  the  proximate  cause  of  injuries  in  a  particular  case." 
A  municipal  regulation  prohibiting  any  person  under  eighteen 
years  of  age  from  operating  a  motor  vehicle  within  the  city 
limits  may  be  held  unreasonable  where  the  regulation  is  ap- 
parently designed  to  include  property  other  than  streets  and 
alleys.^' 

Sec.  223.  Licensing  of  chauffeurs  —  in  general. 

Under  its  police  power  of  regulating  the  public  highways, 
the  State  may,  directly  by  means  of  a  statute,  or  indirectly 
by  authorizing  a  municipal  corporation  to  pass  ordinances  on 
the  subject,  require  that  chauffeurs  shall  be  licensed  and  ])ay 
a  reasonable  license  fee.^^  If  the  State  constitution  preserves 
the  right  of  municipal  corporations  to  regulate  chauffeurs  in 
certain  cases,  the  legislative  body  may  be  without  power  to 
interfere.25  Under  a  statute  defining  a  ''chauffeur"  as  any 
person  operating  or  driving  a  motor  vehicle  as  an  employee 
or  for  hire,  an  employee  of  an  electric  company  who  uses  in 
the  discharge  of  his  duties  an  automobile  furnished  liy  his 
employer,  must  procure  a  license,^  but  a  salesman  of  an  oil 
company  using  its  truck  for  the  sale  and  delivery  of  oil  is  not 

21.  Daily  v    ^raxwell.   152  Mo.  App.  section  662. 

415,  133  S.  W.  351;   Schultz  v.  Morri-  22.  Tayloi-    v.    Stewart.    175    X.    Car. 

son,  91  Misc.    (N.  Y.)    248,   154  N.  Y.  199.  95  S.  K.  IGT. 

Siippl.  257;   Allen  v.  Bland    (Tox.  Civ.  23.  Uoyal  Indemnity  Co.  v.  Scliwartz 

App.),   168  S.   W.   35.     "Wlien  the  de-  i  Tex.   Civ.   App.).   172  S.   W.   581. 

fendant     permitted     one     of     liis     own  24.   Matter    of   Stork,    167    Cal.    294, 

family,  whose  acts  he  had  the  rijrlit  and  139   Pac.   684;    deary  v.   Johnston,   79 

authority  to  control,  to  operate  his  car.  X.  J.  L.  49,  74  Atl.  538. 

he  became  a  party  to  the  violation  of  25.  City  of  IVfont^omery  v.  Orpheum 

the  statute,  and  should  he  held  respon-  Taxi  Co.   L\la.).  82  So.  117. 

sible    for    the    con=:t-quence    which    fol-  26.  People   v.    Fulton.    96   >fi«c     CS 

lowed."     S^chult/  v.    Nforrison.  91    Misc.  Y.)    663.   162  N.  Y.  Suppl.    125. 
248,    154   X.    V.   Sw|)p].    257.      And   see 


252  The  Law  of  Automobiles. 

necessarily  a  ''chauffeur."-'  Law.s  regulating  chauffeurs 
should  prohibit  the  issuance  of  licenses  to  minors  under  a 
prescribed  age.'^  The  failure  of  an  applicant  for  a  chauffeur's 
license  to  disclose  physical  disalnlitios  does  not  render  the 
license  void,  nor  make  him  a  trespasser  in  operating  the  ma- 
chine on  the  highway,  but  the  license  is  valid  until  it  is  revoked 
by  the  proper  authority.^  The  license  fees  for  the  drivers  of 
motor  vehicles  may  be  graduated  according  to  the  horse  power 
of  the  machines.  Thus,  a  statute  lixing  an  annual  fee  of  three 
dollars  for  registering  an  automobile  of  less  than  thirty  horse 
power  and  a  fee  of  five  dollars  for  each  automobile  of  thirty 
horse  power  or  more,  and  fixing  a  fee  of  one  dollar  for  a 
license  to  the  driver  of  the  first  class  and  of  two  dollars  for 
one  to  a  driver  of  the  second  class,  has  been  held  to  be  consti- 
tutional as  being  a  legitimate  exercise  of  the  police  power  of 
the  State,  notmthstanding  the  clause  in  the  statute  that 
requires  all  fees,  fines  and  penalties  arising  under  the  act  to 
be  paid  to  the  treasurer  of  the  State  and  to  be  apportioned 
by  the  State  road  commissioner  for  the  repair  of  improved 
roads.^* 

Sec.  224.  Licensing  of  chauffeurs  —  discrimination  between 
paid  chauffeurs  and  other  operators. 

A  distinction  may  properly  be  drawn  between  the  pro- 
fessional chauffeur  who  operates  the  machine  of  his  employer 
for  hire,  and  other  operators  such  as  those  who  run  their  own 
cars.  Hence,  a  regulation  relative  to  chauffeur's  licenses  is 
not  an  unlawful  discrimination  because  it  charges  a  license 
fee  on  professional  chauffeurs  of  five  dollars  annually,  while 
other  operators  are  required  to  pay  only  two  dollars  for  a 
license  which  does  not  need  to  be  renewed  annually.^  More- 
over, a  statute  maj^  be  enacted  imposing  a  reasonable  license 

27.  Matthew-8  v.  State,  85  Tex.  Cr.  30.  Cleary  v.  Johnston.  79  N.  J.  L. 
469,  214  S.  W.  339.  49,  74  Atl.  538.     And  seo  sections  109- 

28.  Section  222.  115. 

29.  O'Hare  v.  Gloag.  221  Mass.  24,  31.  Ruggles  v.  State,  120  Md.  553, 
108  N.  E.  566.  87  Atl.  1080. 


Chauffeubs. 


253 


fee   against   the   professional   cliauffeur   and    (.-XL-iiipting   the 
other  classes  of  operators  from  any  charge  of  that  nature.^- 


Sec.  225.  Licensing  of  chauffeurs  —  unlicensed  chauffeur  re- 
ceiving instruction. 

Statutes  which  regulate  the  licensing  of  chauffeurs  con- 
template that  an  applicant  for  a  license  shall  have  received 
training  in  that  work.  Tlus  would  present  an  inconvenient 
situation  were  it  not  for  provisions  in  such  laws  permitting 
an  unlicensed  person  to  operate  a  vehicle  without  a  license 
when  he  is  accompanied  by  a  licensed  chauffeur.  Such  a  pro- 
vision is  designed  to  afford  an  opportunity  for  persons  to 
become  proficient  under  the  supervision  of  an  experienced. 
driver.^"  Under  a  statute  permitting  an  unlicensed  person 
over  a  designated  age  to  operate  a  motor  vehicle  when  ^'accom- 
panied by  a  licensed  operator,"  the  latter  must,  in  order  to 
comply  with  statute,  be  in  such  proximity  to  the  former  as  to 


32.  Matter  of  Stork.  167  Cal.  294, 
3  39  Pac.  684,  Avherein  the  court  said: 
"There  are  unquestionable  elements  of 
similarity,  even  of  identity,  between 
the  driving  of  an  automobile  by  a  pro- 
fessional chauffeur  and  the  driving  of 
a  like  vehicle  by  a  private  owner, 
designated  in  this  act  as  an  'operator.' 
Thus  it  may  not  be  gainsaid  that  the 
ignorance  of  the  one  is  as  likely  to  re- 
sult in  accident  as  the  same  ignorance 
upon  the  part  of  the  other.  The  reck- 
lessness of  the  one  is  as  likely  to  re- 
sult in  injury  as  the  recklessness  of  the 
other.  It  is  equally  dangerous  to  other 
occupants  and  users  of  the  highway 
\shether  the  unskilled  or  reckless  driver 
be  a  chauffeur  or  'operator.'  All  these 
matters  may  be  conceded,  and  yet  there 
are  others  of  equal  significance  where 
the  differences  between  the  two  classes 
of  drivers  are  radical.  Of  first  im- 
portance in  this  is  the  fact  that  the 
chauffeur  offers  his  services  to  tlie  pub- 
lic and  is  frequently  a  carrier  of  the 
general  public.  Thp«ic  rircumstances 
p\it  professional  chauffeurs  in   a  class 


by  themselves  and  entitle  the  public  to 
icceive  the  protection  which  the  legis- 
lature may  accord  in  making  provision 
for  the  competency  and  carefulness  of 
such  drivers.  The  chauffeur,  generally 
speaking,  is  nut  driving  liis  own  car. 
He  is  intrusted  witii  the  property  of 
otliers.  In  the  nature  of  things  a  dif- 
ferent amount  of  care  will  ordinarily 
be  exercised  by  such  a  driver  than  will 
be  exercised  by  the  man  driving  his 
own  car  and  risking  his  own  property. 
Many  other  considerations  of  like 
raturo  will  readily  present  themselves, 
but  enough  has  been  said  to  show  that 
there  are  sound,  just,  and  valid  rea- 
sons for  the  classification  adopted. 
The  argument  of  the  peril  attending 
the  public  at  the  hands  of  the  un- 
licensed operator  driving  his  own  car 
is  not  without  force,  but  it  can  only 
successfully  be  present<>d  to  the  legis- 
lative department  and  not  to  the 
courts." 

33.  Bourne  v.  Whitman,  209  Mass. 
155.  95  N.  E.  404,  35  L.  R.  A.  (X.  S.) 
701. 


254  The  Law  of  Automobiles. 

be  able  to  furnish  with  reasonable  promptness,  necessary 
advice  and  assistance  for  the  safe  operation  of  the  car,  the 
closeness  of  the  proximity  varying  according  to  the  circum- 
stances of  the  particular  case,  having  reference  to  the  experi- 
ence of  the  unlicensed  operator  and  the  mechanism  and  equip- 
ment of  the  car.^* 

Sec.  226.  Licensing-  of  chauffeurs  —  effect  of  failure  of  chauf- 
feur to  have  license. 
When  an  automobile  is  not  registered  and  licensed  accord- 
ing to  the  regulations  on  the  subject,  as  is  said  in  another 
place  in  this  work,^^  there  is  a  conflict,  of  authority  as  to 
whether  the  non-registration  will  bar  an  action  for  injuries 
to  the  machine  or  an  occupant,  where  such  injuries  are  the 
result  of  the  negligence  of  a  third  person.  The  general  rule 
is  that  the  non-registration  is  not  a  proximate  cause  of  the 
injury  and  does  not  affect  the  right  of  recovery,  but  a  con- 
trary rule  is  adopted  in  Massachusetts  and  a  few  other  States. 
The  situation  with  reference  to  an  unlicensed  chauffeur  is 
analagous,  and  it  is  to'  be  expected  that  the  courts  will  hold 
that  the  failure  to  procure  a  license  will  not  preclude  a  re- 

34.  Hughes  v.  New  Haven  Taxicab  able  to  furnisb  with  reasonable  prompt- 
Oo.,  87  Ck)nn.  416,  419,  87  Atl.  42.  iiess  such  advice  aud  assistance  as  may 
Judge  Wheeler  said  in  this  case:  be  necessary  for  the  safe  operation  of 
"The  legislature  .  .  .  knew  that,  the  car.  The  degree  of  experience  of 
unless  it  provided  a  method  by  which  the  unlicensed  operator  would  deter-" 
beginners  could  learn  to  operate  an  au-  mine  the  necessity  for  the  advice  and 
tomobile,  there  would  be  no  opportun-  assistance  and  have  much  to  do  with 
ity  for  them  to  acquire  skill  by  prac-  settling  the  closeness  of  proximity  re- 
tioe  so  that  they  might  qualify  as  qviired.  So,  too,  the  mechanism  and 
licensed  operators.  To  accomplish  this  equipment  of  the  car  might  determine 
end  it  provided  this  necessary  excep-  in  a  given  case  that  the  licensed  op- 
tion to  the  general  rule  and  at  the  same  erator  should  be  by  the  side  of  the  un- 
time  endeavored  to  maintain  the  pub-  licensed  operator,  while  in  another  case 
lie  safety  by  providing  for  the  opera-  such  proximity  might  not  be  required. 
tJon  of  an  automobile  by  an  unlicensed  In  short,  ordinarily  each  case  must  be 
person,  if  accompanied  by  a  licensed  decided  upon  its  own  facts  by  the  ap- 
operator.  who  should  be  personally  plication  to  those  facts  of  the  construc- 
liable  for  any  violation  of  the  auto-  tion  we  accord  the  words  'accompanied 
mobile  act.  Tlie  language  'accompanied  by.'  Ordinarily,  as  in  this  ca.9e,  the 
by'  means  that  the  licensed  operator  ultimate  decision  is  one  of  fact  for  the 
shall  he  in  such  proximity  to  the  un-  jury  and  not  of  law  for  the  court." 
licensed   operator   of  the  ear  as  to   be  35.  See  sections  125-127. 


Chauffeurs. 


255 


covery  for  injuries  sustained  while  driving  a  motor  vehicle. 
The  courts  so  hold,  so  far  as  the  statutes  are  similar.'^  Nor 
does  the  fact  that  the  operator  has  no  license  forbid  a  re- 
covery hy  the  owner  for  damages  to  the  machine.^'  Nor  can 
the  absence  of  a  license  be  charged  as  a  ground  of  liability  in 
case  the  machine  injures  another  traveler,  unless  the  lack  of 
the  license  has  a  bearing  upon  the  accident  by  reason  of  the 
unskillfulness  of  the  chauffeur.^^  Even  in  Massachusetts, 
where  the  courts  take  the  contrary  view  on  the  licensing  of 
machines,  the  general  rule  is  followed  in  cases  involving  the 
absence   of   a   chauffeur's  license.^^     The   statutes   in   some 


36.  Crossen  v.  Cliicago,  etc.  Co.,  158 
111.  App.  42;  Sta«k  v.  General  Bakino; 
Co.  (Mo.),  223  S.  W.  89;  Zageir  v. 
Southern  Express  Co.,  171  N.  Car.  692, 
89  S.  E.  43;  Marquis  v.  Messier,  39  R. 
I.  563,  99  Atl.  527.  "Tt  is  true  that 
the  plaintiff,  at  the  time  of  the  acci- 
dent, was  negligent  in  not  procuring  a 
license  from  the  city  of  Asheville  to 
operate  her  automobile  upon  the  streets 
of  the  city,  but  she  is  not  placed  out- 
side all  protection  of  the  law,  nor  does 
she  forfeit  all  her  civil  rights  merely 
because  she  violated  such  ordinance. 
The  plaintiff's  violation  of  the  law,  in 
order  to  bar  her  recovery,  must,  like 
any  other  act,  be  a  proximate  cause  in 
the  same  sense  in  which  defendant's 
negligence  must  have  been  a  proximate 
cause  to  give  a  right  of  action.  A 
collateral  unlawful  act  not  contribut- 
ing to  the  injury  will  not  bar  a  re- 
covery. .  .  .  The  right  of  a  person 
to  maintain  an  action  for  a  wrong  com- 
mitted on  him  is  not  taken  away  be- 
cause at  the  time  of  tlie  injury  he  was 
disobeying  a  statute,  which  act  on  his 
part  in  no  way  contributed  to  his  in- 
jury." Zageir  v.  Southern  Express  Co., 
171  N.  Car.  692,  89  S.  E.  43. 

Failure  to  carry  license. — Though  a 
statute  may  forbid  a  recovery  by  an 
"unlicensed"  operator,  one  who  has  re- 
ceived a  license  but  fails  to  carry  it  at 
the  time  of  an  accident  is  not  barred 


from      recovery.        Kiely      v.      Ragali 
(Conn.).  106  Atl.  502. 

37.  Crossen  v.  Chicago,  etc.  Co.,  158 
111.  App.  42;  Moyer  v.  Shaw  Livery  Co., 
205  Til,  App.  273:  Moore  v.  Hart,  171 
Ky.  725,  188  S.  W.  861:  Mcllhenny  v. 
Baker,   63   Pa.    Super.    Ct.   385. 

38.  Brown  v.  Green  &  Flinn,  Inc.,  6 
Del.  (Boyce)  449,  100  Atl.  475;  Wol- 
cott  v.  Renault  Selling  Branch,  175  N, 
Y.  App.  Div.  858,  163  N.  Y.  Suppl.  496; 
Dervin  v.  Frenicr,  91  Vt.  398,  100  Atl. 
760.  See  also  CHare  v.  Oloag,  221 
Mass.  24,  108  N.  E.  566.  ' '  Pigeon  had 
been  for  several  years  licensed  to  oper- 
ate an  automobile,  but  at  the  time  of 
the  accident  his  license  had  expired 
and  had  not  been  renewed.  This  was 
some  evidence  of  his  negligence  in  oper- 
ating the  car,  but  it  was  not  conclu- 
sive and  did  not  warrant  the  ordering 
of  a  verdict."  Pigeon  v.  Massachu- 
setts, etc.  St.  Ry.  Co.,  230  Mass.  392, 
119  X.  E.  762.  "The  failure  to  employ 
a  licensed  chauffeur  is  some  evidence 
of  negligence  which  may  be  overcome 
by  subsequent  evidence  showing  that, 
notwithstanding  the  fact  that  the 
chauffeur  was  not  licensed,  he  was 
thoroughly  competent  and  was  not  re- 
sponsible for  the  collision.  It  is  not 
an  immaterial  question  like  the  fail- 
ure to  have  a  car  license  which  can 
have  no  possible  bearing  upon  the  oper- 
ation of  the  car.     The  violation  of  the 


256 


The  Law  or  Automobiles. 


states,  however,  condemn  the  travel,  so  that  the  unlicensed 
driver  is  not  permitted  to  recover  for  his  injuries/^  The 
criminal  liability  for  a  failure  to  obey  regulations  in  respect 
to  the  licensing  of  chauffeurs,  is  discussed  in  another  chapter/^ 

Sec.  227.  Rights  of  chauffeur. 

Ordinarily  where  the  chauffeur's  contract  for  service  is  for 
a  certain  time,  if  the  employer  discharges  the  chauffeur  be- 
fore the  expiration  of  the  term  of  employment,  the  employer 
is  still  liable  for  the  chauffeur's  pay  unless  the  latter  has  given 
cause  by  showing  himself  unable  or  unwilling  to  do  what  he 
has  undertaken  to  do.''^  But  if  the  contract  is  for  a  time  cer- 
tain, and  the  chauffeur  leaves  without  cause  before  the  time 
expires,  it  is  held  that  a  servant  in  such  a  case  has  no  claim 
for  services  already  rendered.  However,  if  prevented  from 
performing  his  duties  by  sickness,  or  similar  inability,  the 
chauffeur  may  recover  pay  for  what  he  has  done  on  a  quantum 
meruit}'^  It  must  not  be  forgotten  that  the  contract  between 
the  chauffeur  and  his  employer  is  mutual.  The  employer  has 
a  claim  against  the  chauffeur  for  neglect  of  duty,  and  the  em- 
ployer does  not  waive  this  claim  by  paying  the  chauffeur  and 
continuing  him  in  his  service.'" 


ordinance,  therofore,  is  prima  fade 
evidence  of  negligence  to  be  submitted 
to  the  jury  in  connection  with  the 
other  facts  in  the  case  to  determine  the 
ultimate  liability."  Austin  v.  Roches- 
ter Folding  Box  Co.,  Ill  Misc.  (N.  Y.) 
292,  181  N.  Y.  Suppl.  275. 

39.  Bourne  v.  Whitman,  209  Mass. 
155,  95  N.  E.  404,  35  L.  R.  A.  (N.  S.) 
701,  distinguishing  prior  cases  holding 
the  operator  of  an  unregistered  auto- 
mobile a  trespasser,  by  reason  of  a  dif- 
ference in  the  provisions  of  the  statute, 
it  being  held  that  the  provisions  under 
which  the  earlier  cases  were  decided 
made  the  operation  of  an  unregistered 
automobile  upon  the  highway  unlaw- 
ful in  every  respect  while  in  this  case 
the  operation  of  the  automobile  itself 
was  not  objectionable,  the  illegal  ele- 
ment in   the  act  being  the  failure   to 


have  a  license.  This  decision  was  fol- 
lowed in  Conroy  v.  Mather,  217  Mass. 
91,  104  N.  E.  487,  52  L.  R.  A.  (N.  S.) 
801;  Holden  v.  McGillicuddy,  215  Mass. 
563,  102  N.  E.  923;  Holland  v.  City  of 
Boston,  213  Mass.  560,  100  N.  E.  1009. 
See  also  Rolli  v.  Converse,  227  Mass. 
162,  116  N.  E.  507;  Pobnatier  v.  New- 
bury, 231  Mass.  307,  120  N.  E.  850; 
Griffin  v,  Hustis  (Mass.),  125  N.  E. 
387. 

40.  Blanchard    v.    City    of    Portland 
(Me.).  113  Atl.  18. 

41.  Section  725. 

42.  Parsons    on     Contracts,    vol.    II 
(9th  Ed.),  34. 

43.  Parsons    on    Contracts,    vol.    II 
(9th  Ed.),  36-40. 

44.  Parsons    on     Contracts,    vol.    II 
(9th  Ed.),  48. 


Chauffeurs.  257 

Sec.  228.  Liability  of  master  for  injury  to  chauffeur. 

The  circumstances  may  be  siu-li  that  a  chaulTeui-  receiving 
injuries  from  the  care  or  operation  of  a  motor  vehicle  may 
recover  damages  from  his  employer.    But,  except  in  the  cases 
covered  by  Workmen's  Compensation  Laws,  the  basis  of  the 
servant's  action  is  the  negligence  of  the  master."^    Where  the 
engine  "kicks  back"  while  he  is  cranking  the  car,  and  it  is 
shown  that  the  act  of  the  owner  in  moving  the  spark  lever 
contributed  to  that  result,  a  recovery  may  be  had.  But,  if  no 
negligence  on  the  part  of  the  owner  is  connected  with  the 
"kick  back"  of  the  engine,  there  can  be  no  recovery  under  the 
common  law  system.''^     When  an  injury  is   received  while 
running  a  motor  vehicle  and  the  cause  of  the  injury  is  a  de- 
fective brake,  a  chauffeur  having  knowledge  of  the  defect 
should  not  be  permitted  to  recover.'''    But,  if  the  owner  has 
knowledge  of  the  defective  brake  and  gives  the  chauffeur  no 
information  in  respect  thereto,  the  owner  may  be  liable  for 
injuries  received  by  the  servant  on  account  of  the  defect.*^ 
But  the  owner  is  under  no  obligation  to  warn  his  chauffeur 
of  dangers  which  are  obvious,  nor  to  instruct  him  in  matters 
which  he  may  fairly  be  supposed  to  understand.*'^    Where  the 
servant  was  riding  in  the  machine  at  the  request  of  the  ov/ner 
who  was  driving  the  same,  the  servant  may  be  permitted  to 
recover  if  the  owner  negligently  runs  the  machine,  and  the 
questions  of  the  servant's  assumption  of  risk  and  contribu- 

45.  Anderson  v.  Van  Riper,  128  N.  i  le  arc  in  the  streets  at  all  hours  of 
Y.  Suppl.  66.  ^le    day    and    night,    an    experienced 

Negligence   of   chauffeur  causing  in-  chauffeur,    unless    it    be    under    excetp- 

jury    to    employee    riding    in    machine.  tional  circumstances,  who  runs  an  au- 

See   Burke  v.   Curtis  Aeroplane  Motor  t-.raobile  in  the  street  knowing  that  the 

Co.    (Ala.),  85  So.  703.  brake  is  defective,  ought  to  be  estopped 

46.  Morris  v.  Allen.  217  Mass.  572,  as  matter  of  law  from  recovering  dam- 
105  N.  E.  364;  Godley  v.  Gowen,  89  ages  against  his  employer  for  injuries 
Wash.  124,  154  Pac.  141;  Keller  v.  occasioned  by  such  defect."  See  also 
Blurton  (Mo.  App.),  183  S.  W.  710;  Pierce  v.  Morrill  Bros.  Co.,  116  Me. 
Card    V.    Turner    Center    Dairying    As-  517,   102   Atl.   230. 

80C..  224  Ma.ss.   525,   113   N.   E.   187.  48.  Granini  v.  Cerini,  273  Wash.  687, 

47.  Marks  v.  Stoltz,  165  N.  Y.  App.       171  Pac.  1007. 

Div.  462,  150  N.  Y.  Suppl.  952.  where-  49.  Plasikowski    v.    Arbus,    93    Conn, 

in   it  was   said:      "In   a   populous  city       556,  103  Atl.  642. 
l:ke  New  York,  where  thousands  of  peo- 

17 


258 


The  Law  of  Automobiles. 


tory  negligence  are  for  the  jury.^*^  And  where  a  chauffeur 
receives  injury  in  consequence  of  a  defect  in  the  iron  retain- 
ing ring  so  that  a  tire  blows  out  when  it  is  being  pumped,  the 
question  of  the  assumption  of  risk  is  for  the  jury  when  the 
evidence  is  conflicting  as  to  whether  the  o^vner  had  knowledge 
of  the  defect  and  had  promised  to  correct  it.^^  And,  when  in- 
juries are  received  by  the  servant  on  account  of  defective 
tools  furnished  by  the  master,  the  liability  may  be  a  question 
for  the  jury. ^^ 

Workmen's  Compensation  Laws,  which  have  been  generally 
enacted  since  the  collapse  of  the  common  law  rules  as  to  per- 
sonal injuries  received  by  employees,  have  revolutionized  the 
old  system.^  A  chauffeur  who  is  injured,  however,  because 
he  is  exceeding  the  speed  limit  fixed  by  statute,  is  guilty  of 


50.  Patterson  v.  Adan,  119  Minn. 
283,  137  N.  W.  1112,  wherein  the  court 
said:  "Whether  plaintiff  directly  con 
tributed  to  his  injury  or  assumed  the 
risk  were,  on  the  evidence  presented, 
questions  of  fact  and  properly  sub- 
mitted to  the  jury.  It  is  claimed  by 
defendant  that  he  was  intoxicated  at 
the  time,  a  fact  known  to  plaintiff,  and 
that  plaintiff  took  the  chances  of  a  safe 
passage  to  Minneapolis,  and  cannot  now 
complain.  It  may  be  conceded  for  the 
purposes  of  the  case  that  defendant  was 
somewhat  under  the  influence  of  liquor, 
and  that  plaintiff  knew  it.  But  from 
that  it  does  not  necessarily  follow  as 
a  matter  of  law,  that  plaintiff  was 
guilty  of  contributory  negligence  or 
that  he  assumed  the  risk  of  injury  by 
complying  with  defendant's  order  and 
direction  to  accompany  him  in  the  au- 
tomobile to  Minneapolis.  The  relation 
of  master  and  servant  existed  between 
the  parties.  Plaintiff  was  the  servant, 
and,  unless  defendant  was  so  badly  in- 
toxicated as  to  be  incapable  of  properly 
running  the  car,  plaintiff's  duty,  as  such 
servant,  was  to  obey  the  order  of  the 
master.  The  defendant,  the  master,  is 
in  no  vorj^  favorable  situation  to  resist 
liability  under  such  circumstances,   or 


to  be  heard  to  complain  that  the  ser- 
vant obeyed  his  orders.  There  is  no 
claim  that  defendant  was  not  compe- 
tent to'  drive  the  car;  the  only  pvoint 
made  is  with  reference  to  his  intoxi- 
cated condition  which,  it  is  claimed,  in- 
capacitated him  for  the  time  being 
properly  to  operate  the  car." 

51.  Richardson  v.  Flower,  248  Pa. 
St.  35,  93  Atl.  777. 

52.  Ridley  v.  Portland  Taxicab  Co., 
90  Oreg.  529,  177  Pac.  429. 

53.  California. — George  Eastman  Co. 
V.  Industrial  Ace.  Com..  200  Pac.  17. 

Illinois. — See  F.  W.  Hochspeier,  Inc. 
v.  Industrial  Board  of  Illinois,  278  111. 
523,   116  N.  E.   121. 

Iowa. — Herbig  v.  Walton  Auto  Co., 
182   Pac.   204. 

Louisiana. — Haddad  v.  Commercial 
Motor  Truck  Co.,  146  La.  — ,  84  So. 
197. 

MicJiigan. — Schanning  v.  Standard 
Castings  Co.,  203  Mich.  612,  169  N.  W. 
879. 

Minnesota. — Hansen  v.  Northwestern 
Fuel  Co.,  174  K  W.  726. 

New  Jersey. — Newcomb  v.  Albertson, 
85  N.  J.  Law,  435,  89  Atl.  928. 

Pennsylvania. — Siglin  v.  Armour  & 
Co.,  261  Pa.  30,  103  Atl.  991. 


Chauffeurs. 


259 


'Svilful  niiscoiiduct"  which  may  bar  a  recovery  under  com- 
pensation statutes.^*  And  the  fact  that  it  was  the  custom  of 
chauffeurs  to  run  their  machines  at  such  speed,  does  not 
change  the  rule.^^  A  policeman  may  he  a  public  officer,  not  an 
employee,  of  a  numicipality  and  may  thus  be  without  the  pro- 
tection of  a  compensation  statute.^'^  So,  too,  a  teacher  in  the 
automobile  department  of  a  city  vocational  school  may  not 
be  such  an  employee  of  the  city  as  would  be  entitled  to  receive 
compensation."  To  receive  compensation  it  must  appear  tliat 
the  relation  of  master  and  servant  existed  between  the  par- 
ties i'^^  and  there  may  arise  a  question  whether  the  particular 
injury  which  was  received  by  the  chauffeur  arose  out  of  his 
employment.^^    The  statutes  of  some  States  justify  a  distinc- 


54.  Fidelity  &  Deposit  Co.  v.  Indus- 
trial Ace.  Com.,  171  Cal.  728,  154  Pac. 
834.  See  also  U.  S.  Fidelity  &  Guar- 
anty Co.  V.  Industrial  Accident  Com., 
183  Pac.   540. 

55.  Fidelity  i<t  Deposit  Co.  v.  Indus- 
trial Ace.  Com.,  171  Cal.  728,  154  Pac. 
834. 

56.  Blynn  v.  Pontiac,  185  Midi.  35, 
151  N.  W.  681. 

57.  Lesuer  v.  City  of  Ivowell,  227 
Mass.  44,  116  N.  E.  483. 

58.  Etig.—SkeU  Co.  v.  Industrial 
Ace.  Com.   (Cal.  App.),  186  Pac.  163. 

59.  California. — Burton  Auto  Trans- 
fer Co.  V.  Industrial  Accident  Commis- 
sion, 37  Cal.  App.  541,  174  Pac.  72; 
Employers'  Liability  Assur.  Corp.  v. 
Industrial  Accident  Com.  (Cal.  App.), 
177  Pac.  171;  Maryland  Casualty  Co. 
V.  Industrial  Accident  Com.  (Cal. 
App.),  178  Pac.  542;  Employers'  Lia- 
bility, etc.  Corp.  V.  Industrial  Ace. 
Com..  187  Pac.  42. 

Illinois. — Central  Garage  of  La  Salle 
V.  Industrial  Com  ,  286  111.  291,  121  X. 
E.  587;  E.  E.  Walsh  Teaming  Co.  v. 
Industrial  Com.,  125  N".  E.  331;  Morris 
&  Co.  V.  Industrial  Com.,  128  X.  E.  727. 

Maryland. — Thistle  :Mills  v.  Sparks, 
111  Atl.  769. 

Minnesota. — Gibbs  v.  Almstroni,  176 
X.  W.  173. 


Xeir  York. — Schweitzer  v.  Tlicmpson 
k  Xorris  Co..  229  X.  Y.  97,  127  N.  E. 
004;  Stillwagon  v.  Callan  Bros.,  Inc., 
183  X.  Y.  App.  Div.  141.  170  N.  Y. 
Suppl.  677;  Sztorc  v.  Stansbury,  189 
X.  Y.  App.  Div.  388,  179  N.  Y.  Suppl. 
£86;  Roth  V.  Adirondak  Co.,  193  N.  Y. 
App.  Div.  303,  183  X.  Y.  Suppl.  717; 
Lansing  v.   Hayes,   196   App.   Div.   671. 

Texas. — Hartford  Accident  Co.  v. 
Durham  (Tex.  Civ.  App.),  222  S.  W. 
295. 

^V^sconsin. — Flint  Motorcar  Co.  v. 
Industrial  Com.  of  Wis..  168  Wis.  436, 
170  X.  W.  285. 

Explosion  of  percussion  cap. — A  per- 
son employed  as  a  chauffeur  in  a  ga- 
rage, who  was  injured  by  an  explosion 
of  a  percussion  cap  which  a  fellow-ser- 
vant brought  upon  the  premises  and 
with  which  lie  was  exjjerimenting,  is 
not  entitled  to  an  award  under  the 
Workmen's  Compensation  Law,  for  the 
injury  did  not  arise  uut  of  the  employ- 
ment. Laurino  v.  Donovan,  183  X.  Y. 
App.  Div.  168.  170  X.  Y.  Suppl.  340. 

Going  from  work.^ — Wiiere  an  em- 
jiloyer  is  under  no  obligation  to  fur- 
nisli  trans{)ortation  to  his  employee, 
the  latter  is  not  acting  in  the  cause  of 
liis  employer  wlicn  he  is  l>oarding  a 
tiuck  to  ride  homeward.  Diaz  v.  War- 
ren Bros.  Co.   (Conn.).  Ill  Atl.  206. 


260 


The  Law  of  Automobiles. 


tion  between  a  chauffeur  engaged  in  domestic  service  for  the 
owner,  such  as  caring  for  the  machine,  and  a  chauffeur  en- 
gaged in  running  a  truck  as  a  matter  of  his  employer's  busi- 
ness. The  Workmen's  Compensation  Acts  in  some  States  do 
not  cover  injuries  received  by  servants  engaged  in  domestic 
service.^*^ 


Sec.  229.  Liability  of  chauffeur  to  owner. 

If  the  owner  of  a  motor  vehicle  is  injured,  physically  or 
financially,  by  reason  of  the  wrongful  or  negligent  conduct 
of  his  chauffeur,  he  may  have  a  remedy  against  such  chauf- 
feur.^i  Thus,  if  one  injured  by  the  negligence  of  the  chauf- 
feur recovers  a  judgment  against  the  owner,  the  latter  will 
have  a  right  of  action  against  the  chauffeur  to  recover  the 
amount  of  the  judgment.^^  ^ut,  where  the  chauffeur's  wife 
wrongfully  takes  the  machine  and  it  was  thereby  damaged, 
the  husband  and  community  property  are  not  generally 
liable.«3 


Pitman  during  automobile  race. — 
See  Frint  Motor  Car  Co.  v.  General  Ac- 
cident, etc.  Corp.  (Wis.),  180  N.  W. 
121. 

Servant  driving  own  car. — A  person 
employed  at  a  factory  to  drive  an  au- 
tcmO'bile  truck  during  the  week  and  to 
guard  the  premises  on  Sundays  who 
used  an  automobile  of  his  own  on  Sun- 
day to  go  and  get  spark  plugs  which 
were  necessary  for  the  operation  of  his 
master's  truck  and  who  while  crank- 
ing his  own  motor  was  injured  by  a 
back-fire,  was  at  the  time  engaged   in 


Ids  master's  business  and  was  working 
to  the  master's  advantage,  and,  hence, 
is  entitled  to  an  award  under  the 
Workmen's  Compensation  Law.  Mar- 
tin V.  Card  &.  Co..  193  N.  Y.  App. 
r)iv.  7. 

60.  Wincheski  v.  Morris,  179  N.  Y. 
App.  Div.  600,  166  N.  Y.  Suppl.  873. 

61.  King  V.   Cline    (Cal.   App.),   194 
Pac.  290. 

62.  Huey   v.    Dykes    (Ala.),    82    So. 
481. 

63.  Killingsworth  v.  Keen,  89  Wash. 
597,  154  Pac.  1096. 


Miscellaneous  Subjects  of  Regulation.  261 

CHAPTER  XIII. 

MISCELLANEOUS  SUBJECTS  OF  REGULATION. 

Sbction  230.  Speed. 

231.  Exclusion    from    highways. 

232.  KcBtriction  to  certain  streets. 

233.  Identification  of  machines. 

234.  Obstruction   of   streets. 

235.  Advertising  on  public  vehicles. 

236.  Law  of  road. 

237.  Smoke  and  odors. 

238.  Liability  for  injuries. 

239.  Taxation. 

240.  Service  of  process  on  automobilist. 

Sec.  230.  Speed. 

The  speed  with  which  motor  vehicles  may  be  operated  along 
the  public  highways  is  certainly  a  proper  subject  of  regula- 
tion ^  The  Legislature,  so  long  as  it  acts  within  constitutional 
limitations,  may  fix  such  rate  of  speed  as  seems  wise.==  And 
municipal  corporations,  unless  restricted  by  statutory  or  con- 
stitutional provisions,  may  pass  regulations  forbidding  un- 
reasonable rates  of  speed.^    But,  in  some  jurisdictions,  the 

1.  See  also,  as  to  speed  regulations,  Ma^sachusetU.-   Commonwealth     v.^ 

303-325,  728-743.  Crowninshield,    187    Ma.B.    221     72   N^ 

8   Ex  parte  Daniels   (Cal.).  192  Pac.  E.    963;    Commonwealth   v.   Tyler,    199 

443;  Ex  parte  Smith,  26  Cal.  App.  116,  Mass.  490.  85  N.  E.  569. 

146  Pao.  82;  Christy  v.  Elliott,  216  111.  Michigan.-  Brennan      v.      Connolly 

31,  1  L.  R.  A.    (N.  S.)    215,  74  N.  E.  (Mich.),  173  N.  W.  511 

1035,  3  Ann.  Oas.  487,  108  Am.  St.  Rep.  Mmo«ri._Roper  V;^  Greenspon,   273 

196;    Hartze  v.   Moxley,   235    111.    164.  Mo.  288,  198  S.  W.  1107;  L.  B^  A.  1918 

85  N.  E.  216;  People  v.  Beak  (111.),  126  D.  126;   City  of  St.  Louis  v.  Hammond 

N    E.    201;    Schaar  v.    Comforth,    128  (Mo.),  199  S.  W.  411;  City  of  Windsor 

Minn.   460,    151   N.   W.   275.      And   see  v.  Bast   (Mo.  App),  199  S.  W^723. 

chapter  V,  as  to  regulation  in  general.  .Yebra^fca-Christensen    v.    Tate,    87 

Z    Alalima-A^    v.    Martin,    179  Neb.  848,  128  N.  W    632. 

Ala.    App.    97,    59    So.    597;    Hood    &  2^.,«  yorfc.-P^ple  v.  Ih^^er,  .36  N. 

Wheeler   Furniture   Co.    v.    Royal,   200  V.  Suppl.   148;   People  v.  Bell,   .48  N. 

Ala.  607,  76  So.  965.  ^'-  Suppl-  753. 

Geor^.-Columbus  R    Co.   v.   Wal-  Orejon.-Everart      v.      Fischer,      75 

ler,  12  Ga  App.  674,  78  S.  E.  52.  Or.g.  316.  145  Pac.  33^ 

7«i„.«.-<5.ioago    V.    Shaw     Livery  And  see  chapter  VI,   as   to   .nunxcl. 

Co..  258  111.  409,  101  N.  W.   588.  P«vl  reflation  "^  genera 

/;t«..-Pilgrim  v.  Brown.  168  Iowa,  "  Riding  "  or   '  drmng.'  -On    who  « 

177,  150  N.  W.  1.  controlling  the  motive  power  of  an  au- 


262  The  Law  of  Automobiles. 

State  has  reserved  to  itself  the  full  power  of  legislating-  with 
reference  to  the  speed  of  automobiles,  and  in  such  jurisdic- 
tions local  regulations  may  be  ineffective/  On  the  other 
hand,  constitutional  provisions  in  some  States  may  lodge  the 
power  of  regulating  the  speed  of  motor  vehicles  with  local 
municipalities  and  forbid  the  enactment  by  the  Legislature  of 
a  rule  mth  reference  to  the  speed  within  municipal  corpora- 
tions.^ An  ordinance  is  not  unreasonable  because  it  restricts 
the  speed  to  six  or  seven,^  or  even  three  '  miles  an  hour  under 
given  circmiistances.  Or  the  driver  of  an  automobile  may  be 
required  to  bring  his  machine  to  a  stop  when  he  is  passing  a 
street  which  is  receiving  or  discharging  passengers.^  A  stat- 
ute providing  that  no  person  shall  operate  a  motor  vehicle 
at  a  rate  of  speed  greater  than  is  reasonable,  or  so  as  to  en- 
danger property  or  the  life  or  limb  of  any  person,  provided, 
that  in  passing  from  a  side  street  into  a  main  thoroughfare 
where  persons  or  vehicles  are  not  plainly  discernible,  a  per- 
son operating  such  vehicle  shall  have  it  under  perfect  control, 
and  the  rate  of  speed  shall  not  exceed  a  mile  in  eight  minutes, 
or  on  any  street  or  highway  exceed  twenty-five  miles  per 
hour,  is  proper.^    And  a  regulation  is  not  invalid  because  it 

lomobile  may  be  said  to  be  driving  it  speed  of  twenty  miles  an  hour  outside 

within   the  meaning   of    a    rule   by    a  oi  cities  and  boroughs.     Radnor  Tp.  v. 

board  of  park  commissioners,  that  no  Bell,  27  Pa.  Super.  Ct.  1. 

person  shall  "ride"  or  "drive"  in  a  cer-  4.  City  of   Chicago   v.   Kluever,   257 

tain   parkway   at   a    rate   of   speed   ex-  111.  317,  100  N.  E.  917;  City  of  Seattle 

eeeding  eight  miles  an  hour.     Common-  v.  Rothweiler,  101  Wash.  680,  172  Pac. 

wealth  V.  Crowninshield,  187  Mas-.  221,  825;   Peck  v.   O'Gilvie,   13  R.  L.  N.  S. 

72  N.  E.  963,  68  'L.  R.  A.  245.  (Canada)  54,  31  Pueb.  S.  C.  227. 

Speed   at   crossing. — 'In   a   city   ordi-  5.  Kalicli   v.    Knapp,    73    Oreg.    558, 

nance   limiting   the   speed    of    automo-  112  Pac.  594,  145  Pac.  22. 

Idles  on  "streets"  of  city  and  at  "cross-  6.  Chittenden  v.  Columbus,  26  Ohio 

ings,"   the   word   "crossings'"    refers   to  Cir.   Rep.    531;    Eichman    v.    Buchheit, 

street  crossings.     Eicbman  v.  Buchheit,  J28  Wis.   385,  107  N.  W.   325.  3  Ann. 

128  Wis.  385,  107  N.  W.  325.  Cas.  435. 

In  Pennsylvania   a  township  of  the  7.  Columbus  R.  Co.  v.  Waller.  12  Ga. 

first  class    has   the    power,   under    the  App.  674,  78  S.  E.  52. 

Act   of  April   18,   1899,   P.   L.    104,   to  8.  Schell  v.  DuBois,  94  Oliio   St.   93, 

pass  an  ordinance  fixing  the  maximum  113  N.  E.  664.     And  see  sections  423- 

speed   of  motor  cars   at  ten   miles   an  428. 

};our,  and  the  power  is  not  suspended  9.  State    v.    Waterman,    112    Minn. 

l,y  Act   of   April   23.    1903,   P.   L.   268,  157,  130  N.  W.  972.     Compare  Carter 

which    allows   motor   cars   a   maximum  v.    State,    12    Ga.    App.    430,   78    S.    E. 


Miscellaneous  Subjects  of  Regulation.  263 

applies  merely  to  motor  vehicles  or  periiiii>  other  convey- 
ances to  go  at  a  faster  rate;^«  nor  because  it  attempts  to  pre- 
scribe what  shall  be  presumptive  evidence  in  the  courts.^^ 

Sec.  231.  Exclusion  from  highways. 

Highways  are  designed  for  the  common  use  of  all  travelers, 
regardless  of  the  means  of  conveyance  which  is  used,  and  it 
is  thought  to  be  beyond  the  power  of  State  or  municipal  au- 
thorities to  forbid  the  use  of  highways  to  a  certain  class  of 
vehicles,  such  as  automobiles.^-    Within  the  police  power  of 
regulation,  a  municipality  may  in  some  cases  forbid  the  use 
of  certain  motor  vehicles  on  certain  streets,^^  ])^^t  it  cannot 
make  a  broad  exclusion  of  all  motor  vehicles  from  all  streets.^* 
Motor  vehicles  may,  however,  be  excluded  from  the  highways 
until  their  owners  have  complied  with  regulations  relative  to 
the  registration  and  licensing  thereof.^^    Or  trucks  of  exces- 
sive weight  mav  properly  be  excluded  from  the  streets.^-  And 
it  has  been  held  that  a  county  may  pass  a  regulation  prohibit- 
ing the  running  of  automobiles  on  any  of  the  highways  of  the 
county  between  the  hours  of  sunset  of  any  day  and  of  the  sun- 
rise on  the  following  day.^«    The  power  of  regulation  over 
jitneys  and  motor  vehicles  used  for  hire  may  be  somewhat 
more  extensive  than  over  motor  vehicles  used  for  the  pleasure 
or  business  purposes  of  the  owner." 

205-  Haves  v.  State.  11  Ga.  App.  371.  the   public  highways  of  this  Province 

75  S   E  "523  'i^'^fl  ^o  ^  within  the  power  of  the  leg- 

\t'is  a  question  for  the  jury  what  iflature  of  Prince  Edward  Island  to  en^ 

i.    reasonable    under    such    a    statute.  act.     /.  re  Rogers   (Pr.  Ed.  Inland) .  7 

Pvaybourn    v.    Phillips,    160    ^lo.    App.  East.  L.  K.  212. 

53i,  140  S.  W.  977.  13.  Section  233.                ,,  ^  .     .    „ 

10.  Ex  parte  Snowden.  12  Cal.  App.  14.  Ex  parte  Snowden.  12  Cal.  App. 

521     107   Pac.   724;   Chittenden   v.   Co-  521,  107  Pac.  724:  Walker  v.  Common- 

lumbus,   26   Ohio  Oir.  Rep.   531.     And  wealth,  40  Pa.  Super.  Ct.  638. 

^^.^^  go  15.  Compare  Chicago  v.  Banker,  112 

'''irYoung"v.  Dunlap.  195  Mo.  App.  111.    App.    94;    Matter    of    Automobile 

119.  190  S.  W.  1041.  Acts.   15   Pa.  Dist.  Rep.    83.     And   see 

12.  See  Sumner  County  V.  Interurban  section  104. 

Transp.  Co.,  141  Tenn.  493,  213  P.  W.  15a.  White  v.   Turner    (\^ash.).   195 

412,  5  A.  L.  R.  765.  P«^-   240.                                                _^ 

Statute    Prince    Edward    Island.-8  16.  Ex  parte  Berry,  14,    (  al.  n..  8- 

Edw.  VIT.  ch.  13,  entitled  "An  Act  to  Pac.  44.                             .  .         x     x  „^«i 

prohibit  tbo  uso  of  motor  vehiclos  upon  17.  '"The  right  of  a  c.t.zcn  to  travel 


264 


The  Law  of  Automobiles. 


Sec.  232.  Restriction  to  certain  streets. 

In  the  regulation  of  traffic  along  municipal  highways,  ordi- 
nances may  be  passed  excluding  certain  motor  vehicles  from 
specified  streets.  The  power  of  excluding  vehicles  from  cer- 
tain streets  is  exercised  more  particularly  mth  reference  to 
the  running  of  jitneys.^*  But,  within  reasonaible  limits,  the 
police  power  lodged  in  the  State  and  municipal  divisions  per- 
mits them  to  close  certain  streets  to  the  use  of  business  and 
pleasure  automobiles,  though  they  are  not  used  for  hire.^^ 


upon  a  highway  and  transport  his  prop- 
erty thereon,  in  the  ordinary  course  of 
life  and  business,  differs  radically  and 
obviously  from  that  of  one  who  makes 
the  highway  his  place  of  business  and 
uses  it  for  private  gain,  in  the  running 
of  a  stage  coach  or  omnibus.  The  for- 
mer is  the  usual  and  ordinary  right  of 
the  citizen,  a  common  right,  a  right 
common  to  all;  while  the  latter  is  spe- 
cial, unusual  and  extraordinary.  As 
to  the  former,  the  extent  of  the  legisla- 
tive power  is  that  of  regulation;  but, 
as  to  the  latter,  its  power  is  broader. 
ITie  right  may  be  wholly  denied,  or  it 
may  be  permitte<l  to  some  and  denied 
to  others,  because  of  its  extraordinary 
nature."  Ex  parte  Dickey,  76  W.  Va. 
576,  85  S.  E.  781,  L.  R.  A.  1915  F. 
840.    And  see  section  136. 

18.  Chapter  IX. 

19.  Ex  parte  Berry,  147  Cal.  523,  82 
Pac.  44;  State  v.  Mayo,  106  Me.  62,  75 
Atl.  295,  20  Ann.  Cas.  512,  26  L.  R.  A. 
(N.  S.)  502n;  State  v.  Phillips,  107 
Me.  249,  78  Atl.  283;  Commonwealth 
V.  Kingsbury,  19f>  Mass.  542,  85  N.  E. 
848,  127  Am.  St.  Rep.  513;  People  ex 
rel.    Cavanaugh    v.    Waldo,    72    Misc. 

(N.  Y.)  416,  131  N.  Y.  Suppl.  307: 
Strauss  v.  Enright,  105  Misc.  367: 
"The  question  presented  is  this:  'Is 
the  ordinance  of  the  town  of  Eden, 
passed  under  express  legislative  au- 
thority, closing  to  the  use  of  automo- 
biles certain  public  streets  in  said 
town,  constitutional?'  The  coiiteiition 
of  the  defendant  is  that  it  violates  the 


Fourteenth  Amendment  of  the  Consti- 
tution of  the  United  States,  which  de- 
clares, among  other  things,  that  no 
State  shall  'deny  to  any  person  within 
its  jurisdiction,  the  equal  protection  of 
the  law-s,'  and  that  it  also  denies  him 
that  equality  of  right  guaranteed  un- 
der section  1,  art.  1,  of  the  Constitu- 
tion of  Maine,  'of  enjoying  and  de- 
fending life  and  liberty,  acquiring, 
possessing  and  protecting  property,  and 
of  pursuing  and  obtaining  safety  and 
happiness.'  It  is  the  equal  right  of 
all  to  use  the  public  streets  for  pur- 
poses of  travel,  by  proper  means,  and 
with  due  regard  for  the  corresponding 
rights  of  others;  and  it  is  also  too  well 
recognized  in  judicial  decisions  to  be 
questioned  that  an  automobile  is  a 
legitimate  means  of  conveyance  on  the 
public  highways.  But  the  right  to  so 
use  the  public  streets,  as  well  as  all 
personal  and  property  rights,  is  not  an 
absolute  and  unqualified  right.  It  is 
subject  to  be  limited  and  controlled  by 
tlie  sovereign  authority,  the  State, 
wherever  necessary  to  provide  for  and 
promote  the  safety,  peace,  health, 
morals  and  general  welfare  of  the  peo- 
ple. To  secure  these  and  kindred  bene- 
fits is  the  purpose  of  organized  govern- 
ment, and  to  that  end  may  the  power 
ot  the  State,  called  its  police  power,  be 
itsed.  By  the  exercise  of  that  power, 
tlirou^h  legislative  enactments,  indi- 
\  iduals  may  be  subjected  to  restraints, 
and  the  enjoyment  of  personal  and 
property  rights  may  be  limited,  or  even 


Miscellaneous  Subjects  of  Regulation. 


265 


Thus,  in  one  case,^^  it  was  said:  "It  seems  too  plain  for  dis- 
cussion that,  with  a  view  to  the  safety  of  the  public,  the  Legis- 
lature may  pass  laws  regulating  the  speed  of  such  machines 
(automobiles)  when  running  upon  the  highways.  The  same 
principle  is  applicable  to  a  determination  by  the  Legislature 
that  there  are  some  streets  and  ways  on  which  such  machines 
should  not  be  allowed  at  all.    In  some  parts  of  the  State  where 


prevented,    if    manifestly    necessary    to 
develop  the  resources  of  the  State,  im 
prove  its  industrial  conditions,  and  se- 
cure and   advance   the  safety,  comfort 
and    prosperity    of    its   people.     .     ■     • 
That     reasoable    regulations     for     the 
safety   of   the   people  while  using   the 
public    streets  are   clearly   within   this 
police  power  of  the  State  is  too  plain 
to    admit    of    discussion.     .     •     •     The 
defendant,  however,  objects  against  the 
validity   of   the   ordinance   in   question 
here,    that    it    applies    to    automobiles 
only,  and  not  to  all  other  vehicles  that 
use  those  streets.     He  contends  that  it 
'operates  against  a  class  only'  atid  is 
therefore  special  legislation   which  the 
Constitution  inhibits.     That  contention 
cannot  prevail.     This  same  objection  to 
the   constitutionality    of    statutes    and 
ordinances  regulating  the  use  of  auto- 
mobiles,  that   they   apply    only  to  one 
particular   class   of   vehicles,   has   been 
repeatedly  raised  in  recent  cases  and  as 
repeatedly     decided     to     be     without 
merit.     .     •     •     The  ordinance  in  ques 
tion  is  general  and  not  special,  for  it 
applies  equally  to  all  automobiles  with- 
out    discrimination,     wherever    or     by 
whomsoever    owned.      The    streets    in 
question  are  closed  to  all  automobiles 
without  any  distinctions.     .     •     •     This 
enactment  which    authorized   the   clos- 
ing to  the  use  of  automobiles  of  the 
streets   in   question,  we  do  not  find  to 
be  repugnant  to  any  constitutional  pro- 
vision.     In    making   it   the   legislature 
decided  that  the  regulation  was  neces- 
sary and  reasonable  in  order  to  secure 
the   public   safety   and   welfare,   and   it 
cannot  be  aflfirmod   that  such  will   not 


1)0  its  effect.  The  regulation  is  clearly 
within  the  police  power  of  the  legisla- 
ture to  enact,  its  manifest  tendency 
and  effect  is  to  accomplish  the  purpose 
for  which  "it  was  intended  and  accord- 
i Italy  its  reasonableness  and  expediency 
cannot  Iw  reviewed  by  the  court.  The 
judgment  of  tlie  legislature  in  that  re- 
spect is  conclusive."  Stat*  v.  Mayo, 
106  Me.  62,  75  Atl.  295,  20  Ann.  Caa- 
512,  26  L.  R.  A.   (N.  S.)   502n. 

Parks.— In  l^ew  York  a  statute  au- 
thorizing the  commissioner  of  parks  of 
the  borough  of  Brooklyn  and  Queens 
'•in  his  discretion,  by  rules  and  regula- 
tions, to  restrict  the  use  and  occupation 
of  tlte  main  drive  of  Ocean  boulevard, 
in  the  borough  of  Brooklyn,  Twenty- 
Second  avenue  to  Kings  highway,  to 
horses  and  light  carriages  and  to  ex- 
clude therefrom  vehicles  of  all  other 
kinds,  including  bicycles  and  motor  ve- 
hicles," has  been  held  to  be  valid  legis- 
lation. People  ex  rel.  Cavanagh  v. 
Waldo,  72  Misc.  R.  (N.  Y.)  416,  131 
X.  Y.  Suppl.  307. 

Discrimination.— A  regulation  per 
mitting  pleasure  ears  but  excluding 
business  machines  from  a  certain 
street,  may  constitute  an  illegal  dis- 
crimination. Clausen  v.  De  Medina,  82 
N.  J.  L.  491,  81  Atl.  924. 

Unreasonable.— An  ordinancce  for- 
bidding certain  streets  to  the  use  of 
jitneys  may  be  so  unreasonable  that  it 
will  not  be  enforced.  Curry  v.  Osborne, 
79  Fla.  39,  79  So.  293,  6  A.  L.  R.  108. 
20.  Commonwealth  v.  Kingsbury, 
199  Mass.  542,  85  N.  E.  848,  127  Am. 
St.  Rep.   513. 


266  The  Law  of  Automobiles. 

there  is  but  little  travel  public  necessity  and  convenience  have 
required  the  construction  of  ways  which  are  steep  and  narrow, 
over  which  it  might  be  difficult  to  run  an  automobile,  and 
where  it  would  be  very  dangerous  for  the  occupants  if  auto- 
mobiles were  used  upon  them.  In  such  places  it  might  be 
much  more  dangerous  for  travelers  vdth.  horses  and  with 
vehicles  of  other  kinds  if  automobiles  were  allowed  there.  No 
one  has  a  right  to  use  the  public  streets  and  public  places  as 
he  chooses,  without  regard  to  the  safety  of  other  persons  who 
are  rightly  there.  In  choosing  his  vehicle,  everyone  must  con- 
sider whether  it  is  of  a  kind  which  mil  put  in  peril  those  using 
the  streets  differently  in  a  reasonable  way.  In  parks  and 
cemeteries  and  i3rivate  grounds,  where  narrow  roads  with 
precipitous  banks  are  sometimes  constructed  for  carriages 
drawn  by  horses,  it  has  been  a  common  practice  to  exclude 
automobiles  altogether,  chiefly  because  of  the  danger  of  their 
frightening  horses.  The  right  of  the  Legislature,  acting  under 
the  police  power,  to  prescribe  that  automobiles  shall  not  pass 
over  certain  streets  as  public  ways  in  a  city  or  town,  seems  to 
us  well  established  both  upon  principle  and  authority." 

Sec.  233.  Identification  of  machines. 

In  the  absence  of  statute  restricting  the  power  of  municii)al 
corporations,  a  city  would  no  doubt  have  the  power  to  require 
motor  vehicles  to  carry  munber  plates  for  their  identification.^^ 
But,  when  the  Legislature  has  enacted  a  system  for  the  regis- 
tration and  licensing  of  motor  vehicles  and  has  passed  an  act 
providing  that  owners  of  motor  vehicles  shall  not  be  required 
to  display  any  other  number  than  the  number  of  the  registra- 
tion issued  by  the  State  authorities,  a  city  cannot  require  an 
additional  identification  plate.^^ 

Sec.  234.  Obstruction  of  streets. 

A  municipality  has  the  power  to  make  reasonal^le  regula- 
tions so  as  to  avoid  obstructions  in  the  streets.^    For  example, 

21.  Slade  v.   City  of   Chicago.    1   111.       J 11.  3,31.   104  X.  E.  662. 

Cir.  Ct.  Rep.  520.    And  see  section  124.  23.  City   of  Dnluth   v.   Easterly,   115 

22.  City   of   Cliicago    v.    Francis.   262       Afinn.  64.  131  X.  W.  701;   Beck  v.  Cox, 


Miscellaneous  Subjects  of  Regulatiox. 


'267 


taxicabs  and  vehicles  used  for  hire  may  be  refused  the  privi- 
lege of  leaving  their  machines  at  certain  places  in  the  streets 
where  their  presence  would  constitute  more  or  less  of  an  ob- 
struction to  the  free  use  of  the  streets  by  other  travelers.^' 
And  a  municipality  may  properly  pass  a  regulation  forbidding 
the  leaving  of  a  vehicle  standing  on  the  street  elsewhere  than 
on  the  right-hand  side  thereof  with  reference  to  the  direction 
in  which  it  fronts.^^  And  the  "parking"  of  cars  on  certain 
streets  may  be  prohibited.^^  Even  the  right  of  an  owner  to 
keep  his  machine  in  front  of  his  o-wn  place  of  business  may 
be  limited  by  nmnicipal  regulations."    Thus,  in  one  case  in- 


77  W.  Va.  442,  87  S.  E.  492.  "We 
have  these  propositions  established  so 
far  as  the  city  and  the  general  public 
are  concerned:  That  the  public  streets 
of  a  city  are  dedicated  to  public  use, 
and  are  a  public  way  from  'side  to 
side  and  end  to  end.'  and  that  any  pri- 
vate use  thereof  which  in  any  way  de- 
tracts from  or  hinders  or  prevents  its 
free  use  as  a  public  way  to  its  full  ex- 
tent, is  within  the  meaning  of  the  law, 
an  obstruction  or  incumbrance,  and 
any  obstruction  or  incumbiance  for 
private  purposes  is  in  law  a  nuisance; 
that  the  city  is  given  the  exclusive 
care  and  control  of  the  streets,  and  it 
is  made  its  duty  to  keep  them  open 
and  in  repair  and  free  from  nuisance; 
that  the  primary  use  or  purpose  for 
which  streets  are  established  is  to 
afford  the  general  traveling  public  a 
way  of  passage  or  travel,  and  the  gen- 
eral traveling  public  are  invested  with 
the  right  to  have  them  in  repair  and 
free  from  nuisance,  that  this  right  may 
be  enjoyed."  Pugh  v.  City  of  Des 
Moines,  176  Iowa,  593,  156  N.  W.  892. 

24.  See  sections  160-162. 

25.  Beck  v.  Cox,  77  W.  Va.  442,  87 
S.  E.  492,  wherein  it  was  said:  "The 
projection  of  high-speed  automatic  ve- 
hicles into  the  streets  of  cities  and 
towns,  among  horses,  wagons,  carts, 
carriages,  and  pedestrians,  and  an 
enormous    increase    of   the   use   of    the 


liigliways,  particularly  of  the  paved 
streets,  for  purposes  of  pleasure,  with- 
out further  regulations  tlian  those 
prescribed  for  highways  in  general,  is 
an  obvious  source  of  danger  to  the  per- 
sons riiul  property  of  citizens,  falling 
witliin  the  express  terms  of  the  power 
delegated  to  municipal  corporations 
and  not  withdrawn  by  any  express 
terms  of  the  act  in  question,  nor  abro- 
gated by  implication  arising  from  its 
terms  or  general  scope  and  purpose. 
xMunicipal  j^wer,  expressly  conferred, 
to  keep  the  streets  free  from  obstruc- 
tion amply  covers  the  subject  of  stand- 
irig  vehicles.  It  would  be  absurd  and 
ridiculous  to  say  there  is  not  power 
under  the  statute  to  prevent  a  citizen 
from  leaving  his  vehicle  standing 
across  the  middle  of  a  street,  or  a  num- 
ber of  citizens  from  completely  stopping 
travel  on  a  street  by  massing  tlieir  ve- 
hicles over  its  entire  width." 

26.  Sanders  v.  City  of  Atlanta.  147 
Ga.  819,  95  S.  E.  695;  Pugh  v.  City  of 
Des  Moines,  176  Iowa,  593,  156  X.  W. 
892.  See  also.  People  v.  Harden.  110 
Misc.  (X.  Y.)   72,  179  X.  Y.  Suppl.  732. 

27.  Discrimination.  -A  'nuuiicipality 
cannot  forbid  one  person  from  main- 
taining a  gasoline  tank  and  pump  in 
front  of  his  place  of  business,  while 
permitting  his  competitor  to  do  so. 
Kenney  v.  Village  of  Dorchester.  101 
Xeb.   425.   163  X.  W.  762. 


268  The  Law  of  Automobiles. 

volving  the  prosecution  of  an  owner  for  obstructing  a  street 
in  front  of  his  place  of  business  mth  an  automobile,  it  was 
said :  "No  hard  and  fast  rule  can  be  laid  down  as  to  what  in 
every  case  will  constitute  an  obstructing  or  incumbering  of  a 
street  by  an  automobile  or  other  vehicle,  within  the  purview 
of  the  ordinance  here  in  question.  The  time  and  place  of  an 
alleged  obstruction  and  the  kind  of  vehicle  must  be  taken  into 
consideration  in  each  particular  case.  The  stopping  tem- 
porarily and  for  a  reasonable  time  of  an  automobile  in  a  pub- 
lic street  for  the  convenience  of  the  owner  is  not  a  violation 
of  the  ordinance;  but  he  cannot  lawfully  use  the  street  as  a 
garage  or  for  a  taxicab  stand,  contrary  to  reasonable  police 
regulations.  The  evidence  in  this  case,  in  view  of  the  time, 
place,  and  manner  of  the  obstruction,  is  ample  to  sustain  con- 
viction of  the  defendant,  "^^ 

Sec.  235.  Advertising  on  public  vehicles. 

The  United  States  Supreme  Court  has  sustained  an  ordi- 
nance of  the  city  of  New^  York  prohibiting  "advertising 
trucks,  vans  or  wagons,"  except  the  putting  of  business  notices 
upon  ordinary  business  wagons,  so  long  as  such  wagons  are 
engaged  in  the  usual  business  or  work  of  the  owner  and  not 
used  merely  or  mainly  for  advertising.^ 

Sec.  236.  Law  of  road. 

It  is  clear  that  the  State  or  a  municipal  division  thereof 
may  pass  suitable  regulations  relative  to  the  law  of  the  road.^° 
Thus,  a  city  ordinance  requiring  that  drivers  of  vehicles,  when 
making  a  turn,  shall  give  a  signal  with  a  whip  or  hand  as  to 
the  direction  in  which  the  turn  shall  be  made,  is  valid  and  en- 

28.  City  of  Duluth  v.  Easterly,  115  W.  681,  8  A.  L.  R.  690;  Johnson  Oil 
Minn.  64,  131  N.  W.  791.  Refining  Co.  v.   Galesburg,   etc.   Power 

29.  Fifth  Ave.  Coach  Co.  v.  New  Co.,  200  111.  App.  392;  State  v.  Larra- 
York  City,  221  U.  S.  467,  31  S.  Ct.  bee,  104  Minn.  37,  115  N.  W.  948;  Kel- 
709,  affirming  194  N.  Y.  19,  86  N.  E.  ley  v.  James,  37  S.  Dak.  272,  157  N. 
824.  W.  990;   City  of  Oshkosh  v.  Campbell, 

50.  Pemberton  v.  Amy  (Cal.  App.),  151  Wis.  567,  139  N.  W.  316;  Sutter  v. 
183  Pac.  356,  affirmed  182  Pac.  964;  Milwaukee  Board  of  Underwriters,  164 
Seager  v   Foster.  185  Iowa,  132,  169  N.       Wi.s.  532,  166  N.  W.  57. 


Miscellaneous  Subjects  of  Regulation. 


269 


forceable.^^  Or  a  municipality  is  justified  in  the  case  of  nar- 
row streets  in  selecting  certain  streets  as  ** one-way" 
streets.^^*  But  a  regulation  cannot  be  enforced  which  requires 
a  motor  vehicle  driver  to  obey  all  directions  of  police  officers.^- 
The  Legislature,  except  possibly  in  a  few  jurisdictions  where 
constitutional  provisions  prohibit,  may  reserve  to  itself  full 
power  over  the  law  of  the  road;  but  statutes  which  merely 
prohibit  municipalities  from  regulating  motor  vehicles  do  not 
have  the  effect  of  depriving  them  of  enacting  ordinances  in 
relation  to  the  law  of  the  road.^^  And  municipalities  generally 
have  the  power  to  adopt  regulations  regulating  the  conduct 
of  motor  drivers  under  circumstances  which  are  not  covered 
by  the  State  statute,^  or  to  make  additional  regulations  in 
furtherance  of  the  purpose  of  the  general  law  as  may  seem 
fit  and  appropriate  to  the  necessities  of  a  particular  locality .^^* 
A  statute  giving  motorcycles  the  same  rights  on  the  streets 
as  are  given  to  other  persons,  does  not  abridge  the  power  of 
the  municipality  from  legislating  with  reference  to  the  law 


See  chapter  XIV,  as  to  Laws  of  the 
Koad.  "It  is  the  universal  custom  for 
cities  to  prescribe  the  course  which 
streams  of  traffic  shall  take.  This  or- 
dinance supplanted  the  ordinary  gen- 
eral law  of  the  road,  which  would  gov- 
ern in  the  absence  of  such  ordinance 
and  in  districts  to  which  the  ordinance 
would  not  apply.  The  necessity  for 
such  particular  provisions  has  been 
emphasized,  as  the  use  of  automobiles 
in  large  numbers  has  become  more  gen- 
eral. Motomeers  of  street  cars,  chauf- 
feurs, drivers  of  ordinary  vehicles  and 
of  emergency  vehicles,  like  amibulances, 
fire  engines,  and  the  like,  and  pedes- 
trians, depend  not  only  for  the  cer- 
tainty of  their  movements,  but  for 
their  safety,  upon  the  enforcement  of 
such  ordinances.  The  ordinance  in 
question  is  along  the  lino  of  the  so- 
called  'gyratory  movement  of  traffic,' 
which  is  quite  generally  regarded  as 
the  most  intelligent  solution  of  tlie 
problem.     Of  course,   the   necessity    or 


propriety  of  a  strict  enforcement  of 
such  an  ordinance  must  depend  largely 
upon  the  extent  of  travel  at  a  particu- 
lar time  and  place.  It  is  not,  however, 
for  individuals,  but  for  the  public  au- 
thorities, to  determine  that  question. 
Otherwise  confusion  and  danger  would 
result."  State  v.  Larrabee,  104  Minij. 
37,  115  N.  W.  948. 

31.  Johnson  Oil  Refining  Co.  v. 
Galesburg,  etc.  Power  Co.,  200  111.  App. 
392. 

31a.  Commonwealth  v.  Nolan  (Ky. ), 
224  S.  VV.  506. 

32.  City  of  St.  Louis  v.  Allen,  275 
Mo.   501,  204  S.   W.   1083. 

33.  Kolankiewiis  v.  Burke,  91  N.  J. 
L.  567,  103  Atl.  249;  Kelley  v.  James, 
37  S.  Dak.  272,  157  N.  W.  990.  -ind 
see  sections  72,  77. 

34.  Bruce  v.  Ryan,  138  Minn.  264, 
164  N.  W.  982;  Freeman  v.  Green  (Mo. 
App.).  186  S.  W.  1166. 

34a.  Mann  v.  Scott  (Cal.).  1S2  Pac. 
281. 


270  The  Law  of  Automobiles. 

of  the  road  so  as  to  preclude  an  ordinance  giving  the  right  of 
waj'  to  a  fire  patrol.* 

Sec.  237.  Smoke  and  odors. 

That  the  emission  of  offensive  smoke  from  antomobiles,  es- 
pecially in  cities  and  inhabited  districts,  is  a  nuisance  cannot 
be  disputed.    The  accompanying  odor  is  not  pleasant  and  may 
possibly  be  injurious,  if  it  is  constantly  present,  either  to 
health  or  vegetation  in  the  parks  or  country.    The  detrimental 
effect  upon  persons  and  plant  life  has  not  as  yet  been  authori- 
tatively determined,  although  in  France  it  has  'been  claimed 
that  the  fumes  coming  from  the  exhausts  of  automobiles  in- 
jured the  growth  of  vegetation  along  the  boulevards.  Whether 
this  be  true  or  not,  the  fact  that  the  smoke  is  offensively  un- 
pleasant warrants  legislative  regulation  of  the  matter.    Nuis- 
ances have  from  time  to  time  immemorial  been  subject  to 
legal  control,  and  the  mere  fact  that  conduct  is  unpleasant, 
irrespective  of  injury  to  either  health  or  propert}',  has  con- 
stituted cause  for  controlling  it  either  b}'  legislation  or  action 
of  the  courts.    Thus  noise  may  be  controlled  and  unwholesome 
stenches  may  be  enjoined.    It  is  a  matter  of  record  that  the 
courts  have  issued  as  man}'  injunctions  against  the  emission 
of  gases  from  manufacturing  establishments  which  injured 
vegetation  as  against  any  other  kind  of  nuisance.    The  smoke 
nuisance  resulting  from  the  improper  handling  of  automo- 
biles is  on  a  par  with  gas  nuisances  generally,  and  legislative 
action  is  not  only  proper  but  legally  warranted. 

Thus,  an  ordinance  regulative  of  this  nuisance  has  been  sus- 
tained.^*^ In  England  the  law  prohibits  the  emission  of  offen- 
sive smoke  or  odors  from  automobiles,  and  several  automobile 
drivers  have  'been  prosecuted  and  fined  for  violating  the  law,^' 

35.  Sutter  v.  Milwaukee  Board  of  Omnibus  Co.,  London  (Limited),  v. 
Underwriters.  1fi4  Wi^.  532,  166  K  W.      Tagg  (Div.  €t.), 

57.  In  England  it  has  been  decided  that 

36.  Chicago  v.  Shaw  Livery  Co..  258  where  the  emission  of  smoke  from  a 
111.  409,  101  N.  E.  588,  motor  car  is  due  to  carelessness  that 

37.  For  an  English  case  concerning  does  not  prevent  the  car  from  coming 
prosecutions  for  the  smoke  nuisance  within  the  provisions  of  §  1  of  the 
caused    bv    an    automobile.      See    Star  Ix>comotive3  on  Hiorhwavs  Act  of  1896 


MiSCKLLANEOUS    SUBJECTS    OF    REGULATION.  271 

and  in  the  I  nited  States  of  recent  years  considerable  atten- 
tion has  been  given  to  this  subject  by  local  legislative  lK)dies. 

Sec.  238.  Liability  for  injuries. 

It  is  l)eyond  the  legislative  power  to  enact  a  statute  impos- 
ing lial)ility  on  the  owner  of  a  motor  vehicle  for  injuries  oc- 
casioned from  the  negligent  operation  thereof,  when  the  ma- 
chine is  not  operated  by  the  owner  but  by  a  trespasser  obtain- 
ing possession  thereof.'*  Such  legislation  is  unconstitutional 
as  depriving  one  of  his  proj^erty  without  due  process  of  law. 
But  a  statute  providing  that  Avlien  one  has  received  injuries 
from  the  negligent  operation  of  a  motor  vehicle,  his  damages 
shall  be  a  lien  on  the  machine,  next  in  priority  to  the  lien  of 
State  and  county  taxes,  and  thus  prior  to  a  chattel  mortgage 
on  the  machine,  has  been  sustained. ^^ 

Sec.  239.  Taxation. 

The  form  of  taxation  which  is  generally  imposed  on  motor 
vehicles  is  that  of  license  fees,  and  such  form  of  taxation  is 
discussed  in  another  chapter  of  this  work.**'  Taxes  or  license 
fees  are  in  a  few  States  also  imposed  on  dealers  in  motor 

providing  that,  "Tlie  enactments  men-  IM  S.  l".  8.'J8.  And  see  Merchants  & 
tioned  in  the  schedule  to  this  Act  and  Phuiters'  Bank  v.  Brigman,  106  S.  Car. 
any  other  enactments  restricting  the  '.'.0,2.  91  S.  E.  332,  wheroin  it  was  said: 
use  of  locomotives  on  highways  and  'The  legislature  had  the  right  in  the 
contained  in  any  public,  general,  or  exercise  of  police  power  to  guard  its 
local  and  personal  Act  in  force  at  the  citizens  and  the  public  generally  by 
passage  of  this  Act,  shall  not  apply  to  passing  a  law  in  a  measure  that  pro- 
any  vehicle  propelled  by  mechanical  tects  them  from  negligence,  cs^reless- 
power  if  it  is  under  three  tons  weight  ness,  and  recklessness  of  persons  driv- 
unladen  and  is  not  used  for  the  pur-  ing  dangerous  machines,  and  the  pro 
pose  of  drawing  more  than  one  ve-  viso  making  the  machine  that  inflicted 
hide,  .  .  .  and  is  so  constructed  tlie  injury  liable  for  the  damages  and 
that  no  smoke  or  visible  vajwr  is  providing  attachment  of  the  same  is 
emitted  therefrom  except  from  any  not  taking  property  without  due  pro- 
temporary  or  accidental  cause.'"  Rex  cess  of  law,  but  is  passed  in  the  best 
V.  Wilhaham  (K.  B.  Div.),  96  Law  T.  iiiterest  of  the  public.  The  act  of  the 
R.    (N.  S.)    712.  hgislature  only  gives  the  right  to  make 

38.  Daugherty  v.  Thomas.  174  Mich.  the  macliine  liable,  and  not  tlie  owner 
371,  140  N.  W.  615,  45  L.  E.  A.  (N.  S.)  of  tlio  macliine  unless  tlie  owner  was  in 
699,  Ann.  Cas.  1915  A.  1163.     And  sec  the  machine." 

section  626.  40.  Chapter  VIII. 

39.  Matter   of    .\Ul\idilfii    (S.    Car.). 


272 


The  Law  of  Automobiles. 


vehicles  or  on  sales  made  by  them/^  The  fee  which  may  be 
imposed  by  a  State  or  municipal  corporation  for  the  use  of 
the  highways  by  motor  vehicles,  is  classed  as  a  privilege  tax 
rather  than  as  a  property  tax.''^  But  a  tax  may  also  be  im- 
posed on  the  vehicle  as  property,  and  the  fact  that  the  owner 
is  also  compelled  to  pay  a  license  fee  for  its  use  does  not 
afford  complaint  on  the  ground  of  double  taxation.''^  But 
there  is  generally  no  constitutional  objection  to  a  statute 
which  imposes  the  license  fee  and  then  exempts  the  owner  of 
the  vehicle  from  other  taxation  on  the  machine.''*  ' '  The  ques- 
tion as  to  what  classes  of  property  shall  be  taxed  and  what 
shall  be  exempted,  except  as  restricted  by  the  Constitution,  is 
one  which  rests  within  the  discretion  of  the  Legislature."*^ 
And  an  ordinance  relative  to  a  tax  on  vehicles  may  cover  cer- 
tain vehicles,  and  exclude  from  its  operation  electric  street 
cars  and  automobiles.*^  And,  so,  too,  vehicles  of  non-residents 
who  habitually  use  the  streets  may  be  excluded  from  the  opera- 


41.  Sections  873,  874. 

42.  Hudgens  v.  State,  15  Ala.  App. 
156,  72  So.  605;  Jasnowski  v.  Board  of 
Assessors  of  City  of  Detroit,  191  Mich. 
287,  157  N.  W.  891;  Ex  parte  Phillips 
(Okla.),  167  Pac.  221.  And  see  sec- 
tion 94. 

43.  Harder's  Storage  &  Van  Co.  v. 
Chicago,  235  111.  58.  85  N.  E.  245; 
State  V.  Jarvis,  89  Vt.  239,  95  Atl.  541. 
"The  law  is  well  settled  that  the  owner 
of  vehicles  used  upon  the  public  streets 
and  highways  may  be  required  to  pay 
an  ad  valorem  tax  upon  such  vehicles 
as  property  and  also  may  be  required 
to  pay  a  tax  upon  the  right  or  privilege 
of  using  such  vehicles  in  his  business — 
that  is,  an  occupation  tax.  The  sub- 
ject of  the  ad  valorem  taxation  is  prop- 
erty. The  subject  of  the  other  taxa- 
tion is  a  right  or  privilege — an  entirely 
distinct  and  different  thing.  Because 
these  things  are  distinct  and  different 
the  two  taxes  do  not  constitute  double 
taxation."  Harder's  Storage  &  Van  Co. 
T.  Chicago,  235  111.  58,  85  N.  E.  245. 


44.  Jasnowski  v.  Board  of  Assessora 
of  City  of  Detroit,  191  Mich.  287,  157 
N  W.  891;  State  ex  rel.  City  of  Fargo 
V.  Wetz  (N.  Dak.),  168  N.  W.  835,  5 
A.  L.  R.  731;  Ex  parte  Shaw  (Okla.), 
157  Pae.  900.  "It  is  within  the  power 
of  the  legislature  to  exempt  from  other 
forms  of  taxation  property  which  pays 
a  specific  tax,  and  this  is  true  whether 
the  specific  tax  is  levied  upon  the  prop- 
erty itself  or  upon  the  right  to  use  the 
property  in  a  certain  way."  Jasnowski 
V  Board  of  Assessors  of  City  of  De- 
troit, 191  Mich.  287,  157  N.  W.  891. 

45.  Jasnowski  v.  Board  of  Assessors 
of  dty  of  Detroit,  191  Mich.  287,  157 
N.  W.  891. 

Vehicle  of  school  district. — Wliere  an 
automobile  is  owned  by  a  school  dis- 
trict, and  such  machines  are  not  within 
the  class  of  exemptions,  it  may  be 
taxed.  Newark  Public  Schools  v. 
Wright,  4  Boyce  (Del.)  279,  88  Atl. 
462. 

46.  Kersey  v.  City  of  Terre  Haute, 
161  Ind.  471,  68  N.  E.  1027. 


Miscellaneous  Subjects  of  Regulation. 


273 


tion  of  such  an  ordinance  without  impairing  its  validity.''' 
Vehicles  in  transit  from  one  State  to  another  are  exempt  from 
State  taxation  on  account  of  the  interstate  commerce  nature 
of  the  transaction,  but  this  does  not  forbid  State  authorities 
from  assessing  vehicles  stored  for  an  indefinite  time  in  the 
State  pending  transportation.** 

Sec.  240.  Service  of  process  on  automobilist. 

A  statute  providing  that,  in  actions  for  damages  against 
the  owners  of  motor  vehicles,  service  of  process  may  be  had 
in  a  county  other  than  the  one  where  the  injury  was  occasioned 
and  the  suit  was  brought,  is  constitutional.'*'  So,  too,  a  statute 
is  valid  which  requires  each  non-resident  owner  of  an  automo- 
bile to  designate  an  agent  within  the  State  upon  whom  process 
may  be  served  in  an  action  against  such  owner  arising  out  of 
the  operation  of  the  machine.^"   But  it  has  been  held  that  a  sec- 


47.  Kersey  v.  City  of  Terre  Haute, 
161  Tnd.  471,  68  N.  E.  1027. 

48.  State  v.  M.ixwell  Motor  Sales 
Corp.,  142  Aiinn.  226,  171  N.  W.  566. 

49.  Garrett  v.  Turner,  235  Pa.  St. 
383.  84  Atl  354,  affirmirg  47  Pa. 
Super.  Ct.  128,  wherein  it  was  said: 
'•The  Act  of  April  27th.  1909,  estab- 
lislied  a  universal  rule  which  applies  to 
all  persons  who  operate  motor  vehicles 
upon  any  public  liighway  within  the 
commonwealth,  and  it  is  a  general 
slatute.  Strine  v.  Foltz,  113  Pa.  349. 
The  wide  extent  of  country  covered  by 
the  movement  of  a  motor  vehicle  rend- 
ers it  more  probable  that,  when  negli- 
gently operated,  an  accident  may  occur 
and  an  injury  he  inMictod  in  a  county 
other  tlian  that  in  which  the  operator 
hns  his  residence.  The  ease  and  rapid- 
ily  with  which  the  operator  of  a  motor 
vrliclc  may  vanish  from  the  scene 
wliere  he  has  inflicted  an  injury,  rend- 
ei's  it  much  more  difficult  for  the  party 
injured  to  call  tlie  wrongdoer  to  ac 
count  in  the  county  where  the  injury 
was  inflicted  anl  wliere  the  witnesses, 
by  whom  the  negligence  of  the  de'end- 
.mt  nuist  be  established,  reside,  than  is 

18 


the  case  where  injury  results  from  the 
negligent  management  of  a  horsedrawu 
carriage.  The  operator  of  a  motor  ve- 
il icle  whose  negligence  has  caused  an 
injury  on  a  public  highway  in  a  county 
other  than  in  which  he  has  his  place 
of  residence,  may  not  only  at  the  time 
quickly  withdraw  from  the  county 
where  the  injury  has  been  inflicted,  but 
the  speed  at  which  he  is  able  to  move 
along  the  roads  would  permit  him  to 
subsequently  revisit  that  county  at  his 
pleasure,  without  any  risk  of  being 
served  with  legal  process  while  he  was 
within  its  boundaries.  The  negligent 
operator  of  an  automboile  has  thus  a 
manifest  advantage  over  the  driver  of 
a  horse,  in  avoiding  service  of  process 
within  the  county  where  his  negligence 
has  caused  an  injury,  and  the  party 
injured  is  at  a  corresponding  disad- 
vantage in  obtaining  redress.  It  is  on 
this  difl"erence  that  the  discrimination 
in  the  Act  of  1909.  with  regard  to  the 
service  of  process,  is  founded,  and  it 
is  a  fair  and  constitutional  basis  for 
tl:e   legislative   discretion." 

50.  Cleary  v.  Johnston,   79  N.   J.   L. 
49,  74   Atl.   538,  wherein   it   was  said: 


274 


The  Law  of  Automobiles. 


tioii  of  motor  vehicle  statute,  providing  that  all  actions  for 
injury  to  person  or  property  caused  by  the  negligence  of  the 
owner  of  an  automobile  may  be  brought  by  the  injured  party 
in  the  county  of  his  residence,  is  an  arbitrary,  unjust  and  un- 
reasonable classification,  creates  a  burden  and  subjects  a  class 
of  citizens  only,  to  certain  liabilities  and  requirements  to  re- 
spond to  a  suit  in  any  county  in  the  State,  which  is  required  of 
no  other  class,  and  is  a  denial  to  them  of  the  equal  protection 
of  the  law,  and  such  section  is  therefore  unconstitutional/^^ 


"Assuming  tliat  the  right  to  tise  tlic 
highways  belongs  to  such  non-resident 
owner,  yet  it  is  obviously  not  an  ab- 
solute right.  The  stringent  legislative 
restrictions  upon  the  use  of  the  high- 
ways by  automobiles — which  restric- 
tions have  received  judicial  ap- 
proval— exhibit  the  fact  that  the  auto- 
mobile is  regarded  as  a  dangerous  ma- 
chine, if  used  otherwise  than  under  the 
control  provided  for  by  the  legislature. 
Ii  is  apparent  that  these  restrictions 
upon  the  manner  in  which  highways 
shall  be  used  by  automobiles  can  only 
be  made  effective  by  penalties;  and  the 
jienalties  can  only  be  enforced  by  reach- 
ing the  owners  of  such  machines.  A 
provision  for  impounding  the  machine 
itself  would  be  valid,  but  while  valid, 
would  be  inefficacious,  because  the  speed 
of  the  automobile  is  such  that  in  most 
instances  the  machine  itself  would  es- 
cape arrest.  Resident  owners  can  be 
reached  by  service  of  process  within 
this  State,  while  non-resident  owners, 
of  course,  unless  by  voluntary  appear- 


ance are  immune  from  service.  Thus 
while  legal  proceedings  to  enforce  the 
penalties  for  violating  the  automobile 
law  can  be  taken  in  the  courts  of  this 
State  as  against  residents,  yet  as  to 
non-residents,  in  the  absence  of  a  pro- 
vision like  the  one  in  question,  such 
enforcement  would  mean  numerous 
suits  in  otlier  States  in  the  Union  from 
New  York  to  California,  or  perhaps  in 
other  continents.  In  view  of  the  pres- 
ent need  of  a  vigorous  enforcement  of 
these  laws  for  the  protection  of  all 
users  of  tlie  highways,  I  am  of  the 
opinion  that  the  condition  imposed, 
that  a  man  who  proposes  to  use  our 
highways  for  motoring  shall  agree  to 
submit  himself  to  the  courts  of  the 
State  into  which  he  comes,  so  far  as 
concerns  matters  growing  out  of  such 
use,  is  neither  unconstitutional  nor  un- 
reasonable." 'See  also  Kane  v.  State 
of  New  Jersey,  242  U.  S.  160,  37  S.  Ct. 

30. 

51.  Hoiblitt  V.  Gorman,  8  Ohio  N.  P. 

(X.   S.)    270. 


Law  of  the  Road.  275 

CHAPTER  XIV. 

LAW  OF  THE  ROAD. 

Section  241.  lu  general. 

242.  Object  of  rules. 

243.  Judicial  notice. 

244.  Application  of  statutes  or  ordinances— pedestrians. 

245.  Application  of  statutes  or  ordinances— bicycles. 

246.  Application  of  statutes  or  ordinances— street    railway   cars. 

247.  Driving  along  street— on  wrong  side  of  highway. 

248.  Driving  along  street — distance  from  curb. 

249.  Meeting  and  passing  other  travelers- in    general. 

250.  Meeting  and  passing  other  travelers— right  of  center  line  of  high- 

way. 

251.  Meeting  and  passing  othor  travelers— seasonable  turn    to    right. 

252.  Overtaking  and  passing  other  travelers- turning  to    left   to    pass. 

253.  Overtaking  and  passing  other  travelers— turning  to     right     after 

passing. 

254.  Overtaking  and  passing  other  travelers— mooting  third  vehicle  after 

passing  toward  left. 

255.  Overtaking  and  passing  other  travelers— slower  vehicles  at  curb. 

256.  Overtaking  and  passing  other  travelers- duty    of    forward    vehicle 

to  permit  passage. 

257.  Overtaking  and  passing  other  travelers— passing    at    corner    where 

forward  vehicle  turns  to  left. 

258.  Turning  corners — turning  toward  the  right. 

259.  Turning  corners — turning  toward  the  left. 

260.  Intersecting  streets— equal  rights  of  travelers. 

261.  Intersecting  streets — superior  right  of  first  arrival. 

262.  Intersecting  streets— regulations   giving  superior  rights   along  one 

sti-eet. 

263.  Turning  or  backing  machine. 

264.  Signals  from  one  driver  to  another. 

265.  Obedience  to  directions  of  traffic  officer. 

266.  Driving  on  walk  or  place  reserved  for  pedestrians. 

267.  Effect  of  violation  of  law  of  road— as  evidence  of  negligence. 

268.  Effect  of  violation  of  law  of  road— imposition  of  higher  degree  ot 

care. 

269.  Effect  of  violation  of  law  of  road— proximate    cause. 

270.  Excuse  for  violation  of  law  of  road— in  general. 

271.  Excuse  of  violation  of  law  of  road— avoiding  obstacle  in  road. 

272.  Excuse  for  violation  of  law  of  road— turning    to    avoid    negligent 

driving  of  another. 

273.  Excuse  for  violation  of  law  of  road— insufficient  time  to  obey  rule. 

274.  Excuse  for  violation  of  law  of  road- skidding    to    wTong    side   of 

road. 

275.  Negligence  in  adhering  to  law  of  road. 


276  The  Law  of  Automobiles. 

Sec.  241.  In  general. 

A  highway  is  for  the  use  of  the  public  at  large;  indeed  it 
has  been  defined  to  be  a  road  which  every  citizen  has  a  right 
to  use.  This  being  so,  it  is  necessary  that  the  travel  and  traffic 
on  the  highway  shall  be  governed  by  certain  laws  so  that  the 
rights  of  each  citizen  may  be  certain  of  protection.  The  rules 
by  which  travel  on  highways  is  governed  in  English  speaking 
countries  are  called  ''The  law  of  the  road."^  These  rules 
were  originally  established  by  custom  in  England  ;2  and 
together  with  the  common  law  system  were  brought  to  this 
country  by  the  colonists  and  were  adopted  in  principle  as  a 
part  of  our  jurisprudence,  though,  as  a  matter  of  detail,  the 
English  rule  requires  the  turn  to  the  left  while  the  American 
rule  is  the  reverse.^  Since  the  advent  of  automobiles  and  the 
greater  necessity  thereby  occasioned  for  a  strict  observance 
of  the  law  of  the  road,  the  rules  have  been  enacted  in  the  form 
of  statutes  in  many  States."*  And,  in  the  larger  cities,  the  old 
rules  have  been  found  insufficient  for  the  safety  and  smooth- 
ness of  traffic,  and  additional  regulations  have  been  made  by 
municipal  authorities.  Municipal  corporations  have  been  au- 
thorized to  pass  ordinances,  not  in  conflict  Avith  general  stat- 
utes, for  the  regulation  of  traffic  along  their  streets.^    Thus, 

1.  The  law  of  the  road. — Angell,  and  motor  power  vehicles  on  the  public 
Highways,   sec.   2.  highways."      Morrison    v.    Clark,    196 

"The  fundamental  idea  of  a  highway  Ala.  670,  72  So.  305. 

is   not  only  that   it  is   public   for   free  Driving    wagon    without    ligbts    on 

and  unmolested  passage  thereon  by  all  wrong  side  of  highway  as  a   criminal 

persons  desiring  to  use  it — all  the  in-  offense.— Under  the  Penal  Law  of  New 

habitants  of  the  said  township,  and  of  York,  it  was  held  that  driving  a  wagon 

all  other  good  citizens  of  the  common-  on  the  wrong  side  of  the  highway  with- 

wealth    going,    returning,    passing    and  out  lights  was  not  a  crime,  but  merely 

repassing,   in.   along,   and   through   the  subjected    the    wrongdoer    to    a    civil 

highway.     The  use  of  a  highway  is  not  penalty,    in    addition    to    the    damages 

a  privilege,  but  a  right  limited  by  the  sustained   through   the   act.     People   v. 

rights  of  others  and  to  be  exercised  in  Martinitis,    168   N.   Y.   App.   Div.    446, 

a  reasonable  manner."     Radnor  Tp.  v.  153  N.  Y.  Suppl.  791. 

Bell,  27  Pa.  Super.  Ct.  1,  5.  A  presumption   arises   that   the   law 

2.  Angell,  Highways,  sec.  333.  of   the   road    of    another  .State    is    the 

3.  Tulsa  Ice  Co.  v.  Wilks,  54  Okla.  same  as  that  at  common  law.  O'Don- 
519,  153  Pac.  1169.  nell  v.   Johnson,  36  R.  I.  308,  90  Atl. 

4.  "Observance    of    the    rule    of    the  165. 

road  is  becoming  more  important,  with  5.  Sections  70-73. 

the   increasing   use   of   steam,   electric, 


Law  of  the  Kuau.  277 

at  some  of  the  congested  street  intersections,  municipal  regu- 
lations have  been  adopted  giving  the  right  of  way  to  vehicles 
passing  in  certain  directions.^  And  in  the  business  sections 
in  some  of  the  great  cities,  "one  way"  streets  are  selected. 
Regulations  of  this  character  are  additional  to  the  customary 
rules  which  were  developed  in  England.  With  reference  to 
pedestrians  '  and  other  vehicles,^  the  law  of  the  road  is  further 
discussed  in  other  chapters  of  this  work. 

Sec.  242.  Object  of  rules. 

Too  clearly  for  dispute,  the  object  of  rules  of  the  road  is 
the  prevention  of  collisions  and  other  accidents  which  would 
likely  occur  in  the  absence  of  some  regulations  on  the  conduct 
and  course  of  drivers.^  Moreover,  in  the  absence  of  custom 
or  regulations  as  to  the  conduct  of  a  driver,  he  would  be  com- 
pelled to  use  his  own  judgment  as  to  the  best  course  to  pursue 
to  avoid  other  travelers,  and  his  errors  in  judgment  might  re- 
sult disastrously;  to  eliminate  discretion  and  errors  in  dis- 
cretion, these  rules  of  the  road  are  adopted  and  should  be  en- 
forced.^**  The  necessity  for  the  rules  of  the  road  has  be«n  em- 
phasized as  the  use  of  motor  vehicles  in  large  numbers  has  be- 
come more  general.  Motormen  of  street  cars,  chauffeurs, 
drivers  of  ordinary  vehicles  and  of  emergency  vehicles  such 
as  ambulances,  fire  engines,  police  patrols,  etc.,  as  well  as 
pedestrians,  depend  upon  the  enforcement  of  such  rules,  not 
alone  for  the  certainty  of  their  movements,  but  also  for  then- 
safety.^^  It  has  been  said  that  a  rule  may  be  disregarded  when 
it  fails  to  serve  its  purpose.^^ 

Sec.  243.  Judicial  notice. 

Proof  of  the  law  of  the  road  is  not  generally  necessary. 
When  founded  upon  custom  or  statute,  the  courts  will  take 

8.  Section  262.  10.  Haydon  v.  MeColly,  166  Mo.  App 

7.  S<'ction  432.  et  seq.  675,  150  S.  W.  1132. 

8.  Sections  371-394.  11.  State  v.  T>arrabce,   104  Minn.  37, 

9.  Adams   v.    Pariah     (Ky.),  225   S.       115  N.  W.  948. 

W.  467;   BuckPT  v.  White    (Md.),   Ill  12.  Adams  v.   Parrish    (Ky.).  225  S. 

Atl.    777;     Granger     v.     Farrant.     179       W.  467. 
Mich.   19.   146  \'.   W.  218. 


278  The  Law  of  Automobiles. 

judicial  knowledge  thereof.^  It  is  only  in  some  cases  when 
the  rule  is  based  solely  upon  a  municipal  ordinance  that  it  be- 
comes necessary  to  prove  the  regulation  as  a  matter  of  fact, 
for  some  courts  do  not  take  judicial  notice  of  local  ordinances." 

Sec.  244.  Application  of  statutes  or  ordinances  —  pedes- 
trians. 
A  pedestrian  who  is  about  to  cross  a  street  may  be  entitled 
to  rely  on  the  law  of  the  road  and  that  vehicles  mil  approach 
on  the  proper  side  of  the  street,^  or,  if  two  vehicles  are  ap- 
proaching him,  that  they  will  obey  the  law  of  the  road  as  to 
each  other.i^  But  the  law  of  the  road  is  not  generally  appli- 
cable to  travelers  walking  along  a  rural  highway.  When  over- 
taking or  meeting  such  a  person,  it  is  the  duty  of  both  the 
pedestrian  and  the  driver  of  the  machine  to  exercise  ordinary 
care  to  avoid  a  collision,  but  no  rule  is,  as  a  general  proposi- 
tion definitely  prescribed  as  to  which  side  of  the  pedestrian 
the  passage  shall  be  made."  So,  in  an  action  by  an  old  man, 
almost  blind,  against  the  drivers  of  an  automobile  for  running 
over  him,  the  evidence  showing  that  he  was  at  the  side  of  the 
road  and  that  they  ran  straight  toward  him,  it  was  held  that 
it  was  not  material  on  which  side  of  the  road  they  were  driv- 
ing, where  they  saw  him  and  took  no  heed.^^ 

Sec.  245.  Application  of  statutes  or  ordinances  —  bicycles. 

Statutes  providing  for  the  manner  of  passage  of  different 
vehicles  on  the  public  highways  may,  and  frequently  do,  apply 
to  cyclists.^^  A  cyclist  meeting  a  truck  which  is  proceeding 
on  the  Avrong  side  of  the  road  need  not  necessarily  give  way.^*' 

13.  Jacobs    V.    Richard    Carvel    Co.,  183   Pac.    358;    Brown   v.    Thajer,    212 
156  N.  Y.  Suppl.  766;  Lee  v.  Donnelly  Mass.   392,   99   K    E.   237;    Marton   v. 
(Vt.),   113  Atl.   542;    Gagnon  v.   Robi-  Fickrell    (Wash.),   191  Pac.   1101. 
taille,   16   R.   L.  N    S.    (Canada)    235;  18.  Apperson  v.  Lazro,  44  Ind    App. 
Ofeborne     v.     Landis,     34     W.     L.     R.  3  86,  88  N.  E.  99. 

(Canada)    118.  19.  Dice  v.  Jolinson    (Iowa),  3  75  N. 

14.  Section  82.  But  gee  Jacobs  v.  W.  38;  Clark  v.  Woop,  159  N.  Y.  App. 
Richard  Carvel  Co.,  156  N.  Y.  Suppl.  Div.  437,  144  N.  Y.  Suppl.  595;  Tulsa 
766.  Ice   Co.  v.   Wilkes,   54   Okla.    519.    153 

15.  Sections  247,  248.  Pac.   1169.     As  to  injuries  to  cyclists^, 

16.  Off  V.  Crump,  40  Cal.  App.  173,      see  chapter  XIX. 

180  Pac.  360.  20.  Konig  v.  Lvon    (Cal.  App.).   192 

17.  Randolph    v.    Hunt    (Cal.   App.),       Pac.  875, 


Law  of  the  Road.  279 

Sec.  246.  Application  of  statutes  or  ordinances  —  street  rali- 
way  cars. 

Some  confusion  exists  as  to  tlie  extent  to  w  liicli  llic  law  of  the 
road  applies  to  street  railway  cars  and  to  other  travelers  meet- 
ing and  passing  such  cars.  It  has  been  held  that  the  driver  of 
a  motor  vehicle  should  turn  to  the  right  when  meeting  a  street 
car.-^  And  a  regulation  providing  that  the  driver  of  a  carriage 
or  other  vehicle  passing  a  carriage  or  other  vehicle  traveling 
in  the  same  direction  shall  drive  to  the  left  of  the  middle  of 
the  traveled  part  of  the  way,  has  been  held  applical)le  to  the 
driver  of  a  team  passing  from  behind  an  electric  street  car 
which  has  stopped  to  let  off  passengers.^^  But  it  has  l)een 
held  that  the  provisions  of  a  statute  requiring  the  driver  of 
a  "vehicle"  approaching  an  intersecting  street  to  grant  the 
right  of  way  at  such  intersection  to  any  vehicle  coming  from 
the  right,  does  not  impose  this  duty  on  the  motorman  of  a 
street  car.^^  This  conclusion  may  well  be  disputed.^^  And  an 
ordinance  requiring  the  driver  of  a  vehicle  to  "keep  on  the 
right-hand  side  of  the  street  has  been  held  not  enacted  for  the 
protection  of  street  railway  companies,  and  in  an  action  by 
the  owner  of  a  machine  for  a  collision  with  a  street  car,  the 
statute  does  not  make  the  owner  guilty  of  negligence  per  ser' 
A  law  of  the  road  cannot  apply  to  a  street  railway  car  so  as 
to  require  such  car  to  tnrn  from  its  course.  It  must  follow 
the  track  or  stop.^'' 

Sec.  247.  Driving-  along  street  —  on  wrong  side  of  highway. 

In  some  jurisdictions,  in  the  absence  of  other  vehicles  with 

which  a  collision  may  be  expected^  negligence  cannot  be  based 

21.  Athens   Ry.    &   Elec.    Co.    v.    Mc-        (^[iini.).  177  N".  W.  944. 

Kinney,  16  Ga.  App.  741,  86  S.  E.  83.  25.  Watts    v.    Montgomery    Traction 

Sec  also  Link  v.  Skeeles,  207  111.  App.  Co.,  175  Ala.  102,  57  So.  471. 

48.  26.  State  to  n.se  of  Stumpf  v.  Balti- 

22.  McGouity  v.  De  Jfarco.  200  more,  etc.  Rys.  Co.,  133  Md.  411.  105 
:Mass.  57,  85  X.  E.  891.  Compare  City  Atl.  532;  Campbell  v.  Ricliard  L.  &  Rd. 
of  Cliicago  V.  Keogh,  291  111.  188.  125  Co.,  181  X.  Y.  App.  Div.  320.  168  N. 
X.  E.  881.  Y,    Suppl.    813.      See    also.    Northern 

23.  Reed  v.  Public  Service  Ry.  Co.,  Texas  Tr.  Co.  v.  Stone  (  T-'v.  Civ. 
89  N.  J.  Law,  431,  99  Atl.  100.  App.),  230  S.  W.  754. 

24.  Svck     V.     Duluth     St.     Rv.     Co. 


280 


The  Law  of  Automobiles. 


on  the  fact  that  the  driver  of  a  motor  vehicle  is  proceeding 
along  the  middle  of  the  road,  or  even  along  the  left  side 
thereof.^  But  in  many  cities,  it  is  recognized  that  such  prac- 
tice will  occasion  danger  to  foot  travelers,  and  hence  statutes 
and  municipal  ordinances  have  frequently  been  enacted  which 
require  that  vehicles  shall  proceed  along  the  right  side  of  the 
highway.^s  Thus,  negligence  is  sometimes  charged  against 
the  driver  of  a  motor  vehicle  who  drove  the  machine  along  the 
wrong  side  of  the  highway,  and  in  consequence  thereof  a 
pedestrian  crossing  the  street  was  struck  and  injured.^^    A 


27.  Harris  v.  Johnson,   174   Cal.   55, 
161  Pac.  1155;  Langford  v.  San  Diego 
Elec.   Ry.   Co.,   174   Cal.   729,   164  Pa«. 
398;    Baker  v.   Zimmerman,   179  Iowa, 
272,  161  N.  W.  479;  Buzieh  v.  Todman, 
179  Iowa,  1019,  162  N.  W.  259 ;   Flynt 
v.   Fondern    (Miss.),   84   So.   188;    Lin- 
stroth  V.  Peper   (Mo.  App.),  188  S.  W. 
1125;   Cohen  v.  (Joodman  &  Sons,  Inc., 
189   N.   Y.   App.   Div.   209,    178   K   Y. 
Supp.  528 ;  Sims  v.  Eleazer    ( S.  Car. ) . 
106    S.    E.    854;    Stanton    v.    Western 
Macaroni   Mfg.    Co.    (Utah),   174   Pac. 
821;    Richards  v.  Palace  Laundry  Cto. 
(Utah),     186    Pac.    439.      "One    may 
travel  in  the  middle  or  on  either  side 
of   the  traveled   way  where  no   person 
is  passing  or  about  to  pass  in  the  op- 
posite direction.     It  is  only  upon  meet- 
ing another  that  the  law  of  the  road  is 
invoked.    Baker  v.  Zimmerman   (Iowa), 
161  N.  W.  479.     "Driving  a  vehicle  in 
the  middle  of  a  street  is  neither  negli- 
gence in  itself  nor  a  fact  from  which 
negligence  can  be  inferred,  either  un- 
der the  common  law  or  under  our  stat- 
ute."    Linstroth  v.  Peper    (Mo.  App.), 
188  S.  W.  1125. 

28.  One  way  street. — A  regulation 
requiring  drivers  to  proceed  along  the 
right  of  the  center  of  streets  cannot 
apply  to  a  "one  way"  street.  Hedges 
V.  Mitchell  (Colo.),  194  Pa«.  620. 
Stohlman  v.  Martin,  28  Cal.  App. 
338,  152  Pac.  319,  wherein  it  was  said: 
'•The  legislature  intended  to  make  it 
the  duty  of  persons  so  using  such  high- 


ways to  keep  to  the  right  side  thereof; 
in  other  words,  we  are  of  th«  opinion 
that,  in  thus  prescribing  highway  regu- 
lations, the  legislature  thereby  intended 
to  require  persons  so  using  the  public 
highways  to  keep  to  the  right  of  the  cen- 
ter of  such  thoroughfares  at  all  times 
when  possible  to  do  so,  regardless  of 
whether  they  should  actually  meet  or 
see  any  other  person  traveling  on  such 

highway     in     an     opposite     direction." 

See  also,   Todd  v.   Orcutt   (Cal.   App.), 

183    Pac.    963;    Conder   v.    Griffith,    61 

Ind.  App.  218,  111  N.  E.  816;  Lauden- 

berger  v.  Easton  Transit  Co.,  261  Pa. 

288,    104  Atl.   588;    Smoak  v.  Martin, 

108  S.  Car.  472,  94  S.  E.  869. 
29.  UnUed       States. —  New       York 

Transp.   Co.  v.  Garside,   157  Fed.  521, 

85  C.  C.  A.  285. 

California. — Harris    v.    Johnson,    174 

Cal.    55,    161    Pac.    1155;    Stohlman   v. 

Martin,  28  Cal.  App.  338,  152  Pac.  319. 
Connecticut. — Lynch    v.    Shearer,    83 

Conn.  73,  75  Atl.  88. 

Delaware. — Grier  v.    Samuel,  4   Del. 

74,  85  Atl.  759, 

Illinois. — Trzetiatowski     v.     Evening 

American  Pub.  Co.,  185  111.  App.  451; 

Devine  v.   Ward   Baking   Co.,    188    111. 

App.   588;   Wortman  v.  Trott,  202  111. 

App.   528;   Coonan  v.   Straka,   204   111. 

App.  17. 

Indiana. — Conder  v.  Griffith,  61  Ind. 

App.  218,  111  N.  E.  816. 

Iowa.— See  Clark  v.  Van  Vleck,   135 

Iowa,  194,  112  N.  W.  648. 


Law  of  the  Road.  281 

regulation  requiring  that  travelers  shall  turn  to  the  right  upon 
meeting,  and  a  regulation  requiring  that  travelers  shall  pro- 
ceed along  the  right-hand  side  of  the  highway,  are  not  neees- 
sarily  inconsistent.^**  And  when  the  driver  of  a  machine  makes 
a  sudden  swerve  to  the  wrong  side  of  the  street  where  he 
strikes  a  pedestrian,  his  negligence  is  a  question  for  the  jury.^^ 
But,  when  the  vehicle  is  overtaking  or  meeting  a  pedestrian 
who  is  walking  along  the  road,  the  law  of  the  road  has  little 
application.32  So,  too,  a  regulation  of  the  character  under  dis- 
cussion has  no  application  to  a  car  which  is  backed  into  a  park- 
ing space  of  limited  size  close  to  the  curb.^  It  is  not  neces- 
sarily wrongful  to  drive  to  the  left  side  of  the  street  if  the 
driver  intends  to  stop  at  a  house,  but  he  should  turn  to  the 
right  if  another  machine  is  approaching.^'^  And  an  ordinance 
requiring  the  drivers  of  vehicles  to  keep  on  the  right-hand 
side  of  the  street  has  been  held  to  be  not  enacted  for  the  pro- 
tection of  street  railway  companies;  and,  in  an  action  by  the 
owner  of  a  machine  for  a  collision  with  a  street  car,  the  statute 
does  make  the  owner  guilty  of  negligence.^ 

Sec.  248.  Driving  along  street  —  distance  from  curb. 

Another  type  of  regulation  which  is  becoming  more  frequent 
with  the  increase  in  motor  vehicle  traffic,  is  that  which  re- 
quires certain  classes  of  vehicles  to  run  close  to  the  curb  or 
requires  other  classes  to  run  a  certain  distance  therefrom.^'' 

New  Jersey. — Pool   v.   Brown,   89   N.  ditional  requirement  that  he  shall  ke«p 

J.  Law    314    98  Atl.  262.  on   a   certain   side  of   the   street   while 

WasftinjioM .—Sogerstrom      v.      Law-  going   in   a  given   direction."     Suell   v. 

rence,    64    Wash.    245.    116    Pae.    876;  Jones,  49  Wash.  582,  96  Pac.  4. 

Mickelson  v.  Fisher,  81  Wash.  423,  142  81.  Parmenter     v.     MoDongall.      173 

Pac.    1160;    Johnson    v.    Heitman,    88  Cal.  306,  156  Pac.  460. 

Wash.  595,  153  Pac.  331;  Moy  Quon  v.  32.  See   Apperson   v.    Lazro.   44   Ind. 

M.  Furuya  Co..  89  Wash.  526,  1^3  Pac.  App.   186,  88   N.   E.  99.     And   see  sw- 

99  .  tiort  432. 

30.  Suell  V.  Jones,  49  Wash.  582,  96  33.   Sheldon  v.   James,    175   Cal.   474, 

Pac.    4.      "Repeals   by    implication    are  166  Pac.  8,  2  A.  L.  R.  1493. 

not  favored  in  law,  and  it  can  be  seen  34.  Shaw  v.  Wilcox  (Mo.  App.).  224 

at  a  glance  that  there  is  no  neces&ary  S.  W.  58. 

conflict   between   the   provisions   of  the  35.  Watts    v.    Montgomery    Traction 

two  ordinances.     A  provision  requiring  Co.,  175  Ala.   102.  57  So.  471. 

a  driver  to   pass   another   in    a   given  36.  See  Humphrey  v.  U.  S.  Macaroni 

manner  is  not  in  conflict  with  an  ad-  Co.   (Cal.  App.),  193  Pac.  609:  Burich 


282  The  Law  of  Automobiles. 

For  example,  municipal  ordinances  are  very  frequently  en- 
acted so  as  to  require  the  slow  moving  vehicles  to  keep  close 
to  the  curb  and  to  allow  the  faster  ones  the  more  central  part 
of  the  street.  Where  an  automobile  was  driven  twenty-five 
feet  from  the  right-hand  curb,  in  violation  of  a  traffic  ordi- 
nance, and  the  driver  twice  gave  a  stop  signal  but  stopped 
only  after  the  second  one,  it  was  held  that  he  was  guilty  of 
contributory  negligence  so  as  to  bar  a  recovery  for  damages 
to  the  machine  sustained  by  reason  of  a  vehicle  running  into 
the  rear  thereof.^^  Under  a  statute  in  Minnesota  entitled, 
''An  act  to  license  and  define  the  road  regulations  of  motor 
and  other  vehicles  and  appropriating  money  therefor,"  and 
providing  in  part  that  "in  cities  or  villages,  or  any  place 
where  traffic  is  large,  or  on  streets  usually  congested  with 
traffic  of  horse-drawn  vehicles  or  street  cars,  slow  moving 
vehicles  must  keep  near  the  right  curb,  allowing  those  moving 
more  rapidly  to  keep  near  the  center  of  the  street,"  it  was 
held  that  a  defendant  could  be  convicted  for  a  violation  of  the 
law  although  he  was  not  blocking  any  traffic  but  was  merely 
driving  on  the  part  of  the  street  most  convenient  for  him.^ 

Sec.  249.  Meeting  and  passing  other  travelers  —  in  general. 

In  England,  when  two  vehicles  meet  upon  the  public  high- 
way, they  pass  to  the  left  of  each  other.^^  In  this  country, 
the  colonists  followed  the  Continental  custom,  which  was  the 
reverse  of  the  English,  and  passed  to  right  of  other  travelers. 
The  practice  of  the  colonists,  now  reinforced  by  statutory 
enactment  and  municipal  regulation,  remains  the  law  of  the 

V.  Todman,  179  Iowa,  1019,  162  N.  W.  389.    as    to    an    ordinance    forbidding 

259;     Stack    v.     General    Baking    Co.  standing    automobiles   more    than    two 

(Mo.).  223  S.  W.  89;  Kelley  v.  James,  feet  from  the  curb. 

37  S.  Dak.  272,  157  N.  W.  990.  37.  Russell   v.    Kemp,    95   Misc.    (N. 

Intersecting    streets.— It    is   thought  Y. )    582,  159  N.  Y.  Suppl.  865. 

that  a  regulation  requiring  the   driver  38.  State  v.  Bussian,  111  Minn.  488, 

of  a  motor  vehicle  to  keep  as  close  to  127  N.   W.   495,   31  I*.   R.  A.    (N.   S.) 

the   right-hand    curb   as   possible,   does  682.     In  this  case  the  defendant  was 

not  apply  at  intersecting  streets.     See  driving  a  furniture  van  drawn  by  two 

Bullis  V.  Ball,  98  Wash.  342,  167  Pac.  horses  near  the  right  curb. 

942.  39.  Wright   v.    Fleischnian,   41    Misc. 

Vehicles  standing  at  curb.— See  Col-  (N.  Y.)   533,  85  N.  Y;  Suppl.  62 
lins  V.   Marsh,   176   Cal.   639,   169   Pac. 


Law  of  the  Road. 


283 


road.^''  Statutes  enacted  before  the  popular  use  of  motor 
vehicles,  prescribing  the  turns  to  be  made  by  ''vehicles"  or 
''teams"  are  construed  as  applying  to  automobiles."  Speak- 
ing in  general  terms,  when  two  vehicles  meet  and  collide  on  a 
2)ul)lic  highway  which  is  wide  enough  for  them  to  pass  with 
safety,  the  traveler  on  the  wrong  side  of  the  road  is  respon- 
sible for  the  damages  sustained  by  the  one  traveling  on  the 
proper  side.''-  But  a  traveler  is  not  justified  in  getting  his 
machine  on  the  right-hand  side  of  the  road  and  then  proceed- 
ing regardless  of  other  travelers;  on  the  contrary,  the  duty 
of  exercising  reasonable  care  for  the  avoidance  of  injuries  to 
others  continues  and  applies  to  those  who  may  be  violating 
the  law  of  the  road.^^ 


40.  McGee  v.  Young,  132  Ga.  606,  64 
S.  E.  689;  Palmer  v.  Baker,  11  Me.  338; 
Jaquitli  V.  Richardson,  8  Mete.  (Mass.) 
213;  Week  v.  Reno  Traction  Co.,  38 
Nev.  285,  149  Pac.  65;  Smith  v.  Dygert. 
12  Barb.  (X.  Y.)  613;  Easring  v. 
Lansingh,  7   Wend.    (N.  Y'.)    185. 

41.  Athens  Ry.  &  Elec.  Co.  v.  Mc- 
Kinney,  16  Ga.  App.  741,  86  S.  E.  83; 
Bragdon  v.  Kellogg  (Me.),  lO."  Atl. 
433. 

42.  Alabama. — Morrison  v.  (lark. 
196  Ala.  670,  72  So.  305. 

California. —  SluiiX'  v.  Rodolpli 
(Cal).   197  Pac.   57. 

Illinois. — Branden'l)erg  v.  Klelir,  197 
111.  App.  459. 

Iowa. — Buzicli  v.  Todman.  179  Towa, 
1019,  162  X.  W.  259. 

Kansas. — Arrington  v.  Horner,  82 
Kans.  817,  129  Pac.  1159. 

Maine. — Bragdon  v.  Kellogg.  118  Me. 
42,  105  Atl.  433:  Stobie  v.  Swllivan,  118 
Me.  483.  105  Atl.  714;  Sylvester  v. 
Gray,  118  Me.  74,  105  Atl.  815. 

Minnesota. — Molin  v.  Wark,  113 
Minn.  190.  129  X.  W.  383. 

.Mississippi. —  Flynt  v.  Fondren 
(Miss.),  84  So.  188. 

Mis,ionri. — -Havdcn    v.    McColiv,    166 


.Mo.  App.  675,  150  S.  W.  1132;  Harris 
V  Pew,  ]85  Mo.  App.  275,  170  S.  W. 
M44;  (  olumbia  Taxicab  Oo.  v.  Roem- 
niicli    (Mo.  App.),  208  S.  W.  859. 

Montana — Savage  v.  Boyce.  53 
:\ront.  470,  164  Pac.  887. 

\eio  Yorlc. — Millman  v.  Appleton, 
139  N.  Y'.  App.  Div.  738,  124  N.  Y'. 
Siippl.  482;  Clarke  v.  Woop,  159  N. 
V.  App.  Div.  437,  144  N.  Y'.  Suppl.  595. 

\ortJi  Dakota. —  Hendricks  v. 
Iliiirlies.  37  X.  Dak.  180,  163  N.  W.  268. 

Oklahoma. —  Tulsa  Ice  Co.  v. 
Wilkes,  54  Okla.  519,  153  Pac.  1169. 

Oregon. — Pinder  v.  Wickstrom,  80 
Oreg.  118,  156  Pac.  583. 

s'oiith  Dakota . — Schnabel  v.  Kafer, 
;:9  S.  Dak.  70,  162  X.  W.  935. 

Utah. — Stanton  v.  Western  Macaroni 
Mfg.  Co.,  174  Pac.  821. 

Washington. — Lloyd  v.  Calhoun,  82 
W«,sh.  35,  143  Pac.  458;  Paton  v 
Cashmere  Warehouse  &  Storage  Co.. 
176  Pac.  544;  Zuccone  v.  Main  Fish 
Co.,   177  Pac.   314. 

Wisconsin. — Jolin  v.  Pierce  (Wis.), 
178  X'.  W.  297. 

43.  Hoover  v.  Reichard.  63  Pa. 
Super.  Ct.  517. 


284  The  Law  of  Automobiles. 

Sec.  250.  Meeting   and   passing   other   travelers  —  right   of 
center  line  of  highway. 

Custom,  as  well  as  positive  statutory  and  ordinance  pro- 
visions in  many  States,  require  that  the  turning  to  the  right 
upon  meeting  other  travelers  shall  be  to  such  an  extent  that 
each  traveler  shall  he  on  his  own  side  of  the  center  line  of  the 
highway."  That  is  to  say,  even  if  the  road  were  so  wide  that 
the  travelers  could  safely  pass  each  other  on  the  same  side 
of  the  center  line,  the  law  of  the  road  disapproves  such  prac- 
tice.*^ Such  regulations  do  not  require  a' driver  to  remain  at 
all  times  on  the  right  side  of  the  center,  hut  require  only  that 
he  shall  so  turn  when  meeting  another  vehicle.*^  The  phrase 
** center  of  the  road,"  as  used  in  regulations  of  this  nature, 
has  been  held  to  mean  the  center  of  the  traveled  or  wrought 
part  of  the  road.*^  When  the  road  is  covered  with  snow, 
travelers  who  meet  must  turn  to  the  right  of  traveled  part  of 
the  road  as  it  then  appears,  regardless  of  what  would  be  the 
traveled  part  when  the  snow  is  gone.*^  But  under  a  statute 
requiring  a  person  on  a  public  highway  in  any  vehicle  to  turn 
to  the  right  and  give  one-half  of  the  traveled  road  upon  meet- 

44.  California.— Diehl  v.  Roberts,  134  39  S.  Dak.  70,  162  N.  W.  935. 

CPvI.  164,  66  Pac.  202.  Wisconsin. — Hoppe   v.    Peterson.    165 

Illinois.— Dunn    v.     Moratz,     92    111.  Wis.  200.  161  N.  W.  738. 

App.  277.  Compare    Nordley    v.    Sorlie,    35    N. 

/oicc— Buzich  V.  Todman,  179  Iowa,  Dak.  395,  160  N.  W.  70. 

1019,  162  N.  W.  259.  45.  Wright   v.    Fleischman,    41   Misc. 

Maine— Bragdon  v.  Kellogg,  118  Me.  (N.  Y.)   533,  85  N.  Y.  Suppl.  62. 

42,   105  Atl.  433;   Eieker  v.  Gray,   118  46.  Walker   v.   Lee    (N.    C),    106   S. 

Me.  492,  107  Atl.  295.  E.    682;    Sims   v.    Eleazer    (S.   C),    106 

Massachusetts. — Rice  v.  Lowell  Buick  S.  E.  854. 

Co.,  229  Mass.  53,  118  N.  E.  185.  47.  Clark   v.  Oommoii wealth,  4  Pick. 

Minnesota. — .Molin      v.      Wark,      113  (Mass.)    125.     See,  however,  Daniel  v. 

Minn.  190,  129  N.  W.  383;   Morken  v.  Clegg,    38    Mich.    32,   holding   that   the 

St.  Pierre,  179  N.  W.  681.  phrase  "traveled  part  of  the  road"  in 

Montana. — Savage      v.       Boyce,      53  such  a  statute  means  that  part  which 

Mont.   470,   164  Pac.  887.  is   wrought    for    traveling,    and    is   not 

New    York. — Wright   v.    Fleischman,  confined   simply   to   the   most   traveled 

41  Misc.  533,  85  N.  Y.  Suppl.  62.  wheel   track.      See   also   Baker   v.   Zim- 

Oklahoma.—  Tulsa       Ice       Co.       v.  merman,  179  Iowa,  272,  161  N.  W.  479; 

Wilkes,  54  Okla.  519.  153  Pac.  1169.  Schnabel   v.    Kafer    (S.   Dak.),    162   N. 

South    Carolina. — ^Smoak    v.    Martin,  W.  935. 

108  S.  Car.  472,  94  S.  E.  869.  48.  Jaquith    v.    Ricliardson,    8    Mete. 

South    Dakota. — Schnabel    v.    Kafer,  (Mass.)    213. 


Law  of  the  Road.  285 

ing  another  vehicle,  it  has  been  held  that  the  fact  that  one 
does  not  give  the  other  half  of  the  road  is  not  conclusive  evi- 
dence of  negligence,  and  in  an  action  to  recover  for  injuries 
alleged  to  have  been  caused  by  the  defendant's  failure  to  give 
the  plaintiff's  buggy  half  of  the  road,  it  was  decided  that  if 
the  plaintiff's  horse  and  buggy  were  outside  the  traveled  road, 
the  defendant  need  not  give  one-half  of  the  road,  but  could 
run  his  automobile  on  the  traveled  path,  provided  there  was 
room  to  pass  and  the  plaintiff's  horse  had  shown  no  signs  of 
fright." 

Sec.  251.  Meeting  and  passing  other  travelers  —  seasonable 
turn  to  right. 

The  statutory  provisions  in  the  various  jurisdictions  as  to 
the  turn  which  the  driver  of  a  vehicle  shall  make  when  meet- 
ing another  vehicle,  are  slightly  variant  as  to  language.  In 
a  few  States  the  lawmakers  have  required  that  the  drivers 
shall  ''reasonably"  or  "seasonably"  turn  to  the  right.^  This 
requirement  has  been  held  to  mean  that  each  should  turn  to 
the  right  in  such  season  that  neither  shall  be  retarded  by  rea- 
son of  the  other's  occupying  his  half  of  the  way.^^  Under 
such  an  enactment,  it  is  held  that  it  is  not  necessary  for  a  per- 
son to  turn  to  the  right  so  that  all  of  his  vehicle  is  on  the  right 
of  the  center  of  the  highway,  but  it  is  sufficient  if  he  turns  out 
far  enough  so  that  the  approaching  vehicle  may  pass  safely 
without  turning  at  all.^'^  Statutory  provisions  in  some  States 
may  make  an  exception  in  favor  of  heavily  laden  vehicles,  per- 
mitting them  to  continue  along  the  center  of  the  road.^^ 

49.  Neody   v.    Littlejohn,    137    Iowa,  54  Atl.  600;  Stanton  v.  Western  Maca- 

704,  115  N.  W.  483.  roni  Mfg.  Co.    (Utah).  174  Pac.  821. 

60.  Martin     v.     Carnithers     (Colo.),  51.  Neal   v.   Randall,   98   Me.   69,   56 

195  Pae.  105;   Lemmon  v.  Broadwater,  Atl.  209,  63  L    R.  A.  668:   Bmgdon  v. 

30  Del.    (7  Boyce)    472,   108  Atl.   273;  Kellogg,    118    Mo.    42,    105    Atl.    433; 

Oupples    Merchantile    Ct).    v.    Bow.    32  Stanton  v.  Western  Macaroni  Mfg.  Co. 

Idaho,    774,    189     Pac.     48;     Flynt     v.  (Utah).   174  Pac.  821. 

Fonderii   (Miss.),  84  So.  188;  Edwards  52    Bnxton   v.   Ainsworth.   138   Mich. 

V.   Yarbrough    (Mo.   App.),   201    S.   W.  532,    101   N.   W.   817,    11   Det.   Leg.  N. 

972;    Puick  v.   Thurston,   25    R.   I.    36,  684,  5  Ann.  Cas    146. 


286 


The  Law  of  Automobiles. 


Sec.  252.  Overtaking  and  passing  other  travelers  —  turning 
to  left  to  pass. 

Under  the  English  custom,  when  one  traveler  overtakes  and 
wishes  to  pass  another  traveling  in  the  same  direction,  the 
faster  one  should  turn  toward  the  right  and  the  slower  one 
toward  the  left.  In  this  country,  it  has  sometimes  been  thought 
that  there  was  no  custom  on  the  subject  having  the  force  of 
law  ;^  but,  even  in  the  absence  of  statute  especially  prescrib- 
ing the  course  to  be  pursued,  it  was  thought  generally  that  the 
law  of  the  road  required  the  overtaking  traveler  to  pass  to 
the  left  of  the  forward  vehicle.  In  any  event  that  course  is 
now  in  practically  every  State  required  by  statutory  enact- 
ment.^   If  an  automobilist  attempts  to  pass  on  the  wrong 


53.  See  Hayden'v.  MoColly,  166  Mo. 
App.  675,   150  S.   W.   1132. 

54.  Bolton  V.  Colder,  1  Watts    (Pa.) 
360.      "Unless    there    is    a    statute    or 
municipal    regulation   to   the   contrary, 
one    overtaking    and    passing    another 
may  pass  on  either  side,  using  proper 
caution,   and    keeping   a   safe   distance 
behind  when  not  passing.     The  leading 
team   may  travel   anywhere   it  pleases, 
using,   however,   due   care.     ...      It 
necessarily  follows  that,  if  the  leading 
team  should   use  the  left  side  of  the 
highway,  leaving  insufficient  space  for 
the  rear  team  to  pass,  the  latter  may 
pass   to   the   right.      If    for   any   other 
reason,  such  as  the  obstruction  of  the 
highway  on  the  left  of  the  leading  team 
by   other  teams   proceeding  in   the  op- 
posite   direction,    so    as   to    prevent    a 
passage  to  the  left  of  the  team  in  front, 
the  rear  team  may,  if  there  is  sufhcient 
spa/ce  and  it  can  be  done  by  the  exer- 
cise of  proper  care,  pass  to  the  right 
of  the  team  in  front.    The  general  rule, 
therefore,  that   teams  traveling  in  the 
same    direction    on    a   highway    should 
pass  each  other  to  the  left  has  its  ex- 
ceptions, and  must  be  applied  with  ref- 
erence to  the  circumstances  of  the  par- 
ticular case."     Wright  v.  Mitchell,  252 
Pa.  St.  325,  97  Atl.  478. 

In  Louisiana,  it  has  been  held   that 


the  driver  or  owner  of  the  rear  vehicle 
passes,  at  his  peril,  the  forward  one, 
and  is  responsible  for  all  damage 
caused  thereby.  Avegno  v.  Hart,  35 
La.  Ann.  235. 

See  also,  to  same  effect,  Menard 
V.  Lussier,  50  Que.  S.  C.   (Canada)   159. 

55.  California.— Wea,\er  v.  Carter,  28 
Cal.  App.  241,  152  Pac.  323. 

Connecticut. — Feehan  v.  Slater,  89 
Conn.  697.  96  Atl.   159. 

Indiana. — Hamilton,  Harris  &,  Co.  v. 
Larrimer,  183  Ind.  429,  105  N".  E.  43; 
Borg  V.  Larson,  60  Ind.  App.  514,  111 
K  E.  201. 

Louisiana. — Manceaux  v.  Hunter 
Canal  Co.,  148  La.  — ,  86  So.  665. 

Missouri. — Pannell  v.  Allen,  160  Mo. 
App.  714,  142  S.  W.  482. 

Neio  Jersey. — Unwin  v.  State,  73  N. 
J  L.  529,  64  Atl.  163,  affirmed  State 
v.  Unwin,  75  X.  J.  L.  500,  68  Atl.  110; 
Decou  V.  Dexheimer,  73  Atl.  49;  Pool 
v.  Brown,  89  N-.  J.  Law,  314,  98  Atl. 
262. 

North  Carolina. — ^Cooke  v.  Jerome, 
172  N.  C.  626,  90  S.  E.  767. 

Rhode  Island. — Ribas  v.  Eevere  Rub- 
ber Co.,  37  R.  L  189,  91  Atl.  58. 

Wiscoiisin. — Riggles  v.  Priest,  163 
Wis.  199,  157  N".  W.  755;  Mahar  v. 
Lochen,   166  Wis.   152,   164  N.  W.  847. 


Law  of  the  Road.  287 

side  of  another  traveler,  lie  may  be  responsible  for  the  in- 
juries sustained  by  such  traveler.^^  The  left  side  is  the  proper 
side  to  pass  on,  though  it  brings  the  automobilist  on  the  left 
side  of  the  highway;^'  but,  because  of  the  fact  that  when  he 
passes  the  left  of  the  center  of  the  highway  he  is  perhaps 
violating  the  law  of  the  road  as  to  a  third  vehicle  approach- 
ing from  the  opposite  direction,  he  should  attempt  the  pas- 
sage only  when  he  can  do  so  with  safety  to  the  travelers  he 
is  meeting  as  well  as  to  the  vehicle  he  is  passing.^  He  must 
exercise  reasonable  care  in  making  the  passage  in  order  that 
injury  will  not  result  to  other  travelers.^^  The  law  of  the 
road  relative  to  overtaking  and  passing  other  travelers,  is  not 
generally  applicable  to  pedestrians.^'^  Nor  is  it  applicable  to 
street*  cars,  for  the  law  contemplates  that  the  forward  con- 
veyance shall  give  way  toward  the  right,  and  street  cars  are 
unable  to  do  so  on  account  of  the  fixity  of  their  route.^  An 
ordinance  may  require  an  automobilist  to  pass  to  the  right  of 
a  street  car  which  he  is  overtaking.^^ 

Sec.  253.  Overtaking  and  passing  other  travelers  —  turning 
to  right  after  passing. 
After  passing  the  rear  of  the  forward  vehicle,  an  automo- 
bilist must  exercise  reasonable  care  in  turning  back  toward 
the  right  into  the  center  of  the  highway.  If  he  makes  the  turn 
sooner  than  reasonable  prudence  would  dictate,  he  may  be. 
liable  for  damages  for  striking  or  frightening  the  horses 
drawing  the  forward  carriage,"^  or  for  striking  one  riding  in 

56.  Borg  V.  Larson,  60  Ind  App.  514,  ^Marco,  200  ^fass.  57,  85  X.  E.  891. 
Ill  N.  E.  201;    Schaffer  v.  IMillor,  185  62.  City    of    Chicago    v.    Kroeli.    291 
Iowa,  472,  170  N".  W.  787.  111.  188,  125  N.  E.  881. 

57.  Paschel   v.   Hunter,   88   N.   J.   L.  Proper   side    for   motor   car   to    pass 
445,  97  Atl.   40.  tram  car  proceeding  in  same  direction. 

58.  Pratt  v.   Burns,   189  N.   Y.  App.  Burton  v.  Nicholson    (K.  B.  Div.).  100 
Div.  33,  177  N.  Y.  Supp.  817.     And  see  Law  T.  K.    (N.   S.)    344. 

section  254.  63.  House  v.   Fry,  30  Cal.  App.   157, 

59.  Bishard  v.   Engelbeck,   180  Iowa,  157    Pac.    500;    Dclfs   v.   Dunshce.    143 
1132.   164  N.  W.  203,  Iowa,  381,  122  N.  W.   236:    Zellnier  v. 

60.  Brown  v.  Thayer.  212  Mass.  392,  McTaigiie.    170   Iowa.   534,    153   N".    W. 
99  N.  E.  237.  77;    Duiikolbeck    v.    ifeyer,    140    Minn. 

61.  Harris   v.    Johnson,    174    Cal.    55,  283,  167  X.  W.   1034. 
161  Pac.   1155.     Compare  McGourty  v. 


288  The  Law  of  Automobiles. 

the  forward  conveyance."  In  some  States,  the  return  to  the 
beaten  path  is  regulated  hy  statute,  the  enactments  prescrib- 
ing a  definite  distance  from  the  carriage  for  the  return  of  the 
automobilist.^^  Wliere  the  evidence  tended  to  show  that  de- 
fendant's car  approached  plaintiff  from  the  rear,  was  within 
a  few  feet  of  his  horse  when  passing,  and  turned  in  front  of 
him  but  a  short  distance  ahead,  and  that  a  well  broken  horse 
is  likely  to  be  frightened  under  such  circumstances  unless 
some  warning  is  given,  it  was  held  that  the  question  of  whether 
defendant  exercised  reasonable  caution  in  thus  passing  plain- 
tiff 's  horse,  was  for  the  jury.^  And  the  driver  of  the  vehicle 
which  is  left  in  the  rear  must  also  exercise  reasonable  care  to 
avoid  a  collision  with  the  passing  vehicle." 

Sec.  254.  Overtaking  and  passing  other  travelers  —  meeting 
third  vehicle  after  passing  toward  left. 

One  vehicle  should  not  attempt  to  pass  another,  unless  the 
passage  can  be  made  with  reasonable  safety  to  third  persons. 
Although  statutes  or  municipal  ordinances  may  permit  a 
faster  vehicle  to  pass  another  on  the  left  side  thereof,  the 
driver  of  he  rear  vehicle  should  not  attempt  this  course  when 
injury  is  likely  to  be  thereby  occasioned  to  a  cyclist  or  vehicle 
approaching  from  the  opposite  direction.^^  If  he  does  attempt 
the  passage  without  information  of  his  intention  to  the 
traveler  approaching  from  the  other  way,  and  such  traveler 
is  unable  by  an  exercise  of  due  diligence  to  avoid  a  collision, 
he  is  liable  for  the  injuries  sustained  by  such  traveler,  for  he 
should  wait  a  suitable  opportunity  before  attempting  the  pas- 
sage.^^     From  the  point  of  view  of  a  traveler  approaching 

64.  Moreno  v.  Los  Angeles  Transfer  The  traffic  law  requirement  that  a 
Co.   (Cal.  App.),  186  Pac.  800.  vehicle  driver   pass  a  vehicle  ahead  of 

65.  Zellmer  v.  McTaigue,  170  Iowa,  him  to  the  left  docs  not  excuse  him 
534.  15.^  N.  W.  77.  from    exercising    care    in    ascertaining 

66.  Delfs  V.  Dunshee,  143  Iowa,  381,  whether  it  can  be  done  with  safety  to 
122  N.  W.  236.  those   on    the    left    side   of   the   street. 

67.  Winslow  v.  New  England  Co  op.  Pool  v.  Brown,  89  N.  J.  Law,  314,  98 
See.  225  Mass.  576,  114  N.  E.  748.  Atl.  262. 

68.  Pool  v.  Brown,  89  N.  J.  Law,  69.  Nafziger  v.  Mahan  (Mo.  App.), 
314,  98  Atl.  262;  Ribas  v.  Revere  Rub-  191  S.  W.  1080;  Ribas  v.  Revere  Rub- 
ber Co.,  37  R.  I.  189,  91  Atl.  58.  ber  Co.,  37  R.  I.  189,  91  Atl.  58.     "As 


Law  of  the  Road.  289 

from  the  opposite  direction  at  the  time  a  rear  vehicle  attempts 
to  pass  another  going  in  the  same  direction,  the  passing  con- 
veyance is  on  the  left  or  wrong  side  of  the  highway.  In  some 
jurisdictions  the  matter  is  specifically  regulated  by  statute. 
Regulations  may  prohibit  the  passage  by  the  rear  vehicle  un- 
less the  way  is  clear  for  a  specified  distance  ahead,  such  as 
one  hundred  yards.'^ 

Sec.  255.  Overtaking  and  passing  other  travelers  —  slower 
vehicles  at  curb. 
For  the  regulation  of  traffic  in  some  of  the  larger  cities, 
ordinances  have  been  adopted  requiring  slower  moving  vehi- 
cles to  keep  toward  the  curb  and  allowing  the  faster  ones  a 
course  nearer  the  center  of  the  street.''^  But,  though  the  for- 
ward vehicle  is  not  traveling  as  near  to  the  curb  as  the  ordi- 
nance requires,  the  rear  one  is  not  justified  in  running  into 
it;  the  fact  that  there  is  plenty  of  room  on  the  left  side  of 
the  forward  vehicle  for  passing  without  injury  to  other 
travelers  tends  to  show  that  the  violation  of  the  regulation 
by  the  forward  vehicle  is  not  a  proximate  cause  of  the  injury, 
and  hence  it  does  not  preclude  a  recovery  for  injuries  thereto.^^ 

we  have  before  substantially  said,  a  the  vehicle  in  the  opposite  direction  is 
person  attempting  to  pass  a  vehicle  simply  one  of  the  circumstances  which 
ahead  of  him  and  going  in  the  same  must  be  considered  by  the  rear  man 
direction  must  exercise  proper  care  in  when  he  attempts  to  pass.  It  is  simply 
so  doing.  If  a  vehicle  is  approaching  one  of  the  tilings  which  demands  the 
from  the  opposite  direction  at  the  mo-  exercise  of  care  upon  his  part  under 
ment  wlien  he  desires  to  pass  the  ve-  all  circumstances,  and  in  some  circum- 
hicle  in  front,  and  the  highway  is  not  stances  he  would  be  required  to  re- 
wide  enough  to  safely  accommodate  frain  from  attempting  to  pass  until  the 
all  three  teams  abreast,  then  it  would  approaching  vehicle  had  gone  by." 
be  tlie  duty  of  the  person  in  charge  of  Ribas  v.  Revere  Rubber  Co.,  37  R.  I. 
the    rear    vehicle,    in    the    exercise    of  189.  91  Atl,  58. 

proper    care   under    the   circumstances,  70.  See    Wiley    v.    Young,    178    Cal. 

to  wait  until  the  vehicle  coming  in  the  681,  174  Pac.  316. 

opposite   direction    had    passed   by   be-  71.  House  v.  Fry,  30  Cal.  App.   157, 

fore  he  attempted  to  turn  out.     It  is  157  Pac.  500;  Hcrdman  v.  Zwart,  167 

not   necessary   to   involve  the   question  Iowa.  500.   149  N.  W.   631:   Harnau  v. 

as   to   the  duty   of   the   vehicle   in   the  Haight,  189  Mich.  000,  155  X.  W.  563. 

roar,   in   passing,  towards  another   ve-  72.  House  v.  Fry,  30  Cal.  App.  157. 

hide  that  may  be  approaching  in   an  157  Pac.  500. 
opposite    direction.      The    approach    of 

19 


290  The  Law  of  Automobiles. 

Sec.  256.  Overtaking  and  passing  other  travelers  —  duty  of 
forward  vehicle  to  permit  passage. 
A  slower  vehicle  has  no  right  to  obstruct  a  faster  one  desir- 
ing to  pass  if  the  situation  is  such  that  the  rear  one  can  pass 
in  safety ."^    When  the  driver  of  the  faster  conveyance  desires 
to  pass,  it  is  the  duty  of  the  forward  one  to  turn  toward  the 
right  so  as  to  give  the  rear  one  a  reasonable  opportunity  for 
passage.'^     The  driver  of  the  forward  vehicle  cannot,  how- 
ever, be  expected  to  turn  toward  the  right,  until  he  has  some 
knowledge  that  the   rear  one  is   approaching  and  that  its 
driver  wishes  to  pass.'^^    The  driver  of  the  rear  machine  should 
give  a  signal  of  his  wishes  in  respect  to  passing.'*    Moreover, 
the  forward  driver  cannot  be  required  to  give  way  unless  the 
condition  and  width  of  the  road  is  sucih  that  the  passage  can 
be  made  with  reasonable  safety.'^    If  the  driver  of  the  slower 
vehicle  is  not  allowed  sufficient  time  to  turn  to  the  right  before 
the  rear  vehicle  strikes  him,  he  cannot  be  charged  with  con- 
tributory negligence.'^*    If  a  person  on  horseback  apparently 
does  not  hear  the  approach  of  an  automobile  from  the  rear, 
the  driver  of  the  machine  cannot  proceed  regardless  of  the 
fact  that  the  horseback  rider  does  not  turn  out,  but  he  should 
slacken  the  speed  of  the  machine  and  even  stop  it  if  neces- 
sary.^'^   A  horseback  rider  is  not  generally  required  to  yield 
but  half  of  the  beaten  track  to  an  automobilist  who  desires  to 
pass  him.^*^ 

73.  Dunkel'beck  v.  Meyer.  140  Minn.  79.  Furtado  v.  Bird,  26  Cal.  App. 
283,  167  N.  W.  1034.  153,  146  Pac.  58. 

74.  Paschel  v.  Hunter.  88  X.  J.  L.  80.  Traeger  v.  Wasson,  163  111.  App. 
445,  97  Atl.  40;  Laudenberger  v.  Eas-  572,  wherein  it  was  said:  "While  it 
ton  Transit  Co.,  261  Pa.  288,  104  Atl.  may  be  known  as  a  matter  of  general 
588.  knowledge  that  out  of  courtesy  a  man 

75.  Morrison  v.  Clark,  196  Ala.  670,  traveling  upon  horseback  usually  leaves 
72  So.  305 ;  House  v.  Fry,  30  Cal.  App.  the  beaten  track  for  the  use  of  a  ve- 
157,  157  Pac.  500;  Dunkelbeck  v.  hide  for  the  reason  that  it  may  be 
Meyer,  140  Minn.  283,  167  N.  W.  1034.  easier  for  the  horse  without  a  vehicle 

76.  Dunkelbeck  v.  Meyer,  140  Minn.  attached  to  travel  upon  that  portion 
283,  167  N.  W.  1034.  of  the  highway  which   is  not  included 

77.  Dunkelbeck  v.  Meyer,  140  Minn.  in  the  beaten  track,  the  statute  does 
283,  167  N.  W.   1034.  not    require    that    a    person    traveling 

78.  Pens  v.  Kreiter,  98  Kans.  759,  upon  horseback  so  do.  Under  the  rule 
160  Pac.   200.  that    persons'    rights    upon    the    public 


TjAW  of  the  Road.  291 

Sec.  257.  Overtaking  and  passing-  other  travelers  —  passing 
at  comer  where  forward  vehicle  turns  to  left. 
When  two  vehicles  are  proceedin.L,^  alon^^  a  .street  in  the  same 
direction,  and  the  forward  one  starts  to  turn  a  corner  toward 
the  left,  it  is  not  an  appropriate  time  for  the  rear  vehicle  to 
attempt  to  pass  on  the  left  of  the  forward  vehicle.    ^\niether 
the  driver  of  the  rear  vehicle  under  such  circumstances  is 
guilty  of  negligence,  may  be  a  question  for  the  jury."^    Appro- 
priate statutory  and  municipal  regulations  have  been  enacted 
in  some  jurisdictions  to  relieve  the  danger  of  the  situation. 
It  is  a  matter  of  regulation  in  some  cities  that  the  driver  of 
the  forward  vehicle  shall  by  some  signal  make  known  to  the 
driver  of  the  rear  machine  his  intention  to  turn  the  corner.^ 
If  the  driver  of  the  forward  vehicle  gives  a  signal  in  com- 
pliance of  the  statute  and  a  collision  nevertheless  occurs,  the 
negligence  of  the  rear  driver  may  be  found  by  the  jury.^    But 
when  no  signal  is  given,  the  driver  of  the  rear  carriage  is  not 
charged  with  notice  that  the  forward  traveler  may  attempt 
to  dart  across  the  course.    An  accident  of  such  a  nature  may 
happen  so  quickly  that  liability  will  not  be  charged  against 
the  driver  of  the  rear  vehicle.^* 

Sec.  258.  Turning  corners  —  turning  toward  the  right. 

When  an  automobilist  is  proceeding  along  the  right-hand 
side  of  a  street,  a  t\irn  toward  the  right  is  not  a  difficult  mat- 
ter.   If  other  vehicles  are  obeying  the  law  of  the  road,  there 

high-way    are   equal,    plaintiff    bad    the  discloses  that  he  did." 
right  to  continue  to  use  at  lea-st  one-  81.  Wingert    v.    Cohill     (Md.),     110 
half  of  the  beaten  track  and  the  record  Atl.  857 ;  Mendelsou  v.  Van  Rensselaer, 
discloses  that  he  did  no  more  .than  this.  118  N.   Y.    Aj>p.    Div.    516.    103  N.   Y. 
that  he   surrendered   the   right   side   of  Suppl.   578. 
the  beaten  track  for  the  use  of  the  de-  82.  Section   264. 
fendant,  and  that  was  all  that  he  was  83.  Frank  C.  Weber  Co.  v.  Stevenson 
required  to  do.     The  fact  that  the  par-  Grocery  Co.,    194  111.  App.   432:    Win- 
ties  were  going  in   the  same   direction  gert    v.    Cohill     (Md.),    110    Atl.    857; 
instead   of    in    opposite   directions   ini-  Daly  v.  Case,  88  N.  J.  L.  295.  95  Atl. 
posed   no   greater   obligation    upon    the  973. 

plaintiff  to  leave  the  beaten  track,  and  84.  Newbauer  v.  Nassau  Elec.  R.  Co., 

the  plaintiff  was  not  guilty  of  oontribu-  191    N.    Y.   App.    Div.   732.    182   N    Y. 

tory  negligence  by  traveling  on  the  left  .'^uppl.    20    :   Hartley    v.     Lasater.     96 

side  of  the  beaten  track  as  the  record  \\a«h.  407,   165  Pac.   106. 


292  The  Law  of  Automobiles. 

is  little  danger  of  collision.  The  principal  duties  of  the  driver 
of  a  motor  vehicle  when  turning  toward  the  right  are  reason- 
able diligence  to  avoid  pedestrians  who  may  be  on  the  street 
crossing,  and  the  obedience  of  regulations  prescribing  his 
distance  from  the  corner.  He  must  anticipate  that  foot 
travelers  will  be  using  the  crossing,  and  reasonable  care  on 
his  part  requires  that  he  have  the  machine  under  controP^ 
and  give  warning  to  pedestrians,^^  and  stopping  if  necessary 
to  avoid  them.^^  One  turning  a  corner  at  an  excessive  rate  of 
speed  may  be  found  guilty  of  negligence.^^  Affirmative  regu- 
lations, as  well  as  custom,  require  that  one  turning  toward 
the  right  shall  keep  to  the  right  of  the  center  of  the  intersect- 
ing streets.^^  Statutes  and  municipal  ordinances,  in  some 
cases,  require  that  the  automobilist  shall  keep  as  close  to  the 
curb  as  possible,^"*  or  keep  to  the  right  of  the  intersecting 
point  of  the  street.^^  Under  such  regulations,  if  the  proper 
course  of  the  driver  is  temporarily  blocked  by  other  travelers, 
he  is  not  justified  in  violating  the  requirement  and  turning 
toward  the  left,  but  he  should  slacken  his  speed  or  delay  the 
turn.^^  A  statute  requiring  a  turn  as  closely  to  the  curb  as 
possible  is  designed  more  for  the  protection  of  other  vehicles 
than  for  the  safety  of  pedestrians  using  the  crosswalk.    Foot 

85.  See  sections  326,  441.  91.  Walters   v.    Davis    (Mass.),    129 

86.  See   sections   329-331,  448.    '  N.  E.  443. 


87.  Kuchler  v.  Stafford,  185  111.  App 
199;  Buscher  v  New  York  Transp 
Co.,  106  N.  Y.  App.  Div.  493,  94  N.  Y, 
Suppl.  796;  Taylor  v.  Stewart,  172  N, 
Car.   203,  90   S.   E.   134;    and  see  sec 


92.  City  of.Oshkosh  v.  Campbell,  151 
Wis.  567,  139  N.  W.  316,  wherein  it 
was  said :  "The  mere  fact,  without 
any  fault  of  appellant,  that  he  had  to 
choose    between    slackening    speed    or, 


tions  327,  442.  even,    stopping    for   a    moment    for    a 

88.  Sections  305,  308.  clearance  of  the  way,  or  violating  the 

89.  Pemberton  v.  Army  (Cal.  App.),  ordinance,  by  turning  as  he  did.  is  no 
183  Pac.  356,  affirmed  182  Pac.  964;  justification  for  his  act.  If  it  were 
Bogdan  v.  Pappas,  95  Wash.  579,  164  left  to  every  owner  of  an  automobile 
Pac.  208.  to  violate  such  a  city  regulation  when 

90.  Pemberton  v.  Army  (Cal.  App.),  otherwise  he  would  experience  some  in- 
183  Pac.  356,  affirmed  182  Pac.  964;  eonvenience,  there  would  be  very  little 
Anderson  v.  Schorn,  189  N.  Y.  App.  use  of  having  such  an  ordinance,  and 
Div.  495,  178  K  Y.  Suppl.  603;  Rus-  the  difficulty,  now  very  great,  of  guard- 
sell  V.  Kemp,  95  Misc.  (N.  Y.)  582,  ing  against  automobiles  being  a  seri- 
159  N.  Y.  Suppl.  865;  City  of  Oshkosh  ous  menace  to  the  personal  safety  of 
T.  Campbell,  151  Wis.  567,  139  N.  W.  people  while  on  the  public  ways  would 
816.  be  intolerable." 


Law  of  the  Road.  293 


travelers  are  better  protected  by  a  requirement  that  a  certain 
number  of  feet  shall  be  left  between  the  machine  and  curb 
corner.  Hence  regulations  are  sometimes  enacted  which  are 
designed  for  the  safety  of  pedestrians  and  prohibit  the  turn- 
ing within  a  specified  distance  of  the  curb.^^  General  regu- 
lations governing  the  conduct  of  drivers  when  meeting  or 
overtaking  other  vehicles  are  not  usually  applicable  at  street 
intersections.^* 

Sec.  259.  Turning  corners  —  turning  toward  the  left. 

The  turning  of  a  corner  by  a  motor  vehicle  toward  the  left 
is  fraught  with  greater  danger  to  other  travelers  than  is  a 
turning  toward  the  right.  Obviously,  when  making  the  turn, 
the  driver  will  be  intercepting  the  course  which  other  vehicles 
may  properly  take  in  accordance  with  the  law  of  the  road. 
Regulations  generally  require  that  one  turning  toward  the 
left  shall  pass  to  the  right  of  the  center  of  the  intersecting 
streets ;  and  negligence  may  be  founded  on  the  act  of  a  driver 
cutting  the  corner.^^    Especially  should  the  driver  turn  so  as 

93    Domke    v.     Gunning.     62     Wash.  Delivery  Co.,  198  Ala.  449,  73  So.  642. 

629,  114  Pac.  436.  Arkansas.-Temp\e    v.     Walker,     127 

Obstructed   corner.-Where   an   ordi-  Ark.  279,  192  S.  W.  200. 

nance  required  a  person  driving  an  au-  California.-Cook  v.  Miller,  175  Cal. 

tomobile,   upon    turning   the   corner   of  497,  166  Pac.   316;   Perez  v-  Hartman, 

any  street  "to  leave  a  space  of  at  least  39  Cal.  App.  601,  179  Pac.  706;   Mar- 

six  feet  between  the  curb  and  the  .  .  .  tinclli  v.   Bond    (Cal.  App.),  183  Pac. 

automobile"   and   it  appeared  that  on  463.                                     „  ^  ,. 

the  lot  fronting  the  street  where  the  Indiana,.— V^eitz     v.     Hodgkins,     185 

accident   happened   a  building  was  be-  Ind.  163,  112  N.  E.  386. 

in-  erected  and   that  debris  had  been  /otra.-Walterick    v.    Hamilton.    1-0 

piTed   up   at   the   corner   of   the   street  Iowa,  607,  161  N.  W.  684. 

around  which  a  fence  or  barricade  had  Kansas.-Cross    v.    Rosencranz,    19d 

been     constructed,     compelling     pedes-  Pac.  857. 

trians  to  leave  the  regular  walk,  step  Massachusetts.— Walters      v.      Davis, 

into   the   street   and   walk   around   the  129  N.  E.  443. 

outside   of   the   fence  or   barricade,    it  Michigan.-TXecd      v.      Martin       160 

was    held    that    the    fence  became   the  Mich.  253,   125  N.   W.   61;   Holdem  j 

curb  within  the  meaning  of  the  ordin-  Hadley,  180  Mich.  568,  147  N.  W    48-; 

ance.      Domke    v.    Gunning.    62    Wash.  Everhard  v.  Dodge  Bros.,  202  Mich.  48. 

029,    114   Pac.    436.  167  N.  W.  953. 

94.  Buzich     V.     Todman,     179    Iowa,  Minnesota.— MoVm      v.      Wark^     nd 
1019,  162  N.  W.  259.  Minn.    190,    129    N.    W     383;    Day    ^v 

95.  Aia6a«m.-Karples    v.    City    Ice  Duluth  St.  R.  Co.,  121  Mmn.  445,  141 


294 


The  Law  of  Automobiles. 


to  enter  upon  the  right  side,  not  the  left  side,  of  the  cross- 
street.^^  Liability  does  not  necessarily  follow  because  at  the 
time  of  a  collision,  one's  vehicle  is  found  on  the  wrong  side 
of  the  center  point;  on  the  contrary,  he  may  be  allowed  to 
explain  his  course  and  may  possibly  succeed  in  charging  the 
driver  of  the  other  vehicle  with  negligence.^'^  The  purpose  of 
this  class  of  regulations  is  to  keep  vehicles  moving,  as  far  as 
practicable,  Avith  the  course  of  travel,  and  hence  there  may  be 
no  violation  where  the  driver  proceeds  to  the  right  of  their 
intersection  as  defined  by  customary  use,  though  his  course  is 
to  the  left  of  the  intersecting  point  as  the  streets  were  laid 
out.^^  The  driver  is  bound  to  know  that,  when  making  the 
turn,  the  rear  wheels  of  the  machine  will  not  follow  exactly 


N.  W.  795;  Unmacht  v.  Whitney.  178 
N-  W.  886;  Elvidge  v.  Strong  &  War- 
ner Co.,  181  N.  W.  346. 

Missouri. — Heryford  v.  Spitcanfsky 
(Mo.  App.),  200  S.  W.  123. 

Nebraska. — Rule  v.  Claar  Transfer 
&  Storage  Co.,  102  Neb.  4,  165  N.  W. 
883. 

New  Jersey. — Winch  v.  Johnson,  92 
X.  J.  L.  219.  104  Atl.  81. 

New  York. — ^Beickhemer  v.  Empire 
Carrying  Corp..  172  N.  Y.  App.  Div. 
866,  158  N.  Y.  Suppl.  856;  MaeDonald 
V.  Kusch,  188  App.  Div.  491,  176  N. 
Y.  Suppl.  823;  Jacobs  v.  Richard  Car- 
vel Co.,  156  N.  Y.  Suppl.  766.  See  also 
Mendelson  v.  Van  Rensselaer.  118  N  Y, 
App.  Div.  516,  103  N.  Y.  Suppl.  578. 

Oregon. — White  v.  East  Side  Mill 
&.  Lumber  Co..  84  Oreg.  224,  161  Pac. 
969,  164  Pac.  736. 

South  Dakota. — Boll  v.  Gruesner, 
176  N.  W.  517. 

Texas. —  Zucht  v.  Brooks  (Civ. 
App.),   216   S.   W.   684. 

Washington. — ■  Hellan  v.  Supply 
Laundry  Co.,  94  Wash.  683,  163  Pac. 
9;  Stubbs  V.  Molberget,  108  Wash.  89, 
182  Pac.  936,  6  A.  L.  R.  318;  Kane  v. 
Nakmoto,   194  Pac.   381. 

Wisconsin. — Foster  v.  Bauer,  180  N. 
W.  817. 


C'flHada.— Bain  v.  Fuller,  29  D.  L. 
R.  113. 

Question  for  jury. — In  an  action  for 
negligent  injuries  claimed  to  have  re- 
sulted from  the  collision  of  a  bicycle 
and  an  automobile,  the  owner  of  which 
was  shown  by  undisputed  evidence  to 
liave  failed  in  complying  with  the  sta- 
ute  requiring  the  driver  of  a  motor 
\('hicle  to  keep  to  the  right  of  street 
intersections  in  turning  corners,  while 
the  bicyclist  was  claimed  to  have  been 
negligent,  under  disputed  testimony  in 
failing  to  avoid  the  accident,  the  ques- 
tions of  negligence  and  of  contribu- 
tory negligence  were  held  to  be  ques- 
tions of  fact.  Pvced  v.  Martin,  160 
Mich.  253,  125  N.  W.  61. 

Proximate  cause. — The  violation  of 
the  rule  as  to  cutting  comers  is  not 
generally  the  proximate  cause  of  an  in- 
jury arising  after  the  driver  has  com- 
pleted the  turn  and  is  passing  along 
the  proper  side  of  the  intersecting 
street.  Wilkinson  v.  Rohrer  (Cal. 
App.),  190  Pac.  650. 

96.  Wortman  v.  Trott,  202  111.  App. 
528. 

97.  See  sections  270-275. 

98.  Karpeles  v.  Oity  Ice  Delivery 
Co.,  198  Ala.  449,  642,  Hamilton  v. 
Young   (Iowa).  171  N.  W.  694. 


Law  of  thi:  Koad. 


2!): 


in  the  tracks  of  the  forward  wliecls,  and  he  should  exercise 
reasonable  care  to  avoid  causing  un  injury  from  the  rear  as 
well  as  front  wheels.^^ 

Sec.  260.  Intersecting  streets  —  equal  rights  of  travelers. 

In  the  absence  of  statute  or  ordinance  or  s^jecial  circum- 
stances affecting  the  question,  the  rights  of  travelers  along 
intersecting  streets  are  equal,^  each  being  bound  to  exercise 
ordinary  care  to  avoid  injury  to  the  other.-  An  automobilist 
approaching  a  street  intersection  should  run  at  a  proper 
speed,^  have  his  car  under  reasonable  control/  and  give  warn- 
ing to  other  travelers  who  might  ])e  injured  by  his  machine.^ 
Moreover,  he  should  be  running  on  the  right-hand  side  of  the 
street  in  accordance  with  the  law  of  the  road  applicable  to 
such  travel.'''  If  two  travelers  approach  the  street  crossing 
at  the  same  time,  neither  is  justified  in  assuming  that  the 
other  will  stop  to  let  him  pass.''  The  equalities  of  the  different 
travelers  may  be  modified  by  statute  or  municipal  ordinance,^ 
or  special  circumstances  may  affect  the  rights  of  the  parties.' 
But  it  has  been  held  that  one  party  cannot  show  a  custom 


99.  White  v.  East  Side  Mill  &  Lum- 
ber Co.,  84  Oreg.  224,  161  Pac.  969. 
164  Pac.  736. 

1.  See  .-^ection^   48-50,   :56J.   414,  488. 

2.  C'fl/i'/or/n'a.— Piichvell  v.  Los  An- 
geles &  S.  D.  Ry.  Co.,  169  Cal.  780. 
148  Pac.  197. 

Indiana. — Klgin  Dairy  Co.  v.  Shep- 
pard   (Ind.  App.),  103  N.  E.  433. 

Iowa. — Wagiier  v.  Kloster,  175  N. 
W.  840. 

Louisiana. — Shields  v.  Fairchild,  130 
La.  648.  58  So.  497. 

Missouri. — Rowe  v.  Hammond,  172 
Mo.  App.  203,  157  S.  W.  880;  Clark  v. 
General  Motor  Car  Co.,  177  Mo.  App. 
623,   160  S.   VV.   576. 

Neio  Hampshire. — Gilbert  v.  Bnrqiio, 
72  N.  H,  521,  57  Atl.  97. 

New  York. — Towner  v.  Brooklyn 
Heights  R.  Co.,  44  N.  Y.  App.  Div.  628, 
60  N.  Y.  Suppl.  289;  Ebling  Brewing 
Co.  V.  Linch,  80  Misc.  (N.  Y.)  517. 
141    X.   Y.   Suppl.    480:    Miller   v.   Xew 


York  Taxicab  Co.,  120  N.  Y.  Suppl.  899. 

New  Jersey. — Spawn  v.  Gfoldberg  (N. 
.r. ),  110  AtL  565. 

Pennsylvania. — Brown  v.  Chambers, 
65  Pa.  Super.  Ct.  373. 

And  see  sections  277-282,  as  to  the 
care  to  be  exercised  by  automobilists. 

3.  Section  311. 

4.  Section  326. 

6.  Sections  329-331. 

6.  And  see  section  347;  Lawrence  v. 
Goodwill  (CaL  App.),  186  Pac  781; 
VValleigh  v.  Bean,  248  Pa.  St.  339,  93 
Atl.   1069. 

7.  Elgin  Dairy  Co.  v.  Shephard 
(Ind.  App.),  103  N.  E.  433;  PascA 
goula  St.  Ry.  &,  Power  €o.  v.  McEach 
crn.  109  Miss.  380,  69  So.  185. 

8.  Sections  261,  262. 

9.  One  approaching  a  main  artery 
of  traffic  from  an  intersecting  street, 
should,  it  is  held  in  Canada,  wait  and 
give  way  thereto.  Monnifol  v.  B.  C. 
Electric  Co.,  9  Dom.  Kaw  Rep.   569. 


296 


The  Law  of  Automobiles. 


which  has  permitted  vehicles  on  one  street  to  have  a  priority 
over  those  on  the  cross  street.^^  Statutes  relating  to  the 
meeting  and  passing  of  vehicles  along  the  streets  and  requir- 
ing that  each  turn  to  the  right,  do  not  apply  when  the  meeting 
is  on  intersecting  streets  at  right  angles.^^ 


Sec.  261.  Intersecting  streets  —  superior  right  of  first  arrival. 
When  one  vehicle  reaches  a  street  intersection  distinctly  in 
advance  of  one  approaching  along  the  intersecting  street,  he 
is  generally  accorded  the  right  of  way,  and  the  other  should 
delay  his  progress  to  enable  the  first  arrival  to  pass  in  saf  ety.^^ 


10.  Carson  v.  Turrish,  140  Minn. 
445,  168  N.  W.  349,  wherein  it  was 
said:  '"The  propriety  of  the  proffered 
proof  of  custom  has  had  careful  atten- 
tion. That  on  an  issue  of  negligence 
a  known  custom  or  usage  may  in  a 
proper  case  be  proved  as  bearing  upon 
negligence  or  the  absence  of  it  is  not 
to  be  questioned.  Dunnell's  Minn.  Dig. 
&  Supp.  §§  7049,  7050.  So  in  O'Neil 
V.  Potts,  130  Minn.  353,  153  N.  W. 
856,  it  was  held  proper  to  show  a  prac- 
tice among  drivers  of  autos  to  extend 
the  hand  to  the  side  before  stopping  as 
a  signal  to  cars  following.  The  ques- 
tion presented  by  the  offer  of  proof 
is  different.  It  was  sought  to  show 
that  main  street  traffic  has  a  right  of 
way  over  side  street  traffic,  something 
more  than  an  equal  right  at  the  cross- 
ing, and  that  the  side  street  traffic  is 
bound  to  exercise  special  care  and  cau- 
tion to  avoid  collisions  with  the  traffic 
on  main  thoroughfares.  In  effect  it 
was  sought  to  establish  something  ap- 
proximating a  rule  or  law  of  the  road, 
though  we  do  not  understand  counsel 
to  claim  that  the  custom  for  which  he 
contends  gives  an  arbitrary  right, 
though  a  substantial  advantage.  We 
think  the  ruling  was  correct.  Indeed 
it  is  the  rule  in  many  jurisdictions 
that  the  vehicle  first  at  the  crossing 
without  negligence  has  the  right  of  way 
across."     See  also,  Whatley  v.  Nesbitt 


(Ala.),  85  So.  550. 

11.  Buzich  V.  Todman,  179  Iowa, 
1019,  162  N.  W.  259;  Wagner  v. 
Kloster   (Iowa),  175  N.  W.  840. 

12.  Rupp  v.  Keebles,  175  111.  App. 
619;  Walker  v.  Hilland,  205  111.  App. 
243;  Carson  v.  Turrish  (Minn.),  168 
N.  W.  349;  Minnis  v.  Lemp  Brewing 
Co.  (Mo.  App.),  226  ;S.  W.  999;  Bar- 
rett V.  Alamito  Dairy  Co.  (Neb.),  181 
N.  W.  550;  Rabinowitz  v.  Hawthorne, 
89  N.  J.  L.  308.  98  Atl.  315;  Reed  v. 
Public  Service  Ry.  Co.,  89  N.  J.  Law, 
431,  99  Atl.  100;  Boggs  v.  Jewell  Tea 
Co.,  263  Pa.  St.  413,  106  Atl.  781; 
Simon  v.  Lit  Bros.,  264  Pa.  St.  121, 
107  Atl.  635;  Yuill  v.  Berryman,  94 
Wash.  458,  162  Pae.  513;  W.  F.  Jahn 
&  Co.  V.  Paynter,  99  Wash.  614,  170 
Pac.  132.  "That  rule  [referring  to 
the  common  law  rule]  is  that  the 
driver  of  the  automobile  would  have 
the  right  of  way  if,  proceeding  at  a 
rate  of  speed  which  under  the  circum- 
stances of  the  time  and  locality  was 
reasonable,  he  should  reach  the  point 
of  crossing  in  time  to  go  safely  upon 
the  tracks  in  advance  of  the  approach- 
ing car;  the  latter  being  sufficiently 
distant  to  be  checked,  and,  if  need  he, 
stopped,  before  it  should  reach  him." 
Reed  v.  Public  Service  Ry.  Co..  89  N. 
J.  Law,  431,  99  Atl.   100. 

And  see  sections  393,  394. 


Law  of  the  Road. 


29' 


If  in  such  a  case,  while  the  driver  of  the  vehicle,  m  the  exer- 
cise of  his  right,  is  proceeding  across,  and  a  later  arriving 
vehicle  continues,  neglectful  of  the  other's  rights,  and  a  col- 
lision ensues,  the  collision  may  properly  be  attributed  to  he 
negligence  of  the  later  arrival.^^  The  first  arrival  is  entit  ed 
to  proceed,  though  he  sees  the  other  approaching,  for,  m  the 
absence  of  anything  indicating  a  contrary  intention  he  is  en- 
titled to  assume  that  the  latter  will  slacken  his  speed  and  give 
him  the  priority  to  which  he  is  entitled.-  The  priority  of  the 
first  arrival  is  not  inconsistent  with  the  principle  of  equa 
rights  to  the  use  of  the  streets.^^  The  fact  that  the  first  arriva 
is  a  slow  moving  vehicle,  does  not  abridge  its  right  of 
priority.^* 

Sec.  262.  Intersecting  streets  -  regulations  giving  superior 
rights  along  one  street. 
The  doctrine  that  approaching  vehicles  have  equal  rights 
to  the  use  of  a  street  intersection,  is  one  which  may  be,  and  m 
recent  years  frequently  has  been,  modified  by  statute  or  muni- 
cipal ordinance.  In  some  cities  where  traffic  is  more  con- 
gested in  certain  directions  than  on  cross  streets,  ordinances 
have  been  promulgated  giving  vehicles  on  the  mam  thorough- 
fares priority  over  vehicles  approaching  on  the  cross  streets. 

13.  Rupp   V.    Keebles,    175    111.    App.  usually  fair  rule  of  S-}<^^-^'' ^-^J^^ 

619-     Yuill    V.    Bcrryman,    94    Wash.  elers;  and  in  no  sense  is  it  a  fixed  t^t 

4^8    162  Pac    513  of   negligence.      It    must    be    exercised 

'Vmnl    V     Lemp    Brewing    Co.  with   decent   respect  to   the    rights   of 

<Mo    App  )     226  S.  W.  999;   Simon  v.  others  and  with  due  regard  to  the  char- 

U:BT2e,   Pa.    St.    121,    lOT    Atl.  acter    of   the    travel    and   o^her   cond^^ 

G35;  Brown  v.  Chambers,  65  Pa.  Super,  tions  present.'     Carson  J^  Tunish. 

^  '     „  Minn.  445,  168  N.  W.  349. 

15    "Such  cases  as  these  are  not  in  16.  Barrett    v^Alamito    Dairy    Co. 

S  r  ttsS^V^r^S       '^-k^lL^^^^w   .    McOil- 

it.     In  none  is  the  right  an   absolute  v.   Galcsburg,  etc.   Power  Co..  .00  HI. 

one    exercisable    arbitrarily,    or    irre-  App.  392. 

spective   of    other    conditions    present,  ^"--"^--i;"- /f  l  R   690 

o?   without   regard  to  the   rights  and  32,  169  K  W.  681,  8  A.  L^R.  690. 

safety  of  others.     It  is  little   if  any-  ^^^^^^^^y-Jf "^^"";,/^^-  .^\q^, 

thin/    more    than    a     convenient     and  Birdwcll.  189  Ky.  424.  224  S.  W.  1065. 


298 


The  Law  of  Automobiles. 


Regulations  of  this  character  are  lawful  and  must  be  obeyed.^^ 
Greater  care  to  avoid  a  collision  is  imposed  on  the  driver  not 
having  the  right  of  way  than  upon  the  other."  Another  form 
of  regulation  which  has  become  popular  during  the  last  few 
years,  is  a  statute  or  ordinance  giving  a  prior  right  at  inter- 
secting streets  to  vehicles  approaching  from  the  right.^°    It  has 


Maryland. — 'Cook  v.  United  Rys.  & 
Elec.  Co.  of  Baltimore.  132  Md.  553, 
104  Atl.  37. 

Minnesota. — Bruce  v.  Ryan.  138 
Minn.  264,  164  N.  W.  982. 

Missouri. — Freeman  v.  Green  (Mo. 
App.),  186  S.  W.  116G. 

Neio  York. — Bo.-ton  Ins.  Co.  v. 
Brooklyn  Heights  R.  Co.,  182  N.  Y. 
App.  Div.  1,  169  N.  Y.  Suppl.  251; 
Essig  V.  Lumber  Operating  k  Mfg.  Co., 
183  N.  Y.  App.  Div.  198,  170  N.  Y. 
Suppl.  192;  Ebling  Brewing  Co.  v. 
Linch,  80  Misc.  (N.  Y.)  517,  141  N.  Y. 
Suppl.  480;  Van  Ingen  v.  Jewish  Hos- 
pital, 182  N.  Y.  App.  Div.  10,  169  N. 
Y.  Suppl.  412. 

Washington. — Shilliam  v.  Newman, 
94  Wash.  637,  162  Pac.  977;  Barth  v. 
Harris,  95  Wash.  166,  163  Pac.  401. 

Exclusion  of  ordinance. — In  an  ac- 
tion to  recover  damages  to  plaintiflf's 
automobile  truck,  which,  while  going 
north  on  the  nor1h-lx)und  track  of  de- 
fendant's railway,  collided  at  a  street 
intersection  in  the  city  of  New  York 
with  a  trolley  car  moving  south  on  the 
other  track,  the  exclusion  of  evidence 
of  a  city  ordinance  which  provides  that 
on  all  the  public  streets  and  liighways 
all  vehicles  going  in  a  northerly  or 
southerly  direction  shall  have  the  right 
of  way  over  any  vehicle  going  in  an 
easterly  or  westerly  direction  was  pre- 
judicial error  where  the  jury  was 
charged  that  the  rights  of  the  plain- 
tiff and  defendant  at  the  street  inter- 
section were  equal,  and  where  the  evi- 
dence as  to  how  the  accident  occurred, 
the  truck  being  struck  in  attempting 
to  cross  the  street,  was  conflicting,  and 
a  judgment  entered  on  a  verdict  in 
favor    of    plaintiff    will    be    reversed. 


Ebling  Brewing  Co.  v.  Linch,  80  Mich. 
(N.  Y.)    517,  141  N.  Y.  Suppl.  480. 

18.  Essig  V.  Lumber  Operating  & 
Mfg.  Co..  183  N.  Y.  App.  Div.  198.  170 
N.  Y.  Suppl.  192. 

19.  Shilliam  v.  Newman,  94  Wash. 
(-.37,   162  Pac.  977. 

20.  California. — Matbes  v.  Aggler  & 
Musser  Seed  Co.,  179  Cal.  697,  178 
Pac.  713;  Lawrence  v.  Goodwill  (Cal. 
App.),  186  Pac.  781;  Baker  v.  Wes- 
tern Auto  Stage  Co.  (Cal.  App.),  192 
Pac.  73;  Howard  v.  Worthington  (Cal. 
App.)    195  Pac.  709. 

Connecticut. — Lamke  v.  Harty  Bros. 
Trucking  Co.    (Conn.),   114  Atl.   533. 

Maryland. — ^Buckey  v.  White,  111 
Atl.  777;  Chiswell  v.  Nichols,  112  Atl. 
363. 

A'etc  Jersey. — Erwin  v.  Traud,  90  N. 
J.  Law,  289,  100  Atl.  184;  Paulsen  v. 
Klinge,  92  N.  J.  Law,  99,  104  Atl.  95; 
Nolan  V.  Davis,  112  All.  188. 

yew  York. — Brillinger  v.  Ozias,  186 
N.  Y.  App.  Div.  221,  274  N.  Y.  Suppl. 
282. 

Pennsylvania. — Dickler  v.  Pullman 
Taxi  Service  Co.,  66  Pitts  Leg.  Jour. 
(Pa.)   93. 

Texas.— E\  Paso  Elec.  Ry.  Co.  v. 
Benjamin  (Tex.  Civ.  App.),  202  S.  W. 
J)96. 

Washington. — Ohilberg  v.  Parsons, 
109  Wash.  90,  186  Pac.  272;  Soari  v. 
Wells-Fargo  Exp.  Co.,  109  Wash.  415, 
186  Pac.  898;  Greater  Motors  Corp.  v. 
Metropolitan  Taxi   Co.,   197   Pac.   327. 

Traffic  officer. — Such  a  regulation  has 
no  effect  at  a  busy  corner  where  a 
traffic  officer  is  located.  North  State 
Liunber  Co.  v.  Charleston,  etc.  Co. 
(S.  Car.),  105  S.  E.  406. 


Law  of  thk  Road. 


299 


been  held  in  some  states,  that  a  street  car  is  not  a  ** vehicle" 
within  the  meaning  of  such  an  enactment,^'  but  a  contrary  con- 
clusion has  been  reached.'^  The  burden  is  upon  the  one  who  has 
the  inferior  right  to  use  reasonable  care  to  ascertain  whether 
there  is  a  likelihood  of  a  collision  and  to  have  his  car  under 
control  and  to  slow  his  machine,  or,  if  necessary,  to  stop,  in 
order  to  give  the  other  machine  the  benefit  of  its  superior 
right.^  Though  one  is  given  the  right  of  way  by  such  a  regu- 
lation, it  remains  his  duty  to  exercise  reasonable  care  to  avoid 
collisions  \\dth  other  vehicles.^*  But  the  fact  that  one  is  en- 
titled to  the  right  of  way  at  the  intersection  is  a  very  material 
element  in  determining  whether  he  has  exercised  the  required 
degree  of  vigilance.^  Manifestly,  the  driver  of  a  machine 
cannot  look  in  both  directions  at  the  same  time,  and  a  ques- 
tion for  the  jury  is  usually  presented  as  to  the  negligence  of 
the  respective  parties.^  But  in  some  cases  the  one  not  having 
the  superior  right  has  been  adjudged  negligent  per  se  in  pro- 
ceeding across  the  intersection.*'    The  right  of  precedence  at 


21.  Reed  v.  Public  Service  Ry.  Co., 
89  N.  J.  /LaAv,  431,  99  Atl.  100. 

22.  Syck  V.  Duluth  St.  Ry.  Co. 
(Minn.),  177  N.  VV.  944. 

23.  Robinson  v.  Clemens  (Cal. 
Alpp.),  190  Pac.  203;  Golden  Eagle 
Dry  Goods  Co.  v.  Mockbee  (Colo.),  189 
Pac.  850;  Roseman  v.  Peterson 
(Minn.),  179  N.  W.  647;  Lindahl  v. 
Morse  (Minn.),  181  N.  W.  323;  Bril- 
linger  v.  Ozias,  186  N.  Y.  App.  Div. 
221,   174  N.  Y.  Suppl.   282. 

24.  Alabama. — ^Ray  v.  Brannan,  196 
Ala.  113,  72  So.  16. 

Colorado. — Golden  Eagle  Dry  Goo<l8 
Co.  V.  Mockbee,  189  Pa.  850. 

Maryland. — Cook  v.  United  Rys.  & 
Elec.  Cb.  of  Baltimore,  132  Md.  553. 
104  Atl.  37;  Criswell  v.  Nichols  (Md.). 
112  Atl.  363. 

Michigan. — Weber  v.  Be.uson.  197 
Mich.  607. 

Minnesota. — Syck  v.  Duluth  St.  Ry. 
Co.,  177  N.  W.  944;  Rr>senau  v.  Peter- 
son, 179  N.  W.  647. 

Missouri. — Freeman  v.  Green  (Mo. 
App.).  186  S.  W.  1166. 


iVew?  Jersey. — Erwiu  v.  fraud,  90  N. 
J.  Law,  289,  100  Atl.  184;  Paulsen  v. 
Klinge.  92  N.  J.  Law,  99,  104  Atl.  95; 
Spawn  V.  Goldberg,  110  Atl.  565. 

Neio  York. — Van  Ingen  v.  Jewish 
Hospital,  182  N.  Y".  App.  Div.  10,  169 
N.  Y.  Suppl.  412;  Ward  v.  Clark,  189 
N.  Y.  App.  Div.  344,  179  N.  Y.  Suppl. 
466;  Hood  V.  Stowe,  191  N.  Y.  App. 
I>iv.  614,  181  N".  Y.  Suppl.  734. 

Oklahoma. — Lee  v.  Pester  field.  77 
Okla.  317,  188  Pac.  674. 

Texas.— E\  Paso  Elec.  Ry.  Co.  v. 
Benjamin  (Te.x.  Civ.  App.).  202  S.  W. 
996. 

Washington. — Clark  v.  Wilson.  108 
Wash.  127,  183  Pac.  10:>. 

Wisconsin. — Glatz  v.  Krocger  Bros. 
Co.,   168  Wis.  635.  170  N.  W.  934. 

25.  Glatz  V.  Kro€ger  Bros.  Co.,  168 
Wis.   635,   170  N.    W.   934. 

26.  Oberholtzer  v.  Hubbell  (Cal. 
App.).  171  Pac.  436;  Carbaugh  v. 
Wbite  Bus  Lino  (Cal.  App.).  195 
Pac.  1066. 

27.  Kinnfv  v.  King  (Cal.  App.l.  190 
Pac.  834. 


300  The  Ijaw  of  Automobiles. 

a  crossing,  whether  given  by  law  or  established  by  custom,  has 
no  proper  application,  except  where  the  travelers  or  vehicles 
on  the  intersecting  streets  approach  the  crossing  so  nearly  at 
the  same  time  and  at  such  rates  of  speed  that,  if  both  pro- 
ceed, each  without  regard  to  the  other,  a  collision  or  inter- 
ference between  them  is  reasonably  to  be  apprehended.  In 
such  case  it  is  the  right  of  the  one  having  the  precedence  to 
continue  his  course,  and  it  is  the  duty  of  the  other  to  yield 
him  the  right  of  way.^^  But  if  a  traveler,  not  having  such 
right  of  precedence,  comes  to  the  crossing  and  finds  no  one 
approaching  it  upon  the  other  street  within  such  distance  as 
reasonably  to  indicate  danger  of  interference  or  collision,  he 
is  under  no  obligation  to  stop  or  to  wait,  but  may  proceed  to 
use  such  crossing  as  a  matter  of  right.^^  It  is  easily  deduced 
from  the  above  rules,  that  it  is  frequently  a  question  for  the 
jury  as  to  which  party  has  the  right  of  way.^** 

» 

Sec.  263.  Turning  or  backing  machine. 

The  driver  of  an  automobile  may  be  charged  with  negli- 
gence if  he,  without  warning  to  a  vehicle  approaching  from 
the  rear,  turns  or  backs  his  machine  so  that  the  rear  vehicle 
is  unable  to  stop  or  avoid  a  collision.^^  It  may  be  regarded 
as  negligent  for  a  chauffeur  to  back  his  machine  upon  a  city 
street  or  public  highway  without  looking  backward  to  see  if 
there  is  any  apparent  danger  in  so  doing.^^    jf  one  backs  an 

28.  Johnson  v.  Hendrick    (Cal.App.),      Misc.    (N.  Y.)    617,   182  N.  Y.  Suppl. 
187   Pac    782;    Ward   v.    Gildea    (Cal.       297. 

App.),  186  Pac.  612;  Neuman  v.  Aster  30.  Mead   Co.  v.  Products  Mfg.   Co., 

(Conn.),    112    Atl.    350;    Bettilyon    v.  110    Misc.     (N.    Y.)     648,    180    N.    Y. 

C.    E.    Smith   &   Son    (Md.),    112   Atl.  Suppl.   641. 

649;    Schultz   V.   ISTickolson,    116   Misc.  31.  Koenig  v.  Semran,   197  111.  App. 

(N.    Y.)     114;    Lee    v.    Pesterfield,    77  624;  Alyea  v.  Junge  Baking  Co.    (Mo. 

Okla.  317,  188  Pac.  674;  Noot  v.  Hun-  App.),    230    S.    W.    341;    Ackerman   v. 

ter,  109  Wash.  343,  186  Pac.  851.  Fifth  Ave.  Coach  Co.,  175  N.  Y.  App. 

29.  Barnes     v.     Barnett,     184    Iowa,  Div.  508,  162  N.  Y.  Suppl.  49;   Lee  v. 
936,  169  N.  W.  365;  Lee  v.  Pesterfield,  Donnelly    (Vt.),  113  Atl.  542. 

77  Okla.    317,   188   Pac.   674;    Virginia  32.  Pease  v.   Gardner,   113   Me.   264, 

Ry.  &  Power  Co.  v.  Grocery  Co.   (Va.),  93    Atl.    550;    Enstrom   v.   Neumoegen, 

101   S.   E.   878;   Hull  v.  Crescent  M*'g.  126  K  Y.  Suppl.  660. 

Co.,    109    Wash.    129,    186    Pac.    322;  The   sudden   backing   of   an   automo- 

Weber   v.   Greenbaum    (Pa.),    113    Atl.  bile  which  theretofore  was  standing  by 

413.      See   also,   Blum  v.   Gerardi,    111  the  curb,  whereby  a  person  is  injured, 


Law  of  the  Road. 


301 


automobile  on  a  street  car  track  without  looking  for  approach- 
ing street  cars,  he  is  clearly  negligent.^^     And  it  has  been 
said  that  it  is  gross  negligence  for  a  chauffeur  to  move  an 
automobile   backward   suddenly   with   great    speed    without 
warning  that  he  is  about  to  do  so  or  looking  out  for  the  safety 
of  persons  near  by  or  of  those  who  may  be  getting  on  or  off 
the  cars  at  such  place.^^    One  intending  to  turn  his  machine 
or  back  it  into  a  street  where  other  travelers  are  passing 
should  give  a  warning  of  his  intention-   ^^ut   nevertheless 
the  law  does  not  under  all  circumstances  forbid  the  backing 
of  motor  vehicles  either  on  private  driveways  ^«  or  on  public 
streets     Even  a  statute  requiring  vehicles  to  proceed  along 
the  right-hand  side  of  the  street  does  not  forbid  the  driver 
of  a  vehicle  from  backing  for  a  short  distance  so  as  to  bring, 
the  car  into  a  position  by  the  curb-    The  backing  of  a  ma- 
chine may  put  greater  precautions  on  the  driver,  but,  if  he 
takes  the  proper  precautions  under  the  circumstance,  he  is  not 
necessarily  liable.^^    Statutes  have  been  enacted  m  some  juris- 
dictions forbidding  the  driver  of  a  vehicle  to  make  a  turn  m 
any  street  at  a  time  when  the  turn  would  interfere  with  other 
vehicles,  and  requiring  the  driver  under  such  circnmstanees 
to  go  around  the  block  or  to  a  street  sufficiently  wide  that  the 
turn  can  be  made  without  backing.^^    And  regulations  have 
been  prescribed  which  forbid  a  turning  except  at  street  inter- 
sections."^   But,  even  if  a  regulation  provides  for  turns  to  be 

calls  for  some  explanation  on  the  part  Question   for  jury.-Backing  an  au^ 

:t  operator.     Grudborg  v.  Ehrct,  70  to.o.i.c    -\;"*«^,;^;7^,,;^^^,  .^ 

r-o^    iAO  \r    V    Simnl    379.  warnino'   to    other   users   of   tne   streei, 

""sT  B Sh  V    Atho^;  etTRy    CO.,  108  including    the    plaintiff,    who    .as    in- 

M    :  ^  7    sIn    E    310  jured    ^vhile    riding    a    motorcycle,    by 

'  M    Samp\    Lambert  142  Mo.  App.  Ling  into  collision  with  another  au- 

.«r\o   Tw    770  tomobi'e.    in   an   attempt   to   avoid   the 

I'.    UMrthv    Burns  Bros     229  N.  Y.  automobile    backing.      The    defendant's 

9«  N    f'  111  negligence  and  the  plaintiff's  contribn- 

'le    Canlan' V    Reynolds    (Iowa),  182  tory  negligence  "are  questions  of  fact  to 

XT    w    fill  be  decided  by  a  jury.     It  was  not  error 

N.  W.  641.                                ,n  1  \      la-i  fnr  the  trial  court  to  refuse  a  motion 

37  S„eWo„    V.    to,     (Cal.>,    .63  f;;;;J;  ^^  ,„„,„rtff  „,  air.ct  a  ver- 

38  H.„n   V.  P,   Graham  S.  Co.,  i48      diet  tor  the  de^-ndant.     Pyer,  v.  Tio„. 

„^  c>      A-1  89  N.  J.  Law,  520.  99  Atl.  IdU- 

a^PvL    V    Tiers.    89    N.    J.    I.a»,  40.  Coonan  v.  S.raka.  .'0.   r„.  App. 

520,  99  Atl.  130.  ^'^- 


302  The  Law  of  Automobiles. 

made  at  street  intersections,  they  must  be  made  with  due  re- 
gard to  the  rights  of  other  travelers.*^ 

In  a  case  in  Massachusetts,  which  was  an  action  by  one  who, 
while  riding  a  bicycle,  was  run  into  and  injured  by  an  auto- 
mobile, at  or  near  the  junction  of  two  intersecting  streets 
that  ran  at  right  angles  to  each  other,  it  appeared  that  the 
driver  of  the  automobile  was  turning  around  so  as  to  go  back 
in  an  opposite  direction  upon  the  same  street  on  which  he 
came.    The  defendant  requested  that  a  ruling  be  made  that 
the  law  of  the  road  as  contained  in  the  statute  did  not  apply 
at  the  place  where  the  accident  occurred.    The  judge  refused 
to  make  such  ruling  and  did  not  in  any  part  of  his  charge  put 
the  plaintiff's  right  to  recover  upon  the  law  of  the  road  so 
referred  to,  but  said  to  the  jury:    ''You  are  to  take  all  the 
evidence,  all  the  circumstances,  and  determine  whether  he  was 
doing  anything  he  ought  not  to  have  done,  that  an  ordinarily 
reasonable  and  prudent  man  would  not  have  done  under  all 
the  circumstances.    He  had  the  right  to  make  that  turn.    He 
had  a  right  to  use  any  part  of  the  street  that  he  was  coming 
into,  subject  only  to  the  rights  of  other  people  who  might  be 
there.    If  two  vehicles  meet  in  the  street,  it  is  the  duty  of 
each  other  of  them,  as  seasonably  as  they  can,  to  get  each  on 
his  own  right-hand  side  of  the  traveled  way  of  that  street. 
But  that  law  does  not  compel  a  man  always  to  be  on  the  right 
side.    He  can  use  any  part  of  the  street  so  long  as  he  is  not 
interfering  with  the  rights  of  other  people,  and  the  fact  this 
happened  on  the  right-hand  side  of  the  street  is  only  another 
piece  of  evidence  to  be  considered  by  you.    You  are  to  con- 
sider whether  Peterson  was  endeavoring,  in  making  a  turn,  to 
get  on  the  right-hand  side  near  the  hydrant,  where  under  cer- 
tain circmnstances  he  properly  belonged."     The  foregoing 
was  held  to  be  a  proper  presentation  of  the  law  applicable  to 
the  evidence.*^ 

41.  Ackerman    v.    Fifth    Ave.    Coach  42.  Johnson  v.  Shaw,  204  Mass.  165, 

Co.,   175   N.   Y.   App.   Div.    508.    162  N.       90  N.  E.  518. 
Y.   Suppl.   49. 


Law  of  TTn;  TIoad.  30o 

Sec.  264.  Signals  from  one  driver  to  another. 

In  some  of  the  larger  cities  traffic  has  become  so  congested 
at  certain  points  that  mere  regulations  as  to  the  course  of 
vehicles  are  not  always  sufficient  to  avoid  collisions.    It  has 
been  found  expedient  to  require,  not  only  that  the  drivers 
shall  keep  a  certain  course  in  their  progress,  but  also  when 
turning  corners  or  stopping  or  making  some  maneuver  out- 
side of  normal  progress  that  they  shall  signal  their  intention 
to  other  vehicles  in  proximity."^    Thus  one  about  to  turn  a 
corner  should  slacken  his  speed  so  that  he  can  make  the  turn 
in  safety  to  himself  and  other  travelers  on  the  cross  street, 
and  it  is  a  wise  requirement  that  he  should  signal  a  following 
vehicle  of  his  intention  in  order  that  no  collision  result  on 
account  of  his  decreased  speed  or  the  change  in  his  course.'*^ 
xVn  ordinance  which  requires  the  driver  to  give  a  signal  with 
a  whip  or  his  hand  when  turning,  so  as  to  indicate  the  direc- 
tion in  which  the  turn  is  to  be  made,  is  a  reasonable  require- 
ment for  the  regulation  of  traffic.*^    Also,  when  a  rear  vehicle 
wishes  to  pass  a  forward  one,  it  is  proper  that  some  signal 
be  given  of  such  intention  in  order  that  the  forward  driver 
may  be  prepared  to  surrender  a  part  of  the  road.''*'    A  signal 
that  a  forward  vehicle  is  to  be  brought  to  a  stop  should  not 
be  given  unless  the  driver  actually  does  so.'*'^    A  co-related 
duty  is  also  imposed  on  other  travelers  to  take  heed  of  warn- 
ing signals   and  govern   their  movements  accordingly,  and 

43.  Clark    v.    WeatliPrs,     178     Iowa,       432. 

97,  159  X.  W.  585.  46.  Dunkelbr^k    v.    Meyer     (Minn.), 

44.  See  Litherbury  v.  Kimniet  167  N.  W.  1034.  And  see  section  256. 
(€^1.),  195  Pac.  660;  Wingert  v.  47.  Negligence  of  driver. — Tlie  act 
Gohill    (Md.).  110  Atl.  857.  of  the  driver  of  plaintiff's  automobile, 

Extending      whip. — One      driving      a  who    while     driving     twenty  five    feet 

horse  and  wagon  may  extend  his  whip  from  the  right-hand   curb   in   violation 

to  the  sight  of  the  driver  of  motor  ve-  of    a    traffic    ordinance,    twice    gave    a 

hide  following,  as  a  signal  of  liis  in  stop  signal  but  stopped  only  after  the 

tention  to  turn  a  corner.     Daly  v.  Case.  second   one,   constitutes   such   contribu- 

88  N.  J.  L.  295.  tory   negligence   as   precludes   a  rccov- 

45.  Johnson  Oil  Refining  Co.  v.  cry  for  damages  by  defendant's  auto- 
Galesburg,  etc.  Power  Co.,  200  111.  App.  mobile  running  into  the  rear  of  plain- 
392.  See  also,  Frank  (".  Wel)er  Co.  v.  tiff's  car.  Russell  v.  Kemp.  9.)  Misc. 
Stevenson    Grocery    Co..    194    111.    App.  (X.  \.)    3S2.   159  N.  Y.  Suppl.  S65. 


304  The  Law  of  Automobiles. 

negligence  may  be  charged  against  them  in  case  of  their 
failure.''^ 

Sec.  265.  Obedience  to  directions  of  traffic  officer. 

A  municipal  ordinance  which  requires  that  the  drivers  of 
vehicles  shall  at  all  times  obey  the  orders  of  police  officers, 
cannot  be  sustained.  Such  a  regulation  would  put  the  citizen 
in  the  arbitrary  power  of  the  officer  regardless  of  the  circum- 
stances of  the  case,  and  is  beyond  the  power  of  a  munici- 
pality.'«» 

Sec.  266.  Driving-  on  walk  or  place  reserved  for  pedestrians. 

When  it  is  shown  that  the  operator  of  a  motor  vehicle  drove 
the  machine  on  a  sidewalk  or  other  place  reserved  for  the 
use  of  foot  travelers  and  there  infficted  injury  to  such  a 
traveler,  it  is  incumbent  on  the  driver  to  show  that  his  ma- 
chine intruded  without  his  negligence.^^  This  question  is 
further  discussed  in  the  chapter  particularly  relating  to  in- 
juries to  pedestrians.^^ 

Sec.  267.  Effect  of  violation  of  law  of  road  —  as  evidence  of 
negligence. 
The  general  rule  with  regard  to  the  evidentiary  value  of 
proof  of  a  violation  of  the  law  of  the  road  is  that,  the  viola- 

48.  Paulsen  v.  Kinge,  92  N.  J.  L.  99,  was  in  the  wrong.  Tliis  however, 
104  Atl.  95.  See  al=o,  Clark  v.  Weath-  of  course,  is  open  to  explanation.  The 
ers,  178  Iowa,  97,  159  N.  W.  585.  fact,  however,  remains,  that  if  the  de- 

49.  City  of  St.  Louis  v.  Allen,  275  fendant  left  the  public  traveled  high- 
Mo.  501,  204  S.  W.  1083.  See  also,  way  and  came  upon  the  sidewalk  where 
North  State  Lumber  Co.  v.  Charleston  people  were  congregated,  and,  in  so  do- 

(S.  Car.),  105  S.  E.  406.  ing,  collided  with   one   rightfully  upon 

50.  Brown  v.  Des  Moines  Steam  Bot-  the  walk,  he  is  prima  facie  guilty  of 
tling  Works.  174  Iowa,  715,  156  N.  W.  negligence,  and  is  liable  for  the  in 
829,  1  A.  L.  R.  835;  McGettigan  v.  jury,  unless  his  act  in  so  doing  is  ex- 
Quaker  City  Automobile  Co.,  48  Pa.  eused  by  reason  of  the  intervention  of 
iSuper.  Ct.  602.  "The  general  rule  is  some  independent  agency,  over  which 
that  where  a  collision  occurs  between  he  had  no  control,  which  operating 
a  vehicle  on  the  wrong  side  of  the  road,  upon  his  movement,  forced  him,  with- 
er at  a  place  where  the  vehicle  has  no  out  fault  on  his  part,  into  the  position 
right  to  be,  with  a  person  rightfully  as  hereinbefore  explained."  Brown  v. 
occupying  the  place,  there  is  a  pre-  Des  Moines  Steam  Bottling  Works, 
sumption  that  the  collision  was  caused  174  Iowa,  715,  156  N.  W.  829. 

by   the   negligence   of   the    person    who  51.  Sections  429-431. 


Law  of  the  Road. 


305 


tion  is  not  negligence  per  se,  but  that  it  is  merely  prima  facie 
evidence  of  negligence,  and  the  issue  of  negligence  should, 
therefore,  be  generally  decided  by  the  jury  and  not  be  dis- 
posed of  by  the  judge  as  a  matter  of  law.^^    Qj,^  ^q  g^^^^g  ^^^ 


52.  Alabama. —  See  McCray  v. 
Sharpe,  188  Ala.  375,  66  So.  441;  Mor- 
rison V.  Clark,  196  Ala.  670,  72  So.  305. 

Arkansas. — Temple  v.  Walker,  127 
Ark.  279,  192  S.  VV.  200. 

California. — Stohlman  v.  Martin,  28 
Cal.  App.  338,  152  Pac.  319.  See  also, 
Slaughter  v.  Goldberg,  Bowen  &  Co., 
26  Cal.  App.  318.  147  Pac.  90;  Mathes 
V.  Aggeler  &  Musser  Seed  Co.,  179  Cal. 
697,  178  Pac.  713. 

Connecticut. — Irwin  v.  Judge,  81 
Conn.  492,  71  Atl.  572. 

Delaicare. — Grier  v.  Samuel,  4  Del. 
74,  85  Atl.  759. 

Georgia. — McGee  v.  Young,  132  Ga. 
606,  64  S.  E,  689. 

Illinois. — Frank  C.  Weber  Co.  v. 
Stevenson  Grocery  Co.,  194  111.  App 
432;  Culver  v.  Harris,  211  111.  App. 
474. 

Indiana. — Conder  v.  Griffith,  61  Ind. 
App.  218,   111  N.  E.  816. 

loica. — Hubbard  v.  Bartholomew, 
163  Iowa.  58,  140  N.  W.  13;  Herdman 
V.  Zwart,  167  Iowa,  500,  149  N.  W. 
631;  Carpenter  v.  Campbell  Automo- 
bile Co.,  159  Iowa,  52,  140  N.  W.  225. 

Kansas. — Giles  v.  Ternes.  93  Kan. 
140,  143  Pac.  491. 

Maine. — Palmer  v.  Barker,  1 1  Me. 
338;  Neal  v.  Kendall,  98  Me.  69,  56 
Atl.  209,  63  L.  R.  A.  668;  Bragdon  v. 
Kellogg,   118  Me.  42,  105  Atl.   433. 

Massachusetts. — Parker  v.  Adams, 
12  Mete.  416;  Spofford  v.  Harlow,  3 
Allen,  176;  Steele  v.  Burkliardt,  104 
Mass.  59;  Perlstein  v.  American  Exp. 
Co.,  177  Mass.  530.  59  N.  E.  194,  52 
L.  R.  A.  959. 

Michigan — Buxton  v.  Ainsworth,  138 
Mich.  532,  101  N.  W.  817,  818,  11  Det. 
Leg.  N.  684,  5  Ann.  Cas.  177. 

Minnesota. — See  Day  v.  Dulnth  St. 
R.  Co.,  121  Minn.  445,  141  N.  W.  795. 

20 


Montatm. — Savage  v.  Boyce,  53 
Mont.  470,  164  Pac.  887. 

Nebraska. — Rule  v.  Claar  Transfer 
&  Storage  Co.,  102  Xeb.  4.  165  N.  W. 
883. 

New  Hampshire. — Brooks  v.  Hart,  14 
N.  H.  307;  Taylor  v.  Thomas,  77  N. 
H.  410,  92  Atl.  740. 

New  Jersey. — Kolankiewiz  v.  Burke, 
91  N.  J.  L.  567,  103  Atl.  249. 

New  York. — Burdick  v.  Worrall,  4 
Barb.  596. 

North  Carolina. — "Tlie  statute  in 
force  at  the  time  of  the  injury  com- 
plained of  .  .  .  required  the  de- 
fendant to  turn  to  the  right  when  he 
met  the  plaintiff's  intestate  on  the 
road,  and  if  he  failed  to  do  so  he  was 
guilty  of  a  breach  of  a  statutory  duty, 
which  is  negligence."  Goodrich  v. 
Matthews,  177  N.  Car.  198.  98  S.  E. 
529. 

Oklahoma. — Tulsa  Ice  Co.  v.  Wilkes, 
54  Okla.  519,  153  Pac.  1169. 

Rhode  Island. — Angell  v.  Lewis.  20 
R    I.  391,  39  Atl.  521. 

South  Carolina. — Sims  v.  Eleazer, 
106  S.  E.  854. 

Washington. — Segerstrom  v.  Law- 
rence. 64  Wash.  245,  116  Pac.  876; 
Hartley  v.  Lasater,  96  Wash.  407,  165 
Pac.  106;  Peterson  v.  Pallis.  103  Wash. 
ISO,  173  Pac.  1021.  See  also  Mickel- 
son  v.  Fisher,  81  W^ash.  423,  142  Pac. 
1160;  Moy  Quon  v.  M.  Furuya  Co..  81 
Wash.  526.  143  Pac.  99;  Hiscock  v. 
Phinncy,  81  Wash.  117,  142  Pac.  461; 
Sheffield  v.  Union  Oil  Co,  82  Wash. 
386,  144  Pac.  529;  Loyd  v.  Calhoun.  82 
Wash.  35.  143  Pac.  458:  Johnson  v. 
Heitman,  88  Wash.  595.  153  Pac  331; 
Walters  V.  City  of  Seattle,  97  Wash. 
657,  167  Pac.   124. 

Canada. — Osborne  v.  Landis.  34  W. 
L.  R.  118. 


306 


The  Law  of  Automobiles. 


rule  in  other  language,  in  case  of  a  collision  between  vehicles, 
a  presumption  of  negligence  arises  against  the  driver  who 
was  on  the  wrong  side  of  the  road  at  the  time  of  the  collision.^^ 
Decisions  can  he  found,  however,  which  hold  that  a  violation 


Evidence  of  negligence,  —in  Pennsyl 
vania,  it  has  been  held  that  the  viola- 
tion of  a  city  ordinance  requiring  a 
vehicle  to  travel  on  the  right-hand  side 
of  the  street  could  be  considered  with 
other  evidence,  but  that  in  itself  it 
v/as  not  sufficient  evidence  of  negli- 
gence of  one  going  on  the  other  side. 
Foot  V.  American  Produce  Co.,  195  Pa. 
St.  190,  45  Atl.  934,  49  L.  R.  A.  764. 
Children. — The  effect  of  a  violation 
of  an  ordinance  is  the  same  in  the  case 
of  a  child  as  in  the  case  of  an  adult. 
Kolankiewiz  v.  Burke,  91  N.  J.  !-•.  567, 
103  Atl.  249. 

Instructions  as  to  assuming  risk 
from  violation. — In  a  case  in  Georgia, 
a  charge  was  held  proper,  which,  in 
part  was  "that  the  rule  of  the  road, 
as  established  by  the  laws  of  Georgia, 
requires  travelers  with  vehicles, 
whether  carts,  wagons,  automobiles,  or 
bicycles,  when  meeting,  to  each  turn  to 
the  right,  and  that  it  was  the  duty  of 
the  plaintiff  to  know  and  observe  the 
rule  of  the  road.  Persons  using  the 
public  streets,  as  conscious  human 
agents,  are  bound  to  exercise  their 
faculties  of  seeing  and  hearing,  and 
are  further  bound  to  exercise  ordinary 
care  to  avoid  the  consequences  of  the 
negligence  of  others  who  are  using  the 
public  streets,  by  either  remaining 
away  or  getting  out  of  the  way  of  prob- 
able or  known  danger  after  they  dis- 
cover it,  if  in  the  exercise  of  ordinary 
care  and  prudence  they  should  dis- 
cover it.  If  a  person  voluntarily  as- 
sumes a  risk  or  does  a  thing  in  a 
dangerous  way  which  can  be  safely 
done,  he  assumes  the  risk  of  what  he 
does,  and  if  an  accident  occurs  and  in- 
jury results  to  him  in  consequence 
thereof,  he  cannot  recover;  and  in  this 
connection   I   charge  you   that  if  you 


find  from  the  evidence  that  the  plain- 
tiff's injuries  were  occasioned,  wholly 
or  in  part,  by  his  violation  of  the  rule 
of  the  road,  or  in  his  voluntarily  as- 
suming a  risk  or  in  doing  a  thing  in 
M  dangerous  way  which  he  could  have 
done  in  another  way  in  safety,  he  can- 
not recover."  McGee  v.  Young,  132 
Ha.  606,  64  S.  E.  689. 

53.  California. — 'Slaughter  v.  Gold- 
berg, Bowen  &  Co.,  26  Cal.  App.  318, 
147  Pac.  90;  Harris  v.  Johnson,  174 
C'al.  55,  161  Pac.  1155;  Hagenah  v. 
Bidwell   (Cal.  App.),  189  Pac.  799. 

Delaware. — Grier  v.  Samuel,  4  Boyce 
(Del.),  74,  85  Atl.  759. 

Georgia. — MoGee  v.  Young,  132  Ga. 
P06,  64  S.  E.  689. 

Iowa. — Herdman  v.  Zwart,  167 
Iowa,  500,  149  N.  W.  631.  See  also, 
T.aker  v.  Zimmerman,  179  Iowa,  272, 
161  N.  W.  479. 

Massachusetts. — Perlstein  v.  Ameri- 
can Exp.  Co.,  177  Mass.  530,  59  N.  E. 
194,  52  L.  R.  A.  959. 

Michigan. — Daniels  v.  Clegg,  38 
Mich.  32;  Buxton  v.  Ainsworth,  138 
Mich.  532,  101  N.  W.  817,  11  Det.  Leg. 
N".  684,  5  Ann.  Oas.  177;  Black  v. 
Parke,  Davis  &  Co.  (Mich.),  178  N.  W. 
700. 

Mississippi. —  Flynt  v.  Fondern 
(Miss.),  84  So.   188. 

Missouri. — Columbia  Taxicab  Co.  v. 
Roemmich    (Mo.  App.),  208  S.  W.  859. 

Montana. — Savage  v.  Boyce,  53 
Mont.  470,  164  Pac.  887. 

New  Hampshire. — Brooks  v.  Hart, 
14  N.  H.  307. 

New  York. — Clarke  v.  Woop,  159 
App.  Div.  437,  144  N.  Y.  Suppl.  595, 
holding  that  a  boy  riding  a  bicycle  on 
the  wrong  side  of  the  road  was  not 
free  from  contributory  negligence 
where   there  was    nothing  to  obstruct 


Law  of  the  Road. 


307 


of  statute  or  municipal  ordinance  prescribing  a  rule  of  traffic, 
constitute  negligence  per  se.^    But,  generally,  as  the  viola- 
tion is  only  presumptive  evidence  of  negligence,  the  guilty 
party  is  given  an  opportunity  to  rebut  the  presumption,^^  and 
he  may  rebut  the  presumption  by  showing  some  good  excuse 
for  traveling  in  violation  of  the  law  of  the  road.^    But,  if  no 
excuse  is  presented  for  the  apparent  violation,  the  evidence 
of  wrongful  conduct  is  sufficient  for  a  finding  of  negligence. 
In  fact,  an  unexplained  or  unexcused  violation  may  be  deemed 
conclusive  on  the  issue  of  law,  and  the  court  may  in  some 
cases  dispose  of  the  question  as  a  matter  of  law.^"^ 

Sec.  268.  Effect  of  violation  of  law  of  road  —  imposition  of 
higher  degree  of  care. 
When  the  driver  of  a  vehicle  is  not  taking  the  course  pre- 
scribed by  the  law  of  the  road,  the  danger  of  injury  to  others 


his  view  of  an  approaching  automobile 
or  to  prevent  him  from  obeying  the 
law  of  the  road. 

Pennsylvania. — Presser  v.  Dough- 
erty, 239  Pa.  312.  86  Atl.  854,  hold- 
ing, in  the  case  of  a  bicyclist  who  was 
injured  while  riding  upon  the  wrong 
side  of  the  street,  a  non-suit  was  prop 
erly  granted  where  it  did  not  appear 
that  the  automobile  was  being  driven 
at  a  dangerous  or  careless  rate  of 
speed. 

Rhode   Island.— AngeW    v.    Lewis,    20 
R.  I.  391,  39  Atl.  521. 

[Zfa/i.— Stanton     v.     Western     Maca- 
roni Mfg.  Co.,  174  Pac.  821. 

Ordinances  not  pleaded.— In  an  ac- 
tion for  negligence  consisting  of  reck- 
less and  careless  driving  in  a  public- 
street,  municipal  ordinances  regulating 
the  speed  of  vehicles  and  the  niaiinor 
of  turning  from  one  street  into  an- 
other and  proof  of  tlieir  violation,  al- 
though not  pleaded,  are  admissible  not 
a3  conclusive  evidence  of  negligence 
but  as  some  evidence  thereof.  Meyers 
V.  Barrett,  167  N.  Y.  App.  Div.  170. 
152  N.  Y.  Suppl.  921. 

Negligence  is  indicated  by   the    fact 


tliat  a  person  was  driving  an  automo- 
bile upon  the  wrong  side  of  the  road. 
Bourne  v.  Whitman,  209  Mass.  155,  95 
N.  E.  404,  35  L.  R.  A.   (N.  S.)   701. 

54.  Kinney  v.  King  (Cal.  App.),  190 
Pac.  834;   Hedges  v.  Mitchell    (Colo.), 
194     Pac.      620;      Cupples    Mercantile 
Co.,    189  Pac.  48,   32   Idaho,   774:    El- 
vidge     V.      Stronge     &     Warner     Co. 
(M^nn.),    181    N.    W.    346;    Borak    v. 
Mosler  Safe  Co.   (Mo.),  231  S.  W.  623; 
Zucht  V.  Brooks   (Tex.  Civ.  App.),  216 
S.  W.  684;  John  v.  Pierce   (Wis.),  178 
N.    W.   297;    Foster   v.    Bauer    (Wis.), 
180  N.  W.  817.     And  see  section   297. 
55.  Lawrence      v.      Goodwill       (Cal- 
App.),  186  Pac.  781;  Foster  v.  Curtis, 
213  Mass.  79.  99  N.  E.  961,  Ann.  Cas. 
1913    E.    1116;    Buxton    v.    Ainsworth, 
138  Mich.  532,  101  N.  W.  817,  818,  11 
Det.    Leg.    N.    684,    5    Ann.    Cas.    146; 
Piper   v.   Adams   Exp.    Co.    (Pa.),    113 
Atl.   562. 

56.  Cook  v.  Miller.  175  Cal.  497, 
166  Pac.  316:  Potter  v.  Glaasoll,  146 
La.  687,  83  So.  898.  And  see  sectiona 
270-274. 

57.  Martin  v.  Carruthers  (Colo.), 
195    PaL-.    105;    Vickery    v.    Armatead 


308  The  Law  of  Automobiles. 

is  thereby  increased.  Other  travelers  assume  that  the  driver 
of  a  motor  vehicle  will  obey  the  law  of  the  road,  and  they  may 
rely  on  such  assumption,  until  a  contrary  intention  is  indi- 
cated.^^ Under  the  general  rule  that  the  degree  of  care  to 
be  exercised  is  commensurate  with  the  dangers  to  be  antici- 
pated,^^ it  may  be  said  that  one  traveling  on  the  wrong  side 
of  the  road  is  required  to  exercise  a  higher  degree  of  care 
than  if  he  were  following  the  proper  course.^* 

Sec.  269.  Effect  of  violation  of  law  of  road  —  proximate 
cause. 
The  doctrine  of  proximate  cause  runs  through  the  entire 
law  of  negligence  and  applies  whether  the  wrongful  act  in 
question  consisted  of  the  violation  of  a  law  of  the  road 
founded  on  custom,  or  of  the  infringment  of  a  municipal  ordi- 
nance or  statute  regulating  the  use  of  the  highways.  That 
is,  in  the  case  of  a  violation  of  the  law  of  the  road  by  a 
traveler,  he  is  not  liable  for  injuries  sustained  by  another 
traveler,  unless  the  injuries  are  such  as  proximately  result 
from  the  violation."    And,  when  the  defendant  sets  up  the 

(Iowa),    180    N".    W.    893;    Marsh    v.  proceed  with  care  to  the  point  where 

Bumhain    (Mich.),   179  N.  W.   300.  he  can  see  beyond  the  obstruction  and 

58.  See  sections   352,  409,   473,   512.  learn   whether    it   is    safe    for   him   to 

59.  Section  278.  proceed.      Mason -Seaman    Transp.    Co. 

60.  New  York  Transp,  Co.  \.  Gar-  v.  Wineburgh,  130  N.  Y.  Suppl.  178. 
side.  157  Fed  521,  85  C.  C.  A.  285;  61.  Morrison  v.  Clark,  196  Ala.  670, 
Fahrney  v.  O'Donnell,  107  111.  App.  72  So.  305;  Needy  v.  Littlejohn,  137 
608;  Columbia  Taxicab  Co.  v.  Roem-  Iowa,  704.  115  N.  W.  483;  Herdman  v. 
mich  (Mo.  App.),  208  S.  W.  859;  Zwart,  167  Iowa,  500,  149  N.  W.  631; 
Greenbaum  V.  Costa  (Pa.),  113  Atl.  79;  Buxton  v.  Ainsworth,  138  Mich.  532, 
Angell  V.  Lewis.  20  R.  I.  391,  39  Atl.  101  N.  W.  817.  11  Det.  Leg.  N.  684,  5 
521;  Moy  Quon  v.  M.  Funiya  Co.,  89  Ann.  Cas.  146;  Horowitz  v.  Gottwalt 
Wash.  526,  143  Pac.  99;  Plcickwell  v.  (N.  J.),  102  Atl.  930;  Baker  v.  Fogg 
Wilson,  5  Carr.  &  Payne  (Eng.)  103;  &  Hires  Co.  (N.  J.),  112  Atl.  406; 
Osborne  v.  Landis,  34  W.  L.  R.  Peterson  v.  Pallis,  103  Wash.  180,  173 
(Canada)    118.  Pac.    1021.     "But  the  driver  of  a  ve- 

And  see  section  280.  hide  proceeding  on  the  'wrong  side'  of 

Where  a  chauffeur  in  leaving   a  garage  the  highway   is   not    liable   for   injury 

is  compelled,  in  order  to  proceed  in  the  sustained  by  another  in  collision  with 

direction  he  desires  to  go,  to  cross  on  his    conveyance,    unless    the    negligent 

the  wrong  side  of  the  street,  and  there  act  of  driving  on  the  wrong  side  was 

Ib   an   obstruction    to   his  view  of  ve-  the    proximate    cause    of    the    injury, 

hides  on  such  side,  it  is  his  duty  to  There   must    be   casual   connection   be- 


Law  of  the  Road. 


309 


violation  of  the  law  of  the  road  by  the  plaintiff  as  a  matter 
of  contributory  negligence,  to  constitute  a  bar  to  the  plain- 
tiff's action,  it  must  appear  that  the  violation  was^^a  con- 
tributing cause  of  the  injury  sustained  by  the  plaintiff/''  Con- 
tributory negligence  is  a  defense  to  an  action  based  on  a  viola- 
tion of  traffic  regulations.^ 

Sec.  270.  Excuse  for  violation  of  law  of  road  — in  general. 

The  violation  of  the  law  of  the  road  is  not  conclusive  on  the 
question  of  the  violator's  negligence;  it  is  only  prima  facie 
evidence  of  his  negligence,^*  and  he  is  permitted  to  show  cir- 
cumstances excusing  his  conduct  and  rebutting  the  presump- 
tion of  negligence.'^    He  may  show  the  surrounding  circum- 


tween  the  unlawful  or  wTongful  act  of 
driving  on  the  left  side,  and  the  result- 
ing injury."  Morrison  v.  Clark.  196 
Ala.  670,  72  So.  305. 

Liability  for  turning  out.— Under  the 
provision  of  the  Iowa  statute,  requir- 
ing a  person  in  a  vehicle  to  give  to  an- 
other vehicle  one-half  of  the  road  on 
meeting,  liability  on  failing  to  do  so 
arises  only  when  such  failure  is  the 
proximate  cause  of  resulting  injury. 
Needy  v.  Littlejohn,  137  Iowa,  704,  115 
N.  W.   483. 

62.  Feehan  v.  Slater,  89  Conn.  697, 
96  Atl.  159;  Walters  v.  Davis  (Mass.). 
129  N.  E.  443;  Boulton  v.  City  of  Seat- 
tle (Wash.),  195  Pac.  11. 

63.  Weihe  v.  Rathjen  Mercantile  Co., 
34  Oal.  App.  302,  167  Pac.  287.  -^d 
flee  section  301. 

64.  Section  267. 

65.  Alabama- — ^Morrison  v.  Clark, 
196  Ala.  670,  72  So.  305. 

California. — Langford  v.  San  Diego 
Elec.  Ry.  Co..  174  Cal.  729.  164  Pac. 
398;  Stohlman  v.  Martin,  28  Cal.  App. 
338,  152  Pac.  319.  "But  it  is  not  to 
be  understood  that  we  intend  to  hold 
that  the  fact  that  the  driver  of  a  mo- 
tor vehicle  may  violate  the  statute  by 
driving  on  the  wrong  side  of  the  road 
or  street  is  itself  necessarily  an  act  of 
negligence  in  all  cases.     He  might  for 


a     sufficient    reason    be    compelled    to 
drive  on  the  left  of  the  center  of  the 
road  or  street,  and  do  so  in  such  man- 
ner as  to  leave  to  approaching  vehicles, 
pedestrians,    or    animals    ample   oppor- 
tunity to  pass  with   perfect  safety  to 
themselves,    in    which    case,   if   damage 
occurred  by  collision  with  his  vehicle, 
the  question  as  to  whose  negligence  was 
directly  responsible  therefor  would  de- 
pend  for   its    solution   upon   the  other 
circumstances    attending    the    accident. 
In  brief,  and  in  other  words,  the  fact 
that  he  was  driving  over  the  highway 
on  the  left  of  the  center  of  the  road- 
way   might,   where    injury   to   another 
had      resulted      tlierefrom,      constitute 
pi-ima  facie  evidence  of  negligence,  but 
it  would  amount  to  no  more  than  that, 
and  its  evidentiary   ofTect  might  prop- 
erly be  overcome  or  dispelled  by  other 
evidence."       Stohlman    v.    Martin,     28 
Gnl.  App.  338,  152  Pac.  319. 

/ndtono.— Condor  v.  Griffith,  61  Ind. 
App.  218,  111  N.  E.  816:  Borg  v.  Lar- 
son, 60  Ind.  App.  514,  111  N.  E.  201. 
'•It  may  be  said  tliat  facts  which  will 
excuse  such  technical  violation  must 
^  result  from  causes  or  things  beyond 
the  control  of  the  person  charged  with 
the  violation.  In  such  iiist,ances  there 
may  or  may  not  be  actionable  negli- 
gence, and  it  is  a  question  of  t.ict.  to 


310 


The  Law  of  Automobiles. 


stances  indicating  a  necessity  for  turning  to  the  left  side  of 
the  highway.^  A  deviation  from  the  rule  is  sometimes  neces- 
sai7  in  the  crowded  streets  of  a  metropolis,'^''  though  it  may 
be  argued  that  a  congestion  of  traffic  is  a  reason  for  adhering 
to  the  law  of  the  road  rather  than  an  excuse  for  its  violation.^ 
And,  in  order  to  allow  street  railway  passengers  to  alight, 
it  is  said  that  the  driver  of  a  motor  vehicle  may  use  the  left 
side  of  a  street.^^  But  the  fact  that,  on  account  of  the  dark- 
ness, the  driver  was  unable  to  see  the  vehicle  he  was  approach- 
ing does  not  excuse  his  conduct  in  driving  on  the  wrong  side ; 
on  the  contrary,  the  darkness  is  a  circumstance  in  aggrava- 
tion, rather  than  in  mitigation,  of  an  omission  to  use  the 
proper  side  of  the  highway.'^**    Ignorance  of  the  law  is  no  ex- 


bt-  determined  by  the  court  or  jury 
trying  the  case,  from  all  the  facts  and 
circumstances  shown  by  the  evidence: 
First,  whether  there  was  a  sufficient 
and  reasonable  excuse  for  such  viola- 
tion; and,  second,  whether  in  doing  or 
omitting  the  act  complained  of  the  de- 
fendant was,  in  fact,  guilty  of  action- 
able negligence."  Conder  v.  Griffith, 
61  Ind.  App.  218,   111  N.  E.   816. 

lovxi. — Riepe  v.  Elting,  89  Iowa,  82 
56  N.  W.  285,  26  L.  E.  A.  769;  Car- 
penter V.  Campbell  Automobile  Co.,  159 
Iowa,  52,  140  N.  W.  225;  Herdman  v. 
Zwart,  167  Iowa,  500,  149  N.  W.  631; 
Giese  v.  Kimball.  184  Iowa,  1283,  169 
N.  W.  639. 

Mas8<ichu8ett8. — Foster  v.  Curtis, 
213  Mass.  79,  99  N.  E.  961,  Ann.  Cae. 
1913  E.  1116. 

Michigan. — ^Eberle  Brewing  Co.  v. 
Briscoe  Motor  Co.,  94  Mich.  140,  160 
N.  W.  440. 

New  Jersey. — Winch  v.  Johnson,  02 
N.  J.  L.  219,  104  Atl.  81. 

New  Yorfc.— Clark  v.  Woop,  159 
App.  Div.  437.  144  N.  Y.  Suppl.  595. 

Oklahoma. — Tulsa  Ice  Co.  v.  Wilkes, 
54  Okla.  519.   153  Pae.  1169. 

Pennsylvania. — Wright  v.  iVfitcholl. 
252  Pa.  St.  325,  97  Atl.  478. 

Washington. — Hartley  v.  Lasator,  06 
Wash.    407,    165    Pac.    106;    Kane    v. 


Nakmoto,  194  Pac.  381. 

Wisconsin. — Mahar  v.  Lochen,  166 
Wis.  152,  164  N.  W.  847. 

England — Turley  v.  Thomas,  8  C.  4 
P.  103. 

Injured  party  on  wrong  side  of  road. 
— Under  the  Rhode  Island  General 
Laws  1896,  chapters  74,  51,  providing 
that  a  person  traveling  with  a  vehicle 
on  a  highway  shall  seasonably  turn 
to  the  right  of  the  center  of  the 
traveled  road  on  meeting  any  other 
person  so  traveling,  a  person  injured 
by  collision  with  a  vehicle  while  rid- 
ing a  bicycle  on  the  left  side  of  the 
road  must  show  a  sufficient  excuse  for 
being  there,  to  attribute  negligence  to 
the  driver  of  the  vehicle.  Puick  v. 
Thurston,  25  R.   I.  36,  54  Atl.  600. 

66.  Stohlman  v.  Martin,  28  Cal. 
Ajpp.  338,  152  Pac.  319;  Carpenter  v. 
Campbell  Automobile  Co.,  159  Iowa, 
52.  140  N.  W.  225;  Lee  v.  Foley,  115 
T.a.  663,  37  So.  594 ;  Burlie  v.  Stephens 
(Wash.),  193  Pac.   684. 

67.  Wayde  v.  Carr,  2  Dow.  k  Ry. 
(Eng.)    255. 

68.  Stubbs  V.  Molbcrget.  108  Wash. 
!^0,   182  Pac.  '936,  6  A.  L.  R.  318. 

69.  Banhofer  v.  Crawford.  16  Cal. 
App.   676.    117   Pa*.    031. 

70.  Stohlman  v.  Martin.  28  Cal. 
App.  338.   152  Pae.  319. 


Law  of  THi:  Uoad.  311 

cuse."^  And  a  local  custom  in  violation  of  positive  law  can- 
not be  shown  as  an  exciise.^^  if  foi-  any  reason  one  travels  on 
the  wrong  side  of  the  highway,  he  should  exercise  a  higher 
degre  of  care  than  if  he  were  traveling  in  accordance  with  the 
law  of  the  road."  If  one  is  so  near  the  right-hand  side  of  the 
road  that  it  is  impracticable  for  him  to  turn  out  to  permit  an 
approaching  vehicle  to  pass,  he  is  justified  in  holding  the  posi- 
tion, as  the  statute  does  not  justify  a  turn  to  the  left."'* 

Sec.  271.  Excuse  for  violation   of  law   of  road  —  avoiding 
obstacle  in  road. 

If  an  obstruction  exists  on  the  right-hand  side  of  a  high- 
way, the  driver  of  a  motor  vehicle  may  be  justified  in  passing 
to  the  other  side  and  in  driving  along  that  side  until  he  is 
past  that  obstacle.'^    Under  such  circumstances  he  has  a  right 
to  be  on  the  left  side  temporarily;  and,  if  he  exercises  the 
proper  degree  of  care  while  there,  he  is  not  liable  for  injuries 
arising  from  a  collision  Avith  another  traveler."^^    But,  if  the 
obstruction  is  merely  temporary,  it  may  be  the  duty  of  the 
driver  to  wait  for  its  removal  and  not  to  pass  upon  the  wrong 
side  of  the  highway,  for  the  circumstance  that  it  is  incon- 
venient to  obey  the  law  of  the  road  does  not  warrant  a  viola- 
tion.'^   For  example,  one  intending  to  turn  into  a  cross  street 
should  not  attempt  to  go  on  the  left  side  of  the  street,  merely 
because  the  proper  course  was  obstructed  by  street  cars  and 
persons  standing  around  them."^    When  the  road  is  impass- 
able, one  may  properly  drive  upon  the  street  car  tracks;  in 
fact,  he  may  sometime  exercise  this  privilege  when  another 
course  could  be  taken  without  serious  difficulty .''' 

71.  Rosenau     v.     Peterson      (Minn.).  97  Atl.  478. 

179  N.  W.   647.  76.  Clark    v.   Van    Vleo.k.    135    Iowa, 

72    Casev    v.    Bover    (Pa.),    113    Atl.  104,  112  N.  VV.  648. 

3g^  77.  Link  v.  Skeeles.  207  111.  App.  48; 

73.  Section  268.  City  of  Oshkosh  v.  Camphell.  151  Wis. 

74.  Oupples  Mercantile  Co.    v.   Bow.  567.  139  N.  W.  316. 

32  Idaho,  774.  189  Pac.  48.  78.  City     of     Oshkosh    v.    CampbeU, 

75.  Strouse   v.   Whittlesev.   41    Conn.       151  Wis.  567,  139  N.  W.  316. 

559-    Condor   v.   Griffith,   61   Ind.   App.  79.  T^ngford  v.  San  Diego  Eleo.  Ry. 

218,    111    N.    E.    816;     Clark    v.    Van  Co..    174    C^l   729.    164    Pn'^     -OS;    «nd 

Vleck,  135  Iowa.  194,   112  N.  W.  648;  see  sections  600-602. 
Wright   V.    Mitchell,   252    Pa.    St.    325, 


312  The  Law  of  Automobiles. 

Sec.  272.  Excuse  for  violation  of  law  of  road  —  turning  to 
avoid  negligent  driving  of  another. 
The  driver  of  a  vehicle  may  be  justified  in  leaving  the  right- 
hand  side  of  the  road  when  he  is  in  danger  of  a  collision  with 
another  vehicle  which  is  violating  the  law  of  the  road.^*^  A 
better  practice  in  such  a  case,  however,  would  be  for  the  driver 
to  obviate  the  danger  by  stopping  the  machine,  for  it  may 
happen  that  the  offending  vehicle  will  attempt  to  reach  the 
proper  side  of  the  road  at  the  same  time,  and  consequently 
at  the  time  of  the  collision,  the  driver  would  be  on  the  wrong 
side  of  the  highway  and  the  offending  machine  would  be  on 
the  right  side.^^  When  a  defendant  claims  that  he  went  to 
the  left  side  of  the  road  to  avoid  a  threatened  collision  with 
plaintiff  who,  he  says,  was  traveling  along  the  wrong  side,  it 
is  difficult  to  fix  the  blame  for  the  accident,  and  the  questions 
of  negligence  and  contributory  negligence  are  generally  for 
the  jury.^  It  is  held  that  where  the  primary  cause  of  the 
collision  was  the  violation  of  the  law  of  the  road  by  the  de- 
fendant running  on  the  wrong  side  thereof,  he  cannot  evade 
the  consequences  of  his  violation  by  setting  up  that  the  plain- 
tiff, who  was  originally  on  the  proper  side,  swerved  in  the 
emergency  to  the  wrong  side  in  an  attempt  to  avoid  the  col- 
lision.^ 

80.  Temple  v.  Walker,  127  Ark.  379,  that  would  justify  a  driver  of  a  motor 
192  S.  W.  200;  Hammer  v.  Connecti-  vehicle  when  meeting  any  other  ve- 
cut  Co.  (Conn.),  108  Atl.  534;  Potter  hicle,  motor  or  otherwise,  in  turning 
v.  Glassell,  146  La.  687,  83  So.  898;  across  the  path  of  the  approaching  ve- 
Aberle  Brewing  Co.  v.  Briscoe  Motor  hicle  if  that  vehicle  is  approaching  on 
Co.,  194  Mich.  140,  160  N.  W.  440;  its  proper  side.  If  in  such  circum- 
Bragdon  v.  Kellogg,  118  Me.  42,  105  stances  it  should  be  impracticable  to 
Atl.  433;  Clarke  v.  Woop,  159  App.  turn  to  the  right,  then  it  is  his  plain 
Div.  (N.  Y.)  437,  144  N.  Y.  Suppl.  duty  to  stop."  Edwards  v.  Yarbrough 
595;  Cooke  v.  Jerome,  172  N.  C.  626,  90  (Mo.  App.),  201  S.  W.  972. 

S.  E.  767;  Lloyd  v.  Calhoun,  78  Wash.  82.  Cooke    v.    Jerome,    172    N.    Car. 

438,   139   Pac.   231;    Shelly  v.   Norman  626,  90  S.  E.  767. 

(Wash.),     195     Pac.    243.      See    also,  83.  Bragdon  v.  Kellogg,  118  Me.  42, 

Lloyd   V.    Calhoun,    82    Wash.    35.    143  105  Atl.  433;  Bain  v.  Fuller,  29  D.  L. 

Pac.  458.  K.    (Canada)    113. 

81.  "We  can  conceive  of  no  condition 


Law  of  the  Road.  313 

Sec.  273.  Excuse  for  violation  of  law  of  road  —  insuflBcient 
time  to  obey  rule. 

When  one  is  driving  along  a  highway  in  a  proper  manner 
as  another  vehicle  suddenly  approaches,  he  may  he  excused 
from  a  failure  to  turn  to  the  right  and  to  avoid  a  collision,  on 
theory,  that,  with  an  exercise  of  due  diligence,  he  did  not  have 
sufficient  time  to  turn  out  far  enough  to  avoid  the  other  vehi- 
cle. The  mere  fact  that  one  is  pursuing  a  proper  course  along 
the  highway  does  not  permit  him  to  run  down  everything  in 
his  path,  and  such  a  person  may  be  liable  for  his  conduct,  as 
the  jury  may  conclude  that  the  injured  person  did  not  have 
sufficient  time  to  turn  aside  and  permit  a  passage.^  Thus,  it 
may  happen  that,  when  a  rapidly  moving  machine  comes  up 
behind  a  slowed  conveyance,  the  driver  of  such  conveyance 
may  be  free  from  fault  though  he  did  not  turn  toward  the 
right  so  as  to  permit  the  faster  vehicle  to  pass.  His  failure 
to  obey  the  law  of  the  road  in  that  respect  would  be  excused 
if  the  driver  of  the  rear  vehicle  did  not  afford  him  reasonable 
time  in  which  to  make  the  turn.^ 

Sec.  274.  Excuse  for  violation  of  law  of  road  —  skidding  to 
wrong  side  of  road. 

The  failure  of  the  driver  of  a  motor  vehicle  to  keep  to  the 
right  side  of  the  highway  is  excused  where,  without  fault  on 
his  part,  the  machine  skids  across  the  center  line  of  the 
road.^ 

Sec.  275.  Negligence  in  adhering  to  law  of  road. 

The  fundamental  duty  of  the  driver  of  a  motor  vehicle  is 
to  exercise  reasonable  care  under  all  circumstances.  If  under 
the  circumstances  of  a  particular  case,  an  ordinarily  careful 
driver  would  deviate  from  the  law  of  the  road,  the  jury  may 
find  that  an  adherence  to  the  rule  would  constitute  negli- 
gence.^^   This  principle  has  been  denied,  however,  where  the 

84.  Hoover  v.  noicliard.  e,2  Pa.  86.  Chase  v.  Tingdale  Bros..  127 
Super.  Ct.  517.  Minn.  401.  149  N.  W.  654. 

85.  Pens  v.  Kreiizer.  98  Kaiia.  759,  87.  See  the  followinpr  cases:  Allen 
160  Pac.  200.  V.    Mackey.    1    Sprajriw     'T^.    S.)    219: 


314 


The  Law  of  Automobiles. 


law  of  the  road  was  a  matter  of  statute  law.^  One  cannot 
get  his  machine  on  the  right-hand  side  of  the  road  and  then 
proceed  regardless  of  other  travelers  and  rely  on  the  law  of 
the  road  as  defense  to  injuries  thereby  occasioned  to  others.^ 


Lawrence  v.  Goodwill  (Cal.  App.),  186 
Pac.  781;  Herdman  v.  Zwart,  167  Iowa, 
500,  149  N.  W.  631;  Johnson  v.  Small, 
5  B.  Men.  (Ky.)  25;  Smith  v.  Gard- 
ner, 11  Gray  (Mass.)  418;  Clarke  v. 
Woop,  159  N.  Y.  App.  Div.  437,  144 
N.  Y.  Suppl.  595;  Ellison  v.  Atlantic 
Eefining  CJo.,  62  Pa.  Super.  Ct.  370; 
O'Malley  v.  Dorn,  7  Wis.  236;  Turley 
V.  Thomas,  8  0.  &  P.  (Eng.)  103;  The 
Commerce,   3   W.   Rob.    (Eng.)    295. 

88.  Cupples  Mercantile  Co.  v.  Bow, 
32  Idaho,  774,  189  Pac.  48. 

89.  Hoover  v.  Reichard,  63  Pa. 
Super.  Ct.  517.  "Neither  the  ordin- 
ance nor  the  statute  purports  to  lay 
down  a  hard  and  fast  rule  of  the  road, 
to     be     followed     under     all     circum- 


stances. Circumstances'  may  confront 
a  person,  and  often  do,  when  due  care 
would  require  him,  to  avoid  or  re- 
linquish the  side  of  the  street  to  which 
he  was  otherwise  entitled.  In  such 
case,  he  would  be  required  to  exercise 
such  due  care,  and,  if  he  failed  tO  do 
so,  he  would  be  liable  for  negligence, 
even  though  he  had  planted  himaelf  on 
the  side  of  the  street  to  which  he 
would  ordinarily  be  entitled.  In  all 
cases,  therefore,  the  ultimate  question 
is:  What  was  required  by  due  care, 
under  all  the  circumstances  confront- 
ing the  actor  at  the  time?"  Herdman 
V.  Zwart,  167  Iowa,  500,  149  N.  W. 
631. 


Negligexce  in  Oit.ration  of  Motou  Vehicles.       315 
CHAPTER  XV. 

NEGLIGENCE  IN  OPERATION  OF  MOTOR  VEHICLES,  IN  GENERAL. 

Section  276.  Analogy  to  law  governing  horse-drawn  vehicles. 

277.  Degree  of  care  required  of  automobilists — in  general. 

278.  Degree    of    care    required    of    automobilists — commensurate     with 

dangers. 

279.  Degree  of  care  required  of  automobilists — higher     care     at     street 

crossings. 

280.  Degree  of  care  required  of  automobilists — higher   care   wlien   driv- 

ing on  wrong  side  of  highway. 

281.  Degree  of  care  required  of  automobilists — higher  care  imposed  by 

statute. 

282.  Degree  of  care  required  of  automobilists — care     by     common     car- 

riers. 

283.  Driver  of  auto  not  an  insurer  against  accidents. 

284.  Unavoidable  accident— in  general. 

285.  Unavoidable  accident — conduct  of  driver  in  emergency. 

286.  Unavoidable  accident — avoidance  of  dangerous  situation. 

287.  Unavoidable  accident— precedent  negligence  may  bar  claim  of  un- 

avoidablle  accident. 

288.  Unavoidable  accident— moving  automobile  under  directions  of  police 

officer. 

289.  Proximate  cause — in    general. 

290.  Proximate  cause — <;oncurring  negligence  of  third  party. 

291.  Proximate  cause— intervening  agency. 

292.  Competency  of  driver  of  motor  vehicle — in    general. 

29.^.  Competency  of  driver  of  motor  vehicle — presumption  as  to  skill  of 
driver. 

294.  Competency    of    driver    of    motor    vehicle — physical    condition    of 

driver. 

295.  Competency  of  driver  of  motor  vehicle — permittiiijj;  immature  child 

to  drive  ear. 

296.  Competency  of  driver  of  motor  vehicle — opinion    of    witness    as    to 

competenc}-  of  driver. 

297.  Effect  of  violation  of  statute  or  municipal  ordinance — in   general. 

298.  Effect  of  violation  of  statute  or  municipal  ordinance — violation  as 

contributory  negligence. 

299.  Effect  of  violation  of  statute    or    municipal    ordinance — who    may 

invoke  violation. 

300.  Effect  of   violation   of  statute  or  municipal   ordinance — proximate 

cause  of  injury. 

301.  Effect  of  violation  of  statute  or  municipal  ordinance — contributory 

negligence  of  injured  as  a  defense. 

302.  Effect  of  violation  of  .-statute  or  nuinicipal  ordinance — necessity  nf 

pleading  orditiancc. 

303.  Speed  of  machine — in  general. 


316  The  Law  of  Automobiles. 

Section  304.  Speed  of  machine — proximate  cause. 

305.  Speed  of  machine — unreasonable   speed  prohibited. 

306.  Speed  of  machine — statute  or  ordinance  regulating  speed. 

307.  Speed  of  machine — speed  at  night. 

308.  Speed  of  machine — at  turns. 

309.  Speed  of  machine — density  of  traffic. 

310.  Speed  of  machine — passing  street  cars. 

311.  Speed  of  machine — street  intersections. 

332.  Speed  of  machine — at  railroad  or  street  railway  crossings. 

313.  Speed  of  machine — approaching  embankment  or  descent. 

314.  Speed  of  machine — over  bridges, 

315.  Speed  of  machine — past  children  in  street. 

316.  Speed  of  machine — frightening  horses. 

317.  Speed  of  machine — regulation  prohibiting  "unreasonable"  speed. 

318.  Speed  of  machine — fire   and  police  vehicles. 

319.  Speed  of  machine — military  or  mail  vehicle. 

320.  Speed  of  machine — violation    of    speed   regulation   as   evidence    of 

negligence. 

321.  Speed  of  machine — ^violation    of    speed    regulations    as    negligence 

per  se. 

322.  Speed  of  machine — excessive  speed  as  prima  facie  evidence  of  neg- 

ligence. 

323.  Speed  of  machine — excuse  for  violation  of  speed  regulation. 

324.  Speed  of  machine — negligent  though  not  exceeding  speed  limit. 

325.  Speed  of  machine — province  of  jury. 

326.  Control. 

327.  Duty  to  stop. 

328.  Negligence  in  stopping. 

329.  Warning  of  approach — in  general. 

330.  Warning  of  approach — statutes  or  ordinances. 

331.  Warning  of  approach — sufficiency  of  warning. 

332.  Lookout — in  general. 

333.  Lookout — toward  the  rear. 

334.  Lookout — toward  the  side. 

335.  Lookout — intensiveness  of  looking. 

336.  Lookout — charged  with  notice  of  what  should  have  been  seen. 

337.  Noise. 

338.  Skidding. 

339.  Condition  of  vehicle. 

340.  Leaving  car  in  street  unattended — in  general. 

341.  Leaving  car  in  street  unattended — at  night. 

342.  Leaving  car  in  street  unattended — vehicle  started  by  act  of  third 

person. 

343.  Leaving  car  in  street  unattended — statute    or   ordinances. 

344.  Lights    on   machine — statutory   requirements. 

345.  Lights  on  machine — probative  force  of  violation. 

346.  Lights  on  machine — sufficiency  of  lights. 

347.  Lights  on  machine — proximate  cause. 

348.  Lights  on  machine — animal-drawn  vehicles. 

349.  Towing  disabled  vehicle. 


Negligence  in  Operation  of  Motor  Vehicles.       317 

Section  350.  Sufficiency   of    compliance   with   statute. 

351.  Contributory  negligence  of  injured  person. 

352.  Assumption  that  other  travelers  will  exercise  due  care. 

353.  Conflict  of  laws. 

354.  Joinder  of  causes  of  action  for  injuries  to  two  persons. 

355.  Damages — in  general. 

356.  Damages — mental  anguish. 

357.  Damages — punitive   damages. 

358.  Damages — increased  damages. 

359.  Function  of  jury. 

360.  Traction    engines. 

Sec.  276.  Analog  to  law  governing  horse-drawn  vehicles. 

The  general  rules  governing  the  movement  of  automobiles, 
except  as  modified  by  statute,  are  said  to  be  the  same  as  those 
which,  as  a  result  of  long  usage,  have  been  formulated  for 
the  government  of  simple  vehicles  such  as  wagons.^  This  is 
true  to  the  extent  that  it  is  the  duty  to  exercise  reasonable 
care  under  the  circumstances  to  avoid  injury  to  other  trav- 
elers.^ The  same  rule  can  be  stated  with  reference  to  the  care 
to  be  observed  by  the  drivers  of  horses  or  wagons.  The  cir- 
cumstance that  new  elements  of  locomotion  such  as  electricity, 
steam,  etc.,  have  been  added  to  vehicles  using  the  public  high- 
ways, has  not  wrought  any  legal  change  in  the  general  prin- 
ciples of  the  law  of  the  use  of  highways.^  But  ''ordinary** 
or  "reasonable"  care,  when  analyzed,  imports  that  degree  of 
care  which  an  ordinarily  prudent  man  would  exercise  under 
the  circumstances,  and  is  commensurate  with  the  danger  of 
the  situation.'*  ''Commensurate"  care  under  some  circum- 
stances implies  more  caution  than  under  other  circumstances. 
In  determining  whether  the  driver  of  an  automobile  has  exer- 
cised proper  care,  the  size  and  speed  of  the  machine,  its 
capability  of  frightening  horses  or  causing  other  injuries,  are 
to  be  considered.  Considering  the  question  from  this  point  of 
view,  it  is  clear  that  greater  precautions  and  diligence  are 
required  of  an  automobile  than  is  to  be  expected  from  the 
driver  of  a  horse  drawn  conveyance.^ 

1.  Bona  V.  S.   R.   Thomas  Auto  Co.,  v.   BrowTi,  89  N.  J.  Law,  314,  98  Atl 
137  Ark.  217,  208  S.  W.  306.  262. 

2.  Section  277.  4.  Section  278. 

3.  Hood  &  Wheeler  Furniture  Co.  v.  5.  White  v.  Rukcs,  56  Okla.  476,  155 
Royal,  200  Ala.  607,  76  So.  965;   Pool  Pao.    1184.      "Because    of    the    appear 


318 


The  Law  of  Automobiles. 


Sec.  277.  Degree    of    care    required    of    automobilists  —  in 
general. 

An  automobilist  is  required  to  exercise  "reasonable"  or 
** ordinary"  care  to  avoid  injury  to  other  persons  lawfully 
using  the  highway.'^    This  means  the  care  which  an  ordinarily 


ance  and  attributes  of  a  motor  driven 
vehicle  there  is  manifest  difference  in 
the  situation  presented  when  one  meets 
or  passes  a  team  and  when  two  teams 
meet  or  pass.  Tlie  prudence  demanded 
of  the  automobile  driver  is  by  no 
means  the  same  as  if  he.  too,  were 
driving  a  team.  He  must  order  his 
conduct  in  the  light  of  the  conditions 
created  by  the  presence  and  operation 
of  his  peculiar  kind  of  conveyance, 
and  in  doing  so  must  observe  every 
precaution  -which  would  occur  to  a 
reasonably  prudent  man  occupying  his 
place."  Arrington  v.  Horner,  88  Kana. 
817,  129  Pac.  1159.  "An  automobile 
is  not  an  inherently  dangerous  ve- 
hicle, but  in  the  hands  of  a  reckless 
operator — and  there  are  many  of  them 
— it  becomes  exceedingly  dangerous; 
and  so,  for  the  protection  and  safety 
of  pedestrians,  as  well  as  other  persons 
using  and  having  the  right  to  use  the 
streets  and  highways,  in  ordinary  ve- 
hicles, it  is  necessary  that  a  higher 
degree  of  care  should  be  exacted  from 
those  using  motor  vehicles  than  from 
persons  using  vehicles  propelled  by 
horses.  Weidner  v.  Otter,  171  Ky.  167, 
188  S.  W.  335. 

6.  United  States. — ^Lane  v.  iSargent, 
217  Fed.  237.  See  also  Taxicab  Co.  v. 
Parks,  202  Fed.  909,  121  C.  C.  A.  267. 
Alabama. — Dozier  v.  Woods,  190 
Ala.  279,  67  So.  283;  White  Swan 
Laundry  Co.  v.  Wehrhan,  202  Ala.  87, 
79  So.  479;  Hood  &.  Wlieeler  Furniture 
Co.  V.  Royal  (Ala.  App.),  76  So.  965. 
Arkansas. — Minor  v.  Mapes,  102 
Ark.  351,  144  S.  W,  219;  Puss  v. 
Strickland,  130  Ark.  406,  197  S.  W. 
709;  Texas  Motor  Oo.  v.  BuflSngton, 
134  Ark.  320,  203  S.  W.   1013;    Carter 


V    Brown,   136  Ark.   23.  206  S.  W.  71. 
California. — Bidwell  v.   Los  Angeles, 
etc.   Ry.    Co.,    169    Cal.    780,    148   Pac. 
197. 

Delaware. — Cecchi  v.  Lindsay,  1 
Boyce  (Del.)  185,  75  Atl.  376;  Grier 
V.  Samuel,  4  Boyce  (Del.)  106,  86  Atl. 
209;  Brown  v.  City  of  Wilmington,  4 
Boyce    (Del.)    492,  90  Atl.  44. 

Georgia. — Wodley  v.  Dooly,  138  Ga. 
275,  75  S.  E.  153;  Giles  v.  Voiles,  144 
Ga.  853,  88  S.  E.  207;  Powell  v.  Berry, 
145  Ga.  696,  89  S.  E.  753. 

Illinois. — Kerchner  v.  Davis,  183  111. 
App.  600;  Miller  v.  Eversole,  184  111. 
App.  362;  Petty  v.  Maddox,  190  111. 
App.  381;  Brautigan  v.  Union  Overall 
Liiundry  &  Supply  Co.,  211  111.  App. 
354. 

Indiana. — Indiana  Springs  Oo.  v. 
Brown,  165  Ind.  465,  74  N.  E.  615,  1 
L.  R.  A.  (N.  S.)  328,  6  Ann.  Cas.  656; 
Brinkman  v.  Pacholke,  41  Ind.  App. 
662;  84  N.  E.  762;  East  v.  Ambum, 
47  Ind.  App.  530,  94  N.  E.  895;  Elgin 
Dairy  Co.  v.  Sheppard  (Ind.  App.), 
103  N.  E.  433;  Frank  Bird  Transfer 
Co.  V.  Shaw  (Ind.  App.),  124  N.  E. 
776. 

Iowa. — Delfs  v.  Dunshee,  143  Iowa, 
381,  122  N.  W.  236;  Wiar  v.  Wabash 
R.  Co.,  162  Iowa,  702,  144  N.  W.  703; 
Herdman  v.  Zwart,  167  Iowa,  500,  149 
N.   W.   631. 

Kansas. — Arrington  v.  Horner,  88 
Kans.  817,  129  Pac.  1159. 

Kentucky. — Shinkle  v.  MoCullough, 
n6  Ky.  960,  77  S.  W.  196;  Weidner 
V.   Otter,   171  Ky.   167,  188  S.  W.  335. 

Louisiana. — Shields  v.  Fairchild,  130 
La.  648,  58  .So.  497. 

Maryland. — Geiselman  v.  Schmidt, 
106  Md.  580,  68  Atl.  202. 


Negligence  in  Operation  of  Motor  Vehicles.       3iy 

prudent  automobilist  would  exercise  under  the  same  circum- 
stances, considering  the  nature  of  the  machine,  the  condition 
of  the  highway,  the  amount  of  traffic,  and  other  surrounding 
circumstances.^     In  the   case   of  two   automobiles   or  other 


Mcissachusetts. — Massie  v.  Barker, 
224  Mass.  420,  113  N.  E.  199. 

Michiga/n. — Simmons  v.  Peterson. 
207   Mich.    508.   174  N.   W.    536. 

Minnesota. — Kling  v.  Thompson-Mc- 
Donald Lumber  Co.,  127  Minn.  468,  149 
N.  W.  947;  Noltmeir  v.  Rosenberger, 
131  Minn.  369,  155  N.  W.  618. 

Missouri. — Bongner  v.  Ziegenheim, 
165  Mo.  App.  328,  147  S.  W.  182; 
Graliam  v.  Sly,  177  Mo.  App.  348,  164 
S    W.   136. 

New  Ilampshire. — Gilbert  v.  Burque, 
72  N.  H.    521,  57  Atl.  97. 

Neio  Jersey. — Pool  v.  Brown,  89  N. 
J.  T>aw,  314.  98  Atl.  262;  Erwin  v. 
Traud,  90  N.  J.  L.  289,  100  Atl.  184. 

Neio  York. — Towner  v.  Brooklyn 
Heights  R.  Co.,  44  App.  Div.  628,  60 
N  Y.  Siippl.  289;  Knight  v.  Lanier,  69 
App.  J)iv.  454,  74  N.  Y.  Suppl.  999; 
Murphy  v.  Wait,  102  App.  Div.  121, 
92  N.  Y.  Suppl.  253;  Kalb  v.  Redwood, 
147  App.  Div.  77,  131  N.  Y.  Suppl. 
789;  Caesar  v.  Fifth  Ave.  Stage  Co., 
45  Misc.  331,  90  N.  Y.  Suppl.  359; 
Ackerman  v.  Fifth  Ave.  Coach  Co.,  175 
App.  Div.  508,  162  N.  Y.  Suppl.  49. 

Pennsylvania. — ^Virgilio  v.  Walker, 
254  Pa.  St.  241,  98  Atl.  815. 

Rhode  Island. — Marsh  v.  Boyden,  33 
R.  L  519,  82  Atl.  393. 

Utah. — McFarlane  v.  Winters,  47 
Utah,  598,  155  Pac.  437;  Musgrave  v. 
Studobaker  Bros.  Co.  of  Utah,  48  Utah, 
410,  160  Pac.  117;  Richards  v.  Palace 
T^undrt'  Co..   186  Pac.  439. 

Vermont. — ^Aiken  v.  Motcalf,  90  Vt. 
196.  97  Atl.  669. 

Washington. — ^Stephenson  v.  Parton, 
8')  Wash.  653,  155  Pac.  147. 

Wisconsin. — Weber  v.  tSwallow,  136 
Wis.  46,  116  N.  W-  844:  Raymond  v. 
Sauk  County,  167  Wis.  125,  166  N.  W. 
29. 


7.  Alabama. — McCray  v.  Sharpe,  188 
Ala.  375,  66  So.  441;  Reavt>fl  v.  May- 
bank,  193  Ala.  614,  69  So.  137;  White 
Swan  Laundry  Co.  v.  Wehran,  202  Ala. 
87,  79  So.  479;  Hester  v.  Hall  (Ala. 
App.),  81  So.  361. 

Arkansas. — Carter  v.  Brown,  136 
Ark.  23,  206  S.  W.  71;  Bona  v.  S.  R. 
Tliomas  Auto  Co.,  137  Ark.  217,  208 
S.  W.  306. 

California. — Bellinger  v.  Hughes.  31 
(."al.  App.  464,  160  Pac.  838. 

Colorado. — Phillips  v.  Denver  City 
Tramway  Co.,  53  Colo.  458,  128  Pac. 
460,  Ann.  Cas.  1914  B.  29. 

Connecticut. — Brown  v.  New  Haven 
Taxicab  Co.,  105  Atl.  706. 

Delaware. — ^Trimble  v.  Philadelphia 
B.  &  W.  R.  Co.,  4  BoTce  (Del.)  519, 
89  Atl.  370. 

Georgia. — Giles  v.  Voiles,  144  Ga. 
853,  88  S.  R  207;  O'Dowd  v.  Newn- 
liam,  13  Ga.  App.  220,  80  S.  E.  36. 

Illinois. — Kessler  v.  Washburn,  157 
111.  App.  532. 

Indiana. — Indiana  Springs  Co.  v. 
Brown,  165  Ind.  465,  74  N.  E.  615,  1 
L.  R.  A.  (N.  S.)  238,  6  Ann.  Cas.  656; 
Brinkman  v.  Pacholke.  41  Ind.  App. 
662,  84  N.  E.  762;  Ft.  Wayne  &  N.  I. 
Tr.  Co.  V.  Schoeff,  56  Ind.  App.  540, 
105  N.  E.  924;  Central  Indiana  Ry.  Co. 
V.  Wishard  (Ind.  App.),  104  N.  E.  593; 
Martin  v.  Lilley,  188  Ind.  139,  121  N. 
E.  443. 

loica. — Delfs  v.  Dunshee.  143  Iowa. 
381,  122  N.  W.  236:  Scott  v.  O'lvcary, 
157  Iowa,  222.  138  N.  W.  512;  Ken- 
dall V.  City  of  Dcs  Moines,  183  Iowa, 
866.  167  N.  W.  864.  "One  may  travel 
in  a  motor  vehicle  on  the  streets;  but, 
in  doing  so.  the  care  exacted  neces- 
sarily depends  somewhat  on  the  rate 
of  speed,  sixe  and  appearance,  manner 
of    movement,    noise,    and    the    like    of 


320 


The  Law  of  Automobiles. 


vehicles  traveling  on  the  same  road  or  approaching  the  same 
highway  intersection,  it  is  the  duty  of  each  to  exercise  reason- 
able precautions  to  avoid  a  collision.^  The  law  does  not  de- 
nounce motor  vehicles  as  such  on  the  public  ways.  For  so 
long  as  they  are  constructed  and  propelled  in  a  manner  con- 
sistent with  the  use  of  the  highways,  and  are  calculated  to 
subserve  the  public  as  a  beneficial  means  of  transportation 
with  reasonable  safety  to  travelers  by  ordinary  modes,  they 
have  equal  rights  with  other  vehicles  in  common  use  to  occupy 
the  streets  and  roads.^  While  an  automobile  is  not  an  instru- 
ment of  such  a  character  as  to  render  the  owner  or  driver 
liable  for  an  injury  caused  in  consequence  of  its  operation," 
its  use,  nevertheless,  should  be  accompanied  with  that  degree 


such  vehicle,  as  well  as  the  means  of 
locomotion  of  others  on  the  highway." 
Delfs  V.  Dunshee,  143  Iowa,  381,  122 
N.  W.  236. 

Kansas. — Super  v.  Modell  Twp.,  88 
Kans.  698,  129  Pac.  1162;  Arrington 
V.  Horner,  88  Kans.  817,  129  Pac.  1159. 

Kentucky. — Weidner  v.  Otter,  171 
Ky.  167,  188  S.  W.  335. 

Maryland. — Fletcher  v.  Dixon,  107 
Md.  420,  68  Atl.  875;  Winner  v.  Lin- 
ton,  120  Md.  276,  87  Atl,  674;  Ameri- 
can Express  Cb.  v.  Terry,  126  Md.  254, 
94  Atl.  1026. 

Massachusetts. —  'Commonwealth  v. 
Horsfall,  213  Mass.  232,  100  N.  E.  362. 

Michigan. — Winchowski  V.  Dodge, 
183  Mich.  303,  149  N.  W.  1061;  Sim- 
mons V.  Peterson,  207  Mich.  508,  174 
N.  W.  536. 

Missouri. — Edmonston  v.  Barrock 
(Mo.  App.),  230   S.  W.   650. 

New  Hampshire. — See  Goge  v.  Bos- 
ton &  M.  R.  R.,  77  N".  H.  289,  90  Atl. 
855. 

New  Jersey. — Jaeobson  v.  New  York 
L.  &  W.  R.  Co.,  87  N.  J.  L.  378,  94 
Atl.  577;  Spawn  v.  Goldberg,  110  Atl. 
565. 

North  Carolina. — Manly  v.  Aber- 
nathy,  167  N.  Car.  220,  83  S.  E.  343. 

Oklahoma. — St.  Louis  &  S.  F.  R.  Co. 
V.   Model   Laundry,   42   Okla.    501,    141 


Pac.  970. 

Pennsylvania, — Lorah  v.  Rinehart, 
243  Pa.  St.  231,  89  Atl.  967;  Follmer 
V.  Pennsylvania  R.  Co.,  246  Pa.  367, 
92  Atl.  340. 

Rhode  Island. — Greenhalch  v.  Bar- 
ber, 104  Atl.  769, 

Tennessee. — iLeach  .v.  Asman,  130 
Tenn.   510,  172  S.  W.  303.         , 

rearojs.— Houston  Belt  &  T.  R.  Co.  v. 
Rucker  (Tex.  Civ.),  167  S.  W,  301; 
Adams  v,  Galveston  H.  &  S.  A.  R.  Co. 
(Tex.  Civ.),  164  S.  W.  853;  Ward  v. 
C^they  (Civ.  App),  210  S.  W.  289. 

Washington. — Chase  v.  Seattle  Taxi- 
cab  &  Transfer  Co.,  78  Wash,  537,  139 
Pac.  499;  Stephenson  v.  Parton,  89 
Wash,  653,  155  Pac.   147. 

West  Virginia. — Deputy  v.  Kimmell, 
73  W.  Va.  595,  80  S.  E.  919. 

See  also  section  278. 

8.  Bidwell  v.  Los  Angeles,  etc.  Ry. 
Co.,  169  Cal.  780,  148  Pac.  197;  Elgin 
Dairy  Co.  v.  Shepard  (Ind.  App.),  103 
N".  E.  433;  Shields  v.  Fairchild,  130 
La.  648.  58  So.  497 ;  Gilbert  v.  Burque, 
72  N.  H.  521,  57  Atl.  97;  Towner  v. 
Brooklyn  Heights  R.  Co.,  44  App.  Div. 
628,  60  N.  Y.  Suppl.  289;  Weber  v. 
Swallow,  136  Wis.  46,  116  N.  W.  844. 
And  see  sections  361,  391. 

9.  Section   48. 

10.  Section  623. 


Negligence  in  Operation  of  Motor  Vehicles.       321 

of  prudence  in  the  management  and  consideration  for  the 
rights  of  others  which  is  consistent  with  their  safety." 


Sec.  278.  Degree  of  care  required  of  automobilists  —  com- 
mensurate with  dangers. 
It  is  a  general  rule  in  the  law  of  negligence  that  the  criterion 
of  *' reasonable"  or  "ordinary"  care  varies  according  to  the 
circumstances.  Wliat  would  constitute  reasonable  care  in  one 
case  might  be  considered  recklessness  under  other  circum- 
stances. In  other  words,  the  care  to  be  exercised  under  given 
circumstances   is   commensurate   to   the   dangers   involved.^^ 


11.  Ternes  v.  Giles.  93  Kana.  140, 
435,  144  Pae.  1014;  Shinkle  v.  MoCul- 
lough,  116  Ky.  960,  77  S.  W.  196; 
Knight  V.  Lanier,  69  N.  Y.  App.  Div. 
454,  74  N.  Y.  Suppl.  999.  "Travelers 
upon  a  public  highway  owe  a  duty  to 
others  traveling  upon  such  highway, 
and  that  duty  requires  them  to  so  rea- 
sonably conduct  themselves  in  the  use 
of  the  highway  as  that  they  will  not 
injure  others  wlio  are  also  traveling 
upon  such  highway."  Dozier  v.  Woods, 
190  Ala.  279,  67  So.  283.  "The  rules 
governing  the  degree  of  care  which  in- 
dividuals upon  the  highway  should 
exercise  for  mutual  safety  are  well 
settled  and  relate  in  their  application 
to  the  danger  to  be  reasonably  appre- 
hended under  every-varying  conditions 
of  exposure  and  peril.  While  the  au- 
tomobile is  a  lawful  means  of  convey- 
ance and  has  equal  rights  upon  the 
road  with  the  horse  and  carriage,  its 
use  cannot  be  lawfully  countenanced 
unless  accompanied  with  that  degree 
of  prudence  in  management  and  con- 
sideration for  the  rights  of  others 
which  is  consistent  with  safety." 
Knight  V.  Lanior,  69  N.  Y.  App.  Div. 
454,  74  N.  Y.  Suppl.  999.  "It  can  no 
longer  be  questioned  that  the  use  of 
automobiles  or  motor  cars,  such  as  the 
one  here  in  question,  upon  streets  and 
other  public  highways,  is  lawful.  Such 
vehicles  furnish  a  convenient  and  use- 

21 


tul  mode  of  travel  and  transi>ortation 
not  incompatible  with  the  proper  use 
of  the  highway  by  others;  but  in  con- 
sequence of  the  great  speed  with  which 
they  may  be  run;  their  size  and  gen- 
eral appearance,  the  noises  made  in 
tbeir  use,  the  infrequency  of  their  use 
in  particular  localities,  and  the  cir 
eumstances  of  the  particular  occasions 
of  their  use,  commensurate  care,  skill 
and  diligence  must  be  required  of  the 
[icrsona  employing  such  means  of 
transportation.  The  general  rule  ap- 
plies that  he  must  so  use  his  own  as 
not  to  injure  another.  Automobiles 
may  be  used  with  safety  to  other  users 
of  the  highway,  and  in  their  proper 
use  upon  the  highways  their  owners 
have  equal  rights  with  the  users  of 
other  vehicles  properly  upon  the  high- 
way. The  law  recognizes  such  right 
of  use  upon  general  principles,  and  at 
the  time  of  the  appellee's  injury  the 
right  was  expressly  recognized  by  stat- 
ute." Brinkman  v.  Pacholke,  41  Ind. 
App.  662,  84  N.  E.  762. 

12.  "The  terms  'ordinary  care'  and 
'reasonable  prudence,'  as  applied  to  the 
conduct  and  the  affairs  of  men.  are  de- 
clared to  have  only  a  relative  signi- 
ficance, depending  upon  the  special  cir- 
cumstances and  surroundings  of  the 
I)articular  case,  and  to  defy  arbitrary 
(lofinition.  When  a  given  state  of 
facts  is  such  that  reasonable  nion  may 


322 


The  Law  of  Automobiles. 


This  general  principle  is  applicable  to  the  operation  of  motor 
vehicles  in  two  ways.  In  the  first  place,  the  operation  of  auto- 
mohiles,  on  account  of  their  speed,  size  and  other  character- 
istics, is  attendant  with  greater  danger  to  pedestrians  and  other 
travelers  than  is  the  movement  of  a  horse-drawn  carriage. 
Thus,  it  may  be  said  that  the  care  required  of  the  driver  of  a 
motor  vehicle  is  "commensurate"  with  the  danger  of  such  a 
machine.^2    r^j^-g  ^^^y  require  that  the  driver  shall  at  all  times 


differ  as  to  whether  or  not  negligence 
intervened,  as  whether  or  not  ordinary 
care  and  reasonable  prudence  char- 
acterized the  actions  and  conduct  of 
aii  actor  the  determination  of  such 
question  becomes  a  matter  for  the 
jury."  White  Swan  Laundry  Co.  v. 
Wehrhan,  202  Ala.  87,  79  So.  479. 

13.  Alabama. — Reaves  v.  Maybank, 
193  Ala.  614.  69  So.  137 ;  McCray  v. 
Sharpe,  188  Ala.  375,  66  So.  441. 

California. — Bellinger  v.  Hughes,  31 
Cal.  App.  464,  160  Pac.  838;  Weihe  v. 
Rathjen  Mercantile  Co.,  34  Cal.  App. 
302,  167  Pac.  287. 

Colorado. — Phillips  v.  Denver  City 
Tramway  Co.,  53  Colo.  458,  128  Pac. 
460,  Ann.  Cas.  1914  B  29. 

Delaware. — Brown  v.  City  of  Wil- 
mington, 4  Boyce,  492,  90  Atl.  44. 

Georgia. — O'Dowd  v.  Xewnham,  13 
Ga.  App.  220,  80  S.  E.  36. 

Illinois. — Graham  v.  Hagmann,  270 
111.  252,  110  N.  E.  337.  "The  degree 
of  care  and  caution  to  be  used  in  each 
case  depends  upon  the  character  of  the 
vehicle  used  and  the  locality  and  sur- 
roundings in  which  it  is  being  used. 
The  more  dangerous  the  character  of 
the  vehicle  and  the  greater  its  liability 
to  do  injury  to  others,  the  higher  is 
the  degree  of  care  and  caution  to  be 
exercised  by  the  person  charged  with 
the  duty  of  its  operation."  Graham  v. 
Hagmann,  270  111.  252,  110  N.  E.  337. 

Indiana. — "It  can  no  longer  be  ques 
tioned  that  the  use  of  automobiles  or 
motor   ears,    such    as   the   one   here   in 
question,  upon  streets  and  other  public 
highways,     is    lawful.       Such     vehicles 


furnish  a  convenient  and  useful  mode 
cf  travel  and  transportation  not  in- 
compatible with  the  proper  use  of  the 
highway  by  others;  but  in  consequence 
of  the  great  speed  with  which  they  may 
be  run,  their  size  and  general  appear- 
ance, the  noises  made  in  their  use,  the 
infrequeney  of  their  use  in  particular 
localities,  and  the  circumstances  of  the 
particular  occasions  of  their  use,  com- 
mensurate care,  skill  and  diligence 
must  be  required  of  the  persons  em- 
ploying such  means  of  transportation." 
Brinkman  v.  Pacholke,  41  Ind.  App. 
662,  84  N.  E.  762: 

loica. — Delfs  v.  Dunshee,  143  Iowa, 
381,  122  N.  W.  236;  Scott  v.  O'Leary, 
157  Iowa,  222,  138  K  W.  512;  Bish- 
ard  v.  Engelbcek,  180  Iowa,  1132,  164 
N.  W.  203. 

Kentucky. — CoUett  v.  Standard  Oil 
Co.,  186  Ky.  142,  216  S.  W.  356. 

.Maine. — Savoy  v.  McLeod,  111  Me. 
234,  88  Atl.  721;  Bragdon  v.  Kellogg, 
118  Me.  42,  105  Atl.  433. 

Maryland. — Winner  v.  Linton,  120 
Md.  276,  87  Atl.  674;  Fletcher  v. 
Dixon,  107  Md.  420,  68  Atl.  875. 

Massachusetts. —  Commonwealth  v. 
Horsfall,  213  Mass.  232,  100  N.  E.  362. 

Michigan. — Winckowski  v.  Dodge, 
183  Midi.  303,  149  N.  W.  1061;  Pat- 
terson v.  Wagner,  204  Mich.  593,  171 
X.  W.  356. 

Missouri. — "The  possession  of  a 
powerful  and  dangerous  vehicle,  in- 
stead of  giving  defendant  any  right  of 
way,  imposed  on  him  the  duty  of  em- 
ploying care  commensurate  to  the  risk 
of  danger  to  others  endangered  by  the 


Negligexc^e  in  Operation  of  >roTOR  Vehicles.       323 


use  greater  diligence  than  would  be  imposed  on  the  driver  of 
a  horse  and  wagon  or  on  other  travelers.^*  Secondly,  the 
danger  from  the  operation  of  a  motor  vehicle  may  he  greater 
at  some  places  than  at  others.  The  jirecautions  which  are 
sufficient  when  used  by  an  operator  running  along  a  rural 
highway  with  few  travelers  are  entirely  insufficient  when 
driving  along  a  crowded  city  street.  In  this  way,  the  care  of 
the  driver  must  be  commensurate  with  the  dangers  arising 
from  the  surrounding  circumstances.^    Thus,  it  is  sometimes 


presence  of  his  vehicle  on  tlio  public 
thoroughfare."  Hall  v.  Compton,  130 
Mo.    App.    675,    108    S.   W.    1122. 

Pennsylvania. — Lorah  v.  Rinehart, 
243  Pa.  231.  89  Atl.  967. 

Tennessee. — Leach  v.  Asman.  130 
Tenn.  510,  172  S.  VV.  303. 

Vermont. — "The  defendant  was  driv- 
ing a  machine,  which  on  account  of 
its  speed,  weight,  and  q\iietness  was 
capable  of  doing  great  damage,  and  the 
law  puts  upon  one  so  situated  a  greater 
and  more  constant  caution.  He  was 
bound  to  exercise  care  commensurate 
with  the  dangers  arising  from  the  lack 
of  it."  Aiken  v.  Metcalf,  90  Vt.  196, 
97  Atl.   669. 

Washington. — Chase  v.  Seattle  Taxi- 
cab  &  Transfer  Co.,  78  Wash.  537,  139 
Pac.  499 

Canada. — Osborne  v.  Landis,  34  W. 
L.  R.  118. 

14.  Instruction. — The  following  in- 
struction, relative  to  the  comparative 
degree  of  care  required  of  automo- 
bilists  and  pedestrians,  has  been  ap- 
proved: "While  both  parties  are 
charged  with  the  same  degree  of 
care,  .  .  .  the  amount  of  care  ex- 
acted of  the  driver  of  a  motor  vehicle 
is  far  greater  than  the  amount  of  care 
exacted  of  the  foot  passengers  "  Weihe 
V.  Rathjen  Mercantile  Co..  34  Cal. 
App.  302,  167  Pae.  287,  the  court  say- 
ing: ".\s  said  by  covinsol  for  tlio 
]Oainti(r,  the  degree  of  care  exacted  of 
both  users  of  the  highway  is  tlie  same; 
the  aiuonnt  of  caro  must  of  necessity 
vary  in  order  that  the  degree  may  not. 


The  driver  of  a  motor  vehicle — a  dan 
gerous  instrumentality  capable  of  in 
Hicting  fatal  injuries — is  charged  with 
a  greater  amount  of  care  than  the 
pedestrian,  in  order  that  he  may  be 
hound  to  the  same  standard  of  ordin- 
ary care.  'Ordinary  care'  and  'negli- 
gence' are   relative  terms" 

15.  Alabama. — McCray  v.  Sbarpe, 
188  Ala.  375.  66  So.  441;  Reaves  v. 
Maybank.  193  Ala.  614,  69  So.  137; 
Karpeles  v.  City  Ice  Delivery  Co..  198 
Ala.  449,  73  So.  642;  White  Swan 
Laundry  Co.  v.  Wehrhan.  202  Ala.  S7, 
79  So.  479.  "What  is  the  exercise  of 
reasonable  care  by  an  operator  of  a 
motor  vehicle  on  public  highways  de- 
pends upon  the  circumstances  of  the 
particular  case,  as  bearing  upon  the 
conduct  and  the  affairs  of  men;  for 
what  may  be  deemed  rcasonalde  and 
prudent  in  one  case  may,  under  differ 
ent  circumstances  and  surroundings,  be 
gross  negligence"  White  Swan 
Laundry  Co.  v.  Wehrhan.  202  \la.  87. 
79  So.  479. 

Arkansa.s. — Bona  v.  S.  R.  Thomas 
Auto  Co.,  137  Ark.  217.  208  S.  W.  306. 

California. — Bellinger  v.  Iluglies.  31 
Cal.   App.  464.   160  Pac.   838. 

Colorado. — Phillips  v.  Denver  City 
Tramway  Co.,  53  Colo.  4.'i8.  128  Pac. 
460,  Ann.  Cas.  1914  B.  29.  See  also. 
Kent  V.  Tweworgy,  22  Colo.  App.  141. 
125  Pac.   128. 

Conncvtirut. —    Brown  \  "^i  \'' 

Haven  Taxicab  Co..  105  Atl.  706. 
"While  owners  of  automobiles  have 
the  right  to  drive  them  upon  publi>' 
streets,    yet    the    proper    protection    of 


324 


The  Law  of  Automobiles. 


said  that  higher  care  is  required  of  an  automobile  traveler 


the  equal  rights  of  all  to  use  the  high- 
ways necessarily  requires  the  adoption 
of  different  regulations  for  the  differ- 
ent methods  of  such  use;  and  what 
may  be  a  safe  rate  of  speed  at  which 
to  ride  a  bicycle  or  drive  a  horse  may 
be  an  unreasonably  rapid  rate  at  which 
to  drive  an  automobile  in  the  same 
place.  For  the  reasons  stated,  and 
others  which  might  be  given,  driving 
of  an  automobile  at  a  higli  rate  of 
speed  through  city  streets  at  times 
when  and  places  where  other  vehicles 
are  constantly  passing,  and  men, 
women  and  children  are  liable  to  be 
crossing;  around  corners  at  the  inter- 
section of  streets,  or  in  passing  street 
cars  from  which  passengers  have  just 
alighted,  or  may  be  about  to  alight;  or 
in  other  similar  places  and  situations 
where  people  are  liable  to  fail  to  ob- 
serve an  approaching  automobile,  the 
driver  is  bound  to  take  notice  of  the 
peculiar  danger  of  collisions  in  such 
places.  He  cannot  secure  immunity 
from  liability  by  merely  sounding  his 
automobile  horn.  He  must  run  his  car 
only  at  auch  speed  as  will  enable  him 
to  timely  stop  it  to  avoid  collisions. 
If  he  fails  to  do  so,  he  is  responsible 
for  the  damage  he  thereby  causes." 
Irwin  V.  Judge,  81  Conn.  492,  71  Atl. 
572. 

Delaioare. — Cecchi  v.  Lindsay,  1 
Boyce,  185,  75  Atl.  376,  reversed  on 
other  grounds,  80  Atl.  523;  Brown  v. 
City  of  Wilmington,  4  Boyce,  492,  90 
Atl.  44. 

Georgia. — O'Dowd  v.  Newnham,  13 
Ga.  App.  220,  80  S.  E.  36. 

Illinois. — Graham  v.  Hagamann,  270 
111.  252.  110  N.  E.  337. 

Indiana. — Indiana  Springs  Co.  v. 
Brown,  165  Ind.  465,  74  N.  E.  615,  616, 
1  L.  B.  A.  (N.  S.)  238,  6  Ann.  Gas. 
656. 

loioa. — Scott  v.  O'Leary,  157  Iowa, 
222,  138  N.  W.  512;  Bishard  v.  Engcl- 
beck.  180  Iowa,  1132,  164  N.  W.  803; 


Guy  v.  Des  Moines  City  Ry.  Co.,  180 
N.  W.   294. 

Ma4ne. — Savoy  v.  McLeod,  111  Me. 
234,  88  Atl.  721. 

Maryland. — Fletcher  v.  Dixon,  107 
Md.  420,  68  Atl.  875;  Winner  v.  Lin- 
ton, 120  Md.  276,  87  Atl.   674. 

Massachusetts. —  Commonwealth  v. 
Horsfall,  213  Mass.  232,  100  N.  E.  368. 

Michigan. — \Vinckowski  v.  Dodge, 
183  Mich.  303,  149  N.  W.  1061;  Pat- 
terson V.  Wagner,  204  Mich.  593,  171 
N.  W.  356. 

Missouri. — Ginter  v.  O'Donoghue 
(Mo.  App.),  179  S.  W.  732. 

North  Carolina. — Manly  v.  Aber- 
nathy,  167  N.  Oar.  220,  83  S.  E.  343; 
Cates  V.  Hall,  171  N.  Car.  360,  88  S. 
E    524. 

Oklahoma. — Whit©  v.  Rukes,  56 
Okla.  476,  155  Pac.  1184. 

Pennsylvania. — Lorah  v.  Rinehart, 
243  Pa.  231,  89  Atl.  967. 

South  Carolina. — North  State  Lum- 
ber Co.  V.  Charleston,  etc.  Co.,  105  S. 
E.  406. 

Tennessee. — Leach  v.  Asman,  130 
Tenn.  510,  172  S.  W.  303;  Cocoa  Cola 
Bottling  Works  v.  Brown,  139  Tenn. 
640,  202  S.  W.  926. 

Utah. — "In  this  case  the  driver  of 
the  autotruck  was  required  to  exercise 
ordinary  and  reasonable  care  and 
vigilance  under  the  conditions  and  cir- 
cumstances surrounding  him.  The  law 
under  certain  conditions  and  circum- 
stances requires  greater  vigilance  and 
care  on  the  part  of  tlie  operator  of  a 
vehicle,  and  especially  of  an  autoraobible 
in  order  to  constitute  ordinary  care 
and  vigilance  than  under  other  condi- 
tions and  circumstances.  If  one  oper- 
ates a.n  auto  vehicle,  which  is  a  swift 
and  silently  moving  machine,  in  a 
crowded  city  street,  a  high  degree  of 
care  and  vigilance  is  required,  and  the 
driver  should  not  relax  that  care  and 
vigilance,  but  keep  a  constant  lookout 
t-)  prevent  collisions  with   and   injury 


Negligence  in  Operation  of  Motor  Vehiclk: 


325 


when  he  is  approaching  a  street  intersection.^*  So,  too,  it  has 
been  held  proper  for  the  presiding  judge  to  charge  the  jury 
that  in  busy  streets  "exceeding  carefulness"  is  required  on 
the  part  of  the  driver  of  an  automobile."  And  greater  earn 
may  be  required  when  there  are  children  playing  in  the 
streets,^^  or  when  crossing  a  railway  track,^^  or  passing  a 
street  car,^'' 


to  otherB.  But  even  in  a  crowded 
street  a  greater  degree  of  care  and 
vigilance  is  required  in  approaching 
intersections  and  crossings  where  both 
pedestrians  and  vehicles  of  all  kinds 
have  a  right  to  pass  both  ways  than  is 
the  case  between  street  crossings.  The 
care  and  vigilance  that  is  required 
must  alwaj's  measure  up  to  the  stand- 
ard required  by  law,  which  is  to  exer- 
cise ordinary  and  reasonable  care  un- 
der all  the  circumstances.  The  exer- 
cise of  ordinary  and  reasonable  care, 
therefore,  means  that  degree  of  care 
which  the  circumstances  and  sur- 
roundings require,  and  which  is  com- 
mensurate with  the  danger  that  may 
be  encountered."  Richards  v.  Palace 
Laundry  Co.    (Utah),  186  Pac.  439. 

Washington. —  Qiase  v.  Seattle 
Taxicab  &  Transfer  Co.,  78  Wash.  537, 
J39  Pac.  499. 

le.  Section  279. 

17.  Dorake  v.  Gunning,  62  Wash. 
629,  114  Pac.  436.  "The  operation  of 
an  automobile  upon  the  crowded  streets 
of  a  city  necessitates  exceeding  care- 
fulness on  the  part  of  the  driver.  Mov- 
ing quietly  as  it  does,  without  the  noise 
which  accompanies  the  movement  of  a 
street  car  or  other  ordinary  heavy  ve- 
hicles, it  is  necessary  that  caution 
should  be  continuously  exercised  to 
avoid  collision  with  pedestrians  un- 
aware of  its  approacli.  The  speed 
should  be  limited,  warning  of  ap- 
proach given,  and  skill  and  care  in  its 
management  so  exercised  as  to  anti- 
cipate such  collision  as  the  nature  of 
the  machine  and  the  locality  might 
sngg»st  as  liable  to  occur  in  the  ab- 
sence of  such  precautions.     The  pedes- 


trian must  also  use  such  care  as  an 
ordinary  prudent  man  would  use  un- 
der like  circumstances."  Lampe  v. 
Jaoobsen,  46  Wash.   533,  90  Pac.  654. 

18.  Thies  v.  Thomas,  77  N.  Y.  Suppl. 
276;  State  v.  Gray  (N.  Car.),  104  S. 
E.  647.     And  see  section  418. 

Instruction  requiring  higher  care.  — 
An  instruction  to  the  effect  that  the 
driver  of  an  automobile  is  required  to 
exercise  a  higher  degree  of  care  at  a 
place  in  a  street  where  school  children 
are  congregated  at  certain  hours  in 
the  day  than  at  a  point  where  pedes- 
trians are  fewer  and  the  travel  limited. 
Jias  been  held  to  be  erroneous  and  mis- 
leading as  requiring  the  defendant  to 
exercise  more  than  ordinary  care. 
Miller  v.  Eversole,  184  111.  App.  362. 
wherein  it  was  said:  "Appellant  was 
not  required  to  use  a  higher  degree  of 
care  at  one  place  than  another,  but  he 
was  only  required  to  use  ordinary  care 
wherever  he  might  be.  While  it  is  a 
correct  proposition  that  what  might  be 
ordinary  care  where  there  were  no 
children  or  persons  crossing  a  street 
would  not  be  ordinary  care  and  might 
bo  negligence  where  there  were  chil- 
dren and  a  crowded  street,  yet  or 
dinary  care  is  all  he  was  required  to 
use,  and  ordinary  care  is  such  care  «.•« 
an  ordinary  reasonable  and  prudent 
person  would  tise  under  all  circum- 
stances and  conditions  existing  at  the 
time  and  place  and  which  are  or  ought 
to  be  known  to  the  party." 

19.  Helvey  v.  Princeton  Power  Co. 
(W.  Va.),  99  S.  E.  180. 

20.  Rose  v.  Clark.  21  Man.  (Canada) 
635. 


326 


The  Law  or  Automobiles. 


Sec.  279.  Degree  of  care  required  ol  automobilists  —  higher 
care  at  street  crossings. 

It  is  too  clear  for  dispute  that  the  operation  of  an  auto- 
mobile is  attendant  with  greater  danger  to  other  travelers  at 
street  crossings  than  at  points  between  crossings.  Under  the 
rule  that  the  care  to  be  taken  by  the  driver  of  such  a  machine 
is  connnensurate  with  the  dangers  to  be  encountered,-^  it  may 
properly  be  said  that  the  care  to  be  observed  by  the  driver 
is  greater  at  such  points.^^  But  some  courts,  giving  an  elastic 
interpretation  to  the  expression  ''reasonable  care"  prefer  to 
define  the  degree  of  care  at  such  points  as  ' '  reasonable ' '  care 
under  the  circumstances.^^     In  using  the  streets  and  high- 


21.  Section  278. 

22.  'Cecchi     v.      Lindsay.      1      Boyce 
^Del.)    185,    73   Atl.    376,   reversed,   80 

Atl.  523;  Grier  v.  Samuel.  4  Boyce 
^l>el.)  106.  86  Atl.  209;  Brown  v.  CitJ 
of  Wilmington.  4  Boyce  (Del.)  492,  90 
All.  44;  Virgilio  v.  Walker,  254  Pa. 
St.  241,  98  Atl.  815;  Richards  v. 
Palace  Laundry  Co.  (Utah),  186  Pae. 
439;  Moy  Quon  v.  M.  Furuya  Co.,  81 
Wash.  526,  143  Pac.  99.  "Greater 
care  is  required  at  street  crossings  and 
in  the  more  crowded  streets  of  a  city 
til  an  in  the  less  obstructed  streets  in 
the  open  or  suburban  parts.  There  is 
a  like  duty  of  exercising  reasonable 
care  on  the  part  of  the  pedestrian. 
The  person  having  the  management  of 
the  vehicle  and  the  traveler  on  foot  are 
both  required  to  use  such  reasonable 
care  as  the  circumstances  of  the  case 
demand,  an  exercise  of  greater  care  on 
the  part  of  each  being  required  where 
there  is  an  increase  of  danger."  Brown 
V.  City  of  Wilmington,  4  Boyce  (Del.) 
492,  90  Atl.  44.  '•Unlike  street  cars 
or  railroad  trains,  which  in  their 
noisy  progress  are  confined  to  the  nar- 
row line  of  their  rail  tracks,  automo- 
biles, with  practically  equal  capacity 
lor  speed,  can  range  the  road  in  sub- 
stantial silence.  They  can  and  do 
traverse  the  streets  at  much  greater 
speed,  with  much  less  noise,  than  other 


liighway  vehicles  in  common  use,  and, 
on  the  other  hand,  can  be  more  surely 
and  easily  controlled  by  those  experi- 
enced in  their  use.  The  duty  and  re- 
sponsibility of  those  driving  them 
should  be,  and  is,  proportioned  to  the 
possibilities  and  dangers  attending  the 
use  upon  the  public  highways  of  such 
an  instrumentality  of  travel  and 
transportation.  It  is  but  a  rational 
rule  which  emphasizes  the  driver's 
duty  of  special  vigilance  at  crossing 
points  on  city  streets  where  the  right 
of  passage  is  not  only  free  and  com- 
mon to  all,  but  in  common  and  fre- 
quent use  both  by  pedestrians  and  ve- 
hicles. While  the  duties  of  reasonable 
care  for  their  own  safety  and  that  of 
others  are  imposed  upon  both  pedes- 
trian and  driver,  the  driver's  compara- 
tive personal  safety  in  case  of  collision 
with  a  pedestrian  is  not  to  be  over- 
looked in  measuring  his  duty  to  exer- 
cise commensurate  care  for  the  safety 
of  others."  Patterson  v.  Wagner,  204 
Mich.   593,  171  X.  W.  356. 

"  Intersecting  highways." — A  statute 
relative  to  the  operation  of  motor  ve- 
hicles at  interesting  highways  has  been 
held  applicable  where  a  street  ran  to, 
but  not  across,  another  street.  Manly  v. 
Abernathy,  167  N.  Car.  220.  S3  S.  E. 
343. 

23.  A   charge   to   the   jury   that   the 


Negligence  in  Operation  of  Motor  Vehicles.       32  ( 

ways,  an  automobilist  does  so  \vith  the  knowledge  that  at 
street  intersections  other  vehicles  may  approach  to  cross  or 
turn  into  the  one  over  which  he  is  traveling,  and  that  at  such 
points   crosswalks   are  ordinarily   provided  for  the   use   of 
pedestrians.    He  should,  therefore,  operate  his  car  with  that 
degree  of  care  which  is  consistent  with  the  conditions  thus 
existing,  the  rate  of  speed  and  his  control  over  the  car  vary- 
ing according  to  the  traffic  at  the  particular  place.^*    A\^ere 
there  is  an  obstruction  to  an  automobilist 's  view  of  a  street 
crossing,  he  must  exercise  a  degree  of  care  such  as  a  reason- 
ably prudent  man  would  exercise  under  the  same  circum- 
stances, to  avoid  injury  to  pedestrians  or  other  vehicles  at 
such  point ''    The  weather  conditions  also  are  a  factor  to  be 
considered  as  bearing  upon  the  question  of  the  negligence  of 
the  driver  of  an  automobile.    Thus  in  the  case  of  a  blinding 
snow  storm  it  may  be  difficult  for  either  the  driver  or  a  pedes- 
trian to  see,  less  so  for  the  former  where  he  is  protected  by  a 
shield      Under  such  circumstances  more  caution  should  be 
exercised  bv  him  in  the  management  of  the  car  and  considera- 
tion must  be  given  to  the  less  favorable  conditions  under  which 
the  pedestrian  may  be  proceeding.    A  similar  situation  may 
exist  in  the  case  of  a  heavy  rain  storm.-    Also  in  the  case  of 
ice  or  snow  upon  the  crosswalks  which  make  it  more  difficult 
for  a  person  to  walk  and  of  necessity  compel  him  to  proceed 
at  a  slower  pace,  the  operator  of  a  car  should  exercise  a  degree 
of  care  which  is  consistent  with  the  conditions  presented. 

operation    of    an    automobile    requires  defendant,    held    to    ^-^^^^^   ^^^ 

the   use  of  ordinary  care,   that   it   in-  the  issue.  «     -g\'";--  ^  ^;:f  ^  ^Z 

eludes  the  duty  of  having  the  car  un-  iMlhngham.   162  Mich.   704.   1-7  N.  ^. 

der    control    when    approaching    street  702. 

A  4.i,„f  ^^fonHnnt    driv-  24.  Rowe  V.  Hammon.  172  Mo.  App. 

intersections,  and  that  defendant.  on\  « 

ing  an  automobile,  must  use  such  care  203,   1.57  S.  W.  880. 

asTan   ordinarily   prudent   man    .ould  25.  Deputy  v.  Kimmell,    .3   W.   \a. 

have    used,    with    further    instructions  59.-..  80  S.  E.  919. 

concerning  the   duty  of  exercising  due  26.  Harting   v.    Knapwurst.    1.8    111. 

care  on  the  part  of  both   plaintifT  .ind  App.  409. 


328  The  Law  of  Automobiles. 

Sec.  280.  Degree  of  care  required  of  automobilists  —  higher 
care  when  driving  on  wrong  side  of  highway. 
To  a  large  extent  the  different  traVelers  along  a  highway 
rely  on  the  obedience  by  other  travelers  of  the  recognized 
rules  of  the  road.  When  one  is  traveling  at  variance  with  the 
law  of  the  road,  his  conduct  is  charged  with  greater  danger 
to  other  travelers.  Hence,  it  may  be  said  that,  inasmuch  as 
the  danger  of  his  conduct  is  greater,  it  is  proper  to  impose  on 
him  a  higher  caution  for  the  avoidance  of  collisions  with 
others.  Thus,  it  is  held  that  one  driving  an  automobile  along 
the  wrong  side  of  a  street  or  highway  must  exercise  greater 
vigilance  than  if  he  were  traveling  on  the  proper  side.^'^ 

Sec.  281.  Degree  of  care  required  of  automobilists  —  higher 
care  imposed  by  statute. 
In  some  jurisdictions  statutes  have  in  form  changed  the 
degree  of  care  to  be  exercised  by  one  driving  an  automobile. 
Thus,  in  Missouri,  a  statute  was  formerly  in  force  imposing 
on  all  persons  owning,  operating  or  controlling  an  automobile 
on  a  public  highway  the  ''highest  degree  of  care"  that  a 
very  careful  person  would  use  to  prevent  injury  to  persons 
on  the  highway .28  The  statute  was  repealed  in  1917.2^  Such 
a  statute  may  be  deemed  in  derogation  of  the  common  law  and 

27.  New  York  Tiansp.  Co.  v.  Gar-  159  Mo.  App.  20,  139  S.  W.  248 ;  Bong- 
side,  157  Fed.  521,  85  C.  C.  A.  285;  ner  v.  Ziegenheim,  165  Mo.  App.  326, 
Fahrney  v.  O'Donnell,  107  111.  App.  147  S.  W.  182;  Hodges  v.  Chambers, 
608;  Heryford  v.  Spiteanfsky  (Mo.  171  Mo.  App.  563,  154  S.  W.  429;  Por- 
App.),  200  S.  W.  123;  Angell  v.  Lewis,  ter  v.  Hetherington,  172  Mo.  App.  502, 
20  E.  L  391,  39  Atl.  521;  Segerstrom  158  S.  W.  469;  Huffa  v.  Dougherty, 
V.  Lawrence,  64  Wash.  245,  116  Pae.  184  Mo.  App.  374,  171  S.  W.  17;  Wil- 
876;  Osborne  v.  Landis,  34  W.  L.  E.  liams  v.  Kansas  City  (Mo.  App.),  177 
(Canada)  118;  Pluckwell  v.  Wilson,  5  S.  W.  783;  Young  v.  Bacon  (Mo. 
C.  &  P.  (Eng.)  375.  "But  a  person  on  App.),  183  S.  W.  1079;  Priebe  v.  Cran- 
the  wrong  side  of  the  way  must  always  dall  (Mo.  App.),  187  S.  W.  605;  Mee- 
exercise  a  care  commensurate  with  his  nach  v.  Crawford  (Mo.),  187  S.  W.  879; 
position.  This  is  usually  a  higher  de-  Dignum  v.  Weaver  (Mo.  App.),  204  S. 
gree  of  care  than  that  required  of  him  W.  566;  Pullam  v.  Moore  (Mo.  App.), 
while  on  the  correct  side  of  the  way."  218  S.  W.  938;  Yarvitz  Dyeing  & 
Segerstrom  v.  Lawrence,  64  Wash.  245,  Cleaning  Co.  v.  Erlenbach  (Mo.  App.), 
116  Pac.  876.     And  see  section  268.  221  S.  W.  411. 

28.  Frankel  v.  Hudson,  271  Mo.  495,  29.  See  Edmonston  v.  Barrock  (Mo. 
196   S.   W.    1121;    Nicholas   v.   Kelley,       App.),  230  S.  W.  650. 


Negligence  in  Operation  of  Motor  Vehicles. 


329 


hence  entitled  to  receive  a  strict  construction,  but  not  so  ♦strict 
as  to  defeat  the  obvious  intention  of  the  law  makers.^  It 
applies  to  civil  actions  for  damages,  but  not  to  criminal  prose- 
cutions of  the  automobilist.^^  It  prescribes  a  rule  for  the  con- 
duct of  the  automobilist  whether  he  is  the  plaintiff  or  the 
defendant  in  the  action.^^  Hence,  in  an  action  for  injuries 
sustained  at  a  railroad^  or  street  railway^*  crossing,  his  con- 
tributory negligence  is  determined  on  whether  he  has  exer- 
cised the  ''highest  degree  of  care."  It  may  place  such  obliga- 
tion on  one  controlling  the  ox)eration  as  well  as  on  the  driver.^^ 
As  a  general  proposition,  a  statute  imposing  a  certain  degree 
of  care  or  requiring  certain  precautions  to  be  exercised  by 
automobilists  is  to  be  construed  as  imposing  cumulative  re- 
quirements and  not  as  abrogating  the  common  law  require- 
•ments  of  prudence.^"  A  statute  requiring  the  automobilist  to 
exercise  every  reasonable  precaution  is  to  be  construed  as 
meaning  the  precaution  which  a  reasonable  man  would  take 
in  view  of  the  danger  to  be  apprehended,  and  adds  little  or 
nothing  to  the  common  law  rule.^'' 


30.  Nicholas  v.  Kelley,  159  Mo.  App. 
20,  139  S.  W.  248;  Hopkins  v.  Sweeney 
Automobile  School  Co.  (Mo.  App.),  196 
S.  W.  772. 

Public  highways. — The  statute  ap- 
plies, not  only  to  public  highways,  but 
also  to  places  "much  used  for  travel." 
Denny  v.  Randall  (Mo.  App.),  202  S. 
W.  602. 

Animals  on  highways. — The  statute 
furnishes  a  guide  for  an  automobile 
when  he  is  approaching  an  animal  loose 
on  the  highway  as  well  as  one  under 
control.  PuUam  v.  Moore  (Mo.  App.), 
218  S.  W.  938. 

31.  State  V.  Horner.  266  Mo.  109. 
180  S.  W.  873. 

32.  Threadgill  v.  United  Ry.  Co.  of 
St,  Louis,  279  Mo.  466,  214  S.  W.  161 ; 
Jackson  v.  Southwestern  Bell  Telcp. 
Co.  (Mo.),  219  S.  W.  655.  Compare 
Hopkins  v.  Sweeney  Automobile  School 
Co.  (Mo.  App.),  196  S.  W.  772;  Hery- 
ford  V.  Spitcanfsky  (Mo.  App.),  200 
S.  W.   123. 


Contributory  negligence  of  plaintiff. 
— A  provision  in  the  Missouri  statute 
to  the  effect  that  the  motorist  shall 
not  be  liable  when  the  injured  person 
has  been  guilty  of  contributory  negli- 
gence, does  not  have  the  effect  of  ab- 
rogating the  humanitarian  or  last 
chance  rule  which  are  enforced  in  that 
State.  Ottofy  v.  Mississippi  Valley 
Trust  Co.,  197  Mo.  App.  473,  196  S.  W. 
428. 

33.  Daniel  v.  Pryor  (Mo.),  227  S. 
W.  102.  Compare  Advance  Transfer 
Co.  v.  Chicago,  etc.,  R.  Co.  (Mo.  App.), 
195  S.  W.  566. 

34.  Threadgill  v.  United  Rys.  Co., 
279  Mo.  466,  214  S.  W.  161;  Davis  v. 
United  Rys.  Co.  (Mo.  App.),  218  S.  W. 
357. 

35.  Foy  v.  United  Rys.  Co.  of  St. 
I^ouis  (Mo.  App.),  226  S.  "W.  325. 

36.  Giles  v.  Voiles,  144  Ga.  853,  88 
S.  E.  207. 

37.  Arrington  v.  Horner.  88  Kans. 
817,   129   Pac.   1159. 


330  The  Law  of  Automobiles. 

Sec.  282.  Degree  of  care  required  of  automobilists  —  care  by 
common  carriers. 

In  case  of  the  owner  of  a  motor  vehicle  or  "jitney"  carry- 
ing passengers  for  hire,  as  between  such  owner  and  his  pas- 
sengers, the  relation  may  be  that  of  common  carrier  and  pas- 
senger, and  the  degree  of  care  to  be  exercised  by  the  driver  of 
the  machine  is  governed  by  the  law  of  carriers  rather  than  by 
the  law  of  negligence.  The  formula  of  care  to  be  exercised 
by  a  carrier  towards  its  passengers  is  generally  expressed  as 
the  "highest  degree  of  care."^^  But,  as  between  the  driver  of 
the  machine  and  other  travelers  or  railroad  or  street  railway 
companies,  the  precaution  of  the  chauffeur  is  judged  accord- 
ing to  the  formula  of  "ordinary"  or  "reasonable"  care. 


39 


Sec.  283.  Driver  of  auto  not  an  insurer  against  accidents. 

Where  injury  arises  from  the  operation  of  an  automobile 
liability  to  respond  in  damages  for  such  injury  does  not  neces- 
sarily follow;  but  facts  additional  to  the  mere  circumstance 
of  injury  must  be  shown.  Some  negligent  act  or  omission  on 
the  part  of  the  defendant  must  be  shown,  for  neither  the  driver 
nor  the  owner  of  an  automobile  is  an  insurer  against  acci- 
dents arising  from  its  operation.^"    Ordinarily,  the  mere  fact 

38.  Singer  v.  Martin,  96  Wash.  231,  Taxicab  Co.,  178  Mich.  426,  144  N.  W. 
164  Pac.  1105.  And  see  sections  169,  855;  Barger  v.  Bissell,  188  Mich.  366, 
179.  154  N.  W.  107;  Gardiner  v.  Studebaker 

39.  Southerh  Ry.  Co.  v.  Voughans  Corp.,  204  Mich.  313,  169  N.  W.  82S. 
adm'r,  118  Va.  692,  88  S.  E.  305,  L.  "Drivers  upon  highways  are  not  held 
R.  A.  1916E.   1222.  as    insurers    against    accidents    arising 

40.  ArTcansas. — Millsaps  v.  Brogdon,  from  negligence  of  children  or  their 
97  Ark.  469,  134  S.  W.  632.  parents,   and  though  in  law  such  neoj- 

Conneoticut. — Hyde  v.  Hubinger,   87  ligerce  in  a  particular  case   may   not 

Conn.    704.    87    Atl.    790;    Radwick   v.  be    a    defense,    as    contributory    negli- 

Goldstein,  90  Conn.  701,  98  Atl.  583.  gerce,  for  a  driver  also  guilty  of  ueg- 

Delaware. — Simeone    v.    Lindsay,     6  ligence,  the  fact   of   an   accident   does 

Penn.  224,  65  Atl.  778.  tcjt  establish  liability  or  raise   a   pre- 

Georgia. — Giles    v.    Voiles,    144    Ga.  sumption     that    the    driver    is    negV 

853,  88  S.  E.  27.  gent."      Barger   v.    Bissell,    188   Mich. 

Zfl^sa*.— Arrington    v.     Horner,     88  366,  154  K  W.  107. 
Kans.   817,   129  Pac.   1159.  Nexv    Tork. — Cantanno    v.    James    A. 

l/«ri/Za»? d.—Havermale  v.  Houck,  122  Stevenson  Co.,  172  N.  Y.  App.  Div.  252, 

Md.  82,  89  Atl.  314.  158  N.  Y.  Suppl.  335  ;  Seaman  v.  Mott, 

Michigan. — Tolmie       v.       Woodward  110  N.  Y.  Suppl.  1040. 


Negligence  in  Operation  of  Motor  Vehicles. 


that  a  pedestrian  or  a  vehicle  is  struck  and  injured  hy  an 
automobile  does  not  show  that  the  injury  was  caused  by  the 
negligence  of  the  autoniobilist.^'  On  tlie  other  liaiid,  the  mere 
fact  of  the  collision  does  not  show,  ol'  itself,  that  tlic  injured 
person  was  guilty  of  contributory  negligence/-  The  burden 
is  upon  the  person  injured  to  show  that  the  driver  or  owner 
of  the  motor  vehicle  was  guilty  of  negligence  which  was  one 
of  the  proximate  causes  of  the  injury  of  which  he  complains." 
There  may  be,  however,  a  few  cases,  wliere  the  happening  of 
the  accident  raises  a  presumption  that  the  driver  of  the  motor 
vehicle  has  been  guilty  of  negligence.  Thus  the  doctrine  of 
res  ipsa  loquitor  may  arise  when  the  machine  runs  upon  ;i 
sidewalk  and  strikes  a  pedestrian.''*    Moreover,  the  violation 


Noi-th  Dakota. — Vannett  v.  Cole, 
170  N.  W.  663. 

Washington. — ]\IeCaiiii  v.  Silkc.  75 
Wash.  383,  134  Pac.  1063. 

Philippines. — Bernardo  v.  Legaspi,  29 
Philippine  Rep.  12. 

Erroneous  instruction.— An  instruc- 
tion on  the  trial  of  an  action  for  the 
death  of  a  horse  by  automobile  to  the 
effect  that  the  operator  of  the  ma- 
chine was  required  to  use  such  care 
and  caution  as  to  prevent  injury  to 
the  person  and  property  of  others 
rightly  on  the  highway,  is  erroneous 
as  making  the  operator  an  insurer. 
Petty  V.  Maddox.  100  111.  App.  381. 
Similarly,  it  is  erroneous  to  charge 
that  "the  degree  of  diligence  which 
must  be  exercised  in  a  particular  ex- 
igency is  such  as  is  necessary  to  pre- 
vent injuring  others."  Giles  v. 
Voiles,   144  Ga.  853,  88  S.  E.  207. 

41.  Millsaps  v.  Brogdon,  97  Ark. 
469,  134  S.  W.  632;  Diamond  v.  Weyer- 
haeuser, 178  Cal.  540,  174  Pac.  38; 
Barger  v.  Bissell,  188  Mich.  366.  154 
N.  W.  107;  Winter  v.  Vnn  Blarcom, 
258  Mo.  418,  167  S.  W.  408:  Horo- 
witz V.  Gottwalt  (N.  J.  Law"),  102  Atl. 
930;  Vannett  v.  Cole  (N.  Dak.),  170 
N.  W.  663. 


42.  Aiken  v.  Metcalf,  90  Vt.  196,  97 
Atl.  669. 

43.  Millsaps  v.  Brogdon,  97  Ark. 
469,  134  S.  W.  632;  Diamond  v.  Weyer- 
haeuser (Cal.).  174  Pac.  38;  Winter  v. 
Van  Blarcom,  258  Mo.  418,  167  S.  W. 
498. 

Statutory  change.-  The  burden  of 
proof  may  be  shifted  by  statute  to  tho 
driver  or  owner.  See  the  following 
cases  construing  a  statute  of  Ontario 
having  that  effect.  Marshall  v.  Qowana, 
24  O.  L.  R.  522;  Maitland  v.  McKen- 
zie,  28  O.  L.  R.  506;  Hook  v.  Wylic,  10 
O.  W.  N.  15,  237;  White  v.  Heglcr,  29 
D.  L.  R.  480;  Bradshaw  v.  Conlin,  40 
O.  L.  R.  496;  Whitten  v.  Burtwell.  47 
O.  L.  R.  210. 

44.  Ivins  V.  .Jacob,  .'245  Fed.  892, 
wherein  it  was  said:  "The  argument 
of  counsel,  which  concedes  that  the  cir- 
cumstances of  the  occurrence  justify 
the  inference  of  the  negligence  of  some 
one,  but  not  the  negligence  of  the  de- 
fendant, is  a  concession  of  everything, 
because  one  of  the  circumstances  waa 
that  the  defendant  was  driving  the  car. 
If  this  automobile  had  been  without 
warning  driven  upon  the  sidewalk, 
there  striking  a  pedestrian,  no  one 
could    doubt    that    it    would    not    only 


332 


The  Law  of  Automobiles. 


of  a  positive  regulation^  or  a  rule  of  the  road,^^  may  consti- 
tute negligence,  or  raise  such  a  presumption  of  negligence,  so 
that  a  prima  facie  case  is  thereby  presented. 


Sec.  284.  Unavoidable  accident  — in  general. 

An  accident  to  a  traveler  which  is  occasioned  by  an  auto- 
mobile, when  no  negligence  or  wrongful  act  on  the  part  of 
the  owner  or  driver  of  the  machine  is  shown,  can  be  classed 
as  an  unavoidable  accident,  and  no  liability  will  attach  to  the 
driver  or  owner."*^  This  proposition  necessarily  follows  from 
the  rule  that  automobilists  are  not  insurers.'*^  The  general 
principle  is  well  illustrated  in  cases  where  the  driver  of  an 
automobile  is  proceeding  with  due  care  along  a  street  and  a 


justify,  but  compel,  a  finding  of  negli- 
gence. This  inference  of  fact  is  not 
stayed  by  the  possibility  that  it  might 
not  have  been  intentionally  driven  upon 
the  sidewalk.  If  such  possibility  were 
suggested,  the  answer  would  be:  Show 
me  that,  and  I  am  prepared  to  be- 
lieve it;  but,  unless  you  do,  I  must 
hold  you  to  be  in  fault.  This  attitude 
is  sensible  and  just,  and  in  accord  with 
the  accepted  principle  of  law  of  evi- 
dence that  he  who  has  control  of  the 
proofs  shall  produce  them.  If  the  car 
was  beyond  control,  the  driver  knows 
it,  and  can  offer  evidence  of  the  fact. 
All  the  pedestrian  could  do  would  be 
to  know  the  fact  that  the  car  was 
where  it  should  not  be  driven,  and  that 
the  circumstances  indicated  negligence. 
This  constitutes  pri/ma  facie  proof." 

Res  ipsa  loquitor.— Wliere  the  plain- 
tiff tied  his  horse  at  a  hitching  post 
at  the  curb  of  a  street  when  a  few 
feet  further  on  an  automobile  was 
standing  on  the  opposite  side  of  the 
street,  and  a  few  minutes  afterwards 
the  plaintiff  discovered  that  his  horse 
had  been  injured  by  the  automobile,  it 
was  held  that  under  the  doctrine  of 
res  ipsa  loquitor,  the  burden  of  ex- 
plaining that  the  accident  did  not  oc- 
cur from  want  of  care  devolved  upon 


the    defendant.      Whitewell    v.    Wolf, 
127  Minn.  529,  149  N.  W.  299. 

45.  Section  297. 

46.  Section  269. 

47.  Delaware. — Simeone  v.  Lindsay, 
6  Penn.  224,  65  Atl.  778;  Brown  v. 
City  of  Wilmington,  4  Boyce,  492,  90 
Atl.  441;  Traverse  v.  Hartman,  5 
Boyce,  302,  92  Atl.  855. 

Michigan. — Harnau  v.  Haight,  189 
Mich.  600,  155  N.  W.  563. 

Missouri. — Winter  v.  Van  Blarom, 
258  Mo.  418,  167  S.  W.  498. 

New  Yorlc. — Jordan  v.  American 
Sight  Seeing  Coach  Co.,  129  N.  Y.  App. 
Div.  313,  113  N.  Y.  Suppl.  786;  Cas- 
pell  V.  New  York  Transp.  Co.,  150  N. 
Y.  App.  Div.  723,  135  N.  Y.  Suppl. 
691 ;  Cantanno  v.  James  A.  Stevenson 
Co.,  172  N.  Y.  App.  Div.  252,  158  N. 
Y.  Suppl.  335 ;  Dudley  v.  Raymond,  148 
App.  Div.  886,  133  N.  Y.  Suppl.  17. 

North  Carolina. — Baldwin  v.  Smith- 
erman,  171  N.  Car.  772,  88  S.  E.  854. 

Pennsylvania.— Stahil.  x.  Sollenber- 
ger,  246  Pa.  St.  525,  92  Atl.  720;  Mc- 
MUlen  V.  Strathmann,  264  Pa.  St.  131, 
107  Atl.  332. 

Wisconsin. — Linden  v.  Miller  (Wis.), 
177  N.  W.  909. 

48.  Section  283. 


Negligence  in  Operation  of  Motor  Vehicles.       333 

child  suddenly  darts  in  front  of  the  machine  so  close  thereto 
that  the  driver,  although  using  every  means  to  avoid  the  col- 
lision, is  unable  to  do  so.'*^  Collisions  with  other  vehicles 
may  happen  when  neither  party  can  be  said  to  be  negligent, 
and  in  such  a  case  the  injury  is  said  to  be  the  result  of  an  un- 
avoidable accident.^**  The  driver  of  an  automobile  is  not  re- 
quired to  anticipate  that  a  street  railway  passenger  will  jump 
from  a  moving  street  car  at  a  place  other  than  a  regular  stop- 
ping point;  and  when  such  a  person  jumps  off  so  close  to  the 
automobile  that  the  driver  cannot  with  the  exercise  of  reason- 
able care  avoid  a  collision,  the  driver  is  not  ordinarily  charge- 
able with  negligence.^^ 

Sec.  285.  Unavoidable  accident  —  conduct  of  driver  in  emer- 
gency. 

The  law  does  not  require  supernatural  poise  or  self  control 
on  the  part  of  the  driver  of  a  motor  vehicle ;  and,  if  some  un- 
foreseen emergency  occurs  which  naturally  would  overpower 
the  judgment  of  an  ordinarily  careful  driver,  so  that  momen- 
tarily he  is  not  capable  of  intelligent  action,  he  may  not  be 
negligent.^^  But  no  one  should  drive  an  automobile  amid  the 
dangers  likely  to  be  encountered  on  the  modern  highways 
who  is  not  reasonably  steady  of  nerve,  quick  in  forming  an 
opinion  and  calm  in  executing  a  design.^  Whether  under  cir- 
cumstances of  emergency  the  conduct  of  the  operator  of  the 
vehicle  measures  up  to  the  standard  of  reasonable  care,  is 
generally  a  question  for  the  jury."     In  an  emergency,  the 

49.  Section  419.  52.  Rhodes  v.  Firestone  Tire  &  Rub- 

50.  Collision  with  mule. — Where  an  her  Co.  (Cal.  App.),  197  Pac.  392; 
automobile  which  was  properly  equip-  Massie  v.  Barker,  224  Mass.  420,  113 
ped  and  under  control  was  passing  a  N.  E.  199 ;  Barger  v.  Bissell,  188  Mich, 
mule  with  its  owner  riding  thereon,  and  366,  154  N.  W.  107. 

the    mule     suddenly     backed     directly  53.  Massie     v.     Barker,     224     Mass. 

against  the  machine,  the  driver  of  the  420,  113  N.  E.  199. 

machine  used  every  effort  to  avoid  the  54.  Lawrence      v.      Goodwill      (Cal. 

injury   but   was   unable   to   do   so,   the  App.).  186  Pac.  781;  Massie  v.  Barker, 

owner  of  the  mule  cannot  recover  for  224  Mass.  420,  113  N.  E.  199:  Hood  v. 

his  injuries.     Baldwin   v.   Smitherraan,  Stowe,    191    N.   Y.  App.   Div.   614,   181 

171  N.  Car.  772,  88  S.  E.  854.  N.  Y.  Suppl.  734;  Chiappone  v.  Greene- 

51.  Brown  v.  Brashear,  22  Cal.  App.  baum,  189  N.  Y.  App.  Div.  579.  178 
135,  133  Pac.  SO.');  Starr  v.  Schenck.  N.  Y.  Suppl.  854;  Lee  v.  Donnelly 
25  Mont.  L.  Rep.   (Pa.)   18.  (Vt.).  113  Atl.  542. 


334  The  Law  of  Automobiles. 

safety  of  liiimaii  beings  should  be  preferred  to  that  of  an  ani- 
mal or  inanimate  property  in  the  street.^^  But  one  cannot 
escape  liability  for  the  negligent  operation  of  an  automobile 
on  the  ground  that  he  acted  in  an  emergency,  when  it  appears 
that  the  emergency  was  created  by  his  own  negligence;  or  if, 
by  the  exercise  of  reasonable  care,  he  might  have  avoided  the 
injury  notwithstanding  the  emergency/^ 

Sec.  286.  Unavoidable    accident  —  avoidance    of    dangerous 
situation. 

A  driver  of  a  vehicle  in  a  street  must  exercise  care  to  pre- 
vent reaching  a  point  from  which  he  is  unable  to  extricate 
himself  without  colliding  with  another  vehicle,  and,  omitting 
such  duty,  the  greatest  vigilance  on  his  part  when  the  danger 
arises  will  not  avail  him."  This  principle  is  not  to  be  extended 
to  include  those  cases  where  a  driver  by  the  negligent  opera- 
tion of  his  ear  is  confronted  with  one  danger  and  in  his  en- 
deavor to  avoid  it  causes  the  injury  in  question. 


58 


Sec.  287.  Unavoidable  accident  —  precedent  negligence  may 
bar  claim  of  unavoidable  accident. 

The  assertion  of  an  automobilist  that  an  accident  was  un- 
avoidable may  fail  where  the  automobilist  was  guilty  of  negli- 
gence prior  to  the  accident.^^  To  illustrate,  ordinarily  when 
a  child  suddenly  darts  in  front  of  a  moving  vehicle  so  close 
thereto  that  the  driver  cannot  stop  the  machine  to  avoid  a 
collision,  the  automobilist  is  not  deemed  guilty  of  negligence,"^" 
but  the  claim  that  the  accident  was  unavoidable  may  fail,  if 
the  machine  just  prior  to  the  creation  of  the  danger  was  being 

55.  See  section  365.  Companr,  127  App.  Div.   (N.  Y.)   307. 

56.  Carpenter  v.  Campbell  Automo-  111  K  Y.  Suppl.  284 ;  Yahnke  v.  Lange, 
bile  Co.,  159  Iowa,  52,  140  N.  W.  225  ;  168  Wis.  512,  170  N.  W.  722.  See  also 
Adams   v.    Pariish    (Ky.),    225    S.    W.  section  368. 

467;   Hoocl  v.   Stowe,   191   N.   Y.   App.  58.  Mahegan  v.  Faber,  158  Wis.  645, 

Div.  614,  181  N.  Y.  Suppl.  734;   Solo-  149  N.  W.  397. 

mon   V.    Braufman,    175    N.    Y.    Suppl.  59.  Hellan    v.    Supply    Laundry    Co., 

835;  Allen  v.  Schultz,  107  Wasli.  393,  94  Wash.  683,   163  Pac.  9;  Yahnke  v. 

181  Pac.  916,  6  A.  L.  R.  676n ;  Elliott  Lange,  168  Wis.  512,  170  X.  W.  722. 

V.  Fabra,  10  O.  W.  N.   (Canada)   41.  60.  Section  410. 

57.  Altenkirch    v.     National    Biscuit 


Negligence  in  OrEUATiox  of  Motor  Vehicles.       335 

run  at  an  excessive  speed.  The  tact  that  he  could  not  have 
foreseen  the  danger  of  the  injury  will  not  relieve  him  for  lia- 
bility for  negligence  based  on  the  excessive  speed.*""^  Thus,  in 
an  action  for  injuries  to  an  electric  car  struck  by  a  heavy  auto- 
mobile while  turning  a  corner,  the  defendant's  liability  may 
be  sustained  on  the  ground  that  he  turned  the  corner  at  an 
excessive  speed,  though  he  claims  that  the  accident  was  due 
to  the  driver's  attempt  to  avoid  cliildren  on  the  cro.'^swalk.^^ 
Where,  because  of  his  own  negligence,  a  driver  is  placed  in 
such  a  position  that  it  becomes  necessary  for  him  to  change 
the  course  of  his  machine  to  avoid  an  injury  to  one  person, 
and  in  so  doing  he  injures  another  person,  he  may  be  liable  to 
the  latter.^2  , 

Sec.  288.  Unavoidable  accident  —  moving  automobile  under 
directions  of  police  officer. 

The  fact  that  the  driver  of  an  automobile  moves  the  machine 
by  the  order  of  a  traffic  policeman,  does  not  excuse  him  from 
liability  for  subsequent  negligent  driving.'^*  And  the  fact  that 
one  is  authorized  by  a  signal  from  a  traffic  officer  to  proceed 
across  a  street  intersection,  does  not  absolve  him  from  the 
duty  of  exercising  reasonable  care  in  making  the  passage.''^ 

Sec.  289.  Proximate  cause  —  in  general. 

One  of  the  fundamental  ])rinciples  of  the  law  of  negligence 
is  that  liability  for  acts  of  negligence  follows  only  so  far  as 
the  injuries  are  the  proximate  result  of  the  negligence.  This 
rule  applies  in  cases  of  automobile  accidents,  and  it  is  held 
that  the  owner  or  driver  of  a  motor  vehicle  is  liable,  assum- 
ing his  negligence,  only  for  such  injuries  as  proximately  re 
suit  from  the  negligent  acts.''^    On  the  other  hand,  the  liability 

61.  Schumacher  v.  Meinrath.  177  111.  65.  Walmer-Roberts  v.  Hennessey 
App.  530;  Delohery  V.  Quinlan.  210  111.  (Iowa),  181  X.  W.  798;  Melville  v. 
App.  321.  Rollwagre.  171   Ky.  fi07.  188  S.  W.  638. 

62.  Coulon  V.  Trenkhorst,  lOT)  111.  66.  Arkansas.— Tex&s  Motor  Co.  v. 
App.  335.  Biiffington.    13^    Ark.    320.    203    S.    W. 

63.  Oakshott     v.     Powell.     6     Alta.  1013. 

(Canada)   178,  12  D.  L.  R.  148.  CaUfomiti.—Wciiycr     v.     Cartor.     28 

64.  Melville    v.    RollwaffO.     171     Ky.       Cal.  App.  241.  152  Pac.  323. 
607.    188   S.  W.   63S. 


336  The  Law  of  Automobiles. 

of  the  defending  party  generally  extends  to  all  injuries  which 
can  be  found  to  be  the  proximate  result  of  the  negligent  acts ; 
and  it  is  sufficient  if  it  appears  that  the  negligence  of  the  de- 
fendant would  probably  cause  harm  to  some  person,  though 
the  precise  form  in  which  it  in  fact  resulted  could  not  have 
been  forseen."  The  fact  that  the  driver  of  an  automobile  has 
violated  a  statute  regulating  his  conduct,*'^  or  has  infringed 
the  law  of  road  applicable  to  his  movements,^^  does  not  render 
him  liable  for  injuries  sustained  by  another  traveler,  unless 
the  injuries  proximately  result  from  the  wrongful  act.  The 
fact  that  the  owner  of  the  machine  has  not  complied  with  the 
law  pertaining  to  the  registration  of  the  machine  is  not,  as  a 
general  rule,  considered  a  proximate  cause  of  an  injury  result- 
ing either  to  or  from  the  machine.''^  And,  in  an  action  for 
damages  to  an  automobile  sustained  in  a  collision  at  a  railroad 
crossing,  the  fact  that  the  chauffeur  did  not  have  his  badge 
in  sight  as  required  by  statute,  is  not  considered  an  efficient 
cause  of  the  accident  and  does  not  preclude  the  owner  from 
recovery.'^  Similarly,  the  fact  that  the  driver  of  a  machine 
does  not  stop  after  an  accident  and  give  information  as  to  his 
identity  and  that  he  thereby  violates  a  criminal  statute  rela- 
tive to  such  conduct,  is  no  evidence  of  his  responsibility  for 

Illmois. — Kessler    v.    Washburn,    157  North   Carolina. — Taylor  v.   Stewart, 

m.  App.  532.                                         '  172  N.  Car.  203,  90  S.  E.  134. 

Iowa. — Herdman      v.      Zwart.      167  Texas. — Schoellkopf  Saddlery  Co.  v. 

Iowa,  500,  149  N.  W.  631.  Crawley   (Civ.  App.),  203  S.  W.  1172; 

Kansas. — Arrington    v.    Horner,     88  Texas,    etc.,    Co.    v.    Harrington    (Civ. 

Kans.  817,  129  Pac.  1159.  App.),  209  S.  W.  685. 

Kentucky. — Couglilin    v.    Mark,    173  It     is     a     question     for     the     jury 

Ky.  728,  191  S.  W.  503.  whether  the  injuries  for  which  the  ac- 

Michiffan. — Johnston     v.      Cornelius,  tion  is  brought  were  sustained  at  the 

200  Mich.  209.  166  N.  W.  983,  L.  R.  A.  time    of    the    collision    or    subsequent 

1918D  880.  thereto.     Grimes  v.  Cathcart,  69  Wash. 

Missouri. — Priebe    v.    Crandall    (Mo.  519,    125    Pac.    764.      See   also    section 

App.),  187  S.  W.  605.  359. 

Neto  York.- — Jerome  v.  Hawley,   147  67.  Regan   v.   Cummings,   228    Mass. 

App.  Div.  475,   131  K  Y.  Snppl.  897;  414,  117  N.  E.  800. 

Wolcott    V.    Renault    Selling    Branch,  68.  Section  300. 

175    App.   Div.    858,   162  N.   Y.   Suppl.  69.  Section  369. 

496;   Cohen  v.  Goodman  &  Sons,  Inc.,  70.  Section  126, 

189  App.  I)iv.   209.   178  N.  Y.   Suppl.  71.  Latham  v.  Cleveland,  etc.,  R.  Co., 

528.  164  111.  App.  559. 


Negligence  in  Operation  of  Motor  Vehicles.       337 

the  accident.''^  So,  too,  'the  fact  that  one  takes  a  vehicle  with- 
out the  permission  of  the  o^^^ler  and  thereby  violates  a  crimi- 
nal statute,  does  not  necessarily  render  him  liable  for  injuries 
sustained  by  a  pedestrian  through  its  operation,'^  The  appli- 
cation of  the  proximate  cause  doctrine  is  discussed  in  detail 
in  other  parts  of  this  book.''* 

Sec.  290.  Proximate  cause  —  concurring  negligence  of  third 
party. 

When  the  negligence  of  the  defendant  is  shoAvn,  the  fact  that 
a  third  person  was  also  guilty  of  negligence  which  contributed 
to  the  injury  of  the  plaintiff,  will  not  relieve  the  defendant 
from  liability  for  his  negligence."^  This  principle  is  well  illus- 
trated in  cases  where  the  negligence  of  the  driver  of  an  auto- 
mobile combines  with  the  negligence  of  a  railroad,  street  rail- 
way company,  or  driver  of  another  vehicle,  so  that  injury  is 
occasioned  to  a  passenger  in  the  automobile,  and  it  is  gen- 
erally held  that  the  negligence  of  the  driver  thereof  is  not  to 
be  imputed  to  the  passenger  and  does  not  deprive  such  pas- 
senger of  his  remedy  against  the  railroad  or  other  negligent 
defendant.'*^  Where  the  negligence  of  the  driver  of  an  auto- 
mobile and  the  negligence  of  a  pedestrian  whom  he  was  try- 
ing to  avoid,  caused  the  machine  to  strike  a  third  person,  the 
fact  that  the  pedestrian  was  also  guilty  of  negligence  does  not 
relieve  the  auto  driver  from  liabilitj^  for  the  injuries  to  such 
third  person."    And  the  jury  may  be  justified  in  charging  the 

72.  Henderson  v.  Northam.  176  Cal.  discharge  of  all  unless  it  appears  that 
493,  168  Pae.  1044.  the  paj-ment  made  was  received  in  full 

73.  Johnston  v.  Cornelius,  200  Mich.  satisfaction.  This  case  is  not  one  of 
209,  166  N.  W.  983,  L.  R.  A.  1918D  technical  release,  for  the  writings  are 
880.                                                               *  Tiot  under  seal.     The  writings  do  not 

74.  Sec   sections   396,  415,   521,   705.  acknowledge  the  receipt  of  full  sati*- 

75.  King  V.  San  Diego  Elec.  By.  Co.,  faction,  but  affirm  the  contrary. 
176  Cal.  266,  168  Pac.  131 ;  Solomon  v.  Neither  writing  contains  anything  that 
Braufman,  175  N.  Y.  Suppl.  835.  See  imports  a  discharge  of  the  cause  of  ac- 
also  Christ!  v.  Hawert.  164  Wis.  624,  tion."  Blackmor  v.  McCabe,  86  Vt. 
160  N.  W.  1061.  303,  85  Atl.   113. 

"  A  release  of  one  joint  tortfeasor  by  76.  Section  679. 

an   instrument  under   seal  is  a  conclu-  77.  Mehcgan  v.  Faber,  158  Wis.  64.''>. 

sive  discharge  of  all,  but  an  unsealed  149  N.  W.  397. 
discharge  of  one  will  not  operate  as  a 

22 


80 


338  The  Law  of  Automobiles. 

driver  of  a  motor  vehicle  with  negligence  where  he  wrongfully 
cut  the  corner  and  caused  another  vehicle  to  strike  a  pedes- 
trian, although  the  accident  would  not  have  happened  but  for 
the  w^rongful  speed  of  the  other  vehicle.''^ 

Sec.  291.  Proximate  cause  —  intervening  agency. 

The  line  of  proximate  results  which  follow  from  an  act  of 
negligence  is  sometimes  said  to  he  broken  when  an  interven- 
ing agency  interposes  for  which  .the  defendant  is  not  respon- 
sihle.  Thus,  the  negligence  of  one  who  leaves  a  motor  vehicle 
unattended  by  the  side  of  the  highway  does  not  create  liability 
for  injuries  which  result  from  a  hoy  interfering  with  the 
brakes  and  causing  the  machine  to  start.'^  But,  when  the 
negligent  conduct  of  the  driver  of  an  automobile  causes  it  to 
strike  a  pedestrian  and  such  pedestrian  is  thereby  thrown  so 
as  to  strike  and  cause  injury  to  a  third  person,  the  driver  may 
be  liahle  for  the  injuries  sustained  by  such  third  person" 
Generally  speaking,  an  intervening  cause,  in  order  to  relieve 
from  liability,  must  itself  he  a  wrongful  cause ;  that  is,  a  cause 
for  which  the  producer  thereof  would  himself  be  liable  to  the 
plaintiff.^^  Thus,  where  a  defendant  wrongfully  backed  his 
automobile  into  a  street  without  giving  the  proper  statutory 
warning  to  other  travelers,  and  one  riding  a  motorcycle  along 
the  street  was  injured  while  attempting  to  avoid  such  automo- 
bile by  colliding  with  another  automobile,  it  Avas  held  that  the 
other  machine  was  not  an  intervening  cause  which  would  re- 
lieve the  defendant  from  liability.^^  x\nd,  where  an  automo- 
bile, although  driven  carefully,  was  caused  to  skid  by  the  slip- 
pery condition  of  the  highway  and  struck  a  wagon  of  the  plain- 
tiff, it  was  held  that  the  municipality  was  liable  for  the  in- 
juries to  the  wagon.^^ 

78.  Hellan    v.    Supply    Laundry    Co.,  81.  Pyers  v.   Tiers,  89  X.  J.  L.   320. 
94  Wash.  683,  163  Pac.  9.  99  Atl.  130. 

79.  Rhad  v.  Diiquesne  Liglit  Co.,  255  8Si.  Pyers  v.  Tiers,  89  N.  J.  L.  520. 
Pa.    St.   409,    100    Atl.    262.      And   see  99  Atl.  130. 

section  342.  83.  Kelleher    v.    City    of    Newbury- 

80.  Walker    v.    Rodriguez,     139    La.       port,  227  Mass.  462,  116  N.  E.  807. 
251,  71  So.  499. 


Negligence  ix  Operation  of  Motor  Vehicles. 


339 


Sec.  292.  Competency  of  driver  of  motor  vehicle  —  in  general. 
One  of  the  obligations  imposed  on  the  driver" of  an  automo- 
bile is  that  he  should  have  reasonable  experience  and  skill  in 
the  management  of  automobiles   and   that  he  is   physically 
capable  of  running  the  machine.**^    An  unskillful  or  inexperi- 
enced driver  is  not  to  be  excused  from  lial)ility  for  injuries 
inflicted  because  of  his  inexperience  and  unskillfulness.     On 
the  contrary,  he  should  not  frequent  places  where  injury  is 
liable  to  result  from  inexperience  or  unskillfulness  in  handling 
a  car.    When  a  person  operates  an  automobile  along  a  public 
highway  frequented  by  other  travelers,  he  assumes  the  re- 
sponsi))ility  for  injuries  resulting  from  his  own  unskillfulness 
in  the  operation  of  the  car.^°    And  when  one  employs  another 
to  run  a  motor  vehicle,  he  should  exercise  reasonable  prudouoo 
in  selecting  an  employee  having  the  necessary  rcciuircintMils."' 


84.  Flicker  r.  Philadelphia  Rapid 
Transit  Co.,  63  Pa.  Super.  Ct.  381. 

Inexperienced  driver  learning  to  run 
machine.—  ^^'llere  an  inexperienced  ptM-- 
son  is  learning  to  drive  an  automobile 
in  the  presence  of  and  under  the  tuition 
of  an  experienced  operator,  he  is  not 
liable  for  injuries  occasioned  thereby, 
unless  there  is  positive  negligence  on 
his  part.  Bertrand  v.  Hunt,  89  Wash. 
475,  154  Pac.  804.  But  see  Winslow 
v.  New  England  Coop.  Soc.  235  Mass. 
576,  114  N.  E.  748,  holding  such  a  per- 
son to  the  care  of  an  ordinarily  pru- 
dent driver. 

85.  Hughoy  v.  Lennox  (Ark.^,  210  S. 
W.  323. 

86.  Parker  v.  Wilson.  170  Ala.  3f.I, 
60  So.  150,  43  L.  R.  A.  (X.  S.)  87: 
Gardiner  v.  Solomon,  200  Ala.  115,  75 
So.  621;  Daily  v.  Maxwell,  152  Mo. 
App.  415,  133  S.  W.  351;  Raubv.  Donn, 
254  Pa.  St.  203,  98  Atl.  861 ;  Allen  v. 
Brand  (Tex.  Civ.  App.),  168  S.  W;  3-^.. 
See  also  Brown  v.  Green  Sc  Flinn.  Inc.. 
6  Del.  (Boyce)  449,  100  Atl.  475. 
"But  no  one  can  deny  that  an  automo- 
bile in  the  hands  of  a  careless  and  in- 
competent driver  would  be  a  dangerous 


machine  to  turn  Inoso  on  busy  streets, 
and  would  constitute  a  menace  to 
travelers.  The  owner  of  a  car  must 
(exercise  reasonable  care  in  the  selec- 
tion of  a  chauffeur,  and,  failing  in  this, 
will  lie  held  liable  for  the  consequences 
of  his  own  negligence  in  sending  out 
his  car  in  charge  of  an  incompetent 
operator."  Daily  v.  Maxwell.  152  Mo. 
App.  415,  133  S.  W.  351.  "While  au- 
tomobiles are  not  inherently  regarded 
as  dangerous  instrumentalities,  and  the 
owner  thereof  is  not  responsible  for 
the  negligent  use  of  the  same,  except 
upon  the  theory  of  the  doctrine  of 
respondeat  superior,  yet  there  is  an  ex- 
ception if  he  intrusts  it  to  one.  though 
not  an  agent  or  servant,  who  is  so  in- 
competent in  the  handling  of  the  same 
as  to  convert  it  into  a  dangerous  in- 
strumentality, and  the  incompetency  is 
known  to  the  owner  when  permitting 
the  use  of  the  vehicle."  Gardiner  v. 
Solomon   (Ala.\,  75  So.  621. 

Public  automobiles.— The  driver  of  a 
public  vehicle  is  bound  to  be  a  skillful 
driver,  and  any  damage  arising  from 
his  unskillful  driving  is  a  ground  of 
action.     A  less  degree  of  skill  is  *-^  b'' 


340  The  Law  of  Automobiles. 

If  the  owner  knowingly  intrusts  the  machine  to  one  who  is  in- 
competent, he  may  be  liable  for  ensuing  injuries.^^  But  when 
the  chauffeur  takes  the  machine  without  the  knowledge  or  con- 
sent of  the  owner  and  uses  it  for  his  own  purposes,  it  has  been 
held  that  liability  for  his  conduct  on  such  a  trip  is  not  im- 
posed on  the  master  on  the  theory  that  the  chauffeur  was  not 
a  competent  and  careful  operator.^^  The  owner's  fault  in  em- 
ploying an  improper  servant  is  not  deemed  a  proximate  cause 
of  an  injury  occasioned  to  a  third  person  when  the  servant  has 
unlawfully  taken  the  car  for  his  own  purposes.^^ 

Sec.  293.  Competency  of  driver  of  motor  vehicle  —  presump- 
tion as  to  skill  of  driver. 

It  is  held  that  there  is  no  presumption  either  as  to  the  skill 
or  want  of  skill  of  the  driver  of  a  vehicle.  Thus  it  is  not 
proper  for  the  judge  to  charge  the  jury  that  the  law  pre- 
sumes, in  the  absence  of  evidence  to  the  contrary,  that  the 
driver  of  the  machine  in  question  was  a  reasonable,  careful 
and  skillful  driver  of  such  a  machine.^°  But,  in  an  action  for 
injuries  to  an  automobile,  the  burden  of  proof  is  not  upon  the 
owner  to  show  that  the  driver  was  competent.^^ 

looked  for  from  the  driver  of  a  pri-  vant  by  the  defendant  was  the  legal 
vate  vehicle,  but  he  is  bound  to  drive  cause  of  the  plaintiff's  injury.  Knowl 
with  reasonable  care  and  skill.  Collier  edge  that  McCauley  was  habitually 
V.  Chaplin,  U.  P.,  C.  P.,  cor.  Byles,  J.,  careless  in  the  operation  of  the  auto- 
Westminster,  Feb.  1,  1865;  Oliphant's  mobile  has  no  tendency  to  prove  that 
Law  of  Horses,  p.  283.  the  defendant  ought  to  have  known  or 

87.  Gardiner  v.  Solomon  (Ala.),  75  anticipated  that  he  would  steal  th« 
So.  621.  vehicle,  or  use  it  for  his  own  purposes 

88.  Lewis  v.  Amorous,  3  Ga.  App.  50,  contrary  to  the  owner's  explicit  order; 
59  S.  E..  338;  Danforth  v.  Fisher,  75  and  unless  that  fact  is  found,  it  can- 
N,  H.  Ill,  71  Atl.  535,  21  L.  R.  A.  not  be  said  that  the  defendant's  fault 
(N.  S.)  93;  Jones  v.  Hoge,  47  Wash.  in  employing  a  chauffeur  whom  he 
663,  92  Pac.  433,  125  Am.  St.  Rep.  knew  to  be  reckless  was  the  cause  of 
915,  14  L.  R.  A.  (N.  S.)  216.  And  see  the  plaintiff's  injury."  Danforth  v. 
chapter  XXIII,  as  to  liability  of  owner  Fisher,  75  N.  H.  Ill,  71  Atl.  535,  21 
for  negligence  of  driver.  L.  R.  A.  (N.  S.)  93,  139  Am.  St.  Rep. 

89.  "If   it  were   conceded   that   Mc-  670. 

Cauley    was    a    reckless    operator    and  90.  Devine    v.    Brunswick-Balke   Col- 

that  the  defendant  was  aware  of  that  lender  Co.,  270  111.  504,  110  N.  E.  780. 

fact,  it  could  not  be  found   that  the  91.  Latham  v.  Cleveland  C.  C.  &  St. 

continued  employment  of  a  careless  ser-  L.  R.  Co..  179  111.  App.  324. 


Negligence  in  Operation  of  Motor  Vehicles.       341 

Sec.  294.  Competency  of  driver  of  motor  vehicle  —  physical 
condition  of  driver. 

It  is  of  course,  clear  that  one,  whose  physical  condition  for- 
bids the  operation  of  a  mbtor  vehicle  with  the  precautions 
which  a  reasonably  prudent  man  would  take,  should  not  at 
tempt  such  an  undertaking.    Thus,  negligence  may  be  predi- 
cated on  the  fact  that  the  owner  of  a  machine  permitted  it  to 
be  run  by  a  driver  who  was  crippled  so  that  he  could  not  use 
the  foot  brake  efficiently.^^    And  where  an  innocent  person  is 
injured  as  the  result  of  the  violation  of  a  statute  which  for- 
bids the  operation  of  a  motor  vehicle  by  an  intoxicated  driver, 
liability  may  be  imposed.^^    So,  too,  if  one  voluntarily  drinks 
liquor  until  he  is  intoxicated,  and  so  negligently  operates  an 
automobile  as  to  cause  injury  to  another,  his  intoxication  mil 
furnish  no  excuse  for  his  negligence  or  its  proximate  results. 
One  is  not  relieved  of  his  duty  of  exercising  reasonable  care 
for  his  o^^m  safety  by  voluntary  intoxication.^^    On  the  other 


92.  See  Blalack  v.  Blacksher,  11  Ala. 
App.  545,  66  So.  863. 

93.  Lincoln  Taxicab  Co.  v.  Smith, 
88  Misc.  (N.  Y.)  9,  150  N.  Y.  Suppl. 
86.  See  also  Stewart  v.  Smith,  16  Ala. 
App.  461,  78  So.  724. 

Proximate  cause.— The  violation  oi 
a  statute  with  reference  to  intoxicated 
drivers  does  not  afford  a  basis  of  re- 
covery, unless  the  injuries  in  question 
are  the  proximate  result  of  the  viola- 
tion. Allen  V.  Pearson,  89  Conn.  401. 
94  Atl.  277.  And  see  sections  289-291 
as  to  proximate  cause. 

94.  Powell  V.  Perry,  145  Ga.  696,  89 
S.  E.  753;  Winston's  Adm'r  v.  City  of 
Henderson,  179  Ky.  220,  200  S.  W.  330. 
"As  liquor  may  affect,  not  only  the 
brain,  but  the  nerves,  the  muscles,  aiul 
the  eyesight,  if  a  person  voluntarily 
becomes  intoxicated,  and  in  that  condi- 
tion undertakes  to  drive  an  automo- 
bile, and  injury  results  to  another 
from  the  negligent  operation  of  it,  his 
condition  would  be  a  fact  for  the  con- 
sideration of  the  jury,  in  determining 
whether  he  acted  with  diligence  or  neg- 


ligence." Powell  V.  Berry,  145  Ga. 
696,  89  S.  E.  753.  See  also,  Wiggin- 
ton's  Adm'r  v.  Rickert,  186  Ky.  650, 
217  S.  W.  933. 

95.  Winston's  Adm'r  v.  City  of  Hen- 
derson,  179   Ky.   220,   200   S.   W.    330. 
"Voluntary   drunkenness   furnishes  no 
excuse  for  negligence;  nor  does  it  re- 
lieve  a  drunken   man   from   exercising 
the  degree  of  care  required  of  a  sober 
man  in  the  same  circumstances.     If  a 
person  is  required  to  use  ordinary  care, 
this  means  that  care  which  every  pru- 
dent man  would  exercise  under  similar 
circumstances.     In  taking  the  conduct 
of  every  prudent   man  as  a  standard, 
reference  is  made  to  the  normal  man; 
that  is,  the  sober  man.     Ordinarj-  care 
is  not  to  be  measured  by  what  every 
prudent  drunken  man  would  do  under 
like  circumstauces,  but  what  every  pru- 
dent  sol>or   man   would   do  under   like 
circumstauces.      If    ordinary    care   un- 
der   certain    circumstances    would    re- 
quire that   a   certain   thing   should   be 
done,  the  requirement  is  binding  on  a 
man  whether  sober  or  drunk:  and  get- 


342  The  Law  of  Automobiles. 

hand,  intoxication  of  itself  furnishes  no  ground  for  lia])ility, 
if  the  driver  has  nevertheless  exercised  the  care  of  a  reason- 
ably prudent  driver.^^  The  intoxication  of  a  driver  may  be 
considered  by  the  jury,  but  it  does  not  of  itsejf  convict  him 
of  negligence.^^  There  may  be,  however,  a  few  jurisdictions 
where  the  driving  of  a  car  by  an  intoxicated  person  is  for- 
bidden by  statute  and  the  act,  therefore,  becomes  negligence 
per  se.^^  And  the  fact  that  the  driver's  eyesight  is  such  that 
he  is  compelled  to  wear  glasses  does  not  forbid  him  from  driv- 
ing a  motor  vehicle  on  the  highways,^^  but  the  standard  of 
care  required  of  one  with  defective  sight  and  hearing  is  that 
usually  exercised  by  an  ordinarily  prudent  normal  man.^ 
Where  the  driver  of  an  automobile  drove  over  an  embank- 
ment on  the  side  of  the  road,  and  it  appeared  that  it  was  broad 
daylight  and  the  road  was  hard,  dry  and  smooth  and  wide 
enough  for  two  vehicles,  and  there  was  no  obstruction  or  other 
vehicles  along  the  road;  and  it  further  appeared  that  the  car 
was  in  good  condition  and  he  had  driven  at  previous  times 
carelessly  and  too  near  the  edge  of  the  road,  and  it  was  a  hot 
day  and  the  driver's  explanation  was  that  he  was  suddenly 
taken  with  a  period  of  dizziness,  it  was  held  that  his  negli- 
gence was  a  question  for  the  jury.^  Moreover,  one  who  is  sub- 
ject to  sudden  attacks  of  vertigo,  but  who  nevertheless  at- 
tempts to  run  an  automobile  along  a  street  frequented  by 
other  travelers,  may  be  guilty  of  criminal  negligence  and  lialile 
to  a  criminal  prosecution.^ 

ting  drunk  will  not   rplieve  the  person  City    of    Kenosha    (Wis.),    182    N.    W. 

from    the    duty.      To    hold    otherwise  741. 

would    be    to    put    a    premium    upon  98.  Wise  v.  Schneider  (Ala.),  88  So. 

drunkenness."      Powell    v.    Berry,    145  662. 

Ga.  696,  89  S.  E.  753.  99.  Bigelow   v.    Town    of   St.   .Tohns- 

96.  Wise  V.  Schneider  (Ala.),  88  So.  bury,  92  Vt.  423,  105  At).  34. 

662;  Sylvester  V.  Gray,  118  Me.  74,  105  1.  Roberts   v.   Ring,    143    Minn.    151, 

Atl.  815.  173  N.  W.  437. 

97.  Wise  V.  Schneider   (Ala.),  88  So.  2.  Myers     v.     Tri-State     Auto     Co., 
662;  St.  Louis,  etc.,  Ry.  Co.  v.  Morgan  121  Minn.  68,  140  N.  AV.  184. 

(Tex.    Civ.    App.),    220    S.    W.     281;  3.  Tift  v.    State,    17   Ga.    App.    663, 

Southern  Traction  Co.  v.  Kirbsey  (Tex.       88   S.   E.  41.     See  eliapter   XXVII,  as 
Civ.   App.),  222  S.  W.   702;   Strang  v.       to  r-iiininal  offenses. 


Negligence  in  OrKUATiox  or  ^Fotor  Vehicles.       343 

Sec.  295.  Competency  of  driver  of  motor  vehicle  —  permitting 
immature  child  to  drive  car. 
The  owner  of  an  antonu)))ilc  may  be  charged  witli  negligence 
if  he  permits  young  children  to  run  the  machine  and  their  im- 
maturity or  lack  of  judgment  occasions  injuries  to  other  trav- 
elers.'^    Liability  is  not  imposed  on  llie  owner  because  of  the 
relationship  between  the  parties  or  because  of  the  ownership 
of  the  machine,  but  because  of  the  owner's  negligence  or 
wrongful  act  in  entrusting  the  machine  to  a  person  of  imma- 
ture years  and  judgment.^    Thus,  it  is  clear  that  if  a  father  en- 
trusts a  heavy  motor  vehicle  to  his  son  who  is  only  eleven 
years  of  age  for  running  along  the  streets  of  a  populous  town, 
the  owner  may  be  responsible  for  injuries  occasioned  through 
the  conduct  of  such  boy.^    Statutes  which  prohibit  the  opera- 
tion of  motor  vehicles  by  children  under  a  prescribed  age  may 
have  a  material  bearing  on  this  ciuestion.    Such  a  statute  is 
a  legislative  declaration  that  children  under  the  age  limit  are 
incompetent  to  drive  such  vehicles  on  the  public  highways." 
If  the  owner  connives  with  his  young  son  in  the  violation  of 
such  a  statute,  he  should  be  responsible  for  all  injuries  which 
proximately  result  from  the  ^dolation.^    A  question  may.  re- 
main, however,  as  to  whether  the  immaturity  of  the  driver 
was  the  proximate  cause  of  the  plaintiff's  injuries.^ 

4.  Parker  v.  Wilson,  179  Ala.  361.  60       Suppl.   257. 

So.  150,  43  L.  R.  A.   (N.  S.)   87;  Gar-  8.  Taylor    v.    Stewart.    173    N.    Car. 

diner  v.  Soloman,  200  Ala.  115.  75  So.  203.  90  S.  E.  134.     "'When  the  defend- 

621;  Linville  V.  Nissen,  162  N.  Car.  95,  ant   permitted   one   of  his  own   family. 

77  S.  E.  1096;  Raub  v.  Donn,  254  Ta.  whose   acts   he   had    the   right   and    au- 

St.   203,  98  Atl.  861;   Diseepeo  v.   City  thority  to   control,   to   operate  his  car, 

of  Ft.  William,  11  O.  W.  N.  (Canada)  he  became  a  party  to  the  violation  of 

73.    And  see  section  292,  et  seq.  the  statute,  and  should  be  held  respon- 

5.  Parker  v.  Wilson,  179  Ala.  361,  sible  for  the  consequences  which  fol- 
60  So.  3  50,  43  L.  R.  A.  (N.  S.)  87;  lowed.  Schultz  v.  Morrison,  1  Misc. 
Linville  v.   Nissen.   162  N.  Car.   95,   77  (N.  Y.)   248.  154  X.  Y.  Suppl.  257. 

S.  E.   1096.  9.  Elmendorf  v.  Clark.   143  La.  971. 

e.  Allen  V.  Brand   (Tex.  Civ.  App.),  79  So.  557;  Taylor  v.  Stewart,  175  N. 

168  S.  W.  35.  Car.  199,  95  S.  E.  167.     See  also.  Koch 

7.  Daily  v.   Maxwell,    152   Mo.   App.  v.  City  of   Seattle    (Wash.).    194  Pac. 

415,  133  S.  W.   351;  Schultz  v.  Morri-  572;   Benesch  v.  Pagel   (Wis.).   177  N. 

son,  91   Misc.   (K  Y.)    248,   154  N.  Y.  W.   860. 


344 


The  Law  of  Automobiles. 


Sec.  296.  Competency  of  driver  of  motor  vehicle  —  opinion 
of  witness  as  to  competency  of  driver. 
In  an  action  involving  the  competency  of  the  driver  of  a 
motor  vehicle,  a  witness  should  not  be  permitted  to  give  his 
opinion  as  to  the  competency  of  the  driver  in  question,  for  the 
jury  is  capable  of  drawing  the  proper  inference  from  a  state- 
ment of  the  facts.i'^  So,  too,  where  one  of  the  issues  was 
whether  a  crippled  driver  could  efficiently  manipulate  the 
brakes  of  a  Ford  car,  it  is  reversible  error  to  permit  a  witness 
to  state  that  one  could  run  a  car  of  that  kind  and  operate  the 
brake  as  effectively  with  his  hands  as  with  his  feet." 


Sec.  297.  Effect  of  violation  of  statute  or  municipal  ordinance 
—  in  general. 

The  courts  in  the  different  jurisdictions  are  not  harmonious 
on  the  question  as  to  the  effect  which  shall  be  given  to  the 
violation  of  a  statute  or  municipal  ordinance  regulating  the 
use  of  highways.  In  some  States,  the  view  is  taken  that  the 
violation  is  evidence  of  negligence  ;^^  in  others,  the  courts  say 
that  the  violation  is  prima  facie  evidence  of  negligence ;"  but 
the 'view  generally  taken  is  that  the  violation  is  negligence 


10.  Pantages  v.  Seattle  Elec.  Co., 
.55  Wash.  453,  104  Pac.  629. 

11.  Black  V.  Blacksher,  11  Ala.  App. 
545,  66  So.  863. 

12.  Nebraska. — Rule  v.  Claar  Trans- 
fer &  Storage  Co.,  102  Neb.  4,  165  N. 
W.  883;  Stevens  v.  Luther,  180  N.  W. 
87 ;  Dorrance  v.  Omaha,  etc.,  Ry.  Co., 
180  N.  W.  90. 

New  Jersey. — Horowitz  v.  Gottwalt 
(N.  J.  L.),  102  Atl.  930;  Kolankiewiz 
V.  Burke,  91  N.  J.  L.  567,  103  Atl.  249 

New  York. — McCarragher  v.  Proal 
114  N.  Y.  App.  Div.  470,  100  N.  Y 
Suppl.  208;  Harding  v.  Cavanaugh,  91 
Misc.  (N.  Y.)  511,  155  N.  Y.  Suppl 
374 ;  People  v.  Scanlon,  132  N.  Y.  App 
Div.  528,  117  N.  Y.  Suppl.  57;  Meyers 
V.  Barrett,  167  N.  Y.  App.  Div.  170 
152  N.  Y.  Suppl.  921;  Stern  v.  Inter 
national  Ry.  Co.,   167   App.  Div.    503 


153  N.  Y.  Suppl.  520;  Crombie  v. 
O'Brien,  178  App.  Div.  807,  165  N.  Y. 
Supp.  858.  See  also,  Beickhemer  v. 
Empire  Carrying  Corp.,  172  N.  Y.  App. 
Div.  866,  158  N.  Y.  Suppl.  853.  And 
see  Martin  v.  Herzog,  228  N.  Y.  164, 
126  K.  E.  814,  giving  greater  weight 
to  a  violation  of  statute. 

Canada. — Bears  v.  Central  Garage 
Co.,  3  D.  L.  R.  387;  Stewart  v.  Steele, 
6  D.  L.  R.  1;  Campbell  v.  Pugsley,  7 
D.  L.  R.  177. 

13.  Ward  v.  Meredith,  220  111.  66,  77 
N.  E.  119;  Lawrence  v.  Channahon,  157 
111.  App.  560;  Schumacher  v.  Mein- 
rath,  177  III.  App.  530;  Bruhl  v.  An- 
derson, 189  111.  App.  461,  Fippinger  v. 
Glos,  190  ni.  App.  238;  Frank  C. 
Weber  v.  Stevenson  Grocery  Co.,  194 
111.  App.  432 ;  Berg  v.  Michell,  196  111. 
App.  509. 


Negligence  in  Operation  of  Motor  Vehicles.       345 

per  se."  The  distinction  between  mere  "evidence  of  negli- 
gence" and  "negligence  per  se"  is  very  marked,  in  that  in 
the  former  there  must  be  an  adjudication  as  to  whether  or  not 
the  violation  constitutes  negligence,  whereas  in  the  latter  neg- 
ligence necessarily  follows  the  proof  of  the  violation.^^    In  at 


14.  Alabama. — Watts  v.  Montgomery 
Tr.  Co.,  175  Ala.  102,  57  So.  471;  Hill 
V.  Condon,  14  Ala.  App.  332,  70  So. 
208.  "The  decisions  as  to  the  legal 
effect  of  violating  a  statute  or  ordi- 
nance are  not  harmonious.  In  some 
cases,  it  is  held  that  such  violation  is 
not  negligence  per  se,  but  that  it  is 
competent  evidence  of  negUgenee,  and 
may  be  suflBlcient  to  justify  a  jury  in 
finding  negligence  in  fact. 
However,  it  is  settled  in  Alabama,  and 
we  think  it  is  the  weight  of  authority, 
that  a  violation  of  a  statute  or  an 
ordinance  is  negligence  per  se,  and  a 
person  proximately  injured  thereby 
may  recover  for  such  injuiies  against 
the  violator  of  the  law,"  Watts  v. 
Montgomery  Tr.  Co.,  175  Ala.  102,  57 
So.  471. 

California. — Scragg  v.  Sallee,  24 
Cal.  App.  133,  140  Pac.  706;  Opitz  v. 
Schenck,  174  Pac.  40;  Mathes  v.  Ag- 
geler  &  Musser  Seed  Co.,  179  Cal.  697, 
178  Pac.  713;  Lawrence  v.  Goodwill, 
186  Pac.  781, 

Colorado. — Denver  Omnibus  &  Cab 
Co.  V.  Mills,  21  Colo.  App.  582,  122 
Pac.   798. 

Delaivare. — Travers  v.  Hartman,  5 
Boyce  302,  92  Atl,  855;  Lemmon  v. 
Broadwater,  7  Boyce  (30  Del.)  472, 
108  Atl.  273;  Wollaston  v.  Stiltz,  114 
Atl,  198. 

Georgia. — Sheppard  v.  Johnson,  11 
Ga,  App,  280,  75  S.  E.  348 ;  Columbus 
R,  Co.  V,  Waller,  12  Ga.  App.  674,  78 
S,  E,  52 ;  O  'Dowd  v.  Newnham,  13  Ga. 
App.  220,  80  S.  E.  36;  Ware  v. 
Laman,  18  Ga.  App.  673,  90  S.  E.  364; 
Central  of  Ga.  R.  Co.  v.  Larsen,  19  Ga. 
App.  413,  91  S.  E.  517 ;  Wilkinson  v. 
Bray  (Ga.  App.),  108  S.  E.  133. 


Indiana. — Fox  v.  Barekman,  178  Ind. 
*572,  99  N.  E.  989;  Carter  v.  Caldwell, 
]  83  Ind.  434,  109  N.  E.  355 ;  Conder  v. 
Griffith,  61  Ind.  App.  218,  111  N,  E. 
816;  Mayer  v.  Melleter,  65  Ind.  App. 
54,  114  N.  E.  241. 

Iowa. — Hubbard  v.  Bartholomew, 
163  Iowa,  58,  144  N.  W.  13;  Fisher  v. 
Ellston,  174  Iowa,  364,  156  N.  W.  422. 

Kansas. — Fisher  v.  O'Brien,  99 
Kans,  621,  162  Pac,  317, 

Kentucky. — National  Casket  Co,  v. 
Powar,  137  Ky.  156,  125  S.  W.  279; 
Collett  V.  Standard  Oil  Co.,  186  Ky 
142,  216   S.  W,  356. 

Minnesota. — Hillstroni  v.  Mann- 
heimer  Bros.,  178  N,  W,  881;  Unmacht 
V.  Whitney,  178  N,  W.  886;  Thomas  v. 
Stevenson,  178  N,  W,  1021,  See  also. 
Day  V,  Duluth  St.  Ry.  Co.,  121  Minn. 
445,  141  N,  W.  795. 

Missouri. — Barton  v.  Faeth,  193  Mo. 
App.  402,  186  S.  W.  52;  Carradine  v. 
Ford,  195  Mo,  App.  684,  187  S,  W. 
285;  Rappaport  v.  Roberts  (Mo.  App.). 
203  S.  W.  676. 

North  Carolina. — Tayloi  v.  Stewart, 
172  N.  Car.  203,  90  S.  E.  134;  Taylor 
V.  Stewart,  ITo  X.  Car.  199,  95  S.  E. 
167, 

Ohio. — Schell  v.  DuBois,  94  Ohio,  93. 
113  N.  E.  664;  Weimer  v.  Rosen,  100 
Ohio,  361,  V26  N.  E.  307;  Ohesrown  v. 
Bevier.  128  N.  E.  94. 

South  Carolina. — Whaley  v.  Osteii- 
dorff,  90  S.  Car.  2S1,  73  S.  E.  186: 
McCoon  V.  Muldrow,  91  S.  Car,  523,  74 
S.  E.  386. 

Texas. — Stateu  v.  Monroe  (Civ. 
App.\  150  S.  W.  222;  Solon  v.  Pasche 
(Civ.  App."),  i:.3  S.  W.  672;  Kccvil  v. 
Ponsford  (Civ.  App,^.  173  S.  W.  518; 
Schoellkopf    Saddlery   Co.   v.    Crawley 


346 


The  Law  of  Automobiles. 


least  one  jurisdiction,  a  distinction  has  been  drawn  between 
the  violation  of  a  statute  and  the  violation  of  an  ordinance, 
and  it  has  been  held  that  the  violation  of  a  statute  is  negli- 
gence pe)'  se,  but  that  result  does  not  follow'  from  the  violation 
of  a  municipal  ordinance.^''  The  effect  of  the  violation  of  a 
statute  is  further  discussed  in  this  work  in  connection  wdth 
particular  regulations.^^  The  rule  is  different  in  some  juris- 
dictions where  the  regulation  involved  relates  to  the  so-called 
^'law  of  the  road."    Driving  on  the  wrong  side  of  the  road  is 


(Civ.  App.),  203  S.  W.  1172;  Carvel  v. 
Kusel  (Civ.  App.),  205  S.  W.  941;  El 
Paso  Elec.  Ry.  Co.  v.  Terrazas  (Civ. 
App.),  208  S.  W.  387;  Southern  Trac- 
tion Co.  V.  Jones  (Civ.  App.),  209  S. 
W,  457;  Ward  v.  Cathey  (Civ.  App.), 
210  S.  W.  289;  Flores  v.  Garcia  (Civ. 
App.),  226  S.  W.  743. 

Utah. — Beggs  v.  Clayton,  40  Utah, 
389,  12  Pae.  7. 

Washington. — Ballard  v.  Collins,  63 
Wash.  493,  115  Pac.  1050;  Hillebrant 
V.  Manz,  71  Wash.  250,  128  Pac.  892; 
Ludwigs  V.  Dumas,  72  Wash.  68,  129 
Pac.  903;  Mickelson  v.  Fischer,  81 
Wash.  423,  142  Pac.  1160;  Moy  Quon 
V.  M.  Furuya  Co.,  81  Wash.  526,  143 
Pac.  99:  Lloyd  v.  Calhoun,  82  Wash. 
35,  143  Pac.  458,  overruling  78  Wash. 
438,  139  Pac.  231;  Sheffield  v.  Union 
Oil  Co.,  82  Wash.  386,  144  Pac.  529; 
Bogdan  v.  Pappas,  95  Wash.  579,  164 
Pac.  208;  Ebling  v.  Nillson,  186  Pac. 
887.  ' '  This  court  is  definitely  com- 
mitted to  the  rule  that  *a  thing  which 
is  done  in  violation  of  positive  law  is 
in  itself  negligence,'  in  the  absence  of 
pleading  and  proof  of  such  peculiar 
facts  as  would  tend  to  justify  the  vio- 
lation. ...  In  consonance  with  that 
rule,  this  court,  in  common  with  others, 
has  repeatedly  held  that  in  the  ab- 
sence of  circumstances  tending  to  ex- 
cuse by  making  such  a  course  reason- 
ably necessary,  a  failure  to  observe  the 
law  of  the  road,  resulting  in  injury,  is 
negligence  as  a  matter  of  law."    John- 


son V.  Heitman,  88  Wash.  595,  3  53  Pac. 
331. 

Wisconsin. — Ludke  v.  Buick,  160 
AVis.  440,  152  N.  W.  190,  L.  R.  A. 
1915D  968;  Riggles  v.  Priest,  163  Wis. 
J  99,   157   N,  W.   755. 

Canada. — Stewart  v.  Steele,  5  Sask. 
L.   R.  359,  6  D.  L.  R.  1. 

15.  Central  of  Georgia  Ry.  Co.  v. 
Larsen,  19  Ga.  App.  413,  91  S.  E.  517. 
' '  When  evidence  of  negligence  is  only 
prima  facie,  it  is  subject  to  rebuttal, 
but  when  there  is  negligence  per  se,  it 
is  conclusive  of  that  question." 
Whaley  v.  Ostendorff,  90  8.  Car.  281, 
7.3  S.  E.  186. 

16.  Cook  V.  Johnston,  58  Mich.  437, 
25  N,  W.  388,  55  Am.  Rep.  703;  Flater 
V.  Fey,  70  Mich.  644,  38  N.  W.  656; 
Sterling  v.  City  of  Detroit,  134  Mich. 
22,  95  N.  W.  986;  Blickley  v.  Luce's 
Estate,  148  Mich.  233,  111  N.  W.  752; 
Westover  v.  Grand  Rapids  R.  Co.,  180 
Mich.  373,  147  N.  AV.  630;  Rotter  v. 
Detroit  United  Ry.  (Mich.),  171  N.  W. 
514.  See  also,  Zoltovski  v.  Gzella,  159 
Mich.  620,  124  N.  W.  527,  26  L.  R.  A. 
(N.  S.)   435. 

Instructions. — One  suing  for  an  in- 
jury occasioned  by  the  operation  of  a 
motor  vehicle  in  excess  of  a  speed  regu- 
lation, is  entitled  to  have  the  jury 
given  a  clear  and  explicit  instruction 
as  to  the  legal  effect  of  the  violation. 
Levyn  v.  Koppin,  180  Mich.  232,  149 
N.  W.  993. 

17.  See  sections  267,  320-322. 


Xegliukxck  IX  Oi'KK.vnox   oi    >roTOR  Vehicll.- 


:54" 


not  so  clearly  a  wrongful  act  as  driving  at  a  prohil)ited  speed, 
for  the  circumstances  may  be  such  as  to  excuse  a  violation  of 
the  law  of  the  road.  Hence  the  violation  is  generally  said  to 
be  prima  facie  negligence  and  the  violator  of  the  rule  is  given 
an  opportunity  to  rebut  the  inference  of  negligence  arising 
against  him.^^  There  are,  however,  a  few  jurisdictions  where 
a  violation  of  the  law  of  the  road  is  considered  negligence 
per  se.^^  And  an  unexcused  violation  may  be  negligence  as  a 
matter  of  law.^^    In  any  event,  the  failure  to  observe  the  re- 


18.  Heidniaii     v.    Zwart,     167    Iowa, 
500,   149  N.  W.  631;   Granger  v.   Far- 
rant,    179    Mich.    19,    146    N.    W.    218. 
See  also  section  267.     "But  it  is  not 
to  be  understood  that  we  intend  to  hold 
that  the  fact  that  the  driver  of  a  motor 
vehicle  may  violate  the  statute  by  driv- 
ing on  the  wrong  side  of  the  road  or 
street    is   itself   necessarily   an    act   of 
negligence  in  all  eases.     He  might  for 
a    sufficient    reason    be    compelled    to 
drive  on  the  left  of  the  center  of  the 
road  or  street,  and  do  so  in  such  man- 
ner   as   to   leave   to   approaching  vehi- 
cles, pedestrians,  or  animals  ample  op 
portunity  to   pass  with  perfect  safety 
to  themselves,  in  which   case,  if   dam- 
age occurred  by  collision  with  his  vehi- 
cle, the  question  as  to  whoso  negligence 
was  directly  responsible  therefor  would 
depend  for  its  solution  upon  the  other 
circumstances    attending   the    accident. 
In  brief,  and  in  other  words,  the  fact 
that  he  was  driving  over  the  highway 
on  the  left  of  the  center  of  the  road- 
way   might,    where    injury    to    another 
had      resulted      therefrom,      constitute 
prima  facie  evidence  of  negligence,  but 
it  would  amount  to  no  more  than  that, 
and  its  evidentiary  effect   might   prop- 
erly be  overcome  or  dispelled  by  other 
evidence.     .     .     .     We  can  conceive  no 
inconsistency    between    the     rule    thus 
stated  and  the  declaration  in  the  opin 
ion  in  the  case  of  Scragg  v.  Salleo.  rM 
Cal.  App.  133,  140  Pac.  706,  cited  here, 
that    one    who    drives    a    uuAov    vcliicle 


over  a  street  beyond  the  rate  of  speed 
prescribed  and  limited  by  a  municipal 
ordinance  and  for  w^ich  a  penalty  is 
provided  is  guilty  of  negligence  per  se. 
The  two  propositions,  as  we  conceive 
them,  are  widely  divergent.  In  the  one 
case  the  drivers  have  the  right  to  pass 
over  public  streets  and  highways,  and. 
as  before  suggested,  if  they  'give  rea- 
sonable warning  of  their  approach' 
and  'use  every  reasonable  precaution 
to  insure  the  safety  of  approachin<r 
vehicles,  persons,  or  animals,  the  mere 
fact  that  they  are  tr:ivoling  on  the  left 
of  the  center  of  the  highway,  whilo 
evidence  of  more  or  less  significance, 
according  to  other  circumstances  of  the 
ct.sc',  is  not  itself  negligence.  In  the 
other  case  one  who  violates  a  penal 
statute  or  municipal  ordinance  com- 
mits a  public  wrong,  and  such  act  is 
negligence  per  sc,  and  nothing  further 
need  be  proved  if  it  he  shown  that  the 
infraction  of  such  law  or  ordinance 
was  tiie  direct  and  sole  cause  of  an  in- 
jury to  another."'  Stohlman  v.  Mar- 
tin, 28  Cal.  App.  338,  152  Pac.  319. 

19.  Kinney  v.  King  (Cal.  App.),  190 
Pac.  s.!4 ;  Hodges  v.  Mitchell  (Colo.'i. 
194  Pac.  620;  Zucht  v.  Brooks  (Tex. 
Civ.  App.),  216  S.  W.  684;  John  v 
Pierce  (Wis.).  17S  N.  W.  297;  Foster 
v.  Bauer  (Wis.).  ISO  X.  W.  817.  And 
see  section   267. 

20.  Vickery  v.  Armstoad  (Iowa*. 
180  X.  W.  893. 


348  The  Law  of  Automobiles. 

quirements  of  a  statute,  if  such  failure  results  in  injury  to 
one  for  whose  protection  it  was  enacted,  may  cause  liability 
irrespective  of  w^hether  such  conduct  would  constitute  negli- 
gence in  the  absence  of  the  statute.^^ 

Sec.  298.  Effect  of  violation  of  statute  or  municipal  ordinance 
—  violation  as  contributory  negligence. 

The  rule  as  to  the  effect  of  the  violation  of  a  statutory  or 
municipal  regulation  does  not  work  solely  to  the  advantage 
of  the  plaintiff  in  an  action.  When  the  violation  is  committed 
by  the  plaintiff,  the  defending  party  is  entitled  to  the  benefits 
thereof  as  a  defense  to  the  plaintiff's  claim.^^  In  those  juris- 
dictions where  the  violation  is  considered  negligence  per  se, 
if  it  is  a  contributing  cause  to  the  injury,  the  plaintiff  may  be 
barred  from  recovering  damages,  although  the  negligence  of 
the  defendant  is  clearly  shown.^^  Thus,  in  the  case  of  an  in- 
jury to  an  automobile  or  the  driver  thereof,  from  a  collision 
with  a  locomotive,  a  street  car,  or  other  vehicle,  the  fact  that 
the  automobile  was  exceeding  the  limit  of  speed  fixed  by  stat- 
ute or  ordinance,  may  bar  an  action  for  the  injuries.^*    So, 

21.  Benson  v.  Larson,  133  Minn.  346,  413,  ^  S.  E.  517;  Wood  Transfer  Co. 
158   N.   W.  426.  V.    Shelton,    180   Ind.    273,    101    N,   E. 

22.  "We  are  not  cited  to  and  have  718;  Hinton  v.  Southern  Ey.  Co.,  172 
found  no  Alabama  case  where  the  vio-  N.  C.  587,  90  S.  E.  756;  Lloyd  v.  Cal- 
lation  of  a  statute  or  ordinance  by  the  houn,  82  Wash.  35,  143  Pac.  458 ; 
injured  party  was  pleaded  by  the  de-  Yahnke  v.  Lange,  168  Wis.  512,  170 
fendant  by  way  of  contributory  negli-  N.  W.  722;  Kramer  v.  Chicago,  etc.. 
gence;  yet  we  see  no  reason  why  such  Ry.  Co.  (Wis.),  177  N.  W.  874;  Foster 
a  violation,  if  proximately  causing  the  v.  Bauer  (Wis.),  180  N.  W.  817.  See 
injury  complained  of,  cannot  be  set  up  also  Martin  v.  Herzog,  176  N.  Y.  App. 
as  a  defense  to  the  simple  negligence  Div.  614,  163  N.  Y.  Suppl.  1S9,  affirmed. 
charged  in  the  complaint.  ...  The  228  N.  Y.  164,  126  N.  E.  814. 
statute  or  ordinance  violated,  however,  24.  Columbus  R.  Co.  v.  Waller,  12 
must  have  been  enacted  for  the  benefit  Ga.  App.  674,  78  S.  E.  52;  Central  of 
of  the  party  who  seeks  to  invoke  its  Georgia  Ry.  Co.  v.  Larsen,  19  Ga.  App. 
violation  as  distinguished  from  the  413,  91  S.  E.  517;  Newton  v.  Mc- 
public  generally  or  a  class  to  whom  the  Sweeney,  225  Mass.  402,  114  N.  E. 
ordinance  necessarily  applies.  Watts  667;  Barton  v.  Faeth,  193  Mo.  App. 
V.  Montgomery  Tr.  Co.,  175  Ala.  102,  402,  186  S.  W.  52;  Keevil  v.  Pons- 
57  So.  471.  ford  (Tex.  Civ.  App.),  173  S.  W.  518. 

23.  Watts  v.  Montgomery  Tr.  Co.,  "It  is  negligence  per  se  for  an  auto- 
175  Ala.  102,  57  So.  471;  Central  of  ist  to  run  Ms  car  in  excess  of  ordi- 
Georgia  Ry.  Co.  v.  Larsen,  19  Ga.  App.      nance  speed,  and  if  such  negligence  i'^ 


Negligence  in  Operation  of  Motor  Vehicles.       349 

too,  a  violation  of  the  law  of  the  road  may  have  the  effect  of 
establishing  priftia  facie  the  contributory  negligence  of  the 
violator.^  In  those  jurisdictions,  where  the  violation  is  con- 
sidered, not  as  negligence  per  se,  but  rather  as  mere  evidence 
of  negligence,  a  question  for  the  jury  may  be  presented  though 
it  is  shown  that  the  injured  person  has  violated  a  positive 
regulation.26  ^  violation  will  not  bar  the  remedy  of  an  in- 
jured person,  unless  the  violation  is  a  contributing  cause  of 
the  injury." 

Sec.  299.  Effect  of  violation  of  statute  or  municipal  ordinance 
—  who  may  invoke  violation. 
In  case  of  the  violation  of  a  statute  or  municipal  ordinance 
by  an  automobilist,  only  those  classes  of  persons  for  whose 
benefit  the  regulation  was  enacted  can  plead  the  violation  and 
secure  the  advantage  afforded  by  the  general  rule.^^    Thus 
when  the  owTier  of  an  automobile  brings  an  action  against  a 
street  railway  company  for  damages  to  his  machine  sustained 
in  a  collision  with  a  street  car,  the  street  railway  company 
cannot  succeed  on  the  theory  that  the  plaintiff  violated  an 
ordinance  requiring  drivers  of  vehicles  to  keep  on  the  right- 
hand  side  of  the  street,  for  the  regulation  was  not  intended 
for  the  protection  of  street  railway  companies.^^    And  a  stat- 

a   contributing  cause  of  the  infliction  44;    Lawrence   v.   Channahon,    157    111. 

of  an  injury  to  him  or  his  car,  he  will  App.   560 ;    Staack   v.   General   Baking 

not    be    allowed    to    recover    damages  Co.    (Mo.),  223  S.  W.   89;   Hinton  v. 

from    another    whose    negligence    also  Southern  Ry.  Co.,   172  N.  C.  587,  90 

contributed  to  the  injury."    Barton  v.  S.   E.  756;    Keevil  v.   Ponsford    (Tex. 

Faeth,    193   Mo.  App.   402,    186   S.  W.  Civ.  App.),  173  S.  W.   518. 
52.    See  sections  407,  572,  603.  28.  King  v.  San  Diego  Elec.  Ry.  Co.. 

25.  Wood  Transfer  Co.  v.  Shelton,  176  Cal.  266,  168  Pac.  131;  Johnston 
180  Ind.  273,  101  N.  E.  718;  Brickell  v.  Cornelius,  200  Mich.  209,  166  N.  W. 
v.  Williams,  180  Mo.  App.  572,  167  S.  983,  L.  R.  A.  1918D  880;  Schell  v.  Du- 
W.  607.  And  see  sections  367,  403,  Bois,  94  Ohio,  93,  113  N.  E.  664;  Car- 
510.  ter  V.  Redmond,  142  Tenn.  258,  218  S. 

26.  Day  v.  Duluth  St.  R.  Co.,  121  W.  217;  Bogdan  v.  Pappas,  95  Wash. 
Minn.    445,    141    N.    W.    795;    McCar-  579,   164   Pac.  208. 

ragher  v.  Proal,  114  N.  Y.  App.  Div.  29.  Watts    v.    Montgomery    Tr.    Co.. 

47,  100  N.  Y.  Suppl.  208.  175   Ala.    102,   57   So.  471,  wherein  it 

27.  House  v.  Fry,  30  Cal.  App.  157,  was  said:  "A  municipality  would  no 
157  Pac.  500;  Brown  v.  City  of  Wil-  doubt  have  the  right  under  its  police 
mington,  4  Boyce   (Del.)    492.  90  Atl,  power,  -to  regulate  the  travel  upon  it« 


350 


The  L>w  of  Automobiles. 


ute  forhidding-  the  use  of  a  motor  vehicle  without  the  consent 
of  the  owner  is  not  intended  for  the  protection  of  pedestrians 
along  the  highway  and  cannot  form  the  basis  for  an  action 
for  their  injuries.^'*  Likewise,  a  statute  requiring  an  automo- 
bile driver  to  stop  before  crossing  a  railroad  track  is  not  im- 
portant in  an  action  by  a  pedestrian  against  the  driver.^^  But 
a  statute  prescribing  the  speed  of  motor  vehicles  may  be  con- 
sidered as  enacted  for  the  benefit  of  passengers  in  a  jitney 
injured  by  the  unlawful  speed  of  such  machine,  as  well  as  for 
pedestrians  and  other  travelers  outside  of  the  jitney.^^  And 
a  regulation  regulating  the  conduct  of  drivers  when  passing  a 
street  car  standing  in  the  street,  may  be  deemed  for  the  pro- 
tection of  pedestrians  crossing  the  street  as  well  as  street  rail- 
way passengers.^^  So,  too,  an  ordinance  forbidding  the  ob- 
struction of  fire  apparatus  by  street  cars  may  be  invoked  by  a 
pedestrian  who  is  struck  by  a  fire  automobile  diverted  from  its 
course  by  a  street  car.^*     But  an  ordinance  forbidding  the 


streets  so  as  to  prevent  congestion 
and  collision,  and  could  thereby  pro- 
tect all  persons  using  the  streets,  in- 
cluding street  cars;  but  it  is  manifest 
that  the  ordinance  in  question  was 
not  intended  for  the  protection  of 
street  railways,  as  the  wording  and 
meaning  of  same  does  not  exclude  ve- 
hicles from  their  tracks.  The  ordi- 
nance does  not  require  the  drivers  of 
vehicles  to  keep  off  of  the  street  rail- 
way tracks,  but  only  requires  them  to 
keep  on  the  side  of  the  street  to  the 
right;  that  is,  they  must  remain  at  the 
right  of  the  center  of  the  street.  If 
they  do  this,  they  do  not  violate  the 
ordinance,  notwithstanding  they  may 
be  upon  the  track  of  a  street  care  line. 
It  may  be  that  most  of  the  street  car 
tracks  are  laid  in  the  center  of  the 
street,  and  an  ordinance  requiring  vehi- 
cles to  stay  to  the  right  of  the  track, 
if  there  is  space  enough  for  them  to 
do  so,  would  no  doubt  be  a  reasonable 
one;  but  such  is  not  the  present  ordi- 


nance, as  it  only  requires  the  vehicle 
to  be  to  the  right  of  the  center  of  the 
track.  Again,  there  may  be  street  car 
tracks  laid  within  either  side  of  the 
streets,  and,  if  a  driver  kept  to  the 
right  of  the  center  of  the  street,  he 
would  not  violate  the  ordinance,  al- 
though he  may  drive  upon  or  along  the 
street  car  track.  It  is  plain  that  the 
ordinance  in  question  was  not  intended 
to  keep  vehicles  off  of  street  car  tracks 
or  for  the  protection  of  street  car  com- 
panies." 

3Q.  Johnston  v.  Cornelius,  200  Mich. 
209,  166  N.  W.  983,  L.  K.  A.  1918D 
880. 

31.  Carter  v.  Redmond,  142  Tenn. 
258,  218  S.  W.  217. 

32.  Singer  v.  Martin,  96  Wash.  231, 
164   Pac.    1105. 

33.  Kolankiewiz  v.  Burke,  91  N.  J. 
L.  567,  103  Atl.  249. 

34.  King  v.  San  Diego  Elec.  Ry.  Co., 
176  Cal.  266,   168  Pac.  131. 


Negligence  in  Operation  of  Motor  Vehicles.       351 


parking  of  cars  ^vithiIl  a  certain  distance  of  a  hydrant  is  not 
for  the  benefit  of  the  traveling  public.^ 

Sec.  300.  Effect  of  violation  of  statute  or  municipal  ordinance 
—  proximate  cause  of  injury. 
In  order  that  an  injured  plaintiff  shall  reap  the  advantages 
arising  from  the  fact  that  the  defendant  has  violated  a  statute 
or  municipal  ordinance,  it  is  essential  that  the  injury  of  which 
the  plaintiff  complains  is  one  which  proximately  follows  from 
violation  of  the  regulation.^^    On  the  other  hand,  if  the  viola- 


35.  Densoii  v.  McDonald  Bros.,  144 
Minn.  252,  175  N.  W.   108. 

36.  Alabama.— Taxicah  &  Touring 
Car  Co.  V.  Cabiness,  9  Ala.  App.  549, 
63  So.  774. 

California.— Tenn   v.   Clark,    11    Cal. 
App.  79,   104  Pac.  632;  George  v.  Mc- 
Manus,  27  Cal.  App.  414,  150  Pac.  73  ; 
Weaver   v.    Carter,   28   Cal.   App.    241, 
152  Pac.   323;    House  v.   Fry,   30  Cal. 
App.    157,    157    Pae.    500;    Henderson 
V.    Northam,    176    Cal.    493,    168    Pac. 
1044;     Lawrence     v.     Goodwill     (Cal. 
App.),     186     Pac.     781;     Robinson     v. 
demons    (Cal.    App.),    190    Pac.    203. 
"Counsel    for    the    defendant    are   un- 
doubtedly right  in  the  contention  that, 
where,  as  is  the  theory  of  the  plaintiff 
here,  a  tort  is  the  direct  result  of  the 
violation    of    some    statutory   or    other 
law,  and  the  party  suing  for  damages 
relies  upon  the  infraction  of  such  law 
for    a   recovery,    it   must    be   made    to 
appear,  and  the  court  must  so  instruct 
the    jury,    that,    before    a   recovery   in 
such  case  is  sustainable,  the  act  of  the 
defendant   in    violating    such    law  was 
the   proximate   or   direct  cause   of   the 
tort  or  injury."     Weaver  v.  Carter,  28 
Cal.  App.  241,  152  Pac.  323. 

Connecticut.— AWen  v.  Pearson.  89 
Conn.  401,  94  Atl.  277  ;  Coffin  v.  Las- 
kau,  89  Conn.  325,  94  Atl.  370 ;  Feehan 
V.  Slater,  89  Conn.  697,  96  Atl.  159; 
Radwick  v.  Goldstein,  90  Conn.  701,  98 
Atl.  583. 


Delaware. — Grier  v.  Samuel,  4 
Boyce,  106,  86  Atl.  209;  Lemmon  v. 
Broadwater,  30  Del.  (7  Boyce)  472, 
108  Atl.  273;  Wollaston  v.  Stiltz,  114 
Atl.  198. 

Illinois. — Graham  v.  Hagmann,  270 
111.  252,  110  N.  E.  337,  affirming  189 
111.  App.  631 ;  Kessler  v.  Washburn, 
157  111.  App.  532;  Lawrence  v.  Chan- 
nahon,  157  111.  App.  560;  Natham  v. 
Cleveland,  etc.,  R.  Co.,  164  111.  App. 
559;  Moyer  v.  Shaw  Livery  Co.,  205 
111.  App.  273. 

Indiana. — Mayer  v.  Melleter,  65  Ind. 
App.  54,  114  N.  E.  241. 

Iowa. — Herdman  v.  Zwart,  167  Iowa, 
500,   149   N.  W^   631. 

KeniucTcy. — Moore  v.  Hart,  171  Ky. 
725,   188  S.  W.   861. 

Massachusetts. — Belleveau  v.  S.  C. 
Lowe  Supply  Co.,  200  Mass.  237,  86 
N.  E.  301. 

Michigan.— VeoTple  v.  Barnes,  182 
Mich.  179,  148  T.  W.  400;  Johnston  v. 
Cornelius,  200  Mich.  209.  166  N.  W. 
983. 

Minnesota.— Benson  v.  McDonald 
Bros.,  144  Minn.  252,  175  N.  W.  108. 

^/moMrt.— Ropor  v.  Grcenspon  (Mo. 
App.).  192  S.  W.  149.  "Whore  the 
negligence  charged  consists  of  the  al- 
leged violation  of  a  municipal  ordi- 
nance it  is  not  sufficient  to  merely  show 
the  violation  of  the  ordinance  and 
plaintiff's  injury.  The  fact  of  the  vio- 
lation of  the  ordinance  alone  rai>.^''  no 


352  The  Law  of  Automobiles. 

tion  is  the  proximate  cause  of  the  injury  sustained  by  the 
plaintiff,  and  if  the  plaintiff  has  not  been  guilty  of  contribu- 
tory negligence,"  the  defendant  is  liable.^  Whether  the  in- 
jury in  question  is  a  proximate  result  of  the  violation,  is  fre- 
quently a  jury  question.^^  One  excellent  illustration  of  the 
rule  is  found  in  cases  where  the  owner  of  an  automobile  has 
failed  to  have  the  machine  registered  and  licensed  according 
to  the  statute  on  the  subject;  but  it  is  generally  (not  univer- 
sally) held  that  such  failure  is  not  sufficient  ground  to  charge 
the  owner  with  responsibility  for  injuries  sustained  by  an- 
other traveler  by  reason  of  a  collision  with  such  automobile ; 
nor  does  it  forbid  the  owner  from  recovering  for  injuries  to 
the  machine  occasioned  through  the  neglect  of  another  trav- 
eler/* The  fact  the  driver  is  under  the  lawful  age  of  persons 
allowed  to  drive  automobiles,  will  not  bar  an  action  by  him, 
unless  his  age  contributed  to  the  injury.'*^  Other  illustrations 
will  be  found  in  connection  with  the  violation  of  various  stat- 
utes relating  to  the  use  of  highways  by  automobilists. 

presumption  that  the  injury  complained  Texas. — Keevil     v.     Ponsford      ( Oiv. 

of  was  thereby  caused.    There  must  be  App.),    173    S.    W.    518;    Schoellkopf 

evidence  tending  to  reasonably  estab-  Saddlery  Co.  v.  Crawley    (Civ.  App.), 

lish  a  causal  connection  between  such  203  S.  W.  1172;  Texas,  etc.  Co.  v.  Har- 

ordinance  violation  and  the  injuries  for  rington   (Civ.  App.),  209  S.  W.  685 

which  plaintiff  sues.     In  order  to  sup-  Washington. — Johnson    v.    Heitman, 

port    a    recovery    there    must   be    sub-  88  Wash.  595,  153  Pac.  331. 

stantial    evidence   tending   to  make   it  37.  Section  301. 

appear  that  the  injury  would  not  have  38.  Weaver  v.  Carter,   28  Cal.  App. 

occurred  had  the  ordinance  in  question  241,  152  Pac.  323;  Carter  v.  Caldwell, 

been  complied  with."    Roper  v.  Green-  183  Ind.  434,  109  N.  E.  355;  Schell  v. 

spon  (Mo.  App.),  192  S.  W.  149.  DuBois,  94  Ohio,  93,   113  N.  E.  664; 

New  Torfc.— Linneball  v.  Levy  Dairy  Whaley  v.  Ostendorff,  90  S.  Car.  281, 

Co.,  173  N.  Y.  App.  Div.  861,  160  N.  Y.  73  S.  E.  186 ;  Johnson  v.  Heitman,  88 

Suppl.  114.  Wash.   595,   153  Pac.   331;   Benesch  v. 

North  Carolina.— T&ylor  v.  Stewart,  Pagel  (Wis.),  177  N.  W.  860. 

172  N.  Car.  203,  90  S.  E.  134;  Hinton  39.  Molitor  v.   Blackwell  Motor  Co. 

V.  Southern  Ry.  Co.,  172  N.  Car.  587,  (Wash.),  191  Pac.  1103. 

90  S.  E.  756;   Taylor  v.  Stewart,   175  40.  Section  126, 

N.  Car.  199,  95  S.  E.  167.  41.  Benesch  v.  Pagel  (Wis.),  177  N. 

South    Carolina. — ^Whaley    v.    Osten-  W.  860. 
dorff,  90  S.  Car.  281,  73  S.  E.  186. 


Negligknck  tx  Operation  of  Motor  Vehicles.       353 

Sec.  301.  Effect  of  violation  of  statute  or  municipal  ordinance 

—  contributory    negligence    of    injured    as    a 
defense. 

The  fact  that  the  defendant  lias  violated  a  statute  or  muni- 
cipal ordinance  regulating  his  conduct  doe.s  not  generally  im- 
pose liability  on  him  for  the  plaintiff's  injuries,  unless  there 
is  an  absence  of  contributory  negligence  on  the  part  of  the 
plaintiff.  That  is  to  say,  contributory  negligence  is  a  defense 
to  an  action  based  on  the  violation  of  a  statute  or  ordinance.*^ 
In  some  jurisdictions,  contributory  negligence  of  an  injured 
person  is  not  a  defense,  where  "gross"  negligence  on  the  part 
of  the  defendant  is  shown ;  but  it  is  held  that  the  mere  viola- 
tion of  a  speed  statute  is  not  "gross"  negligence  within  the 
meaning  of  this  rule.^^ 

Sec.  302.  Effect  of  violation  of  statute  or  municipal  ordinance 

—  necessity  of  pleading  ordinance. 

In  those  jurisdictions  where  the  violation  of  an  ordinance 
is  merely  evidence  of  negligence,  it  is  held  that  it  may  be  re- 
ceived in  evidence  without  being  specially  set  out  in  the  plead- 
ings, for  it  is  the  general  rule  that  matters  of  evidence  need 
not,  and  in  fact  should  not,  be  pleaded.''*     But,  when  it  is 

42.  Davis  v.  Breuner  Co.,  167  Cal.  alleged  as  well  as  proved.  But  the  ac- 
683,  140  Pac.  586;  Fenn  v.  Clark,  11  tion  at  bar  is  not  to  enforce  an  ordi- 
Cal.  App.  79,  104  Pac.  632;  Kessler  v.  nance  or  to  recover  a  penalty  for  the 
Washburn,  157  111.  App.  53'2;  Fisher  v.  violation  thereof.  It  is  an  action  in 
O'Brien,  99  Kans.  621,  162  Pac.  317;  negligence  for  reckless  and  careless 
Hillstrom  v.  Mannheimer  Bros.  driving  in  the  public  streets.  The  alle- 
(Minn.),  178  N.  W.  881;  Ebling  v.  gation  in  the  complaint  is  general  and 
Nielson  (Wash.),  186  Pac.  887;  Zim-  thereunder  any  evidence  tending  to 
merman  v.  Mednikoff,  165  Wis.  333.  show  such  negligence  and  careless  driv- 
162  N.  W.  349.  iog    'was    admissible.      The    ordinances 

43.  Ludke  v.  Buick,  160  Wis.  440.  and  the  breach  thereof  were  oflFered 
152  N.  W.  190,  L.  R.  A.  1915D  968 :  and  received  not  as  conclusive  evidence 
Biggies  V.  Priest,  163  Wis.  199,  157  of  negligence  but  as  some  evidence 
N.  W.  755.  which   the   jury   might   take   into   con- 

44.  Meyers  v.  Barrett,  167  N.  Y.  sideration.  Upon  principle  it  would 
App.  Div.  170,  152  N.  Y.  Supp.  921,  seem  that  as  mere  evidence  it  would 
wherein  the  court  said:  "The  general  have  been  improper  to  have  pleaded 
rule  is  that  when  observance  of  an  the  ordinances  because  ultimate  facts 
ordinance  is  a  condition  precedent  to  a  and  not  evidence  should  be  set  forth 
right  of  action  or  where  an  action  is  in  a  complaint." 

based    upon    an   ordinance   it    must    be 

23 


354 


The  Law  or  At'tomobilks. 


sought  to  charge  a  party  with  negligence  per  se  because  he 
has  violated  a  municipal  regulation,  it  may  he  said  with  con- 
siderable force  that  the  regulation  is  a  matter  of  fact  which 
should  be  pleaded  by  the  party  relying  thereon.  This  view  is 
adopted  in  some  jurisdictions/^  It  would  seem  to  follow  from 
such  doctrine,  that,  if  the  ordinance  was  not  pleaded,  it  could 
be  shown,  if  at  all,  only  as  evidence  of  negligence.  But  the 
courts  are  not  in  agreement  on  this  question,  and  it  is  some- 
times held  that  negligence  per  se  may  be  based  on  a  violation 
of  the  ordinance,  though  it  is  not  pleaded.*^    Also,  in  a  State 


45.  Pleading  manner  of  violation. — 

An  allegation  that  a  person  was  vio- 
lating an  ordinance,  without  alleging 
the  particular  respect  in  which  he  was 
violating  it,  is  not  ordinarily  sufficient. 
Brickell  v.  Williams,  180  Mo.  App.  573, 
167  S.  W.  607. 

46.  Scragg  v.  Sallee,  24  Cal.  App. 
133,  140  Pac.  706,  wherein  it  was  said: 
"We  have  not  overlooked  the  cases 
arising   in   other   jurisdictions 

and  to  which  attention  has  been  di- 
rected by  counsel  for  the  defendant, 
wherein  it  is  held  that,  to  constitute 
the  violation  of  a  municipal  speed  or- 
dinance negligence  as  a  matter  of  law, 
such  ordinance  must  be  pleaded,  and 
that,  where  in  such  case  it  is  not 
pleaded,  proof  of  the  existence  and  of 
the  violation  of  the  ordinance  amounts 
to  no  more  than  evidence  of  negligence, 
to  be  considered  with  other  evidence  re- 
ceived in  the  case  upon  that  subject. 
The  theory  of  that  proposition  is.  ob- 
viously, that  the  plaintiff,  not  having 
pleaded  the  ordinance,  does  not  rely 
upon  it  as  the  foundation  of  his  right 
of  action.  The  rule  as  so  enunciated 
and  applied,  so  far  as  we  are  advised, 
has  never  been  recognized  or  applied 
in  California.  In  practical  effect  the 
rule  as  thus  enunciated  would  leave  to 
the  determination  of  the  plaintiff,  pri- 
marily, the  question  whether  the  viola- 
tion of  such  an  ordinance  is  negligence 
per  se  or  only  evidence  of  negligence. 


Manifestly,  the  violation  of  a  muni- 
cipal ordinance  fixing  the  limit  beyond 
which  vehicles  may  not  be  driven  over 
the  streets  of  a  city  is,  no  less  than 
the  violation  of  a  general  act  of  the 
legislature  upon  the  same  subject,  neg- 
ligence as  a  matter  of  law.  The  only 
distinction  which  can  be  discerned  be- 
tween an  ordinance  and  a  general  stat- 
ute of  the  State  dealing  with  precisely 
the  same  subject,  so  far  as  is  concerned 
the  effect  of  the  violation  thereof,  lies 
in  the  proposition  that  in  the  one  case, 
as  a  general  rule,  the  courts  must  ac- 
quire knowledge  of  the  existence  of  the 
local  regulation  by  means  of  affirma- 
tive proof  thereof,  while  in  the  other 
the  courts  presumptively  know  and 
must  take  ■  judicial  cognizance  of  its 
existence.  But  non  constat  that  the 
violation  of  the  ordinance  does  not  con- 
stitute negligence  per  se  merely  be- 
cause the  court  in  a  case  in  which  the 
question  could  arise  has  not  acquired 
ki  owledge  in  a  competent  way  of  the 
existence  of  the  ordinance.  The  result 
of  the  want  of  such  knowledge  by  the 
court  would  only  be  to  deprive  it  of 
the  authority  or  right  to  announce  to 
the  jury  that  such  violation  is  negli- 
gence as  a  matter  of  law.  The  rule 
adopted  and  followed  in  this  State  ap- 
pears to  be  the  more  logical.  It  does 
not  stop  to  make  inquiry  as  to  the  par- 
ticular nature  of  the  negligence  of 
which  the   defendant  has  been   guilty, 


Negligence  ix  Operation  of  Motor  Vehicles.       355 


where  the  view  is  taken  that  the  violation  of  the  ordinance  is 
merely  evidoiicc  of  negligence,  it  has  ])een  held  that  the  ordi- 
nance nuLst  ))('  pleaded  to  he  available.''" 

Sec.  303.  Speed  of  machine  —  in  general. 

In  the  following  paragraphs  are  discussed  the  general 
propositions  ]-elating  to  the  speed  of  motor  vehicles  on  the 
public  highways.  In  other  chapters  are  treated  such  ques- 
tions, as  the  power  of  States  and  municipalities  to  adopt 
speed  regulations;^^  evidence  of  their  speed,^^  criminal  prose- 
cution for  violations  of  the  prescribed  limits.^o  and  more  in 
detail  as  to  injuries  received  by  different  classes  of  travelers 
and  under  various  circumstances."^  The  primary  obligation 
of  the  driver  of  an  automobile,  so  far  as  its  speed  is  concerned, 
is  to  obey  statutory  and  numicipal  regulations  applicable 
thereto,  and  in  any  event  to  drive  not  faster  than  a  reason- 
able rate  of  speed  considering  nature  of  the  vehicle  and  the 
surrounding  circumstances.  The  law  requires  the  automo- 
bilist  to  have  due  regard  for  the  rights  of  other  travelers, 


and  which  has  directly  caused  the  dam- 
age complained  of,  but  authorizes  the 
plaintiff,  where  he  relies  for  a  recovery 
upon  an  act  constituting  negli<vonce  as 
a  matter  of  law,  to  prove  the  act  under 
his  general  allegations  of  negligence. 
In  other  words,  if  the  negligence  which 
was  the  proximate  cause  of  the  injuries 
complained  of  consisted  of  the  viola- 
tion of  a  municipal  ordinance  prescrib- 
iijg  a  maximum  limit  at  which  vehicles 
may  be  driven  upon  the  streets  of  a 
city,  then  the  plaintiff  must  first  in- 
vest the  court  with  knowledge  of  the 
existence  of  such  ordinance,  which  he 
may  do  witliout  having  specially 
pleaded  it,  and  then  he  may  make 
proof  of  its  violation  by  the  defend- 
ant in  support  of  the  genera!  allega- 
tions of  negligence  contained  in  his 
complaint."  See  also  Santina  v.  Tom- 
lirson  (Cal.  App.).  171  Par.  437; 
Opitz  v.   Schenck    (Cal.).    174   Pac.   40: 


Yahnke  v.  Lange,  168  Wis.  r,]2.  170  N". 
W.  722. 

Violation  admissible  under  general 
denial. — In  an  action  for  damages  on 
account  of  a  collision  of  the  defend- 
ant's taxicab  with  tlie  plaintiff's  car- 
riage, it  was  held  tliat  evidence  of  a 
violation  of  a  city  ordinance  relative 
to  the  driver  on  streets  was  admissi- 
ble in  behalf  of  the  defendant  under 
his  general  denial,  for.  though  there 
was  no  pleading  attempting  to  set  up 
the  ordinance,  yet  evidence  thereof 
was  admissible  on  the  question  of  con- 
tributory  nogligrnce.  Wood  Transfer 
Co.  v.  Shelton.  180  Tnd.  213.  101  N".  E. 
718. 

47.  C.renadicr  v.    Detroit   Tnited  T?v  , 
-01    .Mich.    .367,    171    X.    W.    .^62. 

48.  Cliaptors  V  and  VI. 

49.  Sections   020-93.3. 

50.  Sections   728-743. 

51.  Sections    370.    441-44.>.    .'^01.    .528, 
.'■)72.   603.   715. 


356  The  Law  of  Automobiles. 

and  though  it  may  be  convenient  and  even  fascinating  to  reach 
one's  destination  at  the  earliest  possible  moment,  yet  the 
safety  of  other  travelers  must  not  be  sacrificed.^^ 

Sec.  304.  Speed  of  machine  —  proximate  cause. 

It  is  a  fundamental  rule  of  the  law  of  negligence  that  a 
wrongdoer  is  liable  only  for  those  injuries  which  proximately 
result  from  his  wrongful  acts.^^  Thus,  the  running  of  a  motor 
vehicle  at  an  excessive  speed  renders  the  wrongdoer  liable 
only  for  those  injuries  which  proximately  result  from  the  un 
lawful  speed.^*  On  the  other  hand,  as  a  general  proposition, 
if  the  injured  person  has  not  been  guilty  of  negligence  con- 
tributing to  the  accident,  one  running  at  an  unreasonable 
speed  is  liable  for  the  injuries  which  proximately  result  there- 
from.^^ These  general  rules  apply  when  the  excessive  speed 
is  in  violation  of  a  statute  or  municipal  ordinance.^^  And  the 
fact  that  the  driver  of  a  car  was  exceeding  the  speed  limit  at 
the  time  of  an  injury  at  a  railroad  crossing  or  a  collision  with 
another  vehicle,  will  not  bar  him  from  recovering  for  his  in- 
juries unless  the  excessive  speed  was  a  contributing  cause  of 
the  injury.^^    It  is  not  always  necessary  to  constitute  a  link 

52.  Gurney  v.   Piel,   105  Me.   501,   74       luilie  v.  Stephens,   193  Pac.  684. 

Atl.  1131.  Wisconsin. — Poster  v.  Bauer,  180  N. 

53.  Sections  289-291.  \V.   817. 

54.  Georgia. — Jones   v.  Tanner    (Ga.  •        55.  Weaver  v.   Carter,  28   Oal.   App. 
App.),  105  S.  E.  705.  241,    152   Pac.   323;    Newman   v.   Over- 

Illinois. — Hartje  v.  Moxley,  235   111.  holtzer    (Cal.),    190    Pac.    175;    Walt- 

164,   85   N.   E.  216;    Kessler  v.   Wash-  eriek  v.  Hamilton,  179  Iowa,  607,  161 

burn,  157  111.  App.  532.  N.  W.  684;  Fisher  v.  O'Brien,  99  Kans. 

Indiana. — Carter     v.    Caldwell,     183  621,  162  Pac.  317;    Solomon  v.  Brauf- 

Ind.  434,  109  N.  E.  355.  man,   175  K  Y.   Suppl.   835;  Schell  v. 

Kansas. —   Fisher      v.      O'Brien,     99  DuBois.  94  Ohio,  93,  113  N.  E.  664. 

Kans.  621,  162  Pac.  317;  Barshfield  v.  56.  Columbus   R.    Co.   v.    Waller,    12 

Vueklich,  197  Pac.   205.  Ga.  App.  674,  78   S.  E.   52;   Fisher  v. 

Michigan. — Weber     v.     Beeson,     197  O'Brien,  99  Kans.   621,   162  Pac.   317; 

Mich.  607,  164  N.  W.  255.  Whaley  v.  Ostendorff,  90  S.  Car.   281, 

Montana.— J^wh  v.   Steel,  52   Mont.  73  S.  E.  186;  Schoelkopf  Saddlery  Go. 

300,  157  Pac.  575.  v.  Crawley  (Tex.  Civ.  App.),  203  S.  W. 

South    Carolina. — Whaley    v.    Osten-  1172;  Barton  v.  Van  Gesen,  91  Wash, 

dorff,  90  S.  Car.  281,  73  S.  E.  186.  94.   157  Pac.  215. 

Washington. — Hartley  v.  Lasater,  96  57.  Robinson       v.       Clemens       (Cal. 

Wash.    407,    165    Pac.    106;    Singer    v.  App.),  190  Pac.  203;  Berges  v.  Guthrie 

Martin,  96  Wash.  231,  164  Pac.  1105;  (Cal.    App.),    197    Pac.    356;    Cross   v. 


Negligence  in  Operation  of  Motor  Vehicles. 


,>.)  < 


between  the  excessive  speed  and  the  injury  that  the  unlawful 
speed  be  made  at  the  particular  time  of  the  collision.  Thus, 
where  the  driver  of  a  machine  raced  a  street  car  for  a  con- 
siderable distance  and  then  tried  to  pass  in  front  thereof,  it 
was  held  that  the  unlawful  speed  contributed  to  the  injury, 
although  at  the  time  of  the  collision  the  driver  had  slowed 
dow^n  to  a  lawful  speed  in  order  to  make  the  turn.^  The  fact 
that  a  motorcyclist  violates  a  speed  regulation  does  not  create 
a  liability  in  favor  of  the  owner  of  horses  in  an  adjoining  field 
which  become  frightened,  for  such  a  regulation  is  intended  for 
the  protection  only  of  other  travelers.'^ 


Sec.  305.  Speed  of  machine  —  unreasonable  speed  prohibited. 

The  general  rule  relating  to  the  speed  with  which  a  motor 
vehicle  may  be  operated  along  the  public  highways,  is  that, 
in  the  absence  of  statute  prescribing  a  slower  rate,  it  shall 
not  exceed  a  reasonable  rate,  considering  the  nature  of  the 
machine  and  all   of  the  surrounding  circumstances.^     The 


Kosencranz  (Kans.),  195  Pac.  857; 
Shepard  v.  Norfolk  &  S.  R.  Co.,  169 
N.  Oar.  239,  84  S.  E.  277;  Hinton  v. 
Southern  Ry.  Co.,  172  N.  Car.  587,  90 
S.  E.  756;  Keevil  v.  Poneford  (Tex. 
Civ.  App.),  173  S.  W.  518. 

58.  Fair  v.  Union  Tract.  Co.,  102 
Kans.  611,   171  Pac.  649. 

59.  Walkor  v.  Faelbor.  102  Kans. 
646.  171   Pac.  655. 

60.  United  States. —  New  York 
Transp.  Co.  v.  Garsidc,  157  Fed.  521. 
85  C.  C.  A.  385. 

Oalifomia. — Cook  v.  Miller,  175  Cal. 
497,  166  Pac.  316;  Zarzana  v.  Neve 
Drug  Co.,  180  C-al.  32,  179  Pac.  203. 

Connecticut. — Irwin  v.  .Judge,  81 
Conn.  492.  71  Atl.  572;  Lynch  v. 
Shearer,  83  Conn.  73.  75  Atl.  88;  Rad- 
v'jck  V.  GoldBt^in,  90  Conn.  701,  98 
Atl.  583 

Delaxodre. — Cecchi  v.  Lindsay,  1 
Boyce  (Del.)  185,  75  Atl.  376,  reverecd 
on  other  grounds,  80  Atl.  523;  Grier 
V.  Samuel,  4  Boyce  (Del.)  106,  86  Atl. 
209;    Brown   v.   City   of  Wilmington,  4 


Boyce    (Del.)    492.  90  Atl.  44. 

Georgia. — Strickland  v.  Whatley.  142 
Ga.  802,  83  S.  E.  856;  Central  of  Ga. 
Ry.  Co.  V.  Larsen.  19  Ga.  App.  413.  91 
S    E.  517. 

Illinois. — Hartje  v.  Moxley.  235  IlL 
164,  85  N.  E.  216:  Kessler  v.  Wa«h- 
lurn,  157  III.  App.  532;  People  r. 
Lloyd.  178  111.  App.  66:  Hut-son  t. 
riiitt.   194  111.  App.  29. 

Indiana. — Brinknian  v.  Patliolkp,  41 
Ind  App.  662,  84  N.  E.  762:  East  T, 
.\raburn.  47  Ind.  App.  530,  04  N.  E. 
895. 

loioa. — Delfs  v.  Dun&hee,  143  Fowa, 
381,  122  N.  VV.  236;  Hanen  v.  Le- 
nander,  168  Iowa,  569,  160  N.  W.  18; 
Lemke  v.  Ady,  159  N.  W.  1011  Sr© 
also.  Needy  v.  Littlejohn.  137  Towa, 
704,  115  N.  W.  483. 

Kansas. — Arrington  v.  Horner.  88 
Kans.   817,   129   Pac.    1159. 

Kentucky. — Wade  v.  Brents,  'fil  Ky. 
607,  171  S.  W.  188;  Wcidner  v.  Otter, 
171  Ky.  167.  188  S.  W.  335;  Moore  T. 
Hart,    171    Ky.    725,    188    8.    W     861; 


358 


Thk   Law  of  Ai'Tomobilks. 


speed  of  the  inacliiiie,  while  usually  of  great  iiiiportance,  is 
not  the  sole  criterion  of  the  care  of  the  driver,  for,  though  he 
is  not  driving  at  an  excessive  speed,  he  may  be  found  negli- 
gent for  a  violation  of  the  law  of  the  road  or  of  some  positive 
regulation,  or  through  incomi)etency,  inattention,  or  a  mis- 
take in  judgment/'^  What  constitutes  a  "reasonable"  rate 
is  generally  a  question  for  the  jury,*^-  and  depends  on  the  sur- 
rounding circumstances,*^^  such  as  the  character  of  the  high- 
way,*^^  the  amount  and  nature  of  the  traffic/'"^  obstructions  in 
and  along  the  highway,^''  the  nature  of  the  machine,  the  dark- 


Major  Taylor  &  Co.  v.  Harding,  182 
Ky.  236,  206  S.  W.  285. 

Massachusetts. — Rasmussen  v.  Whip- 
ple, 211  Mass.  456,  98  N.  E.  592; 
Clark  V.  Blair.  217  Mass.  179,  104  N. 
E    435. 

Michigan. — Wilson  v.  Johnson,  195 
Mich.  94,  161  N.  W.  924. 

.Missouri. —  C^inter  v.  O'Donaghue 
(Mo.  App.),  179  S.  W.  732;  Warring- 
ton V.  Byrd  (Mo.  App.),  181  S.  W. 
1079;  Mitchell  v.  Brown  (Mo.  App.), 
190  S.  W.  354. 

New  Jersey. — State  v.  Schutte,  88  iST. 
,J.  L.  396,  96  Atl.  659. 

New  York. — De  Carvalho  v.  Brun- 
ner,  223  N.  Y.  284,  119  .N.  E.  563; 
Bohringer  v.  Campbell,  154  App.  Div. 
879^  137  N.  Y.  Suppl.  241;  Fittin  v. 
Sumner,  176  App.  Div.  617,  163  N.  Y. 
Suppl.  443 ;  Jefson  v.  Crosstown  St. 
By.,  72  Misc.  103,  129  N.  Y.  Suppl. 
233;  Dultz  V.  Fischowitz,  104  K  Y. 
Suppl.  357;  Solomon  v.  Braufman,  175 
N.  Y.  Suppl.  835. 

Oregon. — ^Weygandt  v.  Bartle.  88 
Oreg.  310,  171  Pac.  587. 

Pennsylvania. —  Freel  v.  Wana- 
niaker,  208  Pa.  St.  279,  57  Atl.  563; 
Walleigh  v.  Lean,  248  Pa.  iSt.  339,  3 
Atl.  1069;  Kuehne  v.  Brovvn.  257  Pa. 
37,  101  Atl.  77. 

Texas. — Figueroa  v.  Madere  (Civ. 
App.),  201  S.  W.  271. 

Utah. — ^Lochhead  v.  Jensen,  42  Utah. 
99,  129  Pac.  347. 


Washington. — Hartley  v.  Lasater,  96 
Wash.  407,   165  Pac.   106. 

Wisconsin. —  Raymond  v.  Saux 
County,  167  Wis.  125,  166  K  W.  29; 
Haswell  v.  Reuter,  177  N.  W.  8. 

Canada. — B.  &  R.  Co.  v.  Mc<Leod,  5 
A.  L.  R.  176. 

61.  Friecker  v.  Philadelphia  Rapid 
Transit  Co.,  63  Pa.  Super.  Ct.  381. 

62.  Section  325. 

63.  Banister  v  H.  Jevne  Co.,  28  Cal. 
App.  133,  151  Pac.  546;  Irwin  v. 
Judge,  81  Conn.  492,  71  Atl.  572; 
Petty  V.  Maddox,  190  111.  App.  381; 
Delfs  V.  Dunshe,  143  Iowa,  381,  133 
N.  W.  236;  Wingert  v.  Clark  (Md.), 
110  Atl.  857;  Rowe  v.  Hammond.  172 
Mo.  App.  203,  157  S.  W.  880;  Ginter  v. 
O'Donoghue  (Mo.  App.),  179  S.  W. 
732;  State  v,  Schutte,  88  N.  J.  Law, 
396,  96  Atl.   659. 

64.  Lochhead  v.  Jenson,  42  Utah.  99, 
129  Pac.   347. 

Defects  in  highway. — The  speed  of 
an  automobile  should  not  exceed  a  rate 
which  will  permit  the  driver  to  stop 
his  machine  so  as  to  avoid  injun/  from 
defective  conditions  in  the  highway. 
Raymond  v.  Sauk  County  (Wis.).  166 
N.  W.  29. 

65.  Petty  v.  Maddox.  190  111.  App. 
381 ;  Rowe  V.  Hammond,  172  Mo.  App. 
203,  157  S.  W.  880;  Elwes  v.  Hopkins 
(1906),  2  K.  B.    (Eng.)    1. 

66.  Hood  &  Wlieeler  Furniture  Co. 
v.  Royal  (Ala.  App.),  76  So.  965. 


NwiLlGF.NCK    IN    OPERATION    OF    MOTOR    VEHICLES. 


359 


ness  or  other  atmospheric  conditions/'  and  the  noise  or  other 
^varnills  given  ])y  the  machine/^"  That  is  to  say,  the  speed 
must  be  connnensurate  with  the  dangers  to  be  anticipated.^^ 
A  holding  in  a  particular  case  that  a  given  speed  is  or  is  not 
excessive,  is  of  little  value,  for  the  eircumstances  of  no  two 
cases  are  identical;  but  speeds  of  fifty,^^  twenty,'^  fitteen, - 
twelve  -'■'  and  even  eight  miles  '^  an  hour,  have  been  condemned. 

Sec.  306.  Speed  of  machine  —  statute  or  ordinance  regulating 
speed. 

The  obligation  on  tlu'  driver  of  a  motor  vehicle  of  exercising 
reasonable  care  for  the  safety  of  other  travelers,  is  reinforced 
in  every  State  with  statutory  and  municipal  regulations  limit- 
ing the  speed  of  such  maehines.^^    Some  of  them  prescribe  in 
great  detail  the  limit  of  speed  under  particular  circumstances. 
Their  effect  is,  in  the  first  place,  to  create  a  criminal  offense 
for  speeding,  when  otherwise  there  might  exist  only  a  civil 
responsibilitv  for  injuries   entailed  hy  another  traveler  by 
reason  of  the  excessive-  speed.^«     Secondly,  in  a  civil  action 
for  damages,  the  violation  of  a  speed  regulation  has  consider- 
able probative  force  on  the  issue  of  negligence,  the  violation 
being  generally  considered  as  negligence  i^er  se?'    In  a  tew 
jurisdictions,  the  statutes  do  not  expressly  prohibit  a  speed 
under  some  circumstances  in  excess  of  the  rate  mentioned 
therein,*but  made  an  excessive  speed  vrima  facie  evidence  of 
negligence,  thus  leaving  the  driver  an  opportunity  to  show 

67.  See  sootion   307.  Cal.  App.   133,    151    Pac.   546. 

68.  New  York  Tran.p.  C<..  v.  Gar-  74.  Rasmussen  v.  ^^  h-PPl^-  ^U 
side  157  Fed.  531,  85  C.  C.  A.  285;  Mass.  546,  98  N.  E.  592;  Ada.r  v.  Mc- 
Lyn'ch  V.  Shearer,  83  Conn.  73,  75  Atl.  Neil.  95  Wash.  160,  163  Pac^  39  ^ 

S8;    Grcs  V.   Foster,    134  N.   Y.  App^  ^^  ^^^^^^  l"  ^    52    wl  "    'l: 

Div.  243,  118  N.  Y.  Suppl.  889;   Signet       Ga.  App.  6.4,  .8  S.  f J^^.  ^^l"^;. 
V.   Wern;r.   159  N.  Y.  Suppl.  894.  man,   18  Ga.   App.   673    90  S.  K   364  • 

69.  Section  278.  ^^^^  ''■   ^^^^^'-'   ^^^   ^/^  ^^ ''mo' 
70    Jefson   v.  Crosstown   St.   Rv..   72       W.    1098:    Carradme  v.   Ford.   195  Mo. 

M^c.  103,  129  N.  Y.  Snppl.  233.  App.  684,   187  S.  W^  285^;   Lau  erUch 

71.  Wasser  v.   Northampton   County.  v.  State.  132  fenn^  603.  1.9  S.  p^  130^ 

249  Pa    St    25,  94  .-Xtl.  444.  ^raney     v.     Seattle     Tax.cab     Co..     80 

72    Cook  V.  Miller.  175  Cal.  407.  166  Wash.  396.  141   Pac.  890. 

^      \,^  76.  Sections  728-743. 

Pac.   31b.  . 

73.  B.nnis.or    v.    H.    -Tcvnr    Co..    28  77.  Section   321. 


360  The  Law  of  Automobiles. 

that  the  speed  was  proper  under  the  circumstances.'^^  The 
general  power  of  States  and  municipalities  to  enact  speed 
reflations  is  undouhted."^^  A  statute  providing  that  no  per- 
son shall  drive  an  automobile  outside  a  city,  town  or  village 
at  a  greater  average  rate  of  speed  than  twenty  miles  an  hour 
has  been  construed  as  meaning  that  the  "average"  rate  shall 
not  exceed  that  specified  and  not  as  at  any  particular  time 
prohibiting  a  greater  rate.^°  In  the  application  of  the  gen- 
eral rule  that  penal  statutes  cannot  be  enlarged  by  implica- 
tion or  extended  by  inference,  it  has  been  decided  that  an 
ordinance  making  it  a  misdemeanor  to  ride  or  drive  any 
horse,  mule  or  other  beast  beyond  a  certain  rate  of  speed  or  in 
such  a  manner  as  to  endanger  the  safety  of  others,  will  not 
be  construed  as  applying  to  automobiles,  bicycles  and  other 
means  or  vehicles  of  convej^ance.^^ 

Sec.  307.  Speed  of  machine  —  speed  at  night. 

Eeasonable  care  requires  in  many  cases  that  the  driver  of 
a  motor  vehicle  drive  at  a  slower  speed  at  night  than  during 
the  day.^'  It  may  be  true  that  in  a  busy  street  in  a  large  city, 
a  greater  speed  would  be  justified  at  night,  for  then  the  other 
traffic  would  be  lighter,  but  ordinarily  a  greater  speed  is 
allowed  in  the  day  time.  One  restriction  on  his  speed  is  that 
he  shall  keep  the  machine  under  such  control  and  operate  it 
at  such  speed  that  he  can  stop  the  machine  and  avoid  an  ob- 
struction or  danger  or  another  traveler  within  the  distance 
that  the  highway  is  illuminated  by  his  lights.^    As  was  said 

78.  Section  322.  County   (Cal.  App.),  189  Pac.  462.  See 

79.  See  chapters  V  and  VI.  a).so,  Haynes  v.  Doxie  (Cal.  App.),  198 

80.  Neidy    v.    Littlejohn,    146    Iowa.      Pac.  39. 

355,  125  N.  W.  198.  Connecticut. — Currie  v.   Consolidated 

81.  City    of    Shawnee    v.    Landon,    3  Ry.  Co.,  81  Conn.  383,  71  Atl.  356. 
Okla.  Cr.  440,  106  Pac.  662.  Kansas.— Super  v.  Modell   Twp.,    88 

82.  Misty  night. — It  is  negligence  as  Kans.    698.    129    Pac.    1162;    Fisher   v. 
a   matter   of    law    for    a   chauffeur    to  O'Brien,  99  Kans.  621,  162  Pac.  317. 
run    an    automobile    at    the    rate    of  Michigan. — Harnau    v.    Haight,    189 
twelve  miles  an  hour  in  Central  Park  Mich.  600,  155  "N.  W.  563. 

in  New  York  city,  when  he  cannot  see  Tennessee. — West      Constr.      Co.      t. 

beyond  the  hood  of  his  machine.     Al-  White,  130  Tenn.  520,  172  S.  W.  301; 

bertson  v.  Ansbacker,  102  Misc.  (N.  Y.)  Knoxville  Ry.  &.   Light  Co.  v.  Vangil- 

527,  169  N.  Y.  Suppl.  188.  den,  132  Tenn.  487,  178  S.  W.  1117. 

83.  California. — Ham  v.  Los  Angeles  Fcnnsyhanin. — See  Curran  v.  Lorch, 


Negligence  in  Operation  of  Motor  Vehicles.       361 

in  one  case,^*  "It  was  negligence  for  the  driver  of  the  auto- 
mobile to  propel  it  in  a  dark  place  in  which  he  had  to  rely  on 
the  lights  of  his  machine  at  a  rate  faster  than  enabled  him  -to 
stop  or  avoid  any  obstruction  within  the  radius  of  his  light,  or 
within  the  distance  to  which  his  lights  would  disclose  the 
existence  of  obstructions.    ...    If  the  lights  on  the  automo- 
bile would  disclose  obstructions  only  ten  yards  away  it  was 
the  duty  of  the  driver  to  so  regulate  the  speed  of  his  machine 
that  he  could  at  all  times  avoid  obstructions  Avithin  that  dis- 
tance.    If  the  lights  on  the  machine  would  disclose  objects 
further  away  than  ten  yards,  and  the  driver  failed  to  see  the 
object  in  time,  then  he  would  be  conclusively  presumed  to  be 
guilty  of  negligence,  because  it  was  his  duty  to  see  what  could 
have  been  seen."    This  proposition  applies  when  the  driver 
is  making  a  turn  in  the  road;^  and  is  applicable  when  the 
bright  light  from  another  machine  is  shining  in  the  face  of  the 
driver.^^    It  is  a  driver's  duty  to  keep  his  machine  under  such 
control  that,  when  the  light  brings  a  railroad  crossing  in  view, 
he  can  stop  before  reaching  it.^    Moreover,  the  rule  applies 
where  the  regular  lights  are  not  working  and  the  driver  is 
using  a  lantern  hung  in  front  of  his  radiator.^^     The  same 
principle  is  involved  when,  on  account  of  a  blinding  storm, 
the  driver  can  see  but  a  short  distance  ahead  of  his  machine.® 
Darkness  may  be  an  " ohstruction  to  the  view"  of  the  driver 
within  the  meaning  of  a  regulation  prescribing  a  certain  speed 
when  the  view  is  obstructed.'® 

247  Pa.  St.  429,  93  Atl.  492;  Serfas  v.  85.  Knoxvillo    Ry.    &    Light    Co.    v 

Lehigh,  etc.  R.  Co.  (Pa.),  113  Atl.  370.  Vangilden,    132  Tenn.   487.   178   S.   W. 

Wisconsin. — Lauson  v.  Fond  dii  Lac.  1117.      See    also,    section    308.    as    to 

141  Wis.  57,  123  N.  W.  629.  2.5  L.  R.  speed  at  turns. 

A.   (N.  S.)  40,  135  Am.  St.  Rep.  30.  86.  Knoxvillo    Ry.    &■    Light    Co.    v. 

Compare  Owens  v.  Iowa  County,  186  Vangilden,    132  Tenn.   487,    178   S.    \V. 

Jowa,  408,   160  N.  W.  388.     See  also.  1117. 

section  326.  87.  Serfas    v.    Lehigh,    etc.    R.    Co. 

Obstructed  view.— The  rule  stated  in  (Pa.).  113  Atl.  370. 

the   text    is    not    pertinent   where    the  88.  Fisher  v.  O'Brien.  90  Kars.  621, 

driver's    view    was    not    obstructed    by  162  Pac.  317. 

darkness  or  fog.  but  was  obstructed  by  89.  Savage  v.  Public  Service  Ky.  Co.. 

a     street    car.       C-oughlin    v.     Layton  89  N.  .T.  L.  555,  99  Atl.  383.     See  also. 

(Kans.),   180   Pac.   805.  Park  v.  Orbison    (Cal.  App.l.  184  Pac. 

84.  West   Constr.   Co.   v.   White,   130  42S. 

Tenn.  520,   172  S.  W.  301.  90.  Ilam      v      Txw    Angeles     County 


362 


The  Laav  of  Atttomobtt.ks. 


Sec.  308.  Speed  of  machine  —  at  turns. 

Clearly  a  spood  which  would  be  proper  alon.c:  a  strai,2:ht 
road  might  be  decidedly  excessive  Avheii  the  driver  is  approach- 
ing a  curve  or  turn  in  the  road.  Ordinary  care  requires  that 
the  driver  of  a  motor  vehicle  have  the  machine  at  such  control 
at  a  turn  that  he  can  make  the  curve  safely  and  avoid  other 
travelers  at  that  place.^^  Whether  or  not  the  speed  is  exces- 
sive under  the  circmnstanees  is  generally  a  question  for  the 
jury .^2  x,-i  many  jurisdictions,  the  speed  around  a  curve  is 
particularly  prescribed  by  statute,  and  such  regulations  are 
to  be  obeyed.  Six,^'^  seven  and  one-half,^*  or  eight  ^^  ^^ji^s  an 
hour  is  thought  by  the  la\\miakers  to  he  the  proper  limit  of 
speed  around  a  curve.  Especial  care  should  be  taken  at  a 
turn  where  the  view  around  the  corner  is  obstructed.  In  such 
a  case,  a  regulation  may  properly  forbid  a  speed  greater  than 
six  miles  an  hour.^*"'  The  fact  that  the  headlights  of  a  machine 
are  shining,  not  on  the  road,  but  on  the  side  thereof,  gives  the 
driver  notice  that  he  is  approaching  a  curve.^^ 


(Cal.  App.),  189  Pac.  462. 

91.  Arkansas. —  Bona  v.  S.  R. 
Thomas  Auto  Co.,  137  Ark.  217.  208  S. 
W.  306. 

California.- — Opitz  v.  Scheiik,  174 
Pac.  40. 

Illinois. — Kuchlcr  v.  Stafford,  185 
111  App.  199 ;  Coulon  v.  Trenkhorst,  195 
111.  App.  335. 

Iowa. — Stalev  v.  Forrest,  157  Iowa, 
188,   138  X.  W.   441 

Michigan. — Holden  v.  Hadley  180 
Mich.   568.  147  N.  W.   482. 

Minnesota. — Molin  v.  Wark,  113 
Minn.  190,  129  X.  W.  383. 

Tennessee. — Knoxville  Ry.  &  Lij^ht 
Co.  V.  Vangilden.  132  Tonn.  48T.  178 
S.  W.  1117. 

Vermont. —  \^■ent\vorth  v.  Water- 
bury,    90   Vt.    60.   96   Atl.    334. 

Washinc/ton. — Bogdan  v.  Pappus.  95 
Wash.   579,   164  Pac.   208. 

Wisconsin. — ^Calahan  v.  Moll.  160 
Wis.  52;;.   152  N.  W.   179. 

Defendant  negligent. — In  an  action 
to   recover    damages    for   injury    to    an 


automobile  received  in  a  collision,  and 
alleged  to  have  been  caused  through 
I  he  carelessness  and  improper  manage- 
ment of  defendant's  respective  auto- 
mobiles, Avhere  there  was  evidence  tend- 
ing to  show  that  the  defendant  found 
guilty,  came  into  the  street  on  which 
the  accident  occurred  from  a  cross 
street  at  a  high  rate  of  speed,  and  the 
other  defendant's  automobile,  in  veer- 
ing away  to  avoid  such  incoming  auto- 
mobile, collided  with  plaintiff's  car. 
Jackson  v.  Burns,  203  111.  App.   196. 

92.  Section  325. 

93.  Central  of  Ga.  Ry.  Co.  v.  Lascn. 
19  Ga.  App.  413,  91  S.  E.  517. 

94.  Molin  v.  Wark,  113  Minn.  190. 
129  N".  W.  383. 

95.  Searcy  v.  Golden,  172  Ky.  42,  188 
S.  W.  1098;  W'ade  v.  Brents,  161  Ky. 
607,   171    S.  W.   188. 

96.  Heartsell  v.  Billows.  184  Mo. 
App.  420,  171  S.  W.  7;  Carter  v. 
Brown,  136  Ark.  23,  206  S.  W'.   71. 

97.  Wentwortli  v.  Watcrbury,  90  Vt. 
(0.  96  Atl.  334. 


Negligence  in  Operation  of  Motor  A^khkles.       363 

Sec.  309.  Speed  of  machine  —  density  of  tratffic. 

The  speed  of  a  motor  vehicle  must  be  conmien.surate  with 
the  dangers  to  be  anticipated,  and  one  of  the  most  important 
circumstances  in  this  connection  is  the  amount  of  traffic  along 
the  highway.^*  The  question  whether  the  driver  of  a  motor 
vehicle  is  running  at  an  excessive  speed,  considering  the 
traffic  and  other  circumstances,  is  one  which  is  generally  left 
with  the  jury.^^  "AVith  a  clear  track  and  plenty  of  room,  the 
rate  of  twelve  to  fifteen  miles  an  hour  would,  no  doubt,  be 
deemed  very  moderate.  But  in  the  thick  of  traffic,  where  the 
streets  are  crowded  with  vehicles  and  pedestrians,  a  jury 
might,  with  reason,  conclude  that  a  prudent  person,  having 
due  regard  for  his  own  safety  and  that  of  others,  would  drive 
a  heav>^  automobile  much  more  slowly  than  the  rate  above  in- 
dicated."^ It  is  impracticable  to  enact  regulations  which  shall 
prescribe  the  speed  under  the  varying  conditions  of  traffic, 
but  pro\dsions  have  been  made  limiting  the  speed  of  motor 
vehicles  in  ''closely  built  up"  or  ''business"  sections  to  a 
prescribed  rate.-  Negligence  may  be  based  on  the  violation 
of  such  a  speed  limit.^  And  regulations  have  been  adopted 
prescribing  the  speed  of  machines  when  meeting  upon  narrow 
roads.* 

Sec.  310.  Speed  of  machine  —  passing  street  cars. 

The  driver  of  a  motor  vehicle  must  anticipate  that  persons 
will  be  getting  on  and  off  street  cars  standing  in  the  streets  :^ 
and  it  is  his  duty  to  have  his  car  under  such  control  and  run- 
ning at  such  a  speed  that  he  can  avoid  injury  to  such  persons.'' 

98.  Delfs   V.   Dunslie,   143   Iowa.   381.  1.  Lorah    v.    Rinehait,    243    P.i.    St. 
3  33    N.    W.    236;    Lorah    v.    Rinehait,       2.S1.  89  Atl.  967. 

243  Pa.  St.  331,  89  Atl.  967.  2.  Denison     v.    McXorton.    228    Fed. 
Evidence   as   to   traflic   which    niiglit  401,  142  C.  C.  A.  631:  Harkcr  v.  Gnihl, 
reasonably    be    expected    on    a    certain  (13  Ind.  App.   177.  Ill  N.  E.  457:   Gar- 
highway    Iield    admissible    on    piasecii-  radine  v.   Ford.   195  ^fo.  App.  «iP4.  187 
tion   for  driving  at  a  speed  dangerous  S.  W,  285. 
to  the  public  having  regard  to  nil  the  3.  Sections   320-322. 
circumstances    of   the    case.      Ehves    v.  4.  Christl   v.   Hawert.    164   Wis.   624. 
Hopkins    (K.    B.   Div.).  94   T>aw   T.    R.  :r>0  N.  W.  1061. 
CS.  S.)    547.  5.  Section  423. 

99.  Section  325.  6.  Bannister  v.  TT.  .levnc  Co.,  2R  Cnl 


364  The  Law  of  Automobiles. 

Even  in  the  absence  of  positive  regulation,  a  speed  of  any  con- 
siderable rate  under  such  conditions  may  warrant  the  jury  in 
charging  actionable  negligence  against  the  driver  of  the  ma- 
chine.'^  Statutory  and  municipal  regulation  on  the  subject  of 
passing  street  cars  is  very  common.^  Some  prescribe  a  very 
low  rate  of  speed  under  such  circumstances,  such  as  three ' 
or  four  miles  an  hour.  Others  are  so  drastic  as  to  require 
the  driver  of  the  machine  to  come  to  an  absolute  stop.^°  But, 
when  not  in  violation  of  positive  regulation,  a  speed  of  from 
five  to  eight  miles  an  hour,  is  not  necessarily  excessive." 
Regulations  of  this  character  are  intended  primarily  for  the 
safety  of  street  railway  passengers,  and,  in  some  cases  may 
be  held  inapplicable  to  bicyclists  and  other  travelers  not  in 
any  way  connected  with  the  operation  of  the  street  ear.^^ 

Sec.  311.  Speed  of  machine  —  street  intersections. 

At  street  intersections  a  higher  degree  of  care  is  required 
of  the  driver  of  an  automobile  than  is  required  at  places  in- 
volving less  danger  to  pedestrians  and  other  vehicles.^'  In 
using  the  streets  and  highways  an  automobilist  does  so  with 
knowledge  that  at  street  intersections  other  vehicles  may 
approach  to  cross  or  turn  into  the  one  over  which  he  is  travel- 

Aj.p.    133,    151    Pac.    546;    Gilbert    v.  flcpendent   of   the  car,   and   it  entered 

VanderwaU,   181    Iowa.   3,    165   N.    W.  in   no    way   into    the   situation   out   of 

165;     Boedecher    v.    Frank.    48    Utah.  \vl)ich  the  accident  arose.     Its  presence 

363,  159  Pac.  634.  was    an    incident   wholly   unrelated    to 

7.  Bannister  v.  H.  Jevne  Co.,  28  Cal.  tl^.e  tragedy  enacted  in  its  vicinity,  and 
App.  133,  151  Pac.  546;  Naylor  v.  the  rat©  of  speed  at  which  it  was 
Haviland,  88  Conn.  256,  91  Atl.  186.  paj^sed  by  the  defendant  possessed  no 

8.  Levyn  v.  Koppin,  183  Mich.  232.  more  significance  than  would  the  same 
149  N.  W.  993.  See  also,  Sorsby  v.  rate  of  speed  had  the  car  not  chanced 
Henninghoven.  82  Oreg.  345,  161  Pao  to  be  there.  Of  whatever  violation  of 
251.  i:i\v     the    defendant     may    have    been 

9.  Radwick  v.  Goldstein,  90  Conn.  guilty  in  going  by  the  oar,  it  could  not 
701,  98  Atl.  583.  l)0  said  upon  the  evidence  that  it  oon- 

10.  Schell  V.  Dubois,  94  Ohio,  93,  113  tributed  to  the  collision  which  fol- 
N"  E.  664;  Nicholls  v.  City  of  Cleve-  lowed,  or  that  such  collision  was  in 
land    (Ohio),  128  N.  E.  164.  any   way   due   to   the  car's   presence." 

11.  Gilbert  v.  VanderwaU.  181  Towa,  I{r.dwick  v.  Goldstone,  90  Conn.  701, 
685,   165  N.  W.  165.  98  Atl.  583. 

12.  See  section  423,  et  seq.  Another  automobile.— See  Christian- 
Bicyclist.— "  The     intestate     was     a      son  v.  Devine,  210  111.  App.  253. 

traveler   on    the  highway,   entirely   in  13.  Section  279. 


Negligence  in  Operation  oi   Motor  Vehicles.       365 

ing,  and  that  at  such  points  crosswalks  are  ordinarily  pro- 
vided for  the  use  of  pedestrians.    He  should,  therefore,  oper- 
ate his  car  with  that  degree  of  care  which  is  consistent  mth 
the  conditions  thus  existing,  the  rate  of  speed  and  his  control 
of  the  machine  varying  according  to  the  traffic  at  the  par- 
ticular place.^^    Whether  the  speed  is  excessive  is  generally  a 
question  for  the  jury,^  and,  if  they  find  the  speed  unreason- 
able under  the  circumstances,  the  liability  of  the  driver  of  the 
machine  will  be  sustained  as  to  all  injuries  which  proximately 
result  from  the  excessive  speed.^^     Statutes  and  nninicipal 
ordinances  frequently  fix  the  speed  with  which  a  motor  vehicle 
may  be  operated  at  a  street  intersection.    Sometimes  the  rate 
is  fixed  as  low  as  four,i^  six,i«  eight,i^  or  ten  ^o  miles  an  hour. 
Or  the  regulation  may  require  that  the  driver  shall  reduce  his 
speed  to  not  exceeding  one-half  of  its  '* regular"  speed,  the 
term  *' regular"  speed  meaning  the  speed  other^vise  lawful.^^ 
Or  a  regulation  may  require  one  about  to  drive  on  to  a  boule- 
vard to  bring  his  vehicle  to  a  stop.--    Under  a  statute  requir- 
ing a  driver  to  reduce  his  speed  when  ''approaching"  an  in- 
tersection, it  may  be  a  question  for  the  jury  as  to  the  distance 
from  the  intersection  when  the  speed  should  be  reduced.^^    One 

14.  Rowe  V.  Hammond.  172  Mo.  App.  18.  Hayes  v.  State,  11  Ga.  App.  371, 
803   157  S.  W.  880.  "^S  S.  E.  523;  Ware  v.  Ivamar,  16  Ga. 

15.  Section  325.  App.  560,  85  S.  E.  824;   Move  v.  Red- 

16.  Young  V.  Campbell,  20  Ariz.  71,  dick,  20  Ga.  App.  649,  93  S.  E.  256; 
177  Pac.  19;  appeal  dismissed  on  re-  Sullivan  v.  Chauvenct  (Mo.),  223  S. 
hearing,  181  Pac.  171;  Cook  v.  Miller,  W.  759;  Chcro-Cola  Bottling  Co.  v. 
175  Cal.  497.  166  Pac.  316;  Opitz  v.  South  Carolina  Light.  Power  &  Rys. 
Schenk    (Cal.),    174    Pac.   40;    Wright  Co.,  104  S.  Car.  214.  88  S.  E.  534. 

V.  Young,  160  Ky.  636,  170  S.  W.  25;  19.  Newton  v.  McSweeney,  225  Maae. 

Granger  v.  Farrant,  179  Mich.  19,  146  402,  114  N.  E.  667. 

NT.  W.  218;  Westover  v.  Grand  Rapids  20.  Dowdell  v.  Beasley    (Ala.  App.), 

R.  Co.,  180  Mich.  373,  147  N.  W.  630;  82  So.  40;   Young  v.  Dunlap,   195  Mo. 

Gross  V.  Foster,   134  N.  Y.  App.  Div.  App.   119,    190  S.   W.   1041:    Schinogle 

243,  118  N.  Y.  Suppl.  889;   Chero-Cola  v.   Baughman    (Mo.   App.),   228   S.   W. 

Bottling  Co.   v.   South  Carolina  Light,  897;    Young  v.   Campbell    (Ariz.),   177 

Power  &  Rys.  Co.,   104  S.   C.   214,  88  Pac.   19;   Mathes  v.  .\ggelcr  &  Musaer 

S.  E.  534;  Adair  v.  McNeil,  95  Wash.  Seed  Co.,   179  C^l.  697,   178  Pac.   713. 

160,  163  Pac.  393.  21-  Mayer  v.  Mellette,   65   Ind.  App. 

17.  Lud-wigs  V.  Dumas,  72  Wash.  68,  'l,  114  N.  E.  241. 

129  Pac.  903;  Anderson  v.  Kinnear,  80  22.  Kilroy  v.  Justrite  Mfg.  Co..  209 

Wash.    638,    141    Pac.    1151;    Barth    v.       111.  App.  499. 

Harris,  95  Wash.  166,  163  Pac.  401.  23.  Lawrence      v.      Goodwill      (Cal. 


366  The  Law  of  Automobiles. 

proceeding-  in  broad  daylight  toward  an  intersection  cannot 
escape  the  effect  of  the  regulation  by  claiming  that  he  was 
not  aware  that  he  was  approaching  intersecting  streets.^* 
Regulations  of  this  character  will  not  generally  apply  to 
places  where  pedestrians  are  accustomed  to  cross  the  highway 
but  which  are  not  the  intersections  of  highways.'^ 

Sec.  312.  Speed  of  machine  — at  railroad  or  street  railway 
crossings. 

In  some  jurisdictions,  when  the  driver  of  a  vehicle  ap- 
proaches the  crossing  of  a  railroad,  the  law  imposes  on  him 
the  duty  to  ''stop,  look  and  listen"  and  charges  him  mth  con- 
tributory negligence  as  a  matter  of  law  if  he  fails  to  do  so.^*^ 
While  the  rule  in  other  jurisdictions  is  not  so  strict,  and  a 
failure  to  stop  the  machine  before  crossing  the  track  may  not 
constitute  negligence  as  a  matter  of  law,^^  yet  a  high  degree 
of  care  must  be  exercised  hy  a  driver  when  crossing  such  a 
place  of  danger.    He  must  have  his  machine  under  such  con- 
trol and  must  run  at  such  a  rate  that  he  can  stop  the  machine 
if  necessary  to  avoid  a  collision.^^     Similarly,  one  approach- 
ing the  crossing  of  a  street  railroad,  though  the  rule  may  not 
be  so  strict  as  in  the  case  of  steam  railroads,  is  required  to 
exercise  considerable  care  to  avoid  street  cars.'^     In  some 
jurisdictions  statutes  have  prescribed  the  rate  of  speed  which 
cannot  be  exceeded  by  an  automobilist  crossing  a  railroad 
track,  or  have  required  the  driver  to  come  to  a  full  stop.^*^ 
Regulations  prohibiting  a    rate   exceeding   six^^   or   seven  ^^ 
miles  an  hour,  are  proper.    In  case  of  the  violation  of  such  a 
statute,  the  driver,  as  a  general  proposition,  mil  be  unable  to 

App.),    186    Pac.    781;    Blackburn    v.  Tt    Co.    (Pa.).   113  Atl.  370.     See  also, 

Marple   (Cal.  App.),  184  Pac.  875.     See  section   572. 

also.  Blackburn  v.  ^Farple   (Cal.  App.),  29.  Section   591. 

184  Pac.  873.  30.  Carter    v.    Redmond.    142    Tenn. 

24.  Newton  v.  McSweeney.  225  Mass.  258,  218  S.  W.  217. 

402,  114  X.  E.  fi67.  31.  Central  of  Ga.  Ry.  Co.  v.  Larsen, 

25.  Mutl.or    V.    Capps.    38    Cal.    App.  19  Ga.   App.  413,  91  S.  E.  517:   Texas, 
721.  177  Pac.  882.  etc.     Co.    v.     Harrington      (Tex.     Oiv. 

26.  Section  568.  App.),  209  S.  W.  685:   Schaff  v.  Bear- 

27.  Section   567.  den    (Tex.   Civ.    App.).   211    S.   W.    503. 

28.  Walker    v.    Rodriguez,     139    La.  32.  Hinton  v.  Southern  Ry.  Co.,   172 
251,  71  So.  499:   Serfas  v.  Lehigh,  etc.  X.  Car.  587.  90  S.  E.  756. 


^NEGLIGENCE    I.N     Oi'EllATiuN"    UE    MuTuK    VEHICLES. 


36( 


recover  for  personal  injuries  or  damage  to  the  niacliine  sus- 
tained in  a  collision  with  a  train.  The  question  whether  the 
unlawful  speed  was  a  proximate  cause  of  the  injury  may,  of 
course,  remain  for  determination  though  the  violation  is 
shown."^^  Such  a  statute  has  no  application  to  a  passenger  in 
the  machine  having  no  control  over  the  driver.^^  A  regulation 
as  to  the  speed  at  a  ''highway"  crossing  may  be  deemed  ap- 
plicable in  case  of  a  highway  crossing  a  steam  railroad  track, 
for  a  railroad  is  for  many  purposes  deemed  a  highway.^^  A 
statute  forbidding  a  speed  exceeding  six  miles  an  hour  by 
one  ''approaching"  an  intersecting  railroad  has  received  a 
strict  construction  so  as  to  forbid  such  speed  when  ''approach- 
ing" but  not  forbidding  the  speed  when  close  to  the  railroad 
and  about  to  pass  over  the  crossing.^*^  And  a  statute  prescrib- 
ing a  speed  limit  when  the  view  of  the  crossing  is  obscured 
does  not  apply  to  one  injured  at  a  crossing  where  the  view  of 


Co. 

.   172 

V. 

Lar- 

E. 

517, 

33.  Hinton  v.  Southern  Ry.  Co.,  172 
N.  Car.  587,  90  S.  E.  756.  See  also, 
section   300. 

34.  Baker  v.  Streater  (Tex.  Civ. 
App. ),  221  S.  W.  1039;  Chicago,  etc. 
R.  Co.  V.  John.«on  (Tex.  Civ.  App.), 
224   S.   W.    277. 

35.  Hinton   v.   Southern  Ry. 
N.  Car.  587,  90  S.  E.  756. 

36.  Central  of  Ga.  Ry.  Co. 
sen,  19  Ga.  App.  413,  91  S. 
wherein  it  was  said:  "Coming  now 
to  the  third  division  of  section  5,  we 
find  it  provided,  among  other  require- 
ments, that  the  driver  of  an  automo- 
bile, in  approaching  a  descent  or  rail- 
road crossing,  shall  have  his  machine 
under  control,  and  operate  it  at  a  rate 
oi  speed  not  greater  than  6  miles  per 
hour.  The  statute  l>eing  penal,  a  strict 
construction  is  required.  Sec  Renfroc 
V.  Colquitt,  74  Ga.  618;  Atlanta  v. 
White  &  Kreis,  33  Ga.  229.  It  will  be 
olrserved  that  the  statute  provides  that 
on  approaching  a  descent  in  the  road, 
or  a  railway  crossing,  the  rules  pro- 
vided must  be  observed.  The  statute 
cioes  not  in  fact  require  that  ;i  speed 
of    6    miles    per    hour    shall    Ix-    main- 


tained while  the  machine  is  making  the 
descent  of  a  hill  or  incline;  and  we 
think  this  construction  is  based  upon 
good  reason,  the  object  of  the  statute, 
in  this  respect,  being  to  require  the 
traveler,  on  approaching  the  crest  of  a 
hill,  and  before  commencing  the  de- 
scent, to  slow  down  his  car  in  order  to 
ascertain  whether  some  other  person, 
whom  he  could  not  theretofore  discern, 
might  be  using  the  highway  on  its  in- 
cline. If,  however,  this  requirement 
of  the  law  be  complied  with,  there  is 
nothing  therein  contained  necessitating 
the  traveler  to  maintain  sucli  a  re- 
duced speed  down  the  incline,  in  the 
absence  of  some  special  cause  therefor. 
We  therefore  do  not  think  that  as  a 
matter  of  law  the  fact  that  the  de- 
cedent might  have  descended  the  in- 
cline just  prior  to  the  accident  at  a 
greater  speed  than  6  miles  per  hour 
could  be  adjudged  negligence  per  se. 
The  statute.  how(^ver,  further  requires 
tliat,  in  approaching  a  railway  cross- 
ing, such  reduced  speed  shall  be  main- 
tained, and  that  tlie  driver  of  tiie  ma- 
chine must  in  such  case  have  his  car 
under  control." 


368 


The  Law  of  Automobiles. 


the  approaching  train  was  obstructed.^  An  ordinance  pre- 
scribing the  speed  at  a  railroad  crossing  has  no  bearing  on 
a  collision  occurring  125  feet  from  a  crossing.^* 

Sec.  313.  Speed  of  machine  —  approaching  embankment  or 
descent. 

In  some  States,  speed  statutes  prescribe  with  considerable 
detail  the  rate  which  is  permissible  under  varying  circum- 
stances. For  example,  in  Georgia,  a  statute  has  been  enacted 
limiting  the  speed  of  a  motor  vehicle  to  six  miles  an  hour 
when  approaching  a  high  '' embankment.  "^^  And  the  same 
statute  makes  a  similar  regulation  for  an  automobilist  ap- 
proaching a  ' '  descent ' '  in  the  highway.  The  word  '  *  descent ' ' 
is  construed  to  mean  a  declivity  in  the  highway  over  which, 
from  ordinary  experience  and  observation,  it  would  be  deemed 
more  dangerous  to  operate  an  automobile  at  an  excessive 
speed  than  upon  level  ground.** 


37.  Schaff  V.  Bearden  {Tex.  CiT. 
App.),  211  S.  W.  503. 

38.  Vithoven  v.  Snyder  (Mich.),  182 
N.  W.  80. 

39.  Strickland  v.  Wliatley,  142  Ga. 
802,  83  S.  E.  856. 

40.  Elsbery  v.  State,  12  Ga.  App.  86. 
76  S.  E.  779,  wherein  the  court  said: 
"The  maxim,  'Noscitur  a  sooiis,'  is  ap- 
plicable, and  the  word  '  descent,'  as 
used  in  section  5  of  the  act,  will  be 
held  to  mean  a  declivity  in  the  high- 
way over  which  from  ordinary  human 
experience  and  observation  it  would  b© 
deemed  to  be  more  dangerous  to  oper- 
ate an  automobile  at  an  excessive  rate 
of  speed  than  upon  level  ground.  The 
General  Assembly  could  not  have  in- 
tended to  make  it  a  crime  to  operate 
an  automobile  at  a  greater  rate  of 
speed  than  six  miles  an  hour  at  every 
point  along  the  highway  where  there 
was  a  slight  incline,  and  where  it 
would  be  no  more  dangerous  to  oper- 
ate a  machine  at  twenty  miles  an  hour 
than  it  would  be  upon  level  ground.  It 
would  be  impossible,  of  course,  to 
designate  the   exact  degree  of  incline 


that  the  General  Assembly  had  in  mind 
in  using  this  word.  But  upon  the  ap- 
jilication  of  common  knowledge  with 
reference  to  the  highways  of  this 
State  the  courts  and  juries  may  well 
be  left  to  say  whether  or  not  a  ma- 
chine was  operated  upon  a  declivity 
where  it  would  be  more  dangerous  to 
run  at  an  excessive  rate  of  speed  than 
it  would  upon  level  ground.  The  only 
fair  test,  it  seems  to  us,  which  can  be 
applied  in  determining  whether  a  crime 
has  been  committed,  would  be  to  sub- 
mit to  the  jury  in  each  case  the  ques- 
tion whether  or  not  the  operation  of 
the  machine  upon  the  particular  de- 
scent in  question  would  likely  be  more 
dangerous  to  human  life  and  limb  or 
the  safety  of  property  than  if  the  ma- 
chine were  being  operated  upon  ordin- 
ary level  ground.  What  the  General 
Assembly  evidently  had  in  mind  was 
such  an  incline  on  the  highway  as  is 
commonly  denominated  a  hill;  that  is, 
a  descent  of  such  degree  as  that  ordi- 
narily prudent  persons,  in  approach- 
ing it  in  an  automobile,  would  check 
the  speed  of  the  machine." 


Negligence  in  Operation  of  Motor  Vehicles.       369 

Sec.  314.  Speed  of  machine  —  over  bridges. 

Obviously,  it  is  expedient  to  fix  the  speed  limit  for  motor 
vehicles  over  or  approaching  bridges,  and  frequently  specific 
regulations  are  made  applying  to  traffic  at  bridges  ;*^  but  it  is 
not  necessary  that  the  regulation  specify  a  particular  rate  for 
such  structures.  A  bridge  is  a  part  of  the  highway,  so  that  a 
regulation  applicable  to  highways  in  general  will  apply  to 
bridges.^^ 

Sec.  315.  Speed  of  machine  —  past  children  in  street. 

"When  passing  a  place  where  children  are  playing  in  the 
street,  an  automobilist  should  have  his  machine  under  control 
and  be  running  at  a  speed  which  will  enable  him  to  avoid  the 
children  if  they  do  not  discover  his  approach.^^  And,  when 
passing  a  schoolhouse,  a  lower  rate  of  speed  is  required  of 
the  driver  of  a  motor  vehicle  than  is  permissible  at  some 
places  where  the  danger  of  injury  to  children  is  not  so  great.'** 
It  has  been  held  to  be  gross  negligence  for  the  operator  of  an 
automobile  to  drive  his  machine  at  the  rate  of  five  or  six  miles 
an  hour  through  a  crowd  of  children  who  are  playing  in  the 
street.*^ 

Sec.  316.  Speed  of  machine  —  frightening  horses. 

Both  motor  vehicles  and  horse-drawn  conveyances  have  the 
right  to  the  use  of  the  highways,  each  class  being  bound  to  the 
exercise  of  reasonable  care  for  the  avoidance  of  injuries  to 
the  other  class.'*^  Experience,  however,  has  shown  that,  when 
an  automobile  and  a  horse-drawn  vehicle  are  using  the  same 
highway,  there  is  greater  danger  of  injury  to  the  occupant  of 
the  carriage  than  to  one  riding  in  the  automobile.  Therefore 
statutes  have  generally  placed  certain  duties  on  the  driver  of 
the  machine,  such  as  requiring  that  warning  of  his  approach 
be  given,  or  that  he  does  not  exceed  a  given  rate  of  speed.    A 

41.  Ham     v.     Los     Angeles     County      And  see  section  418. 

(Cal.  App.),  189  Pac.  462.  44.  Tripp  v.  Taft,  219  Mass.  81,   106 

42.  City   of   Baraboo   v.   Dwyer,    166      N.  E.   578. 

Wis.   373,   165  N.   W.   297.  45.  Haaeke   v.    Davis,    166   Mo.   App. 

43.  Bohringer    v.    Campl)ell,    154    N.       249.  148  S.  W.  450. 
Y.  App.  Div.  879.  137  N.  Y.  Suppl.  241.  46.  Section  518. 

24 


370  The  Law  of  Automobiles. 

speed  greater  than  six  miles  an  hour  has  been  prohibited  when 
the  auto  driver  is  passing  a  horse.^'  Indeed,  one  very  com- 
mon form  of  regulation  requires  that  the  driver  of  the  motor 
vehicle  shall  bring  his  machine  to  a  stop  when  he  is  signaled 
so  to  do  by  the  driver  of  a  horse  or  team/^  But  independent 
of  statute,  the  driver  of  a  motor  vehicle  may  be  guilty  of  negli- 
gence where  he  drives  his  machine  at  such  an  unreasonable 
speed  that  he  frightens  a  horse  on  the  highway.*^ 

Sec.  317.  Speed  of   machine  —  regulation  prohibiting   "un- 
reasonable" speed. 

In  some  States  statutes  have  been  enacted  prohibiting  the 
operation  of  motor  vehicles  at  unreasonable  speeds.  This  is 
precisely  what  the  common  law  prohibits  in  the  absence  of 
statute.  Nevertheless  the  statutes  have  some  effect  other 
than  a  mere  codification  of  the  common  law  principle.  For 
example,  their  infraction  might  be  held  to  constitute  a  criminal 
offense  when  the  same  speed  in  the  absence  of  statute  would 
not  justify  a  criminal  prosecution.^''    But  in  one  jurisdiction, 

47.  Carter  v.  Caldwell,  183  Ind.  434,  l  as.  1912  D,  734)  and  Tobacco  Trust 
109  N.  E.  355.  Case  ((221  U.  S.  107,  31  Sup.  Ct.  632, 

48.  Sections   536-.'J39.  55    L.   Ed.    663)    were    decided   by   the 

49.  Brinkman  v.  Pacholke,  41  Ind.  Supreme  Court  of  the  United  States. 
App.  662,  84  N.  E.  762;  Delfs  v.  Dun-  In  those  cases  the  Supreme  Court  of 
shee,  143  Iowa,  381,  133  N.  W.  236.  the  United  States  read  into  the  statute 

50.  State  v.  Goldstone  (Minn.),  175  the  so-ealled  'rule  of  reason,'  holding 
N.  W.  892;  State  v.  Schaeffer,  96  that  the  Anti-Trust  Act  really  was  not 
Ohio,  215,  117  N.  E.  220;  People  v.  a  denial  of  all  restraint  of  trade,  but 
Falkovitch,  280  111.  321,  117  N.  E.  398.  only  a  denial  of  unreasonable  restraint 
"The  legislature,  however,  in  this  in-  of  trade.  It  would  hardly  be  suggested 
stance,  saw  fit  to  fix  no  definite  rate  of  that  the  Supreme  Court  of  the  United 
speed  for  the  car,  except  to  require  that  States  read  into  the  statute  something 
the  car  should  not  be  operated  at  a  that  made  the  statute  unconstitutional, 
speed  'greater  than  is  reasonable  or  or  read  into  the  statute  something  that 
proper,  having  regard  for  width,  made  it  so  indefinite  and  uncertain 
traffic,  use  and  the  general  and  usual  that  it  was  incapable  of  advising  the 
rules  of  such  road  or  highway,  or  so  public  as  to  what  was  or  was  not  an 
as  to  endanger  the  property,  life  or  ofi"ense  under  it,  or  that  made  the  stat- 
limb  of  any  person.  In  short,  the  leg-  ute  practically  unenforceable.  And 
islature  wrote  into  the  statute  what  yet,  by  parity  of  reason,  it  is  claimed 
has  become  known  as  the  'rule  of  rea-  in  this  case  that  the  legislature,  wliich 
son'  ever  since  the  Standard  Oil  case  wrote  into  the  statute  the  same  'rule 
(221  U.  S.  1,  31  Sup.  Ct.  502,  55  L.  of  reason,'  thereby  in  effect  nullified 
Ed.  619,  34  L.  R.  A.   [N.  S.]  834,  Ann.  such  statute,  because  of  the  indefinite- 


Negligence  in  Operation  of  Motou  \'j:hi("les.       371 


it  has  been  held  that  the  i)art  of  a  statute  which  merely  pro- 
hibits the  operation  of  an  automobile  .at  a  rate  of  speed  greater 
than  is  reasonable  and  proper  is  too  indefinite  and  uncertain 
in  its  terms  to  he  capable  of  enforcement  in  a  criminal  prose- 
cution, but  nevertheless  furnishes  a  measure  of  care  as  a  rule 
for  civil  conduct. ^^  In  other  States  such  statutes  are  sus- 
tained."^  A  common  roini  of  regulation  is  one  which  pro- 
hibits an  unreasonable  rate  of  speed  and  then  expressly  for- 
bids speed  in  excess  of  a  certain  limit  in  all  cases  or  under 
particular  circumstances.^'  Under  such  a  regulation  it  is 
generally  a  question  for  the  jury  whether  a  speed  lower  than 
maximum  rate  is  unreasonable,^*  but  in  some  States  a  speed 
exceeding  the  limit  may  constitute  negligence  per  se.^^  In 
other  States,  a  speed  greater  than  the  maximum  limit  creates 


iic'ss  and  uncertainty  of  its  terms.  The 
contention  is  not  sound.  The  sugges- 
tion that  juries  on  the  same  state  of 
facts  may  hold  one  way  in  one  county, 
and  another  way  in  another  county, 
indeed,  that  in  the  same  county,  upon 
tlie  same  state  of  facts,  one  jury  may 
liold  one  way  and  another  hold  another 
way,  is  no  argument  against  this  con- 
tention. That  is  inevitable  under  any 
system  of  jurisprudence  on  any  set  of 
facts  involved  in  a  criminal  transac- 
tion. Courts  differ  in  their  judgment; 
juries  difTer  in  their  judgment;  but 
that  is  no  reason  for  the  abolition  of 
eitlier,  or  for  denying  them  jurisdic 
tion  suiTicient  to  enforce  the  adminis- 
tration of  statutes  like  the  one  in 
question.  In  our  whole  criminal  pro- 
cedure, even  in  capital  and  tlie  most 
atrocious  cases,  where  a  man's  life  and 
liberty  for  life  are  involved,  it  is  made 
the  special  province  and  duty  of  juries 
to  determine  what  is  'reasonable,'  and 
whether  or  not  theio  is  a  'reasonable' 
doubt  of  the  defendant's  guilt.  Of 
course,  that  is  a  conclusion — almost  in- 
capable of  precise  and  siH'cifie  defini- 
tion. What  one  jury  might  hold  to  be 
a  reasonable  doubt,  anotlier  jury  would 
hold    the    contrarv;    and    still    there    is 


no  way  other  than  to  leave  the  ques- 
tion to  the  jury  to  determine  what  is 
and  what  is  not  a  'reasonable  doubt.'" 
Stiiti-  V.  Schaeffer,  96  Oliio.  215.  117 
X.   iO.  220. 

51.  Empire  L.  Ins.  Co.  v.  Allen,  141 
Ga.  413,  81  S.  E.  120;  Strickland  v. 
Whatley,  142  Ga.  802,  83  S.  E.  856; 
Hayes  v.  State,  11  Ga.  App.  371.  75 
S.  E.  523;  Elsbury  v.  State.  12  Ga. 
App.  86,  76  S.  E.  779;  Quarles  v.  Gem 
Plumbing  Co.,  18  Ga.  App.  592,  90  S. 
E.  92.  See  also,  Solan  &  Billings  v. 
Pasche  (Te.x.  Civ.  App.).  153  S.  W. 
(-.7  2. 

52.  See  sections  66,  732. 

53.  Hoo<l  &  Wheeler  Furniture  Co. 
V.  Royal  (Ala.  App.),  76  So.  965; 
Randolph  v.  Hunt  (Cal.  App.),  183 
Pac.  385;  Elsbury  v.  State.  12  Ca.  App. 
86,  76  S.  E.  779;  Hutson  v.  Flatt,  194 
111.  App.  29;  Brinkman  v.  Pacholke.  41 
Ind.  App.  662,  84  N.  E.  762;  Arring- 
ton  V.  Horner,  88  Kans.  817,  129  Pac. 
1159;  Weygandt  v.  Bartle,  88  Greg. 
310.  171  Pac.  587.  See  also,  Tripp  v. 
Taft.  219  Mass.  81,  106  N.  E.  578. 

54.  Arrington  v.  Horner.  88  Kans. 
S17,  129  Pac.  1159.  And  see  section 
325. 

55.  Section  321. 


372  The  Law  of  Automobiles. 

&  prima  facie  case  of  negligence,  and  the  driver  of  the  machine 
is  given  an  opporunity  of  rebutting  the  prima  facie  case  by 
showing  that  in  the  particular  case  the  speed  was  not  un- 
reasonable.^ Under  a  statute  forbidding  the  driving  of  a 
motor  car  at  any  speed  greater  than  is  reasonable  and  proper, 
having  regard  to  the  traffic  on  the  highways,  a  finding  that  a 
speed  of  eighteen  miles  an  hour  was  excessive,  has  been  sus- 
tained, although  there  was  no  direct  evidence  that  any  traffic 
was  interrupted,  interfered  with,  incommoded,  or  affected; 
for  the  phrase  "having  regard  to  the  traffic  on  the  highway" 
meant  having  regard  to  the  traffic  on  the  road,  not  to  the 
traffic  in  the  immediate  vicinity  of  the  motor.^' 

Sec.  318.  Speed  of  machine  —  fire  and  police  vehicles. 

It  has  been  said  that  it  is  the  general  and,  perhaps,  univer- 
sal rule  that  regulations  governing  the  rate  of  speed  upon 
public  streets  and  highways  do  not  apply  to  fire  apparatus  on 
the  way  to  a  fire.^  And  it  has  been  held  that  the  fire  ap- 
paratus of  a  city  while  on  its  way  to  a  fire  is  excepted  from 
the  speed  regulations  imposed  by  a  statute,  although  the  fire 
on  the  particular  occasion  may  be  outside  of  the  city  limits. ^^ 

56.  People  v.  Falkovitch,  280  111.  City  v.  McDonald,  60  Kans.  481,  57 
321,  117  N.  E.  398;  People  v.  Kelly,  204       Pac.  123,  45  L.  R.  A.  429. 

111.   App.   201;    Young  v.   Dunlap,   195  59.  Hubert    v.    Granzow,    131    Minn. 

Mo.  App.  119,  190  S.  W.  1041;  Nafziger  361,    155   N.    W.    204,   wherein    it   was 

V.  Mahan   (Mo.  App.),  191  S.  W.  1080.  said:      "It    is    probably    true    that   no 

And  see  section  322.  legal  duty  is  imposed  upon  a  city  fire 

57.  Smith  v.  Boon,  84  L.  T.  593,  con-  department  to  assist  in  extinguishing 
struing  The  Light  Locomotives  on  fires  outside  the  city;  but  it  is  a  mat- 
Highways  Order,  art.  4.  See  also,  ter  of  common  knowledge  that  such  de- 
Mayhew  v.  Sutton,  86  L.  T.  18.  Other  partments  almost  invariably  respond 
cases  under  this  act  are  Rex  v.  Wells,  when  called  upon  in  such  cases.  Actu- 
91  L.  T.  98;  Thoughton  v.  Manning,  92  aled  by  motives  of  humanity  rather 
L.  T.  855.  See  article  "Prohibiting  than  by  the  mandate  of  strict  legal 
Reckless  Motoring,"  Canadian  L.  Rev,,  duty,  they  seldom  refuse  to  give  their 
February,  1906.  services  to   their   neighbors   in   case   of 

68.  Hubert    v.    Granzow,    131    Minn,  need.     While  the  law  may  not  impose 

361,    155   N.    W.    204;    citing   State  v,  a   legal    duty  upon   them  to    assist   in 

Sheppard,  64  Minn.  287,  67  N.  W.  62,  extinguishing  fires  outside  the  city,  it 

36  L.   R.   A.   305;    Warren   v.  Menden-  certainly    does    not    forbid    them    from 

hall,  77  Minn.  145,  79  N.  W.  661 ;  Far-  doing   so.      If   they   respond    to    a   call 

ley  V.  New  York,  152  N.  Y.  222.  46  N.  without    the   city,    the    same    need    for 

E.  506,  57  Am.  St.  Rep.  511;   Kansas  haste  exists  as  when  they. respond  to  a 


NeGLIOKNCK    IX    Ol'KHATION    oi"    MoTOR    VEHICLES.  373 

Til  this  partif'ular  case,  the  statute  in  question  expressly  ex- 
cepted from  its  operation  "fire  wagons  and  engines."  Clearly 
a  regulation,  either  by  statute  or  ordinance,  should  except 
vehicles  operated  by  the  police  and  fire  departments.  An 
ordinance  adopting  speed  regulations  is  not  invalid  because 
it  excepts  such  vehicles  from  its  operation.""  But,  when  a 
statute  prescribes  a  certain  limit  of  speed  for  motor  vehicles, 
and  no  exceptions  are  made,  the  courts  in  one  jurisdiction 
have  held  that  they  cannot  graft  an  exception  to  the  plain 
provisions  of  the  law.*^^  But  a  contrary  holding  has  been  made 
in  another  jurisdiction.^^  The  question  is  one  of  the  intent  of 
the  Legislature,  and  a  holding  either  way  may  perhaps  be 
based  on  sound  rules  for  the  construction  of  statutes.  On 
the  one  hand,  it  may  be  said  that  the  Tiegislature  would  not 
intend  to  make  a  speed  regulation  applicable  to  such  emer- 
gency vehicles  and  that  a  statute  would  not  be  applicable 
thereto  unless  it  expressly  included  them  within  its  operation. 
On  the  other  hand,  it  may  be  said  that  the  intent  of  the  law 
makers  is  to  be  found  only  in  their  language,  and,  unless  the 
language  contains  an  exception  to  the  general  application  of 
the  statute,  the  courts  will  not  make  one.  If  the  statute  in 
question  specifically  exempts  certain  vehicles,  but  does  not 
exempt  police  vehicles,  sound  construction  requires  the  appli- 
cation of  the  statute  to  thcm.^  Of  course,  though  the  vehicle 
is  not  within  the  prohibitions  of  speed  regulations,  it  must 
nevertheless  be  operated  at  such  speed  and  with  such  care,  as 

call  within  the  city;  and  for  tho  samo  said:  "Peace  officers  are  not  excepted 
reasons  they  should  not  be  required  from  the  operation  of  the  laws  limit- 
to  observe  the  speed  regulations  in  tlio  inij  the  speed  of  vehicles  upon  public 
one  case  more  than  in  the  other,  unless  higlnvays.  Certainly,  an  exception 
the  laAv  expressly  so  provides.  The  should  be  made  in  favor  of  those  whoee 
statute  in  question  contains  no  such  special  duty  it  is  to  detect  and  arrest 
provision.  On  the  contrary,  it  ex-  parties  running  in  excess  of  the  legal 
])ressly  excepts  'fire  wagons  and  en-  limit,  while  discharging  such  duty.  The 
gines'  from  the  vehicles  to  which  it  ap-  courts,  however,  cannot  grant  thi^^  ex 
plies;  and  this  exception  is  absolute  ception." 
and  unconditional."  62.  State    v.    GJorham    (Waah  ).    \$P 

60.  Ex  parte  Snowden,   12  Cal.   App.  Pac.  457. 

521.  107  Pac.  724.  63.  Desmond    v.    Baach   ic   Gre^r.^eld 

61.  Keevil    v.    Ponsford     (Tex.     (  iv.       (N.  J.),  108  Atl.  3r,2. 
App.),   173  S.   W.   518,  wherein  it  was 


374  The  Law  of  Automobiles. 

is  reasonable  considering  the  circumstances."''    Thus,  a  police 
officer  operating  a  motorcycle  at  a  speed  of  thirty-five  miles 
an  hour  at  a  crowded  street  junction  is  guilty  of  contributory 
negligence  Avhich  will  bar  an  action  by  him  for  his  injuries,  . 
irrespective  of  whether  speed  statutes  apply  to  him."^ 

Sec.  319.  Speed  of  machine  —  military  or  mail  vehicle. 

Speed  statutes  enacted  by  a  State  are  not  applicable  to  a 
motorcycle  or  motor  vehicle  driven  by  a  member  of  the  United 
States  army  or  navy,  when  the  speed  is  a  matter  of  military 
necessity.^  But  when  it  is  not  necessary  to  one  operating  a 
truck  carrying  mail  to  exceed  the  State  statute  in  order  to 
comply  with  his  schedule,  he  may  be  prosecuted  for  speeding.""^ 

Sec.  320.  Speed  of  machine  —  violation  of  speed  regulation  as 
evidence  of  negligence. 

While  it  is  generally  held  that  the  violation  of  a  speed  regu- 
lation is  negligence  as  a  matter  of  law,^  in  a  few  jurisdictions, 
the  violation  is  not  given  so  great  probative  force,  and  it  is 
held  that  the  violation  is  merely  evidence  of  negligence,  to  be 
considered  by  the  jury  in  connection  A\dth  the  other  circum- 

64.  Brown  v.  CUy  of  Wilmington,  4  opinion  they  are.  Under  the  Constitu- 
Boyce  (Del.)  492,  90  Atl.  44;  Edberg  tion  of  the  United  States,  the  conduct 
V.  Johnson  (Minn.),  184  N.  W.  IS;  of  the  war  now  existing  between  this 
Farrell  v.  Fire  Ins.  Salvage  Corps.,  LSO  country  and  Germany  vests  wholly  in 
N.  Y.  App.  Div.  795,  179  N.  Y.  Suppl.  the  federal  government.  Any  State 
477 ;  Clark  v.  Wilson,  108  Wash.  127,  laAV,  the  operation  of  which  will  hinder 
183  Pac.  103.  t'lat  government  in   carrying  out  such 

65.  Miner  v.  Rembt,  178  N.  Y.  Apr  constitutional  power,  is.  during  the  ex- 
Div.  173,  164  N.  Y.  Suppl.  945.  Com-  ercise  of  the  power,  suspended  as  re- 
pare  Clark  V.  Wilson,  108  Wash.  127,  gards  the  national  government  and  its 
183  Pac.  103,  holding  a  speed  of  35  officers,  who  are  charged  with  the  duty 
miles  an  hour  not  neces-sarily  negligent  of  prosecuting  the  war.  The  principle 
at  a  place  wliere  there  was  no  other  is  well  established  that  in  respect  to 
^^^j^gjg  the  powers  and  duties  exclusively  con- 

66.  State  v.  Burton.  41  B.  I.  303.  103  ferred  and  imposed  upon  the  federal 
Atl.  962,  wherein  it  was  said :  "In  government  by  the  Constitution  of  the 
e^ence  this  question  is:  Are  the  rules  United  States  the  several  States  have 
established  by  the  general  assembly  subordinated  their  sovereignty  to  that 
regulating  the  use  of  the  highways  of  of  the  nation." 

the  State  subordinate  to  the  exigencies  67.  Hall     v.    Commonwealth      (Va.), 

of   military   operations   by   the   federal       105  S.  E.  551. 
government    in    time   of   war?      Tn    our  68.  Section  321. 


Negligence  i.v  Opkuatiox  of  ^foTon  VETiiri^Es.       DTo 

stances  in  the  case.^^  In  a  comparatively  few  States,  the  view 
is  taken  that  the  violation  of  a  statute  relatin^^  to  speed  is 
negligence  as  a  matter  of  law,  but  that  the  violation  of  a  muni- 
cipaJ  ordinance  on  the  subject  is  merely  evidence  of  negli- 
gence.'^*' 


Sec.  321.  Speed  of  machine  —  violation  of  speed  regulation 
as  negligence  per  se. 
The  weight  of  authority  supports  the  view  that  the  viola- 
tion of  a  statute  or  nmnicipal  ordiiiance  is  negligence  per  se 
which  renders  the  wrongdoer  liable  for  injuries  proximately 
resulting  to  those  intended  to  bo  within  the  ])]'ot(^ctioii  of  the 
regulation.'^^  Thus,  the  violation  of  a  regulation  relative  to 
the  speed  with  which  motor  vehicles  may  be  operated  on  the 
streets  and  highways,  is  generally  held  to  be  negligence  as  a 
matter  of  law.''-    It  is  negligence  per  se  to  drive  an  automo- 


69.  Rule  V.  Claar  Transfer  &■  Stor- 
age Co.  (Neb.),  165  N".  W.  883:  Stevens 
V.  Luther  (Neb.),  180  N.  W.  87:  Dor- 
rance  v.  Omaha,  etc.  Ry.  Co.  (Nob.), 
180  N.  W.  90;  Lady  v.  Douglass 
(Neb.),  181  N.  W.  173;  Record  v. 
Penn..R.  R.  Co.,  75  N.  J.  L.  311.  67 
Atl.  1040;  State  v.  Schutte.  88  N.  J. 
Law.  396,  96  Atl.  659;  People  v.  Sean- 
Icn,  132  N.  Y.  App.  Div.  528.  117  N.  Y. 
Suppl.  57;  Bears  v.  Central  Garage 
Co.,  3  Doni.  L.  Rep.  (Canada)  387; 
Stewart  v.  Steele.  6  Dom.  L.  Rep. 
(Canada)  1;  Campbell  v.  Pugsley,  7 
Dom.  L.  Rep.  (Canada)  177.  See  also, 
Denison  v.  MVNorton.  228  Fed.  401,  142 
C  C.  A.  631.  -The  fact  that  the  auto- 
nN>bile  was  e.xcceding  the  speed  limit 
prescribed  by  the  ^^otor  Vehicle  Act  is 
not  the  controlling  factor,  but  is  only 
a  circumstance  to  l>e  consideied  in  de- 
ciding wlietlier  or  not  the  defendant 
was  running  his  automobile  at  a  rate 
of  speed  wliieh.  under  the  existing  con- 
ditions, was  obviously  dangerous  to 
pedestrians  or  others  using  the  high- 
way. \  man  who  delil>erately  drives 
his  oar  into  a  ma.ss  of  j>eopie  standing 


in  the  street  looking  at  a  baseball 
score  board  is  guilty  of  assault  and 
battery  for  running  over  some  of  them, 
although  hig  automobile  is  traveling 
far  below  the  speed  limit;  whereas,  one 
driving  on  a  lonely  country  road  with 
no  pedestrians  on  it  in  sight  might  be 
eritirely  guiltless  of  the  crime  of  as- 
sault and  battery  for  running  over  a 
child  which  suddenly  darted  from  a 
concealed  position  by  the  iiighway.  al- 
though the  automobile  at  thi-  time  was 
exceeding  the  speed  limit."  State  v. 
Schutte,  88  N.  J.  L.   396,  96  Atl.   659. 

70.  Granger  v.  Farrant,  179  :Mich.  19, 
146  N.  W.  218:  Westovor  v.  Grand 
Rapids  R.  Co,  180  Mich.  373.  147  N. 
W.  630:  Weber  v.  Beeson.  197  Mich. 
607,  164  X.  W.  255.  See  also.  Lcvvn 
v.  Koppin.  183  Midi.  232.  149  N.  W. 
993. 

71.  Section   297. 

72.  California. — T.Awrence  v.  Good- 
will (Cal.  App.),  186  Pac.  781:  Ham 
V.  Los  Angeles  County  (Cal.  A[)p. ).  189 
Pac.  462:  Berges  v.  Guthrie  (Cjil. 
App.).  197  Pac.  356:  Spring  v  Mc('al>e 
(Cal.   App.l.   200   Pac.   41. 


376 


The  Law  of  Automobiles. 


bile  in  excess  of  the  prescribed  limit,  whether  the  excess  is 
large  or  small.^^  The  fact  that  the  police  officers  of  a  muni- 
cipality have  resolved  not  to  enforce  a  speed  ordinance,  does 
not  affect  the  evidentiary  value  of  its  violation.'^'' 

Sec.  322.  Speed  of  machine  —  excessive  speed  as  prima  facie 
evidence  of  negligence. 

In  several  States,  the  law  is  expressly  stated  by  statute  to 
the  effect  that  the  violation  of  the  limit  fixed  by  the  statute  is 
prima  facie  evidence  that  the  speed  in  question  was  excessive.''^ 
Such  a  statute  creates  a  presumption  of  the  plaintiff's  con- 
tributory negligence,  if  violated  by  him,  equally  as  it  shows 


Colorado. — Denver  Omnibus  &  Cab 
Ck>.  V.  Mills,  21  Colo.  App.  582,  122 
Pac.  798. 

Delaware. — Travels  v.  Hartman,  5 
Eoyce,  302,  92  Atl.  855;  Lenimon  v. 
liroadwater,  30  Del.  (7  Boyce)  472, 
108  Atl.  273. 

Georgia. — Coluraibus  R.  Co.  v.  Wal- 
ler, 12  Ga.  App.  674,  78  S.  E.  52; 
O'Dowd  V.  Newnham,  13  Ga.  App.  220. 
80  S.  E.  36;  Central  of  Ga.  Ry.  Co.  v. 
Larsen,  19  Ga.  App.  413,  91  S.  E.  517; 
Ware  v.  Lamar,  18  Ga.  App.  673,  90 
S.  E.  364. 

Indiana. — Fox  v.  Barekman,  178  Ind. 
572,  99  X.  E.  989;  Carter  v.  Caldwell, 
183  Ind.  434,  109  N.  E.  355. 

Iowa. — Hubbard  v.  Bartholomew, 
163  Iowa,  58.  144  N.  W.  13.  See  O'Neil 
V.  Redfield,  158  Iowa,  246,  139  N.  W. 
555. 

Kansas. — Fisher  v.  O'Brien,  99  Kans. 
621,  162  Pac.  317;  Barsfield  v.  Vuck- 
lich,  197  Pac.  205. 

Minnesota: — Riser  v.  Smith,  136 
Minn.  417,  162  N.  W.  520. 

Mississippi. — Ulmer  v.  Pistole,  li') 
Miss.  485.  76  So.  522. 

Missouri. — Roper  v.  Greenspon,  272 
Mo.  288,  198  S.  W.  1107;  Barton  v. 
Faeth,  193  Mo.  App.  402,  186  S.  W.  52; 
Carradine  v.  Ford,  195  Mo.  App.  684, 
187  S.  W.  285. 

OMo. — Schell  V.  Dubois,  94  Ohio,  93 


J13  N.  E.  664;  Weimer  v.  Rosen,  100 
Oliio,   361.    126   N.  E.   307. 

Houth  Carolina. — Whaley  v.  Osten- 
dortf,  90  S.  0.  281,  73  S.  E.  186;  Mc- 
Loon  V.  Muldrow,  91  S.  C.  523,  74  S. 
E.   386. 

Tennessee. — iLauterbach  v.  State,  132 
Tenn.  603,  179  S.  W.  130. 

Texas. — Keevil  v.  Ponsford  (Civ. 
App.),  173  S.  W.  518;  Solon  v.  Pasche 
(Civ.  App.),  153  S.  W.  672;  Schoell- 
kopf  Saddlery  Co.  v.  Crawley  (Civ. 
App.),  203  S.  W.  1172;  Carvel  v.  Kusel 
(Civ.  App.),  205  S.  W.  941;  Southern 
Traction  Co.  v.  Jones  (Civ.  App.), 
209  S.  W.  457;  Flores  v.  Garcia  (Civ. 
App.),  226  S.  W.  743. 

Wisconsin. — ^Ludke  v.  Burck,  160 
\Vis.  440,  152  N.  W.  190,  L,  R.  A.  1915 
D.  968;  Higgles  v.  Priest,  163  Wis 
199,  157  N.  W.  755;  Foster  v.  Bauer, 
180  N.  W.  817. 

73.  Carter  v.  Caldwell,  183  Ind.  434, 
109  N.  E.  355. 

74.  Riser  v.  Smith,  136  Minn.  417, 
162  N.  W.  520. 

75.  Alabama. — Gilbert  v.  Southern 
Bell  Telep.  &  Teleg.  Co.,  200  Ala.  3,  75 
So.  315;  Hood  &  Wbeeler  Furniture 
Co.   v.  Royal    (Ala.  App.),  76  So.  965. 

Connecticut. — Radwick  v.  Goldstein, 
90  Conn.  701,  98  Atl.  583. 

Illinois. — Hartje  v.  Moxley,  235  111. 
164,    85    N.    E.    216;    People   v.    Falko- 


Negligence  in  Opekatiux  ui   Motor  Vehicles.       377 

the  negligence  of  the  defendant  if  violated  by  the  defendant.'^ 
Under  such  a  statute,  one  exceeding  a  speed  limit  is  prima 
facie  guilty  of  negligence,  yet  he  is  allowed,  by  reason  of  the 
terms  of  the  statute,  an  opportunity  to  show  that  the  speed 
in  the  particular  case  was  reasonable  and  proper  under  the 
surrounding  circumstances."  The  law  does  not  regard  a 
greater  speed  as  negligence,  but  as  prima  facie  evidence  of 
negligence ;  and  when  such  speed  is  shown,  it  is  not  necessary 
to  show  further  conditions  that  make  that  rate  unreasonable.''* 
Under  some  statutes,  the  prima  facie  case  of  negligence  arises 
only  when  the  excessive  sjjeed  has  been  maintained  for  a  cer- 
tain distance,  such  as  an  eighth  or  a  ([uarter  of  a  niile.'^    It 


vit^-h,  280  111.  321.  117  N.  E.  398; 
Kessler  v.  Washburn,  157  111.  App.  532; 
People  V.  Lloyd,  178  111.  App.  66;  Bruhl 
V.  Anderson.  ISO  111.  App.  461;  Petty 
V.  Maddox,  190  111.  App.  381;  Berg  v. 
Michell,  196  111.  App.  509:  People  v. 
Kelly,  204  111.  App.  201;  Link  v. 
Skeeles,  207  111.  App.  48:  Brautigan 
V.  Union  Overall  Laundry  Co..  211  111. 
App.  354;  Mastcn  v.  Cousins,  216  111. 
App.  268.  See  also,  Fippinper  v.  Glos, 
190  ni.  App.  238. 

lotca. — Schultz  V.  Starr,  180  Iowa, 
1319,  164  N.  W.  163;  Larsh  v.  Stras- 
Ben,  183  Iowa.  1360,  168  K.  W.  142; 
Shaffer  v.  Miller,  185  Iowa,  472,  170 
N.  W.  787;  Dice  v.  Johnson,  175  N.  W. 
38;  McSpadden  v.  Axmear  (Iowa),  181 
N.  W.  4. 

Kentucky. — Wade  v.  Brents,  161  Ky. 
607,  171  Ky.  188;  Forjry  v.  Rutledge, 
167  Ky.  182,  180  S.  W.  90;  Moore  v. 
Hart,   171  Ky.  725.  188  S.   W.  861. 

Missouri. — Nafgiezer  v.  Mahan  (Mo. 
App.),  191  S.  W.  1080;  City  of  Wind- 
sor V.  Bast  (Mo.  App.),  199  S.  W.  722. 

Instructions. — Under  the  Illinois  law, 
which  provides  that  in  an  action  to  re- 
cover damages  caused  by  running  an 
automobile  at  a  greater  speed  than 
fifteen  miles  per  hour  a  prima  facie 
case  shall  be  made  by  showing  the  in- 
jury and  excessive  speed,  it  was  held, 
in  an  action  for  injuries  to  the  plain- 


tift',  whose  horse  was  friirlitoncd  l>y  the 
defendant's  autf)mobile.  that  an  in- 
struction in  t)ie  language  of  the  stat- 
ute as  to  tho  facts  sufTicient  to  make 
out  a  prima  facie  ease  in  an  action  for 
injuries  caused  by  excessive  speed  was 
not  erroneous  on  the  theory  that  it 
ignored  the  question  as  to  whether  the 
injuries  were  occasioned  by  running 
the  automobile  at  an  excessive  speed. 
Ward  V.  Meredith,  220  J 11.  66,  77  X.  E. 
119. 

Burden  of  evidence.-  ."^uch  a  statute 
does  not  necessarily  change  the  burden 
of  proof,  but  may  merely  shift  the  bur- 
den of  evidence.  Duprat  v.  Chismore 
iVt.).  110  Atl.  305. 

76.  McSpodden  v.  Axmear  (Iowa), 
181  N.   W.   4. 

77.  Badwick  v.  Goldstein,  90  Conn. 
701,  98  Atl.  583 ;  Hartje  v.  Moxley, 
235  111.  164.  85  N.  E.  216:  Berg  v. 
Michell,  196  111.  App.  509:  Moore  v. 
Hart,  171  Ky.  725,  188  S.  W.  861; 
Holland  v.  Yellow  Gab  Co.,  144  Minn. 
475,  175  N".  W.  536;  Flowerree  v. 
Thornberry  (Mb.  App.),  183  S.  W. 
359;  People  v.  Mellen.  104  Miso.  (N. 
Y.)    355. 

78.  Berg  v.  Mitchell.  196  III.  App. 
509;  People  v.  Fitzgerald,  ml  Misc. 
(N.   Y.)    695.   168  N.  Y.   Suppl     030. 

79.  Flowerree  v.  Thornberry  (Mo. 
.\pp.),  183  S.  W.  359. 


378  The  Law  or  Automobiles. 

is  generally  a  question  for  the  jury  whether  the  speed  under 
consideration  is  excessive  under  the  circumstances  of  the  par- 
ticular case.^°  The  driver  may  succeed  in  showing  circum- 
stances which  will  relieve  him  from  criminal  liability,  though 
he  was  running  the  machine  at  as  high  a  rate  as  forty-two 
miles  an  hour.^^  Wliere  in  an  action  to  recover  damages  for 
personal  injuries  alleged  to  have  been  caused  by  the  negli- 
gence of  the  defendant  in  driving  his  motor  car  at  too  rapid 
a  speed  and  hitting  the  plaintiff  as  he  was  crossing  the  street, 
the  trial  court  instructed  the  jury  that  a  failure  to  comply 
with  the  requirements  of  the  statute  respecting  the  operation 
of  such  vehicle  on  the  highway,  from  which  an  injury  resulted, 
gave  to  the  injured  person  a  cause  of  action  if  his  own  negli- 
gence did  not  materially  contribute  to  tlie  injury,  but  omitted 
to  say  in  so  many  words,  that  the  burden  rested  upon  the 
plaintiff  to  prove  the  negligence  charged,  as  well  as  his  own 
exercise  of  due  care,  and  no  request  was  made  to  so  instruct 
them,  it  was  held  that  under  these  circumstances  the  omission 
to  charge  more  specifically  respecting  the  burden  of  proof  as 
to  negligence  and  contributory  negligence  was  not  a  sufficient 
ground  for  granting  a  new  trial.*^ 

Sec.  323.  Speed  of  machine  —  excuse  for  violation  of  speed 
reflation. 

Many  and  various  are  the  excuses  that  are  offered  by 
drivers  accused  of  speeding,  the  following  being  a  few  of  those 
most  commonly  given:  Thoie  was  a  sick  person  in  the  car; 
a  physician  was  speeding  to  the  bedside  of  a  patient;  it  was 
raining  hard;  the  car  was  speeding  up  temporarily  to  get  out 
of  the  dust  of  the  car  ahead.  In  some  instances  magistrates 
and  judges  have  discharged  motorists  for  one  of  the  above 
reasons,  while  in  other  cases  they  have  utterly  refused  to 
listen  to  excuses  of  this  nature.  May  there  not  be  circum- 
stances under  which  the  operation  of  an  automobile  at  exces- 
sive speed  is  excusable  morally  and  legally,  and  which  is  the 

80.  People    v.    Lloyd,    178    111.    App.       Y.)    355. 

66;    Schaffei-  v.  Miller.   185   Iowa,  472.  82.  Wolfe  v.  Ives,   83   Ck)nn.   174,   7« 

170  N.  W.  787.  Atl.  526.  19  Ann.  Cas.  752. 

81.  People   V.   Mellen.   104   Misc.    (N. 


NeGLIUKNCK    l.V    Ol'KRATIOX    OF    MoTOR   Vkhuliv-.  379 

jjrojK'i-  course  Toi-  a  judge  to  pursue.'  The  various  State  auto- 
mobile laws  say  that  motor  veliieles  shall  not  ])e  driven  faster 
than  certain  rates  of  speed.  Generally,  there  are  no  excep- 
tions or  provisos  in  these  laws  permitting  the  speed  limits  to 
he  exceeded,  and  consequently  there  exists  no  judicial  dis- 
cretion to  discharge  arrested  automobilists  on  any  of  the 
grounds  mentioned.  However,  since  all  laws  must  be  en- 
forced by  means  of  human  agency,  "humanity"  must  neces- 
sarily enter  into  the  execution  of  any  particular  statute.  It 
should  not  be  forgotten  that  "intention"  has  no  place  in  viola- 
tions of  the  speed  law.  Whether  the  arrested  automobilist 
"knew"  that  he  was  exceeding  the  speed  limit  makes  no  dif- 
ference in  regard  to  his  innocence  or  guilt.  The  law  says  that 
he  who  operates  an  automolule  drives  it  at  his  peril  if  he  ex- 
ceeds the  speed  limit.  But  there  is  certainly  an  unfairness  in 
"trapping"  an  automobilist  who  does  not  intentionally  speed 
for  the  sake  of  creating  a  race  or  showing  off.  Just  what  to 
do  to  prevent  oppression  by  officers  of  the  law  on  the  one  hand 
and  to  curb  reckless  automo'biling  on  the  other  is  the  great 
question.^ 

Sec.  324.  Speed  of  machine  —  neg-ligence  thougfh  not  exceed- 
ing speed  limit. 

The  fact  that  a  regulation  has  established  a  rate  of  speed 
beyond  which  an  automobilist  cannot  drive  his  machine  does 
not  under  all  circumstances  justify  him  in  running  at  such 
speed.^^    He  should  not  operate  his  vehicle  at  a  rate  which  is 

83.  Emergency   Calls. Motor   vehicle  Cannecticut. — Invin     v.     Judge,     81 
liiws   in    ii    few   St-ate.-^   make   an    exec^p-       Conn.  492,   71   Atl.   572. 

tion    in   cases   when    the    driver    is   an-  Illinois. — Kessler    v.    Washburn.    157 

swering  an  "emergency  call."      Fair   v.  111.  App.  532;  Bohm  v.  Dalton,  206  111. 

Union  Tract.   Co,   102  Kans.  611.   171  App.  374. 

Pac.  649;    Opocensky  v.  City  of  South  Indiana. — Brinkman   v.   Pacholke,   41 

Omaha,  101  Neb.   336,   163  k.  W.   32.->.  Ind.  App.  662.  84  N.  E.  762. 

84.  Arkansas. — Bona  v.  S.  B.  Thomas  /oioa.^Delfs  v.  Dunshee.  143  Iowa, 
Auto  Co.,  137  Ark.  217.  208  S.  W.  30G.  381.    133    >r.    W.    236:    I*mke   v.    Ady, 

C«ri/or>ii«.— Cook  v.  Miller,   175  Cal.  159  X.  AV.  1011;  ShafTer  v.  Miller,  185 

497,    166    Pac.    316;    Opitz   v.    Scheney.  Iowa,  472.  170  N.   W.  787. 
174    Pac.    40:    Gross    v.    Burnsidc.    109  Kentucky. — Forg}-    v.    Rutledge,    167 

Pi,e.  780.  K.v.  182,  180  S.  W.  90;  Moore  v.  Hart, 


380 


The  Law  of  Auto.mobh.ks 


unreasonable  under  the  circumstances/^^  and  it  is  sell*  evident 
that  under  the  particular  circumstances  of  many  cases  the 
rate  allowed  bj^  statute  or  ordinance  would  be  excessive.^"'  As 
was  said  in  one  case,^'  "No  owner  or  operator  of  an  automo- 
bile is  necessarily  exempt  from  liability  for  collision  in  a  pub- 


171  Ky.  725,  188  S.  W.  861.  "It  will 
not  to  say  that  the  provisions  of 
the  statute  as  to  the  effects  and  conse- 
quences of  a  violation  of  tlie  speed 
limits  therein  mentioned  is  evidentiary 
only,  so  as  to  justify  the  submission  of 
the  case  to  the  jury  when  those  limits 
are  exceeded,  because  it  is  the  law 
everywhere  so  far  as  Ave  are  aware,  that 
such  provisions  may  be  strictly  com- 
plied with  and  yet  the  party  sought 
to  be  cliarged  may  be  guilty  of  action- 
able negligence.  In  other  Avords,  in 
this  particular  case  the  speed  may  not 
have  exceeded  20  miles  per  hour,  still 
this  would  not  be  an  absolute  defense, 
as  other  facts  and  circumstances  may 
have  justified  the  submission  of  the  case 
t«  the  jury.  On  the  contrary,  defend- 
ant may  have  been  traveling  at  a  rate 
of  speed  greater  than  20  miles  an  hour, 
and  under  the  facts  and  circumstances, 
not  be  guilty  of  negligence.  When  the 
plaintiff  shows  that  the  rate  of  speed 
at  which  the  defendant  was  traveling 
was  greater  than  that  prescribed  by  the 
statute  for  that  place,  the  burden  then 
shifts  to  the  defendant  to  show  that  the 
speed  at  which  he  was  traveling  did 
not  produce  the  injury."  Moore  v. 
Hart,  171  Ky.  725,  188  S.  W.  861. 

Massachusetts. — Basmussen  v.  Whip- 
ple, 211  Mass.  546,  98  N.  E.   592. 

Michigan. — Patterson  v.  Wagner,  204 
Mich.  593,  171  N.  W.  356;  Hawkins  v. 
Ermatinger,  179  N.  W.  249. 

Minnesota. — ITinkcl  v.  Stcmper,  180 
N.  W.  918. 

Missouri. — Gintei  v.  O'Donoghue 
(Mo.  App.),  179  S.  W.  732;  Denny  v, 
Randall   (Mo.  App.),  202  8.  W.  602. 

North  Dakota.— Yannett  v.  Cole,  170 
N.  W.  663. 


Pennsylvaiikt. — Flanigan  v.  McLean 
(Pa.),  110  Atl.  370. 

So-iith  Dakota. —  Chrestenson  v. 
Harms,  38  S.  D.  360,  161  N.  W.  343. 

Tennessee. — West  Constr.  Co.  v. 
White,  130  Tenn.  520,  172  S.  W.  301. 

Texa^. — Figuerora  v.  Madero  (Civ. 
App.),  201  S.  W.  271. 

Utah. — Lochhead  v.  Jenson,  42 
Utah,  99,  129  Pac.  347;  Fowlkes  v. 
J.  I.  Case  Threshing  Mach.  Co.,  46 
Utah,  502,  151  Pac.  53. 

Washi/ngton. — Adair  v.  McNeil,  05 
W:,sh.  160,  163  Pac.  393. 

Compare  Weimer  v.  Eosen,  100  Ohio, 
361,  126  N.  E.  307. 

85.  Section  305. 

86.  ' '  Tlie  iiilo — speed  limitation  by 
ordinance  or  no  speed  limitation— is 
the  general  ami  well-established  one 
applying  to  motor  vehicles  as  to  all 
othei'  vehicles,  and  is  that  their  oper- 
ators must  use  aU  the  care  and  cau- 
tion in  operating  them  which  careful 
and  piiulent  men  should  exercise,  hav- 
ing due  regard  for  the  safety  of  the 
public  and  the  rights  of  others  to  the 
use  of  the  streets.  The  operator  of  a 
vehicle  niny  not  escape  liability  for  a 
collision  by  simply  saying  that  he  was 
not  exeeerling  the  speed  limit  estab- 
lished by  statute  or  ordinance  when  it 
hapfjeued.  It  may  appear  (the  other 
party  being  without  fault)  that  though 
a  defendant  was  not  exceeding  the  limit 
of  speed  prescribed  by  the  ordinance, 
yet  that  he  was  operating  his  vehicle 
under  the  particular  circumstances  as  a 
careful  and  prudent  man  in  the  exer- 
cise of  due  care  and  caution  would  have 
had."  Opitz  v.  Schenck  (Cal.),  174 
Pac.  40. 

87.  Kessler  v.  Washburn.  157  111. 
App.   532. 


Negligence  in  Opkratiox  of  Motor  Vehicles.       381 

lie  street  by  simply  showing  that  at  the  time  of  the  accident  he 
did  not  run  at  a  rate  of  speed  exceeding  the  limit  allowed  by 
the  law  or  the  ordinances.  On  the  contrary,  he  still  remains 
bound  to  anticipate  that  he  may  meet  persons  at  any  point  in 
the  public  street  and  he  must  keep  a  proper  lookout  for  them 
and  keep  his  machine  under  such  control  as  will  enable  him 
to  avoid  a  collision  with  another  person,  using  proper  care 
and  caution ;  and  if  necessary,  he  must  slow  up  and  even  stop. 
No  blowing  of  a  horn  or  of  a  whistle  or  ringing  of  a  bell  or 
gong,  without  an  attempt  to  slacken  the  speed,  is  sufficient,  if 
the  circumstances  at  a  given  point  demand  that  the  speed  be 
slackened  or  the  machine  be  stopped,  and  such  a  course  is 
reasonably  practicable."^^  But  one  claiming  that  a  speed  less 
than  the  prescribed  limit  is  negligent  under  the  circumstances 
has  the  burden  of  proof  to  show  the  circumstances  requiring 
a  slower  rate.^ 

Sec.  325.  Speed  of  machine  —  province  of  jury. 

Speaking  in  general  terms,  whether  a  person  has  been  guilty 
of  negligence  is  a  question  for  the  jury.^*^  And,  whether  one 
operated  a  motor  vehicle  at  a  speed  faster  than  a  reasonable 
and  proper  rate,  is  peculiarly  a  question  within  the  province 
of  the  jnry.^^    It  is  true  that  in  some  jurisdictions,  when  it  is 

88.  And     see    to    the    same    oflfeet :  Iowa. — Topper   v.   Maple,   181   Iowa, 
Thies  V.  Thomas,  77  N.  Y.  Suppl.  276.  786,  165  N.  W.  28.    See  also,  McSpad- 

89.  Lochhead  v.  Jenson,  42  Utah,  99,  den  v.  Axmear  (Iowa),  181  N.  W.  4. 
129  Pac.  347.  Konsa^s. — Arrington    v.     Horner,     88 

90.  See  section  359.  Kans.    817,    129   Pac.    1159;    Barshfield 

91.  Ari^otia.—WaTien    Co.   v.   Whitt,  v.  Vucklich   (Kans.),   197  Pac.   205. 
103  Wash.  284,  165  Pac.  1097.  Michigan. — Hawkins    v.    Ermatinger, 

California.— B&musteT    v.    H.    Jevne  179  N.  W.  249. 

Co.,  28  Cal.  App.  133,  151  Pac.  546.  Missouri. — Priebe   v.    Crandall    (Mo. 

Colorado. — Martin  v.  Carruthers,  195  App.),    187    S.    W.    605;    Schinogle   v. 

Pac.  105.  Baughman  (Mo.  App.),  228  S.  W.  897. 

Connecticut. — Griffen    v.    Wood,    93  Nchrasl<a.—'RM\e    v.    Claar    Transfer 

Conn.  99,  105  Atl.  354.  &  Storage  Co.,  102  Neb.  4,  165  N.  W. 

Georgia.— Central  of  Ga.  Ey.  Co.  t.  883. 

Larsen,  19  Ga.  App.  413,  91  S.  E.  517.  New   Jersey.— Merkl   v.   Jersey  City 

Illinois.— Veo^le    v.    Lloyd,    178    111.  H.  &  P.  St.  Ry.  Co.,  75  N.  J.  Law,  654, 

App.   66;    Hartwig   v.   Knapwurst,   17S  68  Atl.  74. 

ni.  App.  409;   Ferry  v.  City  of  Wau-  New  Yorlc. — Brewster  v.  Barker,  129 

kegan,  196  HI.  App.  81.  N.  Y.  App.  Div.  724,  113  N.  Y.  Suppl. 


382 


The  Law  of  Automobiles. 


clearly  shown  that  the  driver  of  a  motor  vehicle  violated  a 
speed  regulation  upon  a  particular  occasion,  the  negligence  of 
the  driver  may  be  found  as  a  matter  of  law,  hut,  in  other 
cases,  as  a  general  proposition,  the  negligence  of  the  driver 
is  a  question  for  the  jury.  And  more  especially  is  a  question 
for  the  jury  presented,  when  the  evidence  is  conflicting  as  to 
the  rate  which  Avas  maintained  upon  the  occasion  under  con- 
sideration.®^ 


Sec.  326.  Control. 

The  driver  of  a  motor  vehicle  must  at  all  times  have  the 
machine  under  reasonable  control,  so  that  with  due  diligence 
he  can  stop  in  time  to  avoid  injury  to  other  travelers  who  are 
exercising  reasonable  care  for  their  safety.^^     This  general 


1026;  Ackerman  v.  Stacey,  157  N.  Y. 
App.  Div.  835,  143  N.  Y.  Suppl.  227. 

07wo.— Schell  v.  DuBois,  94  Ohio,  93, 
113  N.  E.  664. 

Pennsylvania. — Lorah  v.  Binehart, 
243  Pa.  St.  231,  89  Atl.  967;  Joyce  v. 
Smith  (Pa.),  112  Atl.  549;  Wolf  v. 
Sweeney  (Pa.),  112  Atl.  869. 

South  Dakota. — Cameron  v.  Miller, 
180  N.  W.  71. 

Utah. — Boeddcher  v.  Frank,  48 
Utah,  363,  159  Pac.  634. 

Washington. — Bruner  v.  Little,  97 
Wash.  319,  166  Pac.  1166;  Locke  v. 
Greene,   100  Wash.   397,   171   Pac.   245. 

92.  Brown  v.  New  Haven  Taxicab 
Co.  (Conn.),  105  Atl.  706;  Osberg  v. 
Cudahy  Packing  Co.,  198  111.  App.  551; 
Roper  V.  Greenspon,  272  Mo.  288,  198 
S.  W.  1107,  L.  R.  A.  1918D  126. 

93.  Illinois. — Kessler  v.  Wa&hburn, 
157  111.  App.  532;  Crandall  v.  Krause, 
165  111.  App.  15;  Kuchler  v.  Stafford, 
185  111.  App.  199. 

Iowa. — Brown  v.  Des  Moines  Steam 
Bottling  Works,  174  Iowa,  715,  156 
N.  W.  829;  Gilbert  v.  Vanderwall,  181 
Iowa,  685,  165  N.  W.  165.  "It  is  a 
matter  of  common  knowledge  that  the 
movements  of  these  heavy,  fast-moving 
vehicles  upon  the  street  are  required  to 


be  kept  under  reasonable  control,  to 
avoid  having  their  course  diverted  by 
the  intervention  of  obstacles  upon  the 
street,  and  if  not  held  under  control,  a 
slight  obstacle  will  so  divert  them,  and 
imperil  the  safety  of  those  upon  the 
street;  that,  when  diverted,  they  be- 
came a  menace  to  those  in  the  vicinity 
of  their  course,  a  menace  from  which 
it  is  difficult  sometimes  to  escape. 
Therefore  it  becomes  the  duty  of  one 
upon  a  public  highway  in  a  thickly 
I>opulated  part  of  the  large  city  to  exer- 
cise reasonable  care  to  see  that  he  has 
the  instrumentality  under  control,  and 
to  so  manage  it  that  it  will  not  un- 
reasonably or  unnecessarily  imperil  the 
safety  of  others  upon  the  public  high- 
way. Whether  the  defendant  did  this 
in  this  particular  case  was  clearly  a 
question  for  the  jury.  The  jury  might 
well  liave  found,  that  if  the  defendant 
had  his  automobile  under  such  perfect 
control  as  he  should  have  had  on  a  pub- 
lic street,  and  was  giving  reasonable 
attention  to  it,  lie  might  have  avoided 
the  collision  with  the  flange  at  the 
.switching  point,  or,  having  collided  with 
it,  might  have  stopped  the  same  in  time 
to  have  avoided  the  injury  complained 
of. ' '    Brown  v.  Des  Moines  Steam  Bot- 


Negligence  in  Operation  of  Motor  \^ehicles.       383 


principle  is,  for  practical  purposes,  the  same  as  the  rule  re- 
quiring the  driver  to  operate  the  machine  not  faster  than  a 
reasonable  and  proper  rate  of  speed.^*  Not  only  must  he  have 
the  car  under  reasonable  control,  so  as  to  avoid  a  collision 
with  other  vehicles,^^  beasts  of  burden,  and  pedestrians,^'^  but, 
for  his  own  safety,  he  must  have  the  car  under  such  control 


tling  Works,  174  Iowa.  715,  156  N.  W. 
829. 

Kentucky. — Weiduer  v.  Otter,  171 
Ky.  167,  188  S.  W.  335. 

Louisiana. — Walker  v.  Rodriguez, 
139  La.  251,  71  So.  499. 

Michigan. — Granger  v.  Farrant,  179 
Mich.  19,  146  N.  W.  218;  Westover  v. 
Grand  Rapids  R.  Co.,  180  Mich.  373, 
147  N.  W.  630. 

Minnesota. — Molin  v.  Wark,  113 
Minn.  190,  129  N.  W.  383;  Johnson 
V.  Johnson,  137  Minn.  198,  163  N.  W. 
160. 

Mississippi. — Ulmer  v.  Pistole.  115 
Miss.  485,  76  So.  522. 

Missmiri. — Rowe  v.  Hammond.  172 
Mo.  App.  203,  157  S.  W.  880;  Priebe 
V.  Crandall  (Mo.  App.),  187  S.  W.  605; 
Mitchell  V.  Brown  (Mo.  App.),  190 
S.  W.  354;  Roper  v.  Greenspon  (Mo. 
App.),  192  S.  W.  149. 

New  Jersey. — Pool  v.  Brown,  89  N. 
J.  Law.  314,  98  Atl.  262. 

New  ¥ork. — Thies  v.  Thomas,  77 
N.  Y.  Suppl.  276. 

North  Carolina. — Manly  v.  Aber- 
nathy,   167   N.  Car.  220,  83   S.  E.   343. 

Oregon. — Weygandt  v.  Bartle,  88 
Oreg.  310,  171   Pac.  587. 

Pennsylvania. — Lorah  v.  Rinehart, 
243  Pa.  St.  231,  89  Atl.  967;  Virgilic 
V.  Walker,  254  Pa.  St.  241,  98  Atl.  815: 
Anderson  v.  Wood,  264  Pa.  St.  98,  107 
Atl.  65^8.  "Vehicles  have  the  right  of 
way  on  the  portion  of  the  highway  set 
apart  for  them,  but  at  crossings  all 
drivers,  particularly  of  motor  vehicles, 
must  be  highly  vigilant  and  maintain 
such  control  that,  on  the  shortest  pos- 
.<5ible  notice,  they  can  stop  their  cars  so 


as  to  prevent  danger  to  pedestrians." 
Virgilio  v.  Walker.  254  Pa.  St.  241,  98 
Atl.  815. 

Fi)77ir)jV7.— Core  v.  Wilhelm,  98  S.  E. 
27. 

Washington. — Locke  v.  Greene.  100 
Wash.  397,  171  Pac.  245. 

"  The  test  of  control  is  the  ability 
to  stop  quickly  and  easily.  When  this 
result  is  not  accomplished,  the  infer- 
ence is  obvious  that  the  car  was  run- 
ning too  fast,  or  that  proper  effort  to 
control  it  was  not  made.  If  dangerous 
and  powerful  machines,  such  as  auto- 
mobiles, whose  weight,  when  in  motion, 
gives  them  great  momentum,  are  to  be 
permitted  to  use  the  public  highways, 
prudence  requires  that  they  be  kept  un- 
der good  control  so  that  they  may 
promptly  be  brought  to  a  halt,  if  need 
be."  Lo'rah  v.  Rinehart.  243  Pa.  St. 
231,   89  Atl.  967. 

Hands  on  steering  wheel.— It  has 
been  held  gross  negligence  for  a  driver 
to  take  his  hands  off  the  steering  wheel 
while  the  machine  was  moving  at  a 
high  rate  of  speed.  Borys  v.  Christow- 
ski,  9  Sasn.  (Canada)  181. 

94.  See  section  305.  "In  a  crowded 
city  street,  the  dictates  of  common 
prudence  clearly  require  that  a  heavy 
vehicle,  such  as  an  automobile,  shall  be 
kept  under  control  so  as  to  avoid,  or  at 
least  minimize,  the  dangers  of  a  colli- 
sion. Common  experience  and  observa- 
tion shows  that  the  only  adequate 
method  of  control  is  to  run  the  ma- 
chines slowly."  Lorah  v.  Rinoliart.  243 
Pa.  St.  231.  89  Atl.  967. 

95.  Section  370. 

96.  Sections  441-445. 


384  The  Law  of  Automobiles. 

that  he  can  avoid  a  collision  Avith  an  approaching  street  car  '^ 
or  railroad  train.^^  It  is  sufficient,  however,  if  the  driver 
keeps  the  machine  under  reasonable  control,  it  not  being  neces- 
sary that  it  be  kept  under  absolnte  control.^^  Except  under 
unusual  circumstances,  he  is  not  required  to  have  the  machine 
under  such  control  that  he  can  stop  instantly}  When  proceed- 
ing along  the  wrong  side  of  the  highway,  greater  control  is 
required  of  the  driver  than  when  he  is  proceeding  in  accord 
with  the  law  of  the  road,^  for  a  greater  degree  of  diligence  is 
generally  required  of  a  driver  under  such  circumstances.^ 
When  driving  at  night,  the  control  of  the  machine  should,  to 
a  certain  extent,  be  commensurate  with  the  distance  illumi- 
nated with  the  lights ;  that  is,  the  control  of  the  car  should  be 
such  that  the  driver  can  avoid  persons  or  obstructions  in  his 
course  within  the  scope  of  the  lights.*  And,  when  traveling 
in  the  day  time,  reasonable  care  requires  that  the  machine  be 
under  such  control  that  it  can  be  stopped  so  as  to  avoid  in- 
jury from  an  obstruction  or  a  defect  in  the  highway.^  In  some 
jurisdictions,  statutes  prescribe  the  rate  of  speed  for  motor 
vehicles  and  further  provide  that  under  some  circumstances 
the  machines  shall  be  under  "perfect"  control.^ 

Sec.  327.  Duty  to  stop. 

The  general  duty  of  the  driver  of  a  motor  vehicle  is  to  exer- 
cise reasonable  care  under  the  circumstances.'^  Obviously, 
the  circumstances  may  frequently  be  such,  especially  on  a 
crowded  thoroughfare,  that  an  ordinarily  prudent  driver 
would  stop  his  machine  to  avoid  an  injury  to  another  traveler. 
In  such  a  case,  negligence  may  be  charged  against  a  driver 

97.  Sections  603-606.  4.  Kendall    v.    City    of    Des    Moines 

98.  Section  572.  (Iowa),    167    N.    W.    684;    Harnau    v. 

99.  Baldwin's  Adm'r  v.  Maggard,  Haight,  189  Mich.  60,  155  N.  W.  563; 
162  Ky.  424,  172  S.  W.  674;  GofP  v.  Healy  v.  Shedaker,  264  Pa.  St.  512,  107 
Clarksburg  Dairy  Co.  (W.  Va.),  103  S.  Atl.  842. 

J]   58_  5.  Raymond    v.    Sauk    County,     167 

1.  Twinn  v.   Noble    (Pa.),    113    Atl.      Wis.  125,  166  N.  W.  29. 

686.  6.  Molin    v.    Wark,    113    Minn.    190, 

2.  Bradley  v.  Jaeckel,  65  Misc.  (N.  129  N.  W.  383;  Wentworth  v.  Water- 
Y.)   509,  119  N.  Y.  Suppl.  1071.  bury,  90  Vt.  60,  96  Atl.  334. 

3.  Section  280.  7.  Section  277. 


Negligence  in  Operation  of  Motor  Vehicles.       385 


who  fails  to  stop.^  And,  though  the  driver  has  stopped  his 
machine,  negligence  may  be  found  in  starting  again  before 
the  danger  has  ceased.^  While  in  many  cases  the  driver  may 
be  required  to  stop  as  a  protection  to  other  travelers,  such  as 
pedestrians,^"  and  persons  riding  in  other  vehicles,  there  is  a 
similar  duty  for  his  own  protection  as  against  railroad 
engines,^^  and  street  cars.'-  At  intersecting  streets,  whUc  both 
travelers  should  exercise  reasonal)le  care  for  their  sal't'ty  the 
machine  first  at  the  crossing  is  generally  allowed  the  i-ight  of 
way,  and  the  latter  machine  should  stop  or  delay  his  passage.^^ 
In  addition  to  the  general  principles  of  law  requiring  a  stop- 
ping of  the  machine  when  necessary,  a  positive  duty  in  tliat 
respect  is  sometimes  imposed  by  statute.  Thus,  it  is  enacted 
in  many  jurisdictions  that  the  driver  of  a  motor  vehicle  shall 
stop  on  the  signal  of  the  driver  of  a  horse-drawn  conveyance.^* 
So,  too,  statutes  or  municipal  ordinances  sometimes  require 


8.  California. — Bannister  v.  H. 
Jevne  Co.,  28  Cal.  App.  133,  151  Pac. 
546. 

Delaware. — Cecchi  v.  Lindsay,  1 
Boyee,  185,  75  Atl.  376,  reversed  on 
other  grounds,  80  Atl.  523;  Grier  v. 
Samuel,  4  Boyce,  106,  86  Atl.  209; 
Brown  v.  City  of  Wilmington,  4  Boyce, 
492,  90  Atl.  44. 

IlUnais.— Christy  v.  Elliott,  216  III. 
31,  1  L.  R.  A.  (N.  S.)  215,  74  N.  E. 
1035,  108  Am.  St.  Rep.  196,  3  Ann. 
Cas.  487. 

Indiana. — Mayer  v.  Mellette,  65  Ind. 
App.  54,  114  N.  E.  241. 

loiva. — Crawford  v.  McElhinney,  171 
Iowa,  606,  154  N.  W.  310. 

Kentucky. — Shiuklo  v.  McCuUougii, 
116  Ky.  960,  77  S.  W.  196. 

Lowisiana. — Kelly  v.  Schmidt,  142 
La.  91,  76  So.  250. 

Maine. — Meserve  v.  Libby,  115  Me. 
282,  98  Atl.  754. 

Massachusetts. — Dudley  v.  Kings- 
hiiiy,  199  Mass.  258,  85  N.  E.  76. 

Missouri. — Roper  v.  Greenspon  (Mo. 
App.),  192  S.  W.  1419;  Heryford  v. 
Spitcanfskv    (Mo.    .\pp.l.    200    S.    W. 

25 


123;  Edwards  v.  Yarb  rough  (Mo. 
App.),  201  S.  W.  972. 

New  YorTc. — ^Knight  v.  Lanier,  69 
N.  Y.  App.  Div.  454,  74  K.  Y.  Suppl. 
999. 

Fennsylvamia. — Reese  v.  France,  62 
Pa.  Super.  Ct.  128. 

Washington. — Morrison  v.  Ccnley 
Taxicab  Co.,  94  Wash.  436,  162  Pac. 
365. 

9.  Meserve  v.  Libby,  115  Me.  282,  98 
Atl.  754. 

10.  Section  442. 

11.  Sections  567,  568. 

12.  Section  604. 
IS.  Section  393. 

14.  Stout  v.  Taylor,  168  III.  App. 
410;  Mclntyre  v.  Orner,  166  Ind.  57, 
76  N.  E.  750,  4  L.  R.  A.  (X.  S.)  1130, 
8  Ann.  Cas.  1087;  State  v.  Goodwin, 
169  Ind.  265,  82  N.  E.  459;  Searcy 
V.  Golden,  172  Ky.  42,  188  S.  W.  1098; 
Beggs  V.  Clayton,  40  Utah,  389,  121 
Pac.  7;  Cohen  v.  Mcader,  119  A'a.  429, 
89  S.  E.  87fi;  Brown  v.  Thome,  61 
Wash.  18,  111  Pac.  1047;  McCiinimins 
V.  State,  132  Wis.  236,  112  N.  W.  25. 
And  see  sections  536-539,  774. 


386  The  Law  of  Automobiles. 

the  operators  of  motor  vehicles  to  stop  their  machines  when 
approaching  a  street  car  receiving  or  discharging  passen- 
gers.'^ And  it  is  also  provided  b}^  statute  in  man}^  States  that 
after  a  collision  with  another  vehicle  or  injury  to  another 
traveler,  the  driver  shall  stop  his  machine  and  make  his  iden- 
tity known  to  the  injured  person.^^  But,  independently  of 
statute,  it  is  a  general  rule  that  the  driver  of  an  automohile 
shall  stop  the  machine  when  necessary  to  avoid  injury  to  other 
travelers  having  equal  rights  in  the  street.  For  example,  if 
the  operator  of  a  machine  is  blinded  by  the  light  from  another 
vehicle  or  from  a  street  car,  so  that  he  is  unable  to  distinguish 
an  object  in  front,  reasonable  care  requires  that  he  bring  his 
vehicle  to  a  stop,  and  a  failure  so  to  do  may  justify  a  charge 
of  negligence."  This  situation  is  the  same  as  when  the  chauf- 
feur is  suddenly  blinded  by  a  reflection  of  the  rays  of  the  sun.^^ 
So,  too,  when  the  steering  apparatus  becomes  out  of  order  so 
that  a  car  persists  in  making  a  circle,  it  is  the  duty  of  the 
driver  to  stop  the  machine  and  not  to  continue  to  describe 
circles  in  the  street  until  he  is  struck  by  a  street  car.^^  And, 
in  general,  when  one  approaches  a  crowded  street  crossing,  if 
it  is  imprudent  or  dangerous  to  pass  the  crossing  at  the  time, 
ordinary  care  requires  that  the  driver  stop  his  machine.^" 
Similarly,  where  a  person  on  horseback  apparently  does  not 
hear  the  approach  of  an  automobile  from  the  rear,  the  person 
in  charge  of  the  car  cannot  proceed  regardless  of  the  fact  that 
the  former  does  not  turn  out,  but  should  slacken  the  speed  of 
his  machine,  even  bringing  it  to  a  stop  if  necessary  to  avoid 

15.  Frankel  v.  Hudson,  271  Mo.  495,  berts,  192  Mich.  25,  158  N.  W.  170; 
196  S.  W.  1121;  Meenach  v.  Crawford  Hammond  v.  Morrison,  90  N.  J.  L.  815, 
(Mo.),  187  S.  W.  879;  Horowitz  v.  100  Atl.  154;  Jacquith  v.  Worden,  73 
Gottwalt  (N.  J.),  102  Atl.  930;  Kolan-  Wash.  349,  132  Pac.  33,  48  L.  E.  A. 
kiewiz  v.  Burke,  91  N.  J.  L.   567,  103  (N.  S.)   827. 

Atl.  249;   Crombie  v.   O'Brien,   178  N.  18.  O'Beirne    v.    Stafford,    87    Conn. 

Y.  App.  Div.  807,  165  N.  Y.  Suppl.  858;  354,  87  Atl.  743,  46  L.  R.  A.    (N.  S.) 

Zimmerman  v.  Mednikoff,  165  Wis.  333,  1183. 

162  N.  W.  349.     And  see  sections  423-  19.  Kneeshaw  v.  Detroit  United  Ry., 

427.  3  69  Mich.  697,  135  N.  W.  903. 

16.  Sections  775-779.  20.  Crawford     v.     McElhinney,     171 

17.  Buzich    V.     Todman,     179    Iowa,  Iowa,  606,  154  N.  W.  310. 
1019,    162   N.  W.   259;    Jolman  v.   Al- 


Negligence  in  Operation  of  Motor  Vehicles.       387 

a  collision.-^  But  the  driver  of  a  motor  vehicle  proceeding 
along  the  proper  side  of  a  highway  of  sufficient  width  to  en- 
able an  easy  passage  is  not  necessarily  guilty  of  negligence  in 
failing  to  stop  when  he  sees  a  traveler  approaching  on  the 
wrong  side  of  the  highway,  for  he  is  entitled  to  assume  that 
the  traveler  will  cross  to  the  proper  side  before  a  collision.^^ 

Sec.  328.  Negligence  in  stopping. 

The  duty  of  exercising  reasonable  care  under  the  circum 
stances  may  in  some  cases  forbid  an  abrupt  stop.  For  ex- 
ample, when  another  car  is  following  closely  behind,  the  driver 
of  the  forward  car  may  be  guilty  of  negligence  if  he  suddenly 
slows  up  or  stops  so  that  the  driver  of  the  rear  vehicle  is  un- 
able to  avoid  a  collision.^^  Or  one  may  be  found  negligent  in 
stopping  the  machine  near  the  center  of  the  road  instead  of 
at  the  side,  when  it  is  desired  to  light  the  lights  or  to  make 
repairs.-* 

Sec.  329.  Warning  of  approach  —  in  general. 

Reasonable  care  requires  that,  at  street  crossings  and  other 
places  where  travelers  may  naturally  be  anticipated,  a  warn- 
ing of  the  approach  of  a  motor  vehicle  shall  be  given  by  its 
driver.^"^    One  intending  to  back  his  machine  in  a  street  should 

2L  Furtado    v.    Bird,    26    Cal.    App.  theioV)y   add   to   its   fright,   he   may  be 

153,  146  Pac.  58.  liable    for    the    damages    which    would 

22.  Clarke  v.  Woop,  159  N.  Y.   App.  arise    from    the   fright    of   the    animal. 
Div.  4.S7,  144  N.  Y.  Suppl.  .595.  Delfs   v.   Dunshee,    143   Iowa.    381.    \21 

23.  Strever    v.    Woodard.    178    Iowa,  N.  W.  236. 

30,  158  N.  W.  504;  Strapp  v.  .lorahek  24.  Haynes  v.  Doxie  CCal.  App.),  198 

(Minn.),    175   N.  W.    1003.  Pac  39. 

Negligence    in    stopping.     Negligeme  25.   Arlansofi. — Texas    Motor    Co.    v. 

may  be  based  on  the  act  of  stopping  an  Ruffington.    134    Ark.    320.    203    S.    W. 

automobile,  as  well  as  a  failure  to  stop.  1013. 

Should   an    automobilist   suddenly   stop  Cnlifornw. — Gross         v.         Burnside 

his    machine   while    running   along    the  (Cal.),  199  Pac  780. 

highway   and    as    a    result    thereof    an-  Connectinit. — Lynch    v.    Shearer.    83 

other  car  .should   run   into   the   rear  of  Conn.  73,  75  Atl.  88. 

it,   it   is   clear   that   negligence    on    the  Georgia. — O'Dowd    v.    Newnhnm.    ^^ 

part  of  the  driver  of  the  forward   car  (ia.  App.  220.  RO  S.  E.  36. 

could   be   sustained.     And,   if    an    autfl-  Illinois. — Coppnck    v.    Schlatter.    193 

mobilist     after     passing     a     frightened  Til.    App.    255;    Xoonan    v.    Mans.    107 

horse   should   stop   in   front   of   it   and  111.  App.  lO.'i. 


388 


The  Law  of  Automobiles. 


give  a  warning.-'^  If  tlie  operator  of  such  a  vehicle  fails  to 
give  a  proper  warning  and  injury  is  thereby  occasioned  to  a 
pedestrian  or  other  traveler,  negligence  may  hv  cliarged 
against  the  driver.  In  the  absence  of  ])ositive  regulation 
requiring  the  warning,  its  absence  is  not  necessarily  negli- 
gence but  presents  a  question  for  the  jury.-'  Other  travelers, 
to  a  certain  extent,  are  entitled  to  rely  on  the  belief  that  the 
drivers  of  motor  vehicles  will  give  them  a  proper  warning.^^ 
The  question  of  warning  in  a  given  case  is  generally  com- 
plicated with  additional  facts  of  excessive  speed  and  lack  of 
proper  control  of  the  machine.    To  run  an  automobile  at  an 


Indiana.— J.  F.  Darmondy  Co.  v. 
Reed,  111  N.  E.  317. 

Kentucky. — ^Weidner  v.  Otter,  171 
Ky.  167,  188  S.  W.  335;  Collett  v. 
Standard  OU  Co.,  186  Ky.  142,  216  S. 
W.  356;  Adams  v.  Parrish,  225  S.  W. 
467. 

Lmiisiava. — Kelly  v.  Schmidt,  142 
La.  91,  76  So.  250. 

Massachusetts. — Gifford  v.  Jennings, 
100  Mass.  54,  76  N.  E.  233. 

Michigan. — Wright  v.  Crane,  142 
Mich.  508,  106  N.  W.  71,  12  Det.  Leg. 
K.  794;  Levyn  v.  Koppin,  183  Mich. 
2.';2,  149  N.  W.  993.  , 

Minnesota.- — Johnson  v.  Quinn,  130 
Minn.  134,  153  X.  W.  267;  .Tohnson  v. 
Johnson.  137  Minn.  198.  163  N.  W. 
160;  Dunkelbeck  v.  Meyer,  140  Minn. 
283,  167  N.  W.  1034. 

Missouri. — Young  v.  Bacon  (Mo. 
App.\  183  S.  W.  1079:  Brooks  v. 
Harris    (Mo.  App.),  207  S.  W.  293. 

New  Hampshire. — Hamel  v.  Pea- 
r.ody.  78  N.  H.  585,  97  Atl.  220. 

New  Jersey. — Pool  v.  Brown,  89  N. 
J.  Law,  314,  98  Atl.  262;  Heckman  v. 
Cohen,  90  N.  J.  L.  322,  100  Atl.  695. 
.  New  Yorfe.— Wolcott  v.  Renault  Sell- 
ing Branch,  223  N.  Y.  288.  119  N.  E. 
556,  reversing  175  App.  Div.  858;  Gross 
V.  Foster,  134  N.  Y.  App.  Div.  243,  118 
N.  Y.  Suppl.  889 ;  Bohringer  v.  Camp- 
Lell,  154  N.  Y.  App.  Div.  879,  137  N. 
Y.  Suppl.  241;  Hood  v.  Stowe,  191  N. 


Y.  App.  Div.  614.  181  N.  Y.  Suppl. 
734;  Bradley  v.  Jaeckel,  65  Misc.  (N. 
Y.)  509,  119  N.  Y.  Suppl.  1071;  Dultz 
v.  Fischowitz,  104  N.  Y.  Suppl.  357; 
Signet  V.  Werner,  159  N.  Y.  Suppl.  894. 
North  Carolina. — Manly  v.  Aber- 
nathy,  167  N.  Car.  220,  83  S.  E.  343. 
Wcshington. — Segerstrom  v.  Law- 
rence, 64  Wash.  245,  116  Pac.  876; 
Franey  v.  Seattle  Taxicab  Co.,  80 
Wash.  396,  141  Pac.  890;  Moy  Quon 
V.  M.  Furuya  Co.,  81  Wash.  526,  143 
Pac.  99. 

Vermont. — Dervin  v.  Frenier,  91  Vt. 
398,  100  Atl.  760. 

Canada. — Nugent  v.  Qunn,  160  W.  N. 
145,  affirmed,  17  O.  W.  N.  63. 

Negligence  in  sounding  horn. — Neg- 
ligence may  be  charged  against  the 
driver  of  a  motor  vehicle  who  unnec- 
essarily sounds  his  horn  when  he  is  in 
such  proximity  to  a  horse  that  it  be- 
comes frightened.  Conrad  v.  Shuford 
(N.  C),  94  S.  E.  424. 

26.  Lee  v.  Donnelly  (Vt.),  113  Atl. 
542. 

27.  Anderson  v.  Voeltz  (Mo.  App.), 
206  S.  W.  584;  Thompson  v.  Fischer, 
188  N.  Y.  App.  Div.  878,  177  N.  Y. 
Suppl.   491. 

28.  Toronto  General  Trusts  Corp.  v. 
Dunn,  15  West.  L.  Rep.  (Canada)  314, 
20  Man.  L.  R.  412.  And  see  section 
352. 


Negligence  in  Operation  of  Motor  Vehicles.       38'J 

excessive  speed  without  warning  to  other  travelers,  is  clearly 
a  negligent  act.  In  fact,  the  excessive  speed  alone  is  sufficient 
to  carry  the  case  to  the  jury  on  the  issue  of  the  driver's  negli- 
gence." And,  moreover,  the  failure  to  give  the  proper  warn- 
ing may  of  itself,  under  some  circumstances,  constitute  negli- 
gent conduct.^*'  The  automobilist  cannot  proceed  along  a 
public  highway  by  giving  a  warning  of  his  approach,  but  not 
slacking  his  speed  or  taking  other  step?  to  avoid  collisions 
with  other  travelers.^^ 

The  requirement  of  due  warning  is  intended  for  the  pro- 
tection of  other  travelers  who  might  pass  in  front  of  the 
machine  in  the  absence  of  some  signal  or  knowledge  of  the 
approach  of  the  vehicle.  When  a  pedestrian  suddenly  darts 
in  front  of  an  automobile  from  a  place  where  pedestrians 
would  not  naturally  be  expected  and  is  so  near  the  machine 
that  the  driver  is  unable  with  due  diligence  to  avoid  a  colli- 
sion, the  injury  is  deemed  the  result  of  an  unavoidable  acci- 
dent,32  and  liability  is  not  imposed  merely  because  the  driver 
failed  to  blow  his  horn  or  give  notice  of  his  approach.'^  But 
at  street  crossings,  the  driver  is  bound  to  anticipate  that 
pedestrians  may  be  attempting  to  cross  the  street,  and  he 
must  be  prepared  at  such  places  to  give  reasonable  warning 
of  danger.^*  After  passing  over  a  crossing  and  while  pro- 
ceeding along  a  street,  if  there  are  no  vehicles  in  the  street  or 
pedestrians  who  are  apparently  coming  in  a  place  of  danger, 

29.  Section  325.  Manning,  92  L.  T.  R.  (Ene.^  855. 

30.  "The  uncontradicted  fact  in  the  32.  Sections  284,  419. 

case  is  that  the  driver  of  the  automo  33.  Bishard  v.  Engelbock,   180  Iowa, 

bile  gave  no  audible  signal  or  warning  1132,  164  N.  W.  203;  Levesque  v.  Du- 

of  his   approach  to   the   obscured   part  raont,  116  Me.  25,  99  Atl.  719;  Winter 

of  the  crosswalk.    From  that  fact  alone  v.  Van  Blarcom,  258   Mo.  418,  167  S. 

a  jury  might  properly  have  found  that  W.  498;  Chiappone  v.  Grecnebaiim,  189 

the  driver's  failure   to   sound   a  warn-  N.  Y.  App.  Div.  579.  178  N.  Y.  Snppl. 

ing  of  the  approach  of  his  automobile  854;  Feyrer  v.  Durbrow  (Wi!<.\  178  X. 

to  the  crossing  was  negligent  conduct. "  W.  306. 

Pool  V.  Brown,  89  N.  J.  Law,  314,  98  34.  Coppock    v.    Schlatter,     193    HI. 

Atl.  262.  -A-Pp.  255;  Johnaon  v.  Quinn,  130  Minn. 

31.  Kessler    v.    Washburn,    157    J\\.  134,   153  N.  W.  267.     And  see  section 

App.  532;  Thies  v.  Thomas,  77  N.  Y.  279. 
Suppl.    276.      See    also,    Troughton    v. 


390 


The   Law  ui'  Altd-Mouilks. 


the  driver  of  an  automobile  is  under  no  duty  to  sound  his 
horn.^^ 

In  proving  a  negative  fact,  such  as  the  absence  of  a  proper 
warning,  negative  evidence  to  the  effect  that  witnesses  did 
not  hear  a  warning  is  proper  and  may  constitute  sufficient 
evidence  to  present  a  question  for  the  jury.^''  The  weight  of 
the  negative  evidence  may  be  a  question  for  the  jury.^' 

Sec.  330.  Warning  of  approach  —  statutes  or  ordinances. 

Statutes  in  many  jurisdictions  prescribe  different  circum- 
stances under  which  the  drivers  of  motor  vehicles  shall  give  a 
warning  of  their  approach.^^  And  municipal  corporations 
pursuant  to  their  power  of  regulating  the  use  of  highways 
may  pass  ordinances  requiring  the  blowing  of  horns.^^  As  a 
general  rule,  the  violation  of  such  regulations  is  negligence 
per  se,  and  renders  the  driver  liable  for  all  injuries  proxi- 
mately resulting  therefrom  to  persons  exercising  proper  care 
for  their  own  safety  i^*^  but  under  particular  statutes  or  under 


35.  Elmendorf  v.  Clark,  143  La.  971, 
79  So.  557;  Barton  v.  Van  Gesen,  91 
Wash.  94,   157   Pac.   215. 

36.  Noonan  v.  Maus,  197  111.  App. 
103;  Bohringer  v.  Campbell,  154  N.  Y. 
App.  Div.  879,  137  N.  Y.  Suppl.  241; 
Kuehne  v.  Brown,  257  Pa.  37,  101  Atl. 
77;  Flanigan  v.  McLean  (Pa.),  110 
Atl.  370. 

37.  Collett  V.  Standard  Oil  Co. 
(Ky.),  276  S.  W.  356;  Kuehne  v. 
Brown,  257  Pa.  37,   101  Atl.   77. 

38.  Wine  v.  Jones,  183  Iowa,  1166, 
162  N.  W.  196,  168  N.  W.  318;  Collett 
V.  Standard  Oil  Co.,  186  Ky.  142,  216 
S.  W.  356;  Creedou  v.  Galvin,  226 
Mass.  140,  115  N.  E.  307;  Levyn  v. 
Koppin,  183  Mich.  232,  149  N.  W.  993; 
Darish  v.  Scott  (Mich.),  180  N.  W. 
435;  Sullivan  v.  Chauvenet  (Mo.),  222 
S.  W.  759;  Raymen  v.  Galvin  (Mo.), 
229  S.  W.  747;  Dignum  v.  Weaver 
(Mo.  App.),  204  S.  W.  566;  Moffatt  v. 
Link  (Mo.  App.),  229  S.  W\  836;  Aiken 
V.  Metealf.  92  Vt.  57,  102  Atl.  330. 


Duty  to  sound  horn  (onsidered  in 
view  of  Out.  Stat.  6  Edw.  VII,  ch.  46, 
amended  by  8  Edw.  VII,  ch.  53.  Mar 
shall  V.  Gowaris,  20  Ont.  W.  R.  37,  39, 
et  seq.,  3  Out.  W.   N.  69. 

Intersection  of  highways.  When  a 
statute  requires  that  a  warning  be 
given  at  the  "intersection  of  high- 
ways," a  question  of  construction  may 
arise  as  to  what  constitutes  such  an  in- 
tersection.    See  section  27. 

39.  Rolfs  v.  MuUins,  180  Iowa,  472, 
163  N.  W.  232. 

40.' Fisher  v.  Ellston,  174  Iowa,  864, 
156  N.  W.  422;  Collett  v.  Standard  Oil 
Co.  (Ky.),  216  S.  W.  356;  Benson  v. 
Larson,  133  Minn.  346,  158  N.  W.  426; 
Staten  v.  Monroe  (Tex.  Civ.  App.),  150 
S.  W.  222;  Hillebrant  v.  Manz,  71 
Wash.  250,  128  Pac.  892;  Franey  v. 
Seattle  Taxicab  Co.,  80  Wash.  396,  141 
Pac.  890 ;  Moy  Quon  v.  M.  Furuya  Co., 
81  Wash.  526,  143  Pac.  99;  Coe  v.  May- 
berry,  11  Sask.  (Canada)  425.  And  see 
section  397. 


Xi:gu(;i:nce  in  Operation  of  Motor  Vehicles.       391 

the  circumstances  of  a  special  case,  the  failur<'  to  giv«i  the 
warning  may  not  constitute  negligence  as  a  matter  of  law.*' 
A  statute  relative  to  the  giving  of  warning  .should  be  con- 
strued in  accordance  with  its  terms  and  not  given  an  extended 
construction  beyond  its  plain  meaning.^-  But,  where  a  statute 
requires  motor  vehicles  to  be  equipped  with  horns  or  other 
signals,  it  is  thought  that  a  duty  is  thereby  imposed  on  auto- 
mobilists  to  use  such  warning  devices  when  reasonably 
necessary.*^  A  statute  which  requires  the  sounding  of  a  horn 
on  ''approaching"  a  horse-drawn  conveyance,  may  apply  when 
the  automobile  is  approaching  either  from  the  front  or  rear 
of  the  carriage.^*  In  the  case  of  two  vehicles  colliding  at  a 
street  intersection,  if  the  law  required  that  both  should  give 
warning  of  their  approach  and  neither  driver  sounded  his 
horn,  both  may  be  held  to  be  equally  negligent  so  that  there 
can  be  no  recovery  l)v  either.*^ 


41.  Texas  Motor  Co.  v.  Buffington, 
134  Ark.  320,  203  S.  \V.  1013;  Griffen 
V.  Wood,  93  Conn.  99,   105   Atl.   354. 

42.  Shaw  V.  Covington,  171  Til.  .\pp. 
232. 

43.  Forgy  v.  Rutledge,  167  Ky.  182, 
180  S.  W.  90,  wherein  the  court  said: 
"We  see  no  force  in  appellants'  fur- 
ther complaint  of  instruction  No.  3, 
advising  the  jury  that  it  was  appel- 
lants' duty  to  give  appellee  warning  of 
the  approach  of  the  automobile  by  sig- 
nal with  a  horn,  bell  or  other  device. 
In  support  of  this  contention  it  is 
argued  that  the  act  of  1910  contains  no 
provision  requiring  the  giving  of  such 
signals.  It  is  true  that  the  act  con- 
tains no  express  requirement  that  such 
.signals  shall  be  given,  but  it  is  pro- 
vided in  §  8  thereof  that:  'Every 
motor  vehicle,  while  in  use  on  a  public 
highway,  shall  be  provided  with  good 
and  sufficient  brakes  and  also  with  a 
suitable  bell,  horn  or  other  signal  de- 
vice. .  .  •'  We  can  imagine  no  use 
to  which  a  bell,  horn,  or  other  signal 
device  aftachod  to  .in  automobile  could 
be   put,   except    to   givo  suitable  signals 


of  the  approach  of  the  machine  where 
such  signals  would  be  necessary  for  the 
safety  of  persons  traveling  upon  the 
public  highway,  and  manifestly  the 
necessity  for  their  use  on  the  streets  of 
a  city  or  town  i.s  greater  than  in  the 
country.  The  necessity  for  their  use 
is  implied  from  the  provision  requir- 
ing motor  vehicles  to  be  supplieil  with 
them.  This  proposition  is  too  plain 
for  argument."  Sec  also,  Vannett  v. 
Cole  (N.  Dak.).  170  N.  W.  663. 

44.  (rifford  v.  .Jennings,  100  Mass.  54, 
7C>  N.  E.  233,  wherein  it  was  snid: 
"The  jury  might  find  that  a  horn 
should  be  sounded  on  overtaking  a 
horse  not  only  to  warn  the  driver  of  the 
horse  to  keep  to  his  side  of  the  road, 
but  also  to  give  timely  warning  of  the 
approach  of  this  machine  which,  in  the 
kind  of  noise  nuule  by  it,  as  well  a.*  in 
other  respects,  is  novel  anil  therefore 
mar  be  dangerous. ' ' 

45.  Corning  v.  Majniard.  170  Iowa, 
1065,  162  N.  W.  564;  Larsh  v.  Strasser. 
183  Iowa.  1360,  168  X.  W.  142:  New- 
ton v.  McSweeney.  225  Mass.  402,  114 
X.  E.  667. 


392  The  Laav  of  Automobiles. 

Actual  kllo^vleclge  of  the  approach  of  an  automobile  may 
excuse  the  failure  of  the  driver  of  the  machine  to  give  a  statu- 
tory warning,  for  in  such  a  case  the  alleged  violation  may  not 
be  deemed  a  proximate  cause  of  the  injury.''*'  But  this  ques- 
tion depends  to  some  extent  upon  the  distance  of  the  machine 
when  seen;  if  close,  no  signal  need,  perhaps,  be  given  as  to 
the  particular  person;  but,  if  a  considerable  distance  away,  a 
signal  should  be  given  when  the  car  has  approached  closer.*^ 
And  if  the  driver  intends  to  divert  from  the  usual  course  of 
travel,  a  warning  should  be  given,  although  there  may  be 
actual  knowledge  of  the  approach  of  the  car.''^  One  approach- 
ing an  intersecting  street  is  not  necessarily  negligent  in  failing 
to  give  a  signal,  where  he  stops  his  machine  before  reaching 
the  intersection,  and  especially  is  this  true  Avhere  the  driver 
does  not  have  time  both  to  stop  and  to  give  the  signal  and 
it  appears  wiser  to  him  to  stop.''^  But  one  is  not  relieved  from 
giving  a  warning  because  he  believes  that  he  can  proceed 
without  injury  to  another  traveler.^**  The  fact  that  a  statute 
prescribes  certain  cases  when  a  warning  shall  be  sounded, 
does  not  necessarily  excuse  a  failure  in  other  cases;  in  other 
cases  the  common  law  duty  to  exercise  reasonable  care  under 
the  circumstances  may  require  a  warning." 

48.  Zechiel    v.    Los    Angeles    Gas    &  such  wamiug  that   the  failure  to  blow 
Elec.     Corp.     (Cal.),     192    Pac.     720;  i  the  horn  may  be  deemed  not  a  proxi- 

Schultz  V.  Starr,   180  Iowa,   1319,   164  mate  cause  of  the  accident.     Brianzi  v. 

N.  W.  163;  Zechiel  v.  Los  Angeles  Gas  Crane  Co.,  196  App.  Div.  58. 

&   Elec.  Corp.    (Cal.),    192    Pac.    720;  47.  Walmer-Roberts       v.       Hennessy 

Bruce's    Adm'r    v.    Callahan,    185    Ky.  (Iowa),    181    N.    W.    798;    Dignum   v. 

1,  213  S.  W.   557;   Priebe  v.  Crandall  Weaver  (Mo.  App.),  204  S.  W.  566. 

{Mo.  App.).  187  S.  W.  605;   Herzig  v.  48.  Woodhead    v.    Wilkinson    (Cal.), 

Sandberg   (Mont.),  172  Pac.  132;  Van  185  Pac.  851,  10  A.  L.  R.  291. 

Dyke   v.   Johnson,   82   Wash.    377,    144  49.  Bew  v.  John  Daley,  Inc.,  260  Pa. 

Pac.  540.  418,  103  Atl.  832. 

Guest. — Actual     knowledge     of     the  50.  Wine   v.   Jones,    183   Iowa    1166, 

driver  does  not  necessarily  excuse  the  162  N.  W.  196,  168  N.  W.  318. 

failure  to  sound  the  horn,  when  the  ac-  51.  Moore  v.  Hart,  171  Ky.  725,  188 

tion  is  brought  by  a  guest,  not  by  the  S.  W.  861;  Vannett  v.  Cole  (N.  Dak.), 

driver.    Carlisle  v.  Hargreaves  (Wash.),  170  N.   W.   663;    Piper  v.   Adams   Ex- 

192  Pac.  894.  press  Co.   (Pa.),  113  Atl.  562. 

Shouting    by    by.stauder.s    may    give 


NlOGLKiEXCE    IN    OPERATION    OF    MoTOR   VEHICLES.  393 

Sec.  331.  Warning  of  approach  —  sufficiency  of  warning. 

The  sufficiency  of  the  warning  in  a  particular  case  may  be 
a  question  within  the  province  of  the  jury.  Thus,  it  has  been 
held  that  whether  a  chime  of  small  bells  attached  to  an  auto- 
mobile is  sufficient  as  a  warning  to  pedestrians  is  a  question 
for  the  jury.^-  Though  the  opening  of  a  ^'cut  out"  may  be 
prohibited  by  municipal  ordinance,  it  may  be  sufficient  as  a 
warning  signal,  and  the  fact  that  the  ordinance  was  violated 
is  not  necessarily  conclusive  on  the  issue  of  negligence.^ 
When  traveling  at  night,  the  lights  on  the  automobile  will 
not  be  considered  a  sufficient  warning  under  some  statutes, 
but  the  driver  of  the  machine  nmst  also  sound  his  horn  as  a 
signal  to  other  travelers.^^  One  approaching  a  busy  street 
corner,  who  gives  a  signal  when  passing  a  vehicle  a  hundred 
feet  or  so  from  the  corner,  but  gives  no  subsequent  warning, 
may  be  said  to  be  negligent.^^  Under  a  regulation  requiring 
the  giving  of  warning  when  approaching  and  when  traversing 
a  crossing,  an  auto  driver  is  not  required  to  sound  his  signal 
when  actually  upon  the  crossing,  but  it  is  sufficient  if  the  warn- 
ing is  given  when  about  to  enter  the  crossing.^^ 

Sec.  332.  Lookout  —  in  general. 

It  is  the  duty  of  the  driver  of  a  motor  vehicle  to  koep  a 
reasonably  careful  lookout  for  other  travelers  so  that  they 
may  be  able  to  avoid  a  collision.^'     Whether  the  driver  has 

52.  Coppock    V.    Schlatter,    193    111.      Colo.  134,  96  Pac.  822. 

App.  255.  Illinois. — Graham    v.    Hagmann,    270 

53.  Linneball  v.  Levy  Dairy  Co..  173  111.  252,  110  N.  E.  337.  affirming  189 
N.  Y.  App.  T)iv.  8f)l,  160  N.  Y.  Suppl.  111.  App.  631 :  Kessler  v.  Washburn. 
114.  157  Til.   App.   532:   Coppock  v.  Schlat- 

54.  Johnston  v.  Cornelius,  200  Mich.  ter.  193  111.  App.  255;  Koenig  v.  Scm- 
209.  lf.f>  X.  AV.  983.  L.  R.  A.  1918T)  ran.  197  111.  App.  624:  Arkin  v.  Page. 
880.  212  III.  App.  2<'2. 

55.  Mitcholl  V.  Brown  (Mo.  App.).  Indiana. — Martin  v.  Lilley,  188  Ind. 
190  S.  W.  3.14.  139,  121  N.  E.  443. 

56.  Rolfs  V.  Mullins,  180  Iowa.  472.  Iowa. — Livingstone  v.  Dole,  167  Iowa, 
163  N.  W.  232.  639,  167  N.  W.  639. 

57.  United  Stairs. — Denison  v.  Mc  Kentucky. — Weidner  v.  Otter.  171 
Morton.  228  Fed.  401,  142  C.  C.  A.  631.  Ky.  167,  188  S.  W.  335. 

Colorado. — HannriTi    r.    St.    Clair.    44     ^ 


394 


The  Law  of  Automobiles. 


fulfilled  his  duty  in  regard  to  watching  for  pedestrians  and 
other  persons,  is  generally  a  question  for  the  jury/'^  Par- 
ticularly at  street  crossings  and  other  places  where  many 
pedestrians  and  other  travelers  are  to  be  anticipated,  con- 
siderable care  in  this  respect  should  be  exercised.^^  A  charge 
of  negligence  may  be  based  on  the  failure  of  the  drivei-  of  a 
motor  vehicle  to  see  another  traveler  as  soon  as  he  should.*'^ 
There  is  also  a  duty  of  looking  for  other  conveyances  so  that 
injury  will  not  result  to  himself,  as,  for  example,  when  he  is 
about  to  drive  across  a  railroad^^  or  street  railway  track.'^^  So, 


Louisiana. — Kelly  v.  Schmidt,  142 
La.  91,  76  So.  250. 

Massachusetts. — Rogers  v.  Phillips, 
217  Mass.  52,  104  X.  E.  466;  Biic  v. 
Athol,  etc.,  By.  Co.,  198  Mass.  257,  84 
N.  E.  310;  Booth  v.  Meagher,  224  Mass. 
472,  113  N.  E.  367. 

Minnesota. — Noltmeir  v.  Rosenber- 
ger,  131  Minn.  369,  155  N.  W.  618; 
Kennedy  v.  Webster,  137  Minn.  335, 
163  N.  W.  519. 

Mississippi. — Ulmer  v.  Pistole,  115 
Miss.  485,  76  So.  522;  Flynt  v.  Fondern 
(Mi.ss.),  84  So.  188. 

Missouri. — McFern  v.  Gardner,  121 
Mo.  App.  1,  97  S.  W.  972;  Wallower 
V.  Webb  City,  171  Mo.  .\pp.  214,  156 
S.  W.  48;  Rowe  v.  Hammond,  172  Mo. 
20.!.  157  S.  W.  880;  Kisenman  v. 
Griffith.  181  Mo.  .\pp.  183,  167  S.  W. 
1142;  Meenach  v.  Crawford.  187  S.  W. 
879. 

New  Hampshire. — Hamel  v.  Pea 
body,  78  N.  H.  585,  97  Atl.  220. 

New  Jersey. — Pool  v.  Bvowii.  S9  N. 
J.  Law,  314,  98  Atl.  262. 

New  York. — Bradley  \.  .Taeckel,  65 
Misc.  509,  119  N.  Y.  Snppl.  1071; 
Thies  V.  Thomas,  77  N.  Y.  Suppl.  276. 

Orf^on.— White  v.  East  Side  Mill  & 
Lumber  Co.,  84  Oreg.  224,  161  P:u\ 
969,    164   Pac.   736. 

Pennsylvania. — Virgilio  v.  Walker, 
254  Pa.  St.  241,  98  Atl.  815;  Kuehiir 
V.  Brown,  257  Pa.  37,  101  Atl.  77. 

Tennessee. — Coca  Cola  Bottling 
Works   V.   Brown,    139   Tenii.    640,    202 


S.  W.  926. 

F<«/t.— Barker  v.  Sava.s,  52  Utah, 
262,  172  Pac.  ()T2;  Richards  v.  Palace 
Laundry  Co.    (Utah),   186  Pac.  439. 

Washington. — Hillobrant  v.  Manz,  7: 
Wash.  250,  128  Pac.  892;  Adair  v.  Mc- 
Neil. 95  Wash.   160,   163   Pac.   393. 

And  see  sections  438,  500,  714. 

A  sharp  and  diligent  lookout  on  the 
part  of  the  driver  of  a  machine  is  re- 
quired. Bongner  v.  Zeigenheim,  165 
Mo.  App.  328,  147  S.  W.  182. 

Duties  of  driver.  "Tlie  driver  of  the 
automobile  was  under  a  legal  duty  to 
use  reasonable  care  to  avoid  colliding 
with  other  vehicles  or  persons  in  the 
public  highway.  His  duty  was  to  be 
on  the  alert  to  nliserve  persons  who 
were  in  the  street  or  about  to  cross  the 
street  and  to  use  reasonable  care  to 
avoid  colliding  with  them.  He  was  un- 
der an  obligation  to  take  notice  of  the 
conditions  existing  in  the  pu])lic  street 
and  to  propel  his  car  in  a  manner  suit- 
able to  those  conditions. ' '  Pool  v. 
Brown,  89  N.  J.  Law,  314,  98  Atl.  262. 

58.  Vannett  v.  Cole  (N.  Dak.),  170 
N.  W.  663;  Boeddcher  v.  Frank.  48 
Utah,  363,  159  Pac.  634. 

59.  Ulmer  v.  Pistole,  115  Mi.s.s.  485, 
76  So.  522;  Core  v.  W'ilhelm,  124  Va. 
150,  98  S.  H  27. 

60.  Booth  v.  Meagher,  224  Mass. 
472,  113  N.  E.  367. 

61.  Section   557,  tt  seq. 

62.  Section   592,  et  seq. 


Negligence  in  Operation  of  Motor  Vehicles.       395 

too,  a  lookout  must  be  kept  for  defects  in  the  highway.'^"*  If 
the  circumstances  are  such,  by  reason  of  weather  conditions, 
lights,  or  obstructions,  that  an  automobilist  is  unable  to  see 
ahead  of  him,  he  should  stop  his  machine.^*  Circumstances 
may  exist  which  will  require  the  driver  to  look  around  the 
end  of  the  wind  shield."^  But,  where  there  are  no  facilities 
for  stopping  for  the  night,  a  driver  is  not  negligent  as  a  matter 
of  law  because  he  proceeds  through  a  fog.^^  It  has  been  held 
that  the  fact  that  one  is  entitled  under  the  law  of  the  road  to 
the  right  of  way  over  vehicles  approaching  from  a  certain 
direction  does  not  necessarily  absolve  him  from  the  duty  of 
keeping  a  lookout  for  the  avoidance  of  such  vehicles,  though 
the  fact  is  to  be  considered  \vith  the  other  circumstances  on 
the  question  of  his  negligence."  But,  when  one  is  traveling 
along  a  broad  street,  he  is  not  required  to  give  much  attention 
to  vehicles  approaching  on  the  other  side.^ 

Sec.  333.  Lookout  —  toward  the  rear. 

The  general  duty  of  the  driver  is  to  look  in  front  of  his 
machine,  and  he  is  not  under  as  strict  an  obligation  to  look 

63.  Keiidall  v.  City  of  Des  Moinps,  doing  so  he  observes  no  one  coming  on 
183  Iowa,  866,  167  N.  W.  684;  Roper  v.  his  side  of  the  street,  but  sees  one  or 
Greenspon  (Mo.  App.).  192  S.  W.  149.  more   coming  towards  him   on  the  op- 

64.  Section  327.  posite   side   of   the   street,   he   has   the 

65.  Woodhead  v.  Wilkinson  (Cal.).  right  to  assume  that  such  person  or 
185  Pac.  851.  persons  will  continue  onward  on  the  op- 

66.  Johnson  v.  State  of  New  York.  posite  side  of  the  street,  and  not  en- 
104  Misc.   (N.  Y.)   395.  croach  upon   his   side.     Until   the   con- 

67.  Erwin  v.  Traud.  90  N.  J.  L.  280.  trary  is  made  to  appoar.  it  may  also 
100  Atl.  184.  be    presumed    that    the    driver    of    any 

68.  Richards  v.  Palace  Laundry  Co.  vehicle  will  perform  his  duty  in  main- 
(Utah),  186  Pac.  439.  wherein  if  was  taining  a  proper  lookout  ahead,  and 
said:  "While  the  law  imposes  the  that  in  doing  so,  if  there  is  no  one  on 
duty  on  every  person  who  operates  a  his  or  the  right-hand  side  of  the  street, 
vehicle  on  the  streets,  and  especially  on  b<it  there  is  a  traveler  coming  on  the 
one  who  operates  a  motor  vehicle  or  opposite  side  of  the  street  at  a  place 
automobile,  to  keep  a  proper  lookout  where  there  is  no  proliability  whatever 
ahead,  yet  where  one  who  is  operating  that  the  vehicle  of  the  driver  :ind  the 
his  vehicle  on  the  right-hand  side  of  vehicle  of  such  traveler  will  meet,  much 
the  street  makes  a  survey  of  the  condi-  less  collide,  the  drivor  may  act  accord- 
tions  of  the  street  ahead  of  him.  and  in  ingly. " 


396  The  Law  of  Automobiles. 

toward  the  rear  to  see  if  a  street  cdv/'^  or  other  vehicle,  is 
approaching,  or  whether  children  are  climbing  on  the  rear  of 
his  machine.''''  That  the  peculiarity  of  his  vehicle  excites  the 
desire  of  children  to  climb  upon  it,  does  not  alter  the  case.'^^ 
Nevertheless,  if  statute  or  municipal  ordinance  requires  the 
use  of  a  mirror  on  certain  motor  vehicles  in  order  that  the 
driver  thereof  may  be  able  to  see  vehicles  approaching  from 
the  rear,  the  failure  to  equip  a  machine  with  such  a  mirror 
may  constitute  negligence.''^  One  backing  his  machine  should 
keep  a  lookout  where  he  is  going.'^ 

Sec.  334.  Lookout  —  toward  the  side. 

Although  not  required  to  look  toward  the  rear,  the  driver  of 
a  motor  vehicle  should  use  his  faculties  to  see  travelers 
approaching  from  the  side.  This  duty  is  particularly  applic- 
able at  street  intersections,  where  travelers  may  be  expected 
to  come  from  a  right  angle  direction,''*  but  may  be  relaxed 
between  crossings  to  some  extent.''^  The  driver  should  not 
have  side  curtains  which  cut  off  his  view  except  in  front.''^ 

Sec.  335.  Lookout  —  intensiveness  of  looking. 

Although  it  is  the  duty  of  the  driver  of  an  automobile  to 
look  where  he  is  going,  yet  it  cannot  be  laid  down  as  an  inflex- 

69.  Baldie  v.    Tacoma   Ry.   &  Power  would  not  have  seen  the  plaintiff  in  a 

Co.,  52  Wash.  75,   100  Pac.  162.     And  rlangpronp  position.    Cantanno  v.  James 

see  section  598.  A.  Stevenson  Co.,  172  N.  Y.  App.  Div. 

Hub   of  wheel   extending   over    side-  App.  203,  157  S.  W.  880;  Eisenman  v. 

walk.— Where    the    driver    of    tlie    de-  252.  158  N.  Y.  Suppl.  335. 

fendant's  truck,  having  left  it  by  the  70.  Hebard   v.    Mabie,    98   HI.    App. 

curbstone,  so  that  the  hub  of  the  wheel  543. 

extended  two  inches  over  the  curb,  re-  71.  Hebard    v.    Mabie,    98   111.    App. 

turned  to  the  vehicle  by  crossing  the  543. 

street    and    started    the    team    without  72.  El  Paso  Elec.  Ry.  Co.  v.  Terrazas 

looking   to   the   sidewalk,   with   the   re-  (Tex.  Civ.  App,),  208  S.  W.  387. 

suit  that  the  hub  struck  and  injured  a  73.  Lee  v.  Donnelly   (Vt.),   113  Atl. 

cliild   of   tender   years,  who   with   com-  542. 

panions,    was    "playing   tag,"    and    it  74.  Ulmer  v.  Pistole,  115  Mass.  485, 

appeared  that  the  child  ran  toward  the  76  So.  522. 

truck  at  the  moment  the  driver  started,  75.  Richards  v.  Palace  Laundry  Go. 

there  is  no  actionable  negligence  which  ("Utah),  186  Pac.  439. 

justifies  a  recovery.     And  especially  so  76.  Thomas  v.  Burdick   (R.  I.),   100 

where  the  driver,  had  he  looked  to  the  Atl.  398. 
Bide    of    the    truck   next    to    the    curb, 


Negligence  in  Operation  oe  Motor  Vehicles.       397 

ible  and  unvaried  rule  of  law  that  he  must  keep  his  eyes  con- 
stantly fixed  on  the  roadbed.  Nor  is  he  charged  with  notice 
of  every  defect  therein,  great  or  small,  which  could  be  detected 
by  such  a  scrutiny.^  But  the  duty  of  looking  implies  the  duty 
to  see  what  is  in  plain  view,  unless  some  reasonable  explana- 
tion is  presented  for  the  failure.'^  AVhile  one  is  required  to 
look  ahead  when  approaching  a  bridge,  he  fulfills  his  duty  if 
he  looks  in  a  reasonably  careful  manner,  and  he  is  not  required 
as  a  matter  of  law  to  acquaint  himself  with  the  condition  of 
the  bridge,  when  there  is  no  indication  that  would  cause  a 
reasonably  careful  driver  to  take  such  a  precaution."^^ 

Sec.  336.  Lookout  —  charged  with  notice  of  what  should  have 
been  seen. 

It  may  be  stated  as  a  general  rule  that  the  driver  of  an 
automobile  is  charged  with  notice  of  such  conditions  in  and 
along  the  road  as  he  should  have  seen.^''  In  other  words,  he 
is  conclusively  presumed  to  have  seen  such  surrounding  cir- 
cumstances as  he  would  have  seen  had  he  properly  exercised 
his  faculty  of  vision.^^  TMiere  there  is  nothing  to  obstruct 
the  vision  of  a  driver,  it  is  negligence  not  to  see  what  is  clearly 
visible.^2  Qne  is  not,  as  a  matter  of  law,  excused  from  liability 
for  injuries  to  a  traveler  merely  because  he  did  not  see  him 
until  the  accident.^  Negligence  on  the  part  of  an  automobilist 
may  be  found  on  evidence  that,  while  driving  his  machine  along 
a  street,  he  came  up  behind  another  traveler  going  in  the  same 
direction  and  ran  into  him.^^    In  such  a  case  the  party  operat- 

77.  Kendall  v.  City  of  Des  Moines,       Pac.  634. 

183  Iowa  866,  167  N.  AV.  684;  Smith  v.  81.  McDonald  v.  Yoder,  80  Kan.  25. 

Jackson  Tp.,  26  Pa.  Super.  Ct.  234.  101    Pac.   468;    Kelly  v.    Schmidt.   142 

78.  Holdonnan  v.  Witmer,  166  Iowa,       La.  91,  76  So.  250. 

406,   147  N.  W.  926;   Roper  v.  Green-  82.  Koenig  \.  Semrau,  197  111.  App. 

Bpon  (Mo.  App.),  192  S.  W.  149.    And  624;  Birch  v.  Athol,  etc.,  Ry.  Co.,  198 

Bee  section  336.  Mass.  257,  84  N.  E.  310;  Ulmer  v.  Pl«- 

79.  Super  v.  Modcll  Twp..  88  Kans.  tole,  115  Mass.  485,  76  So.  522. 

698    129  Pac.  1162.  83.  Holdonnan  v.  Witmer,  166  Ii>w;i, 

80.  Koenig  v.  Semrau,  197  111.  App.  406.  147  X.  W.  926;  Kennedy  v.  Web- 
624;   Birc  v.  Athol,   etc.,  Ry.  Co.,   108  ster.  137  Minn.  335,  163  N.  W.  519. 
Mass.    257,    84    N.    E.    310;    Roper    v.  84.  Heath  v.  Cook    (R.   I.).   68  All. 
Greenspon  (Mo.  App.),  192  S.  W.  149;  427. 

Boeddcher  v.  Frank,  48  Utah.  363,  159 


398  The  Law  of  Automobiles. 

ing  a  motor  ear  in  the  rear  of  another  vehicle  is  in  the  better 
position  to  avoid  danger  and  where  the  one  in  front  is  exer- 
cising reasonable  care,  a  collision  would  seem  to  at  least, 
pri77ia  facie,  indicate  negligence  on  the  part  of  the  former. 

Sec.  337.  Noise. 

The  question  whether  a  charge  of  negligence  may  be  based 
on  the  noise  made  by  a  motor  vehicle,  generally  arises  in  cases 
where  horses  have  been  frightened  and  an  injury  is  thereby 
occasioned;  and  the  question  is  therefore  discussed  in  con- 
nection with  the   chapter  on  "Frightening  Horses."     The 
right  to  operate  an  automobile  along  the  public  highways, 
necessarily  carries  the  right  to  make  the  usual  noises  incident 
thereto,^^  but  it  is  apparent  that  this  right  must  be  harmonized 
with  the  rights  of  those  driving  horses.    Thus,  the  driver  of 
the  machine  must  exercise  reasonable  care  to  avoid  frighten- 
ing horses,  even  to  the  extent  of  stopping  the  machine  if  neces- 
sary; and  the  driver  of  animals  must  also  exercise  due  pre- 
caution to  avoid  injury  from  the  motor  vehicle.^^     But  the 
operator  of  a  motorcycle  is  under  no  obligation  as  to  a  team 
working  in  a  field  adjoining  the  highway,  except  to  refrain 
from  wilful  or  wanton  conduct  which  would  cause  fright.*^    It 
is  very  seldom  that  a  foot  traveler  can  be  said  to  have  been 

85.  Gipe  V.  Lynch,  155  Iowa,  627,  towards  which  such  vehicle  is  proceed- 
136  N.  W.  714;  Browne  v.  Thome,  61  ing,  and  a  different  signal  visible  from 
Wash.  18,  111  Pac.  1047.  See  also  Day  the  rear,  could  only  have  been  intended 
V.  Kelly,  50   Mont.   306,   146  Pac.  930.  for  the  protection  of  persons  traveling 

86.  Section  518.  on   the   highway.      The   duties  imposed 

87.  Walker  v.  Faelber,  102  Kans.  by  law  upon  the  driver  of  a  motorcycle 
646,  171  Pac.  605,  wherein  it  was  said:  require  him  to  keep  his  eyes  upon  the 
"We  think  it  is  obvious  that  the  trial  road  and  to  look  ahead  for  the  pur- 
court's  construction  of  the  statute  is  pose  of  protecting  other  persons  using 
the  correct  one.  The  legislative  pur-  the  public  highway  from  probable  in- 
pose  was  to  protect  a  distinct  class  of  jury  resulting  from  fast  driving  or 
persons ;  that  is,  users  of  public  high-  other  negligence.  Since  the  statute  im- 
ways.  The  safety  of  a  person  in  a  field  posed  upon  defendant  no  duty  to  the 
adjoining  a  public  highway  was  not  plaintiff,  the  evidence  failed  to  show 
within  the  contemplation  of  the  legis-  negligence.  It  is  only  where  the  de- 
lature.  The  requirement  of  a  bell  o-  fendant  wrongfully  fails  to  perform 
horn  and  the  use  of  signals  and  of  some  duty  owed  to  the  plaintiff  that  a 
lamps  in  front  and  in  the  rear,  and  the  cause  of  action  based  upon  negligence 
giving    of    signals   from    the    direction  can  exist." 


Negligence  in  OrEiiATioN   ue  Motuu  \'eiiicle.s.        o\)\) 

injured  by  the  noise  of  an  automobile.    In  fact,  the  duty  of 
the  driver  is  to  sound  a  warning  so  that  pedestrians  may 
escape  in  jury. ^^    In  one  case  to  recover  for  the  death  of  the 
plaintiff's  intestate,  claimed  to  have  been  caused  by  the  negli- 
gence of  defendant's  chauffeur,  it  appeared  that  the  deceased, 
a  man  fifty-nine  years  of  age,  started  to  cross  the  street  at  a 
point  of  intersection  with  another  street,  and  after  reaching 
a  space  between  surface  railway  tracks,  upon  hearing  the 
horn  from  defendant's  automobile,  which  was  then  between 
twenty  and  forty  feet  from  him,  threw  up  his  hands,  took 
one  or  two  steps  back  in  front  of  the  automobile  and  was 
instantly  hit.    He  had  looked  in  the  direction  in  which  the 
automobile  was  coming  just  before  he  started,  and  looked 
again  in  that  direction  while  stepping  back.    The  automobile 
was  running  at  a  speed  of  between  eleven  and  twelve  miles 
an  hour,  with  lamps  lighted,  and  there  were  no  vehicles  ob- 
structing the  street.    It  was  held  that  a  verdict  that  the  dece- 
dent was  free  from  contributory  negligence,  and  that  the  acci- 
dent was  caused  solely  by  the  negligence  of  the  defendant's 
chauffeur,  was  against  the  weight  of  the  evidence.^^ 

88.  Sections  329-331.  and  not  upon  a  sidewalk,  and  upon  ap- 

89.  Wall  V.  Merkert,  166  N.  Y.  App.  proaching:  an  intensecting  highway  or  a 
Div.  608,  152  N.  Y.  Supp.  293,  wherein  curve  or  a  corner  in  a  highway  where 
it  was  said:  "The  learned  counsel  for  the  operator's  view  is  obstructed,  every 
the  respondent  in  his  brief  states,  '  We  person  operating  a  motor  vehicle  shall 
have  been  unable  to  find  any  cases  in  slow  down  and  give  a  timely  signal  with 
this  State  iiolding  that  the  blowing  of  his  bell,  horn  or  other  device  for  sig- 
a  horn  under  such  circumstances  is  a  naling. '  It  has  been  held  in  innumer- 
negligent  act.'  It  is  provided  in  chap-  able  cases  that  a  failure  to  observe  an 
ter  374  of  the  Laws  of  1910,  entitled  ordinance  or  a  statute  is  evidence  of 
'An  Act  to  anifnd  the  Highway  Law.  negligonoe.  This  is  the  first  case  that 
by  repealing  article  eleven  thereof  and  has  been  brought  to  our  attention  where 
in-serting  a  new  article  eleven,  in  rela-  ol)edience  to  an  ordinance  or  statute  is 
tion  to  motor  vehicles,'  in  subdivision  1  made  the  ground  of  a  recovery  for  neg- 
of  section  286  of  such  Highway  Law,  ligence.  I  think  the  verdict  that  the 
that  every  motor  vehicle  shall  be  pro-  plaintiff's  decedent  was  free  from  con- 
vided  with  'a  suitable  and  adequate  tributory  negligence  and  that  the  acci- 
bell,  horn  or  other  device  for  signaling.'  rlent  was  caused  solely  by  the  negli- 
and  subdivision  2  provides:  '.  .  .  gence  of  the  defendant's  servant  is 
Upon  approaching  a  pedestrian  who   is  flatly  against  the  evidence." 

upon  the  traveled  part  of  any  highway 


400 


The  Ijaw  of  Automobiles. 


Sec.  338.  Skidding. 

In  an  action  to  recover  for  injuries  caused  by  an  automobile 
which  skidded  and  struck  the  plaintiff  while  standing  upon 
the  sidewalk,  it  was  held  that  there  must  be  a  finding  justified 
by  the  evidence,  either  that  the  chauffeur  was  negligent  in  the 
operation  of  the  machine,  that  he  did  some  act  which  a  prudent 
person  would  not  have  done,  or  omitted  some  act  which  a 
prudent  person  would  have  done  in  the  operation  of  the 
vehicle,  or  that  in  some  other  respects  the  defendant  or  his 
agents  were  negligent.^'^  The  mere  fact  of  the  skidding  of  a 
car  is  not  of  itself  such  evidence  of  negligence  as  to  render 
the  owner  liable  for  an  injury  in  consequence  thereof,^^  and 
whether  the  driver  was  negligent  in  his  management  of  the 


90.  Philpot  V.  Fifth  Ave.  Ck)ach  Co., 
142  App.  Div.  (N.  Y.)  811,  128  N.  Y. 
Suppj.  35. 

Skidding  not  evidence  that  vehicle  a 
nuisance. — The  skidding  of  a  motor 
omnibus  upon  a  greasy  road,  where 
there  is  no  negligence  on  the  part  of 
the  driver,  and  the  skidding  is  due  to 
the  precautions  taken  by  the  driver  to 
bring  the  vehicle  to  a  sudden  stop  in 
order  to  avoid  an  accident,  is  held  in 
an  English  case  to  be  no  evidence  that 
the  particular  vehicle  is  a  nuisance  for 
the  placing  of  which  on  the  highway 
the  owners  are  liable  if  damage  ensues. 
Parker  v.  London  General  Omnibus 
Company  Limited  (K.  B.  Div.),  100 
Law  T.  R.  (N.  S.)  409.  So  in  another 
case  an  accident  to  a  passenger  on  a 
motor  car  omnibus  resulting  from  the 
tendency  of  such  vehicles  to  skid  on 
slippery  roads  is  held  in  an  English 
case  not  to  be  evidence  of  negligence 
or  of  nuisance.  And  the  knowledge  or 
want  of  knowledge  of  the  passenger  of 
such  tendency  is  held  not  to  affect  the 
event  of  the  action.  Wing  v.  London 
General  Omnibus  Company  Limited  (C. 
A.),  101  Law  T.  R.  (X.  S.}  411,  re- 
versing 100  Law  T.  R.  (N.  S.)  301. 

91.  Williams  v.  Holbrook,  216  Mass. 
239,    103   N.   E.   633;    Loftus   v.   Pelle- 


tier,  223  Mass.  63,  111  K  E.  712;  Lin- 
den V.  Miller  (Wis.),  177  N.  W.  909. 
See  also,  Kelleher  v.  City  of  Newbury- 
port,  227  Mass.  462,  116  N.  E.  807; 
Tooker  v.  Fowler  &  Sellars  Co.,  147  N. 
Y.  App.  Div.  164,  132  N.  Y.  Suppl. 
213;  Parker  v.  London  General  Omni- 
bus Co.,  101  L.  T.  (Eng.)  623;  Wing 
v.  London  General  Omnibus  Co.,  (1909), 
2  K.  B.  (Eng.)  652.  See  also,  Henne- 
kes  V.  Beetz  (Mo.  App.),  217  S.  W. 
533.  "Skidding  may  occur  without 
fault,  and  when  it  does  occur  it  may 
likewise  continue  without  fault  for  a 
considerable  space  and  time.  It  means 
partial  or  complete  loss  of  control  of 
the  car  under  circumstances  not  neces- 
sarily implying  negligence.  Hence 
plaintiff's  claim  that  the  doctrine  of 
res  ipsa  loquitur  applies  to  the  present 
situation  is  not  well  founded.  In  order 
to  make  the  doctrine  of  res  ipsa  loqui- 
ttir  apply,  it  must  be  held  that  skid- 
ding itself  implies  negligence.  This  it 
does  not  do.  It  is  a  well-known  physi- 
cal fact  that  cars  may  skid  on  greasy 
or  slippery  roads  without  fault  either 
on  account  of  the  manner  of  handling 
the  car  or  on  account  of  its  being 
there."  Linden  v.  Miller  (Wis.),  177 
X.  W.  909. 


Negligence  in  Operation  of  Motor  Vehicles.       401 

machine  is  ordinarily  a  question  for  the  jury.^^  g^^  ^  chauffeur 
cannot  be  held  negligent  in  applying  the  brakes  of  an  auto- 
mobile while  going  at  an  excessive  rate  of  speed  in  order  to 
reduce  the  speed,  even  though  skidding  occurred  from  the 
application  of  the  brakes,  owing  to  the  slippery  condition  of 
the  pavement,  if  there  be  nothing  1<»  show  that  he  did  not  do 
all  that  he  could  have  done  to  avoid  the  accident.^^  Thus, 
where  a  person  operating  an  automobile  at  a  street  crossing 
in  a  proper  manner  and  at  a  slow  rate  of  speed,  applied  the 
brakes  suddenly  to  avoid  striking  a  pedestrian  who  ran  in 
front  of  the  car  and  the  act  caused  the  car  to  skid  slightly 
and  to  come  in  contact  mth  another  car  standing  at  the  curb, 
injuring  a  portion  of  the  top  of  such  car,  it  was  held  that  the 
injury  was  the  result  of  an  accident  for  which  the  person 
operating  the  automobile  could  not  be  held  liable  to  respond 
in  damages.^*  In  another  case  it  was  held  that  the  mere  fact 
that  a  motor  omnibus  damaged  a  street  lamp  because  it 
skidded  is  sufficient  to  allow  the  case  to  go  to  the  jury  on  the 
question  of  the  driver's  negligence.^^  Where  the  skidding  is 
caused  by  some  object  striking  the  automobile  and  the  driver 
is  exercising  due  care  at  the  time,  a  recovery,  for  any  injury 
sustained  by  the  car,  may  be  had,  on  the  ground  that  the 
proximate  cause  of  such  injury  was  the  object  which  came  in 
contact  with  the  machine.^  The  skidding  of  an  automobile 
may,  however,  clearly  be  the  result  of  the  driver's  negligence, 
as  where  the  pavement  is  slippery  and  he  endeavors  to  make  a 
quick  turn,  not  called  for  by  any  sudden  emergency  confront- 
ing him.  Where  a  traveler,  in  the  exercise  of  reasonable  care, 
is  injured  by  such  conduct  on  the  part  of  the  driver,  he  may 
ordinarily  recover.^^    Indeed,  there  may  be  cases  where  the 

92.  Williams  v.  Holbrook,  216  Mass.  Motorbus  Co.,  T.  L.  Rep.  vol.  XXV,  No. 
239,  103  N.  E.  633;   Schepp  v.  Gerety.       2,  p.  13,  Oct.  27,  1908. 

263  Pa.  St.  538,  107  Atl.  317.  96.  Williams  v.   Breniian,   213   Mass. 

93.  Philpot  V.  Fifth  Ave.  Coach  Co.,  28,  99  N.  E.  516,  so  holding  where  the 
142  App.  Div.  (N.  Y.)  811,  128  N.  Y.  akidding  was  due  to  the  automobile 
Suppl.  35 ;  Anderson  v.  Schorn,  189  N.  being  struck  by  the  body  of  a  dog. 

y.  App.  Div.  495,  178  N.  Y.  Suppl.  603.  97.  Loftus  v.  Pelletier,  223  Mass.  63, 

94.  Moir  v.  Hart,  189  111.  App.  566.       Ill  N.  E.  712;  Van  Winckler  v.  Morris, 
96.  Walton  &  Ce.  v.   The  Vanguard       46  Pa.  Super.  Ct.  142. 

26 


402  The  Law  of  Automobiles. 

skidding  calls  into  operation  the  doctrine  of  res  ipsa  loqiiitor.^^ 
And  a  finding  of  negligence  may  be  based  on  the  failure  to 
equip  the  machine  with  chains,^^  though  the  absence  of  chains 
does  not  show  negligence  as  a  matter  of  law.^  The  speed  at 
which  the  skidding  machine  was  moving  is  a  material  element 
in  determining  whether  the  operator  was  negligent." 

Sec.  339.  Condition  of  vehicle. 

It  is  the  duty  of  one  traveling  in  a  vehicle  to  have  his  con- 
veyance in  reasonably  good  condition,  so  that  he  may  avoid, 
so  far  as  possible,  the  danger  of  injury  to  other  travelers.^ 
The  mere  fact  that  some  of  the  gearing  gives  way,  or  that 
some  part  of  the  vehicle  breaks  down,  and  injury  results,  is 
not  negligence  per  se.*  ''If  damages  are  inflicted  by  reason 
of  the  breaking  of  the  carriage  or  tackle  of  the  traveler  on 
the  highway  the  traveler  or  owner  of  the  tackle  is  liable  only 
on  the  principle  of  want  of  ordinary  care."^  The  fact  that 
gearing  or  tackle  acted  wrongly,  on  a  previous  occasion  is 
evidence  of  negligence  on  the  part  of  the  owner,  and  may  be 
sufficient  to  render  him  liable  for  damages  caused  thereby.® 
So,  too,  the  fact  that  a  chain  on  one  of  the  wheels  broke  and 
wound  around  the  axle  and  blocked  the  car,  does  not  show 
negligence.'  Wliere  the  equipment  of  a  motor  vehicle  is 
adjusted  so  that  it  makes  a  loud  noise  and  a  horse  is  thereby 

98.  Mackenzie  v.  Oakley  (N.  J.),  108  rect  evidence  as  to  what  caused  the 
Atl.  771.  blow-out.      Barnett    v.    Levy,    213    El. 

99.  Gros.s    V.    Burnside     (Cal.),     199       App.  129. 

Pac.  780.  Defective    crank    causing    injury    to 

1.  Livingston  v.  Chambers  (Iowa),  one  asked  to  crank  the  machine  may 
183  N.  W.  429.  create  a  question  for  the  jury.     Parker 

2.  Gilbert  v.  Southern  Bell  Telep.  &  v.  Drake  (Mo.  App.),  220  S.  W.  1000. 
Teleg.  Co.,  200  Ala.  3,  75  So.  315.  4.  Doyle  v.  Wragg,  1  F.  &  F.  7 ;  The 

3.  Johnson     v.     Small,      5     B.     Mon.  European,  10  L.  R.  Prob.  Div.  99. 
(Ky.)     25;     Smith    v.    Smith,    2    Pick  5.   1     Thompson    Negligence,    p.     81. 
(Mass.)    621;    Murdock  v.  Warwick,   4  See    also    Elliott,    Roads    and    Streets. 
Gray  (Mass.)   178;  Welch  v.  Lawrence,  See  also  Ivins  v.  Jacob,  245  Fed.  892; 
2  Chitty  (Eng.)  262.  Hutchins  v.  Maunder  (1920,  K.  B.),  37 

Blowout.— The     negligence     of     the  T.  L.  R.   (Eng.)   72. 

driver  of  an  automobile  may  be  a  ques-  6.  The    European,    10    L.    R.    Prob. 

tion  for  the  jury,  where  as  the  result  Div.  99. 

of   the   blowing-out   of   a   tire   the   car  7.  Albertson  v.  Ansbacher,  102  Misc. 

turns    over,    although    there   is    no   di-  (N.  Y.)   527,  169  N.  Y.  Suppl.  188. 


Negligence  in  OrKUAXioN  of  Motor  X'ehicles 


403 


frightened,  the  owner  may  be  liable  for  the  injuries  sustained 
by  the  driver  of  the  horse.^  An  autoniobilist  is  under  the  duty 
of  equipping  his  machine  with  proper  brakes.  This  duty,  not 
only  exists  under  common  law  principles,  but  is  generally 
affirmed  by  statutory  enactment's.^  Evidence  of  defective 
brakes  on  a  machine  is  admissible  as  bearing  on  the  care  to 
be  exercised  by  the  driver,  for,  if  the  brakes  are  defective,  he 
should  take  greater  precautions.^"  And  it  is  the  duty  of  the 
driver  to  use  the  l)rakes  when  necessary."  If  the  brakes  do 
not  work,  the  driver  should  use  such  other  means  as  are  at 
hand  for  the  avoidance  of  a  threatened  injury.^^  Negligence 
may  also  be  found  in  the  failure  to  equip  a  machine  with  u 
proper  horn.^''    An  expert  witness  may  be  permitted  to  testify 


8.  LaBrash  v.  Wall,  134  Minn.  130. 
158  N.  W.  723,  wherein  it  was  said: 
"The  plaintiff  was  going  south  on  a 
street  in  Minneapolis  with  a  wagon 
load  of  household  furniture.  The  auto 
van  of  the  defendant  came  from  the 
east  on  an  intersecting  street  and 
turned  towards  the  plaintiff  from  the 
south  and  at  first  was  on  the  westerly 
side  of  the  street  on  which  the  plain- 
tiff was  driving.  The  auto  van  had 
curtains  which  were  flapping  and  mak 
ing  some  noise.  The  plaintiff's  team 
became  frightened  and  ran  away  and 
the  plaintiff's  furniture  was  damaged. 
The  evidence  was  sufficient  to  ju.stify  a 
finding  of  negligence." 

9.  Bennett  v.  Snyder  (Ark.).  227  S. 
W.  402;  Garrett  v.  Peoples  R.  Co.,  6 
Penn.  (Del.)  29,  64  Atl.  254;  Fox  v. 
Barekman,  178  Ind.  572,  99  N.  E.  989 ; 
Corning  v.  Maynard,  179  Iowa,  1065, 
162  N.  W.  564;  Owens  v.  Iowa  County. 
186  Iowa  408,  169  N.  W.  388;  Bigelow 
V.  Town  of  St.  Johnsbury,  92  Vt.  423. 
105  Atl.  34;  Allen  v.  Schultz,  107  Wash. 
393,  181  Pac.  916,  6  A.  L.  R.  n76n. 
See  also  Bruner  v.  Little.  97  Wash. 
319,  166  Pac.  1166.  "One  who  oper- 
ates on  the  streets  of  a  city  such  .» 
dangerous  instrumentality  as  an  auto- 
mobile is  bound  to  take  notice  that  he 


may  be  called  upon  to  make  emergency 
stops,  and  it  is  negligence  on  his  part 
not  to  keep  the  automoVjile  in  such  con- 
dition that  such  stops  arc  possible." 
Allen  V.  Schultz,  107  Wash.  393,  181 
Pac.  916. 

Engine  not  a  brake. — Most  of  the 
State  automobile  laws  require  that  each 
motor  vehicle  must  be  equipped  with 
<;ood  and  efficient  brakes.  In  one  or 
two  of  the  laws  it  is  provided  that  there 
shall  be  more  than  one  brake.  In  Eng- 
land the  question  has  arisen  if  the  en- 
uino.  wiiich  is  frequently  used  aa  a 
brake,  complies  with  the  law,  provided 
only  one  real  brake  is  on  the  automo- 
l)ile.  It  has  been  held  that  the  eng^ine, 
under  such  circumstances,  does  not  con- 
stitute a  "brake"  within  the  mean- 
ing of  the  requirements.  Wilmott  v, 
Southwell,  25  L.  T.  22. 

10.  Siegeler  v.  Neuweiler,  91  N.  J.  L. 
:273,  102  Atl.  349. 

11.  Gro.ss  V.  Burnside  (Cal.),  199 
P:i('.  780. 

12.  Russell  V.  Electric  Garage  Co., 
90  Neb.  719,  134  N.  W.  253. 

13.  Dussault  V.  Chartrand,  Que.  S.  C. 
(Canada)  488;  Provincial  Motor  Co.  v. 
Dunning  (1909),  2  K.  B.  (Eng.)  599. 
And  .see  sections  329-331. 


404  The  Law  of  Automobiles. 

as  to  whether  an  automobile  was  defective."  And  evidence 
of  the  condition  of  a  machine  after  an  accident  may  in  some 
cases  be  received  as  bearing  on  its  condition  at  the  time  of 
the  accident.^^  Negligence  may  be  inferred  from  leaving  mow- 
ing machine  section  knives  so  as  to  extend  over  the  side  of  the 
vehicle.^^  The  liability  of  the  manufacturer  of  a  machine  for 
injuries  sustained  by  a  purchaser  through  defects  in  its  manu- 
facture, is  treated  in  another  chapter.^'' 

Sec.  340.  Leaving  car  in  street  unattended  —  in  general. 

Under  many  circumstances  the  owners  of  vehicles  have  the 
right  to  let  them  stand  on  the  highway  for  a  reasonable  time 
and  in  such  a  place  as  will  not  unduly  interfere  with  travel 
on  the  road.  When,  therefore,  a  motor  car  is  lawfully  stand- 
ing on  the  side  of  the  street  and  there  is  ample  room  to  pass 
without  colliding  with  it,  it  is  negligent  to  drive  into  it.^^ 
Thus,  Avhere  a  motor  vehicle,  liable  to  frighten  horses,  broke 
down  on  the  public  highway,  and  was  left  at  the  place  of  the 
breakdown,  it  was  held  that  the  o^^mer  of  the  vehicle  was  not 
liable  because  a  horse  became  frightened  at  the  vehicle,  unless 
there  was  unreasonable  delay  in  repairing  and  removing  it.^^ 
But  one  leaving  a  motor  vehicle  unattended  by  the  side  of  a 
highway  is  bound  to  exercise  such  care  as  a  reasonably  pru- 
dent man  would  under  the  same  circumstances  f^  and  whether 
he  was  negligent  may  be  a  question  for  the  jury.^^  Thus,  the 
owner  of  an  automobile  may  be  guilty  of  negligence  in  leaving 

14.  E.  M.  F.  Co.  V.  Davis,  146  Ky.  showing  of  injury  or  damage  peculiar 
231,  142  S.  W.  391.  And  see  section  to  him.  Hefferon  v.  New  York  Taxicab 
914,  Co..  146  N.  Y.   App.  Div.   311,  130  N. 

15.  Owens  v.  Iowa  County,  186  Iowa,  Y.  Suppl.  710. 

408,  169  N.  "W.  388.  19.  Davis  &   Son   v.   Thoinburg,   149 

16.  Judy  V.  Doyle  (Va.),  108  S.  E.  6.  N.  C.  233.  62  S.  E.  1088. 

17.  Section  800.  20.  American   Express  Co.   v.    Terry, 

18.  Odom  V.  Schmidt,  52  La.  Ann.  126  Md.  254.  94  Atl.  1026;  Berman  v. 
219,  28  So.  350.     And   see  section  395  Schultz,  84  N.  Y.  Suppl.  292.     Scp  also 

Standing    taxicab    as    a    nuisance. —  Keber  v.  Central  Brewing  Co.  of  New 

If  a  taxicab  company  unreasonably  and  York,  150  N.  Y.  Suppl.  986. 

unlawfully  obstructs  a  public  highway.  21.  American   Express  Co.   v.   Terry, 

it  is  guilty  of  a  public  nuisance,  but  no  126  Md.   254,  94  Atl.   1026.     See  also 

action  to  abate  it  exists  in  favor  of  a  Harris  v.  Burns,  133  N.  Y.  Suppl.  418. 
private  suitor  in  the  absence  of  some 


Negligence  in  Operation  of  Motor  Vehicles.       405 

it  uiilighted  and  unattended  in  the  night  time.'--  So,  too,  where 
it  appeared  that  the  defendant  had  left  a  bright  red  auto- 
mobile, with  l)rass  trimmings,  standing  at  the  side  of  the  road 
and  that  the  plaintilfs  horse  took  fright  thereat  and  upset 
the  carriage,  injuring  both  the  plaintiff,  the  horse  and  car- 
riage, it  was  lield  that,  the  jury  having  found  that  it  was  not 
a  reasonabh'  user  of  the  highway  to  leave  the  automol)ile 
thereon  for  a  long  time,  but  was  an  unauthorized  obstruction 
thereof,  such  finding  Avould  not  be  disturbed  on  appeal.-' 
Where  one  driving  in  a  wagon  on  a  dark  night,  in  the  middle 
of  a  highway  having  a  traveled  track  eighteen  feet  wide  with 
a  ditch  on  each  side,  turned  to  the  right  as  soon  as  he  sa\\' 
the  lights  of  an  approaching  automobile  and  stopped,  leaving 
plenty  of  room  for  it  to  pass  without  danger,  and  about  a 
minute  after  he  saw  the  lights  his  wagon  was  struck  by  the 
automobile,  it  was  held  that  he  was  not  necessarily  guilty  of 
contributory  negligence  even  if  his  wagon,  when  struck,  was 
slightly  over  the  center  line  of  the  highway,  but  that  the  ques- 
tion w^as  one  for  the  jury.-^  But,  where  a  plaintiff's  auto- 
mobile, lawfully  standing  at  rest  on  the  side  of  a  street,  was 
struck  by  a  truck  belonging  to  one  of  the  defendants,  which, 
while  being  driven  slowly  and  carefully,  was  struck  by  a  street 
railway  car  and  as  a  result  of  the  collision  the  automobile 
was  damaged,  it  was  held  that  the  plaintiff,  in  an  action  to 
recover  for  such  damage,  had  the  burden  of  showing  by  a  fair 
preponderance  of  evidence  that  the  accident  was  due  to  the 
negligence  of  the  owner  of  the  truck.  And  it  was  also  declared 
that  in  such  a  case  the  rule  of  res  ipsa  loquifor  was  not  applic- 
able, but  that  assuming  that  it  was,  it  would  not  operate  to 
shift  the  burden  of  proof  upon  the  truck  owner  to  show  that 
the  proximate  cause  of  the  accident  was  the  negligence  of  the 
defendant's  operating  the  railway,  as  the  ow'uer  of  the  truck 
was  only  bound  to  overcome  any  presumption  of  negligence 
on  his  ])art  which,  in  the  absence  of  explanation,  miirht  l>e 

22.  .Taquitli     v.     Wordoii.     73     Wash.        (Canada)   9. 

349,   1.^2  Pac.   33.  4S  L.  R.  A.   (N.  S.")  24.  Andersoii     v.     Spiuk;*.     142    Wis. 

827.  398,  12.->  N.  W.  025. 

23.  Afclntvio  V.  Coote.  10  Out.  L.  R. 


406  The  Law  of  ArTo.vioniLKs. 

inferred  from  the  happening  of  the  accident.-^  If  a  machine 
is  negligently  left  in  the  road  so  that  it  is  struck  by  a  street 
car  and  thrown  against  one  working  at  the  curb,  the  negli- 
gence of  the  driver  of  the  machine  may  be  held  to  be  the  proxi- 
mate cause  of  the  injuries  sustained  by  the  workman.-*^ 

Sec.  341.  Leaving  car  in  street  unattended  —  at  night. 

Where  a  vehicle  is  left  standing  in  the  street  with  no  lights 
to  warn  other  travelers  of  the  danger,  a  charge  of  negligence 
may  be  sustained  under  modern  statutes  requiring  the  light 
ing  of  such  vehicles.^^  But  where  a  plaintiff's  vehicle  ran  into 
the  defendant's  carriage  standing  in  the  dark  M-ithout  a  light, 
signal  or  other  indication  of  danger,  it  was  decided  by  the 
Supreme  Court  of  Errors  of  Connecticut,  that  the  lower  court 
properly  refused  to  decide  that  the  defendant's  act  in  leaving 
his  carriage  in  such  a  manner  so  as  to  obstruct  more  than  half 
the  highway  was  negligence  as  a  matter  of  law.^ 

Sec.  342.  Leaving  car  in  street  unattended  —  vehicle  started 
by  act  of  third  person. 

The  leaving  of  an  automobile  by  the  side  of  the  highway  for 
a  reasonable  time,  where  the  operator  has  taken  precautions 
to  guard  against  an  automatic  start  thereof,  is  not  negli- 
gence.^^ If  a  third  person  thereupon  unlawfully  meddles  mth 
the  machine  and  starts  it  so  that  it  causes  injury  to  another 
person  in  the  highway,  the  owner  is  not  liable. ^^  Thus,  the 
owner  or  driver  is  not  liable  for  injuries  caused  by  a  motor 

25.  O'Donohue  v.  Duparquet,  Huot  &  Div.  400,  185  N.  Y.  Suppl.  359. 
Moneuse  Co.,  67  Misc.  (N.  Y.)  435,  123  30.  Vincent  v.  frandall  &  Oodley  Co.. 
N.  Y.  Suppl.  193.  131   N.   Y.   App.   Div.   200,    115   N.   Y. 

26.  Keiper  v.  Pacific  Gas  &  Elee.  Co.  Suppl.  600 ;  Berman  v.  Schultz,  84  N. 
(Cal.  App.),  172  Pac.  180.  Y.  Suppl.  292;  Frashella  v.  Taylor,  157 

27.  Section  344.  N.   Y.   Suppl.   881;    Rhad  v.  Duquesne 

28.  Nesbit  v.  Crosby,  74  Conn.  554,  Light  Co.,  255  Pa.  St.  409,  100  Atl. 
51  Atl.  550.  262;  Oberg  v.  Berg,  90  Wash.  435,  155 

29.  Vincent  V.  Crandall  &  Godley  Co.,  Pac.  391;  Ruoff  v.  Long  &  Co.,  1916 
131  N.  Y.  App.  Div.  200,  115  N.  Y.  L.  R.  1  K.  B.  (Eng.)  148.  Sec  also, 
Suppl.  600,  distinguished,  Lee  v.  Van  Lee  v.  Van  Buren,  etc.,  Co.,  190  N.  Y. 
Buren,  etc.,  Co.,  190  N.  Y.  App.  Div.  App.  Div.  742,  180  N.  Y.  Suppl.  295; 
742,  180  N.  Y.  Suppl.  295.  See  also,  Austin  v.  Buffalo  Electric  Vehicle  Co., 
Lazarowitz   v.   Levy,    194    N.   Y.   App.  158  N.  Y.  Suppl.  148. 


Negligence  ix  Operation  of  Motor  Vkhkles.       4i)( 

vehicle  which  is  left  temporarily  h\  the  side  of  the  highway 
and  in  the  absence  of  the  driver  is  started  l»y  the  unlawful 
acts  of  children  or  other  tres])assers.^'  While  it  is  the  duty  of 
the  person  having  charge  of  the  machine  to  use  reasonable 
care  that  no  injury  will  result  from  the  car  while  it  is  un- 
attended, it  is  not  his  duty  to  chain  it  to  a  post  or  use  souk- 
other  method  of  fastening  it  so  that  it  will  he  iini^ossihle  for 
third  persons  to  start  it.^^ 

Sec.  343.  Leaving  car  in  street  unattended  —  statute  or  ordi- 
nances. 

A  statute  or  a  municipal  ordinance  may  affect  the  right  ol" 
an  automobilist  to  leave  his  machine  standing  by  the  side  of 
the  highway.  Thus,  a  municipal  ordinance  may  prohibit  the 
''parking"  of  cars  on  certain  streets,  or  it  may  require  them 
to  be  left  only  on  a  certain  side  thereof.^"  The  violation  of 
regulation  enacted  by  a  State  legislature  or  a  nuinicipal  body 
may  be  negligence,^*  but,  to  enable  a  third  person  to  recover 
for  injuries  on  the  ground  that  the  defendant  violated  a  regu- 
lation, it  is  essential  that  it  appear  that  the  injuries  are  the 
proximate  result  of  the  violation.  It  has  been  held  that  the 
violation  of  an  ordinance  forbidding  the  leaving  of  automo- 
biles unlocked  and  unattended  in  a  city  street,  is  not  the 
proximate  cause  of  an  injury  occasioned  by  the  wrongful 
appropriation  of  the  car  by  one  who  drove  it  at  a  reckless  and 
unlawful  speed  and  inflicted  the  injury  in  question-^^ 

Sec.  344.  Lights  on  machine  —  statutory  requirements. 

It  is  generally  required  by  statute  that  motor  vehicles  shall 
carry  lights  which  shall  be  lighted  at  certain  hours  when  the 
machine  is  operated.^    IMunicipal  regulations  of  similar  ini- 

81.  Vincent  V.  Crandall  &  Godloy  Co..  32.  Beriiiaii     v.     Sclniltz,     84     N.    Y. 

131    N.   Y.    App.    Div.    200,    115    N.   Y.  Suppl.  292. 

Suppl.   600;   Berman  v.  Schultz,   84   N.  33.  Heok  v.  Cox.   T7  W.   Vn.   442.  ^7 

Y.  Suppl.  292;  Sorrusca  v.  Hobson,  155  S.  K.  492. 

N.  Y.  Suppl.  364:  Frashella  v.  Taylor.  34.  Section  297. 

157  N.  Y".  Suppl.  881;  Rhad  V.  Buquosno  35.  Squires  v.  Brooks.  44   \]^y.  O.  C. 

Light   Co.,   255    Pa.    St.    409.    100   Atl.  .^20. 

262.  36.  Stewart   Taxi-Service  Co.  v.  Roy. 


408 


The  Law  of  Automobiles. 


port  have  been  passed  in  various  municipalities.  The  general 
requirements  refer  to  illumination  in  front  of  the  machine, 
but  a  light  is  also  frequently  required  at  the  rear,  either  as  a 
protection  from  other  vehicles  approaching  from  behind  or 
as  a  means  of  identifying  the  rear  number  plate.^^    Statutes 


127  Md.  70,  95  Atl.  1057;  Harnau  v. 
Haight,  189  Mich.  600,  155  N.  W.  563 ; 
Martin  v.  Herzog,  176  N.  Y.  App.  Div. 
614,  163  N.  Y.  Suppl.  189;  affirmed, 
228  N.  Y.  164,  126  N.  E.  814;  Seger- 
strom  V.  Lawrence,  64  Wash.  245,  116 
Pac.  876.  See  also,  Fittin  v.  Sumner, 
176  App.  Div.  617,  163  N.  Y.  Suppl. 
443. 

Common  law. — "  Generally  speak- 
ing, at  common  law,  the  driver  of  a 
wagon  upon  a  highway  at  night  is  un- 
der no  duty  to  carry  a  light  to  warn 
others  of  the  presence  of  his  vehicle  or 
its  load.  If  he  stops  in  the  highway, 
the  circumstances  may  doubtless  be 
such  as  to  make  it  negligence  to  fail 
to  warn  other  travelers  of  the  obstruc- 
tion thus  occasioned.  But  whether 
such  failure  can  be  said  to  be  negli- 
gence must,  of  necessity,  depend  upon 
the  circumstances."  Roper  v.  Green- 
spon  (Mo.  App.).  192  S.  W.  149.  See 
alsc.  Walden  v.  Stone  (Mo.  App.),  223 
S.   W.  136. 

If  a  statute  requires  a  light  to  be 
carried  on  the  front  of  the  vehicle  it 
need  not  lie  carried  on  the  extreme 
front ;  if  on  the  dashboard  it  is  suffi- 
cient. State  V.  Reed,  162  Iowa,  572, 
144  X.  W.  310. 

Private  road. — A  statute  requiring 
lights  on  motor  vehicles  is  applicable  to 
travel  on  public  highways  only,  and 
does  not  apply  in  ease  of  a  collision  on' 
a  private  road.  Stewart  v.  Smith,  16 
Ala.  App.  461,  78  So.  724. 

37.  Luckie  v.  Diamond  Coal  Co.  (Cal. 
App.),  183  Pac.  178;  Hollowell  v. 
Cameron  (Cal.),  199  Pac.  803;  City  of 
Hays  V.  Schueler,  107  Kans.  635,  193 
Pac.  311,   11  A.  L.  P^   1433:   Ebling  v. 


Nielson  (Wash.),  3  86  Pac.  887. 

Certainty  of  statute. — A  'statute  pro- 
viding that  ' '  every  motor  vehicle  while 
in  use  on  the  public  highways  .  . 
shall  .  .  .  display  on  the  rear  of 
said  vehicle  a  lamp  so  placed  that  it 
shall  show  a  red  light  from  the  rear  and 
a  white  light  at  the  side  and  so  ar- 
ranged as  to  illuminate  the  rear  num- 
ber or  marker,"  is  not  void  for  un- 
certainty in  that  it  does  not  designate 
the  person  who  shall  be  liable  for  a 
violation  thereof.  In  construing  such 
a  statute  it  is  said  that  as  motor  vehi- 
cles cannot  equip  themselves  automati- 
cally, human  agency  is  presumed.  The 
intention  of  the  legislature  is  clearly 
to  prohibit  the  use  upon  the  public  high- 
ways during  certain  hours  of  the  day  of 
motor  vehicles  not  lighted  in  the  man- 
ner required,  and  by  implication  it 
designates  the  person  who  shall  be  li- 
able for  a  violation  thereof,  and  such 
person  is  the  one  who  is  in  control  of 
the  vehicle  at  the  time  of  the  commis- 
sion of  the  offense.  State  v.  Myettc, 
30  R.  I.  556,  76  Atl.  664. 

Train  of  vehicles  pulled  by  tractor. 
Red  light  should  be  exhibited  at  the 
rear  of  the  rear  vehicle.  Western  In- 
demnity Co.  V.  Wasco  Land  &  Stock  Co. 
(Cal.  App.),  197  Pac.  390. 

Identification  plate  not  kept  suffi- 
cienly  lighted  so  as  to  render  easily 
distinguishable  the  letters  and  figures 
thereon,  and  conviction  of  motor  cab 
company  foi'  aiding  and  abetting  one 
of  its  drivers.  See  Provincial  Motor 
Cab  Company,  Limited  v.  Dunning 
(1909).  2  K.  B.  (Eng.)  599.  101  Law 
T.  R.  (N.  S.)  231. 

Conviction  for  offense   of   failing  to 


Negligence  in  Operation  of  Motor  Vehicles. 


409 


requiring  motor  vehicles  to  carry  liglits  are  intciKled  lor  the 
benefit  of  the  entire  traveling  puljlic,-**  and  compliance  there- 
with is  essential.^  A  regulation  requiring  the  lighting  of 
vehicles  is  not  generally  extended  beyond  the  clear  meaning 
of  its  terms.  Thus,  an  ordinance  providing  that  automobiles 
operated  at  night  should  be  equipped  with  lights,  has  been 
construed  as  not  covering  such  vehicles  when  standing.*^  So, 
too,  a  statute  requiring  that  motor  vehicles,  "while  in  use  on 
a  public  highway,"  shall  be  equipped  with  lights  has  been 
held  inapplicable  to  a  "dead"  car  which  is  towed  by  another 
properly  eciuipped  mth  lights.^^  But  the  owner  of  an  auto- 
mobile nevertheless  may  be  held  guilty  of  negligence  in  lea^dng 
it,  with  no  lights  upon  it,  unattended  in  a  city  street.'*^  An 
automobilist  may  not  be  required  to  light  his  lamps  before  the 
time  specified  in  such  a  requirement,  though  it  may  be  dark 
before  such  time.'*^  So,  too,  lights  need  not  be  carried  after 
daybreak  where  an  ordinance  requires  the  carrying  of  them 
until  that  time.^^    AVhether  it  is  negligence  for  the  ownier  of 


have  back  plate  illuminated  may  be  in- 
dorsed on  license.  Brown  v.  Crossley 
(K.  B.  Div.),  80  L.  J.  B.  (Eng.)  478. 
Driving  along  street  car  track. — 
When  an  automobile  is  driven  along  a 
Btreet  car  track  with  a  red  rear  light, 
such  light  is  a  warning  to  approaching; 
vehicles  in  the  rear  upon  which  the 
auto  driver  to  some  extent  is  entitled 
to  rely  for  protection  against  such 
vehicles,  and  he  need  not  look  to  the 
rear  for  danger  with  the  same  dili- 
gence as  he  ip  required  to  look  ahead. 
Baldie  v.  Taconia  Ry.  &  Power  Co.,  52 
Wash.  75,  100  Pac.  162. 

38.  Giles  v.  Ternes,  93  Kan.  140,  143 
Pa<?.  491,  144  Pac.  1014;  Thomas  v. 
St«venson   (Minn.).  178  N.  W.  1021. 

39.  Thomas  v.  Stevenson  (Minn.), 
178  N.  W.  1021;  .Taquith  v.  Wordeii. 
73  Wash.  .349,  132  Pac.  33,  48  L.  R.  A. 
(N.  S.)    827. 

A  motorcyclist  not  having  the  re- 
quired lights  on  his  machine  may  not 
be  able  to  recover  for  injuries  receive<l 


in  a  collision  with  anotiier  vehicle. 
Willie  V.  Luezka,  193  N.  Y.  .\pp.  Div. 
826,  184  N.  Y.  Suppl.  7.-) I. 

40.  City  of  Harlan  v.  Kraschel.  164 
Towa.  667.  146  N.  W.  463.  But  see 
Bailey  v.  Freeman,  7  O.  W.  N. 
(Canada)  24,  on  appeal.  7  O.  W.  N. 
159. 

41.  Musgrave  v.  Stndebaker  Bros. 
Co.  of  Utah.  48  Utah.  410,  160  Pac. 
117. 

42.  Jaquith  v.  VVorden,  73  Wash. 
349.  132  Pac,  33.  48  L.  R.  A.  (N.  S.) 
.S27.  See  also,  Hanscr  v.  Youngs 
■  Mich.),  180  3Sr.  W.  409. 

43.  Turner  v.  Bennett.  161  Iowa.  379. 
^42  N.  W.  999. 

Question  for  jury.— whether  an  ar. 
cident  happened  within  the  time  wlieii 
lights  are  required,  is  a  matter  for  tlie 
jury,  where  tliero  is  a  substantial  dis- 
pute as  to  the  time.  Tupper  v.  Maple, 
181  Iowa,  786.  165  N.  W.  28. 

44.  Sullivan  v.  Chicago  City  Ky.  Co.. 
167   111.  App.   I.'i2. 


410  The  Law  of  Automobiles. 

an  automobile  to  run  it  in  the  dark  without  the  warning  to 
one  approaching  from  the  opposite  direction  M'hich  a  head- 
light gives,  may  be  a  question  for  the  jury.*^ 

Sec.  345.  Lights  on  machine  —  probative  force  of  violation. 

Under  the  rule  which  is  generally  applied,  to  the  effect  that 
the  violation  of  a  positive  regulation  is  negligence,^^  it  is  the 
general  rule  that  the  violation  of  a  regulation  relative  to 
lights  on  automobiles  is  negligence  per  se  and  the  operator  is 
liable  for  all  damages  which  proximately  result  from  the 
failure  to  have  the  machine  properly  equipped/'  But,  in 
those  jurisdictions  where  it  is  thought  that  the  violation  of  a 
regulation  is  only  evidence  of  negligence,  the  rule  is  not  so 
strict.'^^  If  the  law  requires  two  lights,  and  the  vehicle  has 
but  one,  negligence  may  be  found  which  will  have  a  material 
bearing  on  all  accidents  which  arise  from  the  failure  to  have 
both  lights. ^^ 

Sec.  346.  Lights  on  machine  —  sufficiency  of  lights. 

The  statutes  in  some  States  prescribe  with  considerable 
detail  as  to  the  particular  nature  of  the  light  to  be  used,  the 
result  sought  being  a  lamp  which  will  afford  sufficient  illum- 
ination and  yet  not  give  such  a  "glare"  as  to  blind  or  confuse 

45.  Wright  v.  Craiif,  142  Midi.  508,  in  itself  and  that  if  the  jury  believe 
10()  X.  W.  71,  12  Det.  Leg.  N.  704.  from    the   evidence   t.lmt  the   *aid   aoei- 

46.  Section  297.  dent  was   caused  by   and   through   the 

47.  Stewart  v.  Smith,  16  Ala.  App.  negligence  of  the  defendant  and  that 
425,  78  So.  724;  Fenn  v.  Clark,  11  Cal.  tliere  was  no  negligence  on  the  part  of 
App.  79,  104  Pac.  63§;  Sheppard  v.  tlie  plaintiff  which  contributed  there- 
Johnson,  11  Ga.  App.  280,  75  S.  E.  to,  then  the  jury  must  find  for  the 
348;  Thomas  V.  Stevenson  (Minn.),  178  plaintifi',  but  that  the  plaintiff  could 
N.  W.  1021 ;  Chesrown  v.  Bevier  not  recover  if  guilty  of  contributory 
(Ohio).  128  N.  E.  94;  Ballard  v.  Col-  negligence.  Fenn  v.  Clark.  11  Cal. 
lins,    63    Wash.    493.    115    Pac.    1050;  App.  79,  104  Pac.  632. 

Kramer     v.      Cliicago.     etc.     By.      Co.  48.  See      Lounsbury      v.     McCormick 

(Wis.),  177  N.  W.  874.  (Mass.).    129  N.  E.   598:    Zoltoviski   v. 

Instructions    to    jury.--It    has    been  Czella.  159  Mich.  620,  124  N.  W.  527, 

held    proper   to   instruct  the   jury   that  26  L.  R.  A.    (N.  S.)    435. 

a   failure  to   comply  with   a  municipal  49.  Martin     v.     Carruthers     (Colo.), 

ordinance    requiring   an    automobile   to  195  Pac.  105. 
carry  liglits  after  dark  was  negligence 


NkGLIGKNL'K    in    Ol'KllATlU.N    OF    .MoTOR    V'eHICLK.S.  411 

other  travelers.^''  Tii  any  event  the  light  should  be  sufficient 
so  as  to  enable  the  driver  to  keep  a  reasonably  careful  lookout 
for  other  travelers  as  well  as  defects  in  the  highway."  But 
in  the  a])sence  of  detailed  reciuirenients  in  the  statute  or  ordi- 
nance on  the  subject,  an  autonio])ilist  is  not  necessarily  re- 
quired to  equip  his  machine  with  any  particular  kind  of  light.^ 
The  degree  of  illumination  and  the  speed  of  the  machine  are, 
to  a  certain  extent,  inter-related.  That  is,  the  speed  should 
be  such  that  the  operator  can  stop  within  the  scope  of  the 
lights.^'  Wliether  in  fact  the  lights  are  lighted,  and  whetlier 
they  are  sufficient,  may  be  questions  for  the  jury 


54 


Sec.  347.  Lights  on  machine  —  proximate  cause. 

A  failure  to  have  the  maciiine  jjroperly  equipped  with  lamps 
will  render  the  operator  liable  for  only  those  injuries  which 
are  the  proximate  cause  of  the  omission.  And,  when  the  occu- 
pant of  the  improperly  lighted  machine  is  bringing  an  action 
for  his  injuries,  the  failure  to  have  the  lamps  lighted  will  not 
bar  his  action  unless  the  failure  is  a  proximate  cause  of  the 
injury  lie  lias  sustained.^  Proximate  cause,  under  such  cir- 
cumstances,  frequently  is  a  question  for  the  jury.^^     Tn  an 

50.   fivti  Ex  parte,  Hinkolman    ((al.i.  Dnun,    15   West.   L.   R.    (Canada)    31-1, 

191  Pac.   682;   State  v.  Claiboiiio,   is.",  20  Man.  L.  R.  412.     See  also,  Robinson 

Iowa,   172.   170  N.  W.  417,  3  A.   L.    M.  v.  Campbell,  8  O.  W.  N.  (Canada)  .-)38. 

392;  Thomas  v.  Stevenson  (Minn.),  ITS  52.  Cunie    v.    Consolidated    Ry.    Co, 

X.  W.   1021.  HI   Conn.   383,  71    Atl.  3:)(i. 

Search    lights    in    city    prohibited.  Evidence  as  to  lights  on   other  ma 

The    New    York    Board    of    Aldernion  chines  at    the   hour   of   the   ac-cidont    is 

amended    section    458    of    the   Code   of  admissible    as    bearing    on     tlif    uegh 

Ordinances   of   the   city  of   New   York.  gonce    of    the    defendant.      Scliock    v. 

relating   to  vehicle  lighting,  by  adding  Cooling.  175  Mich.  313,  141   X.  W.  675. 

the  following:      "No  operator  of  any  53.  Section  307. 

automobile     or     other     motor     vehicle.  54.  Daggy  v.  Miller,  180   Iowa,    lUC, 

while  operating  the  same  upon  the  pub-  162  N.  W.  854;  Johnson  v.  Quinn,    130 

lie  highway,   within   the  city,   shall   use  Minn.   134,  153   N.  W.  267. 

any    acetylene,    electric    or    other    head-  55.  Culver    v.    Harris,    211     lU.    -Vpp. 

light,  unless  properly  .<<haded  so  as  not  474;    Hanser    v.    Youngs    (Mich.),    180 

to  blind   or   dazzle   other   users   of   the  N.  W.  409 ;  Hardie  v.  Barrett,  257  Pa. 

highway,  or  make  it  difficult  or  un.saf.'  42.    101    Atl.    75;    Kramer   v.   Chicago, 

for  them  to  ride,  drive,  or   walk  there-  etc.,  Ry.  Co.   (Wis.).  177  N.  W.  874. 

on."  56.  Western  Indemnity  Co.  v.  Wasco 

51.   'IV.ronlo   General   Trusts  Covo.   v.  l-and    &    Stock    Co.     (Cal.    App.),    197 


412  The  Law  of'  Auto:mobilks. 

action  against  a  municipality  for  injuries  received  when  a 
defective  bridge  collapsed  under  an  automobile,  the  fact  that 
there  was  not  a  rear  light  on  the  machine  at  the  time  of  the 
accident,  does  not  bar  a  recovery  against  the  municipality.^" 
And  the  fact  that  there  were  no  numbers  on  the  front  lamps 
of  an  automobile  has  been  held  inadmissible,  as  it  could  not 
have  contributed  to  the  injury.^  And  where  the  chauffeur 
testified  that  there  were  four  lamps  on  the  machine  all  lighted, 
and  on  cross-examination  stated  that  he  understood  that  the 
law  required  that  any  two  of  the  lamps  in  front  should  have 
the  number  of  the  machine,  the  refusal  to  permit  the  plaintiff 
to  go  into  the  matter  Avhether  there  were  any  numbers  on 
either  light  was  not  erroneous,  no  claim  being  made  that  a 
violation  of  the  law  contributed  to  the  accident.^^ 

Sec.  348.  Lig-hts  on  machine  —  animal-drawn  vehicles. 

In  recent  years,  the  duty  of  carrying  lights  on  vehicles  at 
night  has  been  extended  from  motor  vehicles  to  those  which 
are  drawn  by  horses  or  other  beasts  of  burden.^^  Such  statutes 
are  deemed  to  be  for  the  protection  of  the  driver  of  the 
animal  against  motor  vehicles  which  may  be  approaching." 
But  an  automobilist  who  receives  injuries  from  a  collision 
with  an  unlighted  wagon  may  be  entitled  to  the  benefit  of  the 

Pae.  390:  Ferry  v.  City  of  Waukegan,  155  N.  Y.  Suppl.  374.    And  see  section 

196   m.   App.    81.      See   also,   Sweet   v.  406. 

Salt  Lake  City,  43  Utah,  306,  134  Pac.  A  wheelbarrow   pushed   through  the 

1167.  streets  does  not  require  a  light.    Saper 

57.  Lawrence  v.  Channahon,  157  111.  v.  Baker,  91  N.  J.  L.  713,  104  Atl.  26. 
App.  560.  Transportation    of   hay. — An    excep- 

58.  Belleveau  v.  S.  C.  Lowe  Supi>ly  tion  in  such  a  statute  as  to  vehicles 
Co.,  200  Mass.  237,  86  N.  E.  301.  designed  for  the  transportation  of  hay, 

59.  Belleveau  v.  S.  C.  Lowe  Supply  is  in  force  only  when  such  a  vehicle  is 
Co.,  200  Mass.  237,  86  N.  E.  301.  actually  used  for  such  purpose.     Hale 

60.  Topper     v.     Maple,     181     Iowa,  v.  Resnikoff   (Conn.),  Ill  Atl.  907. 
786.  165  N.  W.  28;  Hallett  v.  Crowell,  Sleigh. — Such   a    statute   may   apply 
230  Mass.  244,  122  N.  E.  264;   Roper  only  to  vehicles  on  "wheels."    Vadney 
V.  Greenspon,  272  Mo.  288.  198  S.  W.  v.  United  Traction  Co.,  193  N.  Y.  App. 
1107,  L.  R.  A.  1918D  126;  Chesrown  v.  Div.  329. 

Bevier  (Ohio),  128  N.  E.  94;  J.  Sam-  61.  Martin    v.    Herzog,    176    N.    Y. 

uels  &  Bro.  v.  Rhode  Island  Co.,  40  R.  App.  Div.  614,   163  N.  Y.  Suppl.  189, 

I.  232,  100  Atl.  402.    See  also  Harding  affirmed,  228  N.  Y.  164,  126  N.  E.  811. 
V.  Cavanaugh,  91   Misc.    (N.   Y.)    511, 


Negligence  ix  Operation  of  Motor  Vehicles 


413 


regulation.''^  The  absence  of  lights  on  a  wagon  may,  under 
some  circumstances,  constitute  contributory  negligence  which 
will  bar  a  recovery  by  an  occupant  for  injuries  received  from 
a  collision  with  a  motor  vehicle.'^  But,  where  a  motor  vehicle 
comes  up  behind  a  carriage  and  runs  into  it,  the  omission  of 
lig-lits  on  the  carriage  does  not  necessarily  bar  a  remedy  for 
injuries,  for  the  driver  of  a  motor  vehicle  is  not  justified  in 
running  down  an  unlighted  vehicle.^  The  violation  of  the 
law,  to  have  the  effect  of  barring  tho  remedy  of  the  driver  of  a 
horse,  must  be  a  proximate  cause  of  the  accident  ;'^  and,  if  the 
driver  of  an  approaching  motor  vehicle  sees  the  milighted 
wagon  soon  enough  to  avoid  a  collision,  but  fails  to  avoid  it, 
the  absence  of  the  lights  is  not  a  proximate  cause  of  tho 
injury.'''^  Or  if  the  collision  occurs  on  a  street  so  well  lighted 
that  the  unlighted  carriage  could  easily  have  been  seen,  the 
violation  of  the  regulation  is  not  generally  important^  So, 
too,  if  the  automobilist  sues  the  driver  of  the  unlighted  wagon 


62.  Koper  v.  Gieenspon,  272  Mo. 
288,  198  S.  W.  1107;  Koper  v.  Green- 
spoii  (Mo.  App.),  210  S.  W.  922; 
Columbia  Taxicab  Co.  v.  Stroh  (aIo. 
App.),  215  S.  W.  748. 

63.  Martin  v.  Herzog,  176  N.  Y. 
App.  Div.  614,  163  N.  Y.  Suppl.  189; 
affirmed,  228  N.  Y.  164,  126  N.  E.  814 ; 
Chesrown  v.  Bevier  (Ohio),  128  N.  E. 
*)4;  Yahnkc  v.  Lange,  168  Wis.  512, 
170   N.  W.   722. 

Prima  facie  evidence  of  negligence.— 
Where,  in  an  action  for  negligence,  it 
appears  that  the  defendant's  automo- 
bile, properly  lighted,  collided  with  de- 
cedent's horse-drawn  wagon  which  car 
ried  no  light,  as  required  by  statute,  as 
they  were  passing  at  a  turn  in  the  road, 
due  to  the  defendant's  being  too  far 
toward  the  left  side,  it  was  error  for 
the  court  to  refuse  to  charge  ' '  that  the 
failure  to  have  a  light  on  the  plain- 
tiff's vehicle  is  prima  facie  evidence  of 
contributory  negligence  on  tho  part  of 
the  plaintiff."  The  absence  of  the 
light  on  the  wagou  was  under  the  cir- 
cumstances   a    contributory    cause,    lor 


the  statute  intended  that  such  a  light 
should  be  a  signal  to  aid  a  person 
operating  a  motor  vehicle  to  "turn 
the  same  to  the  right  of  the  center  of 
such  highway  so  as  to  pass  without  in- 
terference." Martin  v.  Herzog,  176  N. 
Y.  App.  Div.  614,  163  N.  Y.  Suppl. 
189,  aflBrmed,  228  N.  Y.  164.  126  N.  E. 
814. 

64.  Graham  v.  Haguianu,  270  111. 
252,  110  N.  E.  337,  affirming  189  111. 
App.  631;  Decou  v.  Dexheiraer  (N.  J.), 
73  Atl.  49;  Ireson  v.  Cunningham,  90 
N.  J.  L.  690,  101  Atl.  49;  Koppeer  v. 
Bernhardt,  91  N.  J.  L.  697.  103  Atl. 
186. 

65.  Graham  v.  Hagniann,  270  111. 
252,  110  N.  E.  337.  affirming  1S9  111. 
App.  631. 

66.  Graham  v.  Hagmauu,  270  111. 
252,  110  N.  E.  337,  affirming  189  III. 
App.  631;  Ireson  v.  Cunningham,  90 
N.  .J.  L.  690,  101  Atl.  49;  Kopper  v. 
Bernhardt  (N.  J.),  103  Atl.  186. 

67.  Surmeian  v.  Simons  (R.  I.),  107 
Atl.  229. 


414 


The  Law  of  Automobiles. 


for  his  injuries,  the  burden  is  on  the  plaintiff  to  show  thai 
the  absence  of  lights  contributed  to  the  injury.*'^ 


Sec.  349.  Towing  disabled  vehicle. 

When  an  automobile  becomes  disabled  and  it  is  necessary 
to  tow  it  along  the  public  highways,  reasonable  care  should  be 
exercised  to  avoid  injury  to  pedestrians  and  other  travelers.^** 
It  is  not  negligence  for  one  machine  to  tow  another  through 
the  streets  with  a  rope  or  cable  as  a  connecting  link,  provided 
reasonable  care  is  exercised  by  the  persons  haxang  charge  of 
the  machines.''^  And  the  fact  that  a  safer  method  could  have 
been  devised  than  was  used  in  a  particular  case  is  not  con- 
clusive on  the  question  of  negligence,  for  the  criterion  is 
whether  the  driver  used  the  care  that  an  ordinarily  prudent 
man  would  have  exercised.^^  If  the  cable  connecting  the  two 
vehicles  is  not  readily  visible,  it  may  be  the  duty  of  one  of  the 
drivers  to  give  pedestrians  a  warning  of  the  situation  so  that 


68.  Roper  v.  Green&pon  (Mo.  App.), 
192  S.  W.  149;  Hardie  v.  Barrett,  257 
Pa.  42,  101  Atl.  75. 

69.  Musgrave  v.  Studebaker  Bros. 
Co.  of  New  York,  48  Utah,  410,  160 
Pac.  117.  See  also  Jerome  v.  Hawlev, 
147  N.  Y.  App.  Div.  475,  131  N.  Y. 
Suppl.  897.     And  see  section  449. 

Trailer  running  on  walk. — Where  a 
trailer  has  become  partially  unfastened 
80  that  it  pursues  an  'irregular  course 
and  runs  on  the  walk  to  the  injury  of 
an  adjoining  structure,  the  driver  may 
be  liable.  Lambert  v.  American  Box 
Co.,  144  La.  604,  81  So.  95,  3  A.  L.  R. 
612. 

70.  Steinberger  v.  California  Elec. 
Garage  Co.,  176  Cal.  386,  168  Pac.  570; 
Canfield  v.  New  York  Transp.  Co.,  128 
App.  Div.  (N.  Y.)  450,  112  N.  Y. 
Suppl.  854 ;  Wolcott  v.  Renault  Selling 
Branch,  175  N.  Y.  App.  Div.  858,  162 
N.  Y.  Suppl.  496,  reversed  223  N.  Y. 
288,  119  N.  E.  556. 

Two  wagons. — A  person  who  con- 
nects two  vehicles  by   a  rope  in  order 


to  dra\^  them  through  a  city  street  is 
bound  to  observe  due  care  and  to  warn 
other  users  of  the  street  of  the  ob- 
struction, and  when  a  pedestrian  walk? 
against  such  rope  and  is  thrown  and  in 
jured  it  is  for  the  jury  to  say  whether 
the  owner  was  negligent  in  failing  to 
use  due  care  and  to  warn  the  plaintiff 
of  the  obstruction.  When  such  vehi- 
cles, connected  by  a  rope,  are  drawn 
through  a  city  street  amid  other  traffic, 
it  cannot  be  said  as  matter  of  law  that 
the  obstruction  itself  is  a  sufficient 
warning  to  travelers.  When  the  plain- 
tiff testifies  that  he  did  not  see  the  rope 
connecting  the  wagons,  and  that  he 
was  ignorant  thereof,  and  that  the  ac- 
cident happened  about  dusk,  the  ques- 
tion of  his  contributory  negligence  is 
properly  left  to  the  jury.  Young  v. 
Herrmann,  119  N.  Y.  App.  Div.  445, 
104  N.  Y.  Suppl.  72,  affirmed  without 
opinion,   19*2  N.  Y.  554. 

71.  Musgrave  v.  Studebaker  Bros. 
Co.  of  New  York,  48  Utah,  410,  160 
Pac.   117. 


Negligence  i:n^  Operation  of  ^NIotor  Vehicles.       415 

they  will  not  attempt  to  pass  between  the  cars  and  trip  over 
the  eahle.'^  Whether  it  is  necessary  to  give  a  warning  to 
others  depends  upon  the  surrounding  circumstances,  such  as 
the  presence  or  absence  of  sufficient  light,  the  size  and  color 
of  the  connection,  and  other  pertinent  facts  relative  to  the 
accident  in  question.'^  And,  it  is  not  necessary  as  a  matter 
of  law  that  the  two  drivers  should  adopt  a  code  of  signals  for 
the  management  of  the  cars.'^^  AVhether  sufficient  precautions 
have  been  adopted  for  the  protection  of  other  travelers,  is 
generally  a  jury  question.'^^  It  may  be  negligent  to  tow  a 
truck  backward  down  grade  on  a  slippery  street  if  the  brakes 
on  the  truck  are  defective.'^'^  Statutes  relating  to  the  lighting 
of  automobiles  may  not  apply  to  the  rear  machine.""  Decisions 
involving  negligence  in  the  towing  of  automobiles  generally 
arise  out  of  injuries  to  pedestrians  tripping  over  the  tow  line,'^ 
but  may  sometimes  follow  an  injury  to  a  cyclist.''® 

Sec.  350.  Sufficiency  of  compliance  with  statute. 
.  It  is  a  well  established  rule  in  the  law  of  negligence  that 
the  precautions  required  by  statute  are  not  the  only  ones  to 
be  observed  in  order  that  the  conduct  of  a  person  fulfills  his 
duty  of  exercising  reasonable  care.  Thus,  the  fact  that  an 
automobilist  has  complied  with  all  the  requirements  of  the 
statutes  regulating  his  conduct,  will  not  be  conclusive  on  the 
issue  of  his  negligence.^^  The  principle  is  well  illustrated  in 
cases  where  the  negligence  alleged  is  the  operation  of  a  vehicle 
at  an  excessive  speed.     The  circumstance  that  the  speed  in 

72.  Wolcott       V.       Renault       Selling  nrancli.  223  N.  V.  288.   119  NT.  E.  556. 
Branch,  223  N.  Y.  288,  119  N.  E.  556,  reversintr  175   App.   Div.   858. 
reversing    175    N.    Y.    App.    Div.    858;  76.  Glasgow-  v.  Dorn  (Mo.  App.).  220 
Rapetti   v.    Peugeot   Auto   Import  Co..  S.  W.  509. 

97    Misc.   610,    162   N.   Y.   Suppl.    133;  77.  Musgrave    v.     Studebaker     Bros. 

Labarge  v.  LaCompagnie  do  Tramways,  Co.    of   Utah,    48    Utah.   410.    160   Pac. 

24  Rev.  Leg.   (Canada)   133.  117. 

73.  Steinberger    v.    California    Elec.  78.  See  section  449. 

Garage  Co.,  176  Cal.  386,  168  Pac.  570.  79.  See  Jerome  v.  Hawley.  147  X.  V. 

74.  Musgrave     v.     Studebaker     Bros.  App.  Div.  475,  131  X.  Y.  Suppl.  897. 
Co.   of   Utah,   48   Utah,   410,    160   Pac.  80.  Moore  v.  Hart.  171  Ky.  725.  ISS 
117.  8.  W.  861 ;  Ahonen  v.  Hryszke,  90  Oreg. 

75.  Wolcott      V.      Renault      Selling  451,  175  Pac.  616. 


416 


The  Law  of  Automobiles. 


question  was  not  greater  than  that  allowed  by  statute  is  not 
necessarily  determinative  of  the  issue,  but  the  question  is  left 
to  be  decided  by  the  jury  whether  it  was  greater  than  was 
reasonable  and  proper  under  the  circumstances.^^  And,  too, 
the  driver  of  an  automobile  may  be  guilty  of  negligence  though 
he  complies  with  the  law  of  the  road  in  all  particulars.^^  The 
fundamental  rule  of  action,  is  that  the  driver  of  a  motor 
vehicle  shall  exercise  reasonable  care  under  the  circumstances, 
considering  all  of  the  surrounding  circumstances.^^ 

Sec.  351.  Contributory  negligence  of  injured  person. 

One  of  the  fundamental  rules  in  the  law  of  negligence  is 
that  the  person  complaining  of  an  injury  occasioned  by  the 
negligence  of  another  must  himself  be  free  from  negligence.^* 
Hence,  it  is  clear  that,  if  a  traveler  is  guilty  of  negligence 
which  contributes  to  an  injury  received  from  a  motor  vehicle, 
he  cannot  recover  for  his  injuries.^^    Thus,  in  the  case  of  the 


81.  Section  324. 

82.  Section  27.5. 

83.  Section  277. 

84.  Under  concurrent  negligence  act 
it  has  been  held  that  a  plaintiff  may 
recover  in  Mississippi,  though  guilty  of 
contributory  negligence.  Pascagoula 
St.  Ry.  &  Power  Co.  v.  McEachern 
(Miss.),  69  So.  185. 

85.  United  States. —  New  York 
Transp.  Co.  v.  Garside,  157  Fed.  521,  85 
C.  C.  A.  285. 

Alabama. — Birmingham  Ry.  L.  & 
P.  Co.  V.  Aetna  Accident  &  Liability 
Co.,  151  Ala.  136,  44  So.  44. 

ArTcansas. — ^Russ  v.  Strickland,  130 
Ark.  406,  197  S.  W.  709. 

California. — Tonsley  v.  Pacific  Elec- 
tric Ry.  Co.,  166  Cal.  457.  137  Pac.  31. 

Co'nnecticut. — New  Haven  Taxicab 
Co.  V.  Connecticut  Co.,  87  Conn.  709, 
89  Atl.  92. 

Delaware. — Travers  v.  Hartman,  5 
Boyce,  302,  92  Atl.  855;  McLane  v. 
Sharpe,  2  Harr.  481. 

Illinois.— <jreeTL  v.  Streitmatter,  183 
111.  App.  25. 


Indiana. — Wood  Transfer  Co.  v.  Shel- 
ton,  180  Ind.  273,  101  N.  E.  718. 

Kentucky. — ^Louisville  Ry.  Co.  v. 
Wehner,  153  Ky.  190,  154  S.  W.  1087. 

Louisiana. — ^Reems  v.  Chavigny,  139 
La.  539,  71  So.  798. 

Maine. — Larrabee  v.  Sewell,  66  Me. 
376. 

Massachusetts. — Parker  v.  Adams, 
12  Mete.  415. 

Michigan. — Ude  v.  Fuller,  187  Mich. 
483,  153  N.  W.  769;  Patterson  v.  De- 
troit United  Ry.  Co.,  153  N.  W.  670, 
187  Mich.  567;  Grogitzki  v.  Detroit 
Ambulance  Co.,  186  Mich.  374,  152  N. 
W.  923. 

Minnesota. — Batroot  v.  St.  Paul,  125 
Minn.  308,  146  N.  W.  1107. 

Missouri. — Lewis  v.  Metropolitan  St. 
Ry.  Co.,  181  Mo.  App.  421,  168  S.  W. 
833. 

New  Hampshire.- — Brooks  v.  Hart,  14 
N.  H.  307. 

New  York. — ^Ward  v.  International 
Ry.  Co.,  206  N.  Y.  83,  99  N.  E.  262, 
Ann.  Cas.  1914A  1170;  Simpson  v. 
Whitman,    147   App.   Div.   642,    132   N. 


Negligionck  in  Operatiox  of  Motor  Vehicles.       417 

collision  of  tAvo  automobiles,  if  the  driver  of  each  is  e(iually 
negligent  and  snch  negligence  contributes  equally  to  the  col- 
lision, neither  can  recover  of  the  other.*^^  Generally,  according 
to  the  common  law  rule,  the  burden  of  showing  absence  of 
contril)utory  negligence  is  on  the  person  injured.  But  modern 
statutes  have  ))een  enacted  in  some  jurisdictions  whicli  place 
upon  the  defendant  the  burden  of  showing  the  contributory 
ne^Jigence  of  the  plaintiff.  But  negligence  of  the  plaintiff  in 
order  to  bar  his  right  of  action  must  l)e  sucli  as  contributes 
to  the  injury.^'  The  contributory  negligence  of  the  injured 
person  under  varying  circumstances  is  treated  in  diffcivnt 
chapters  of  this  work.*^ 


Sec.  352.  Assumption  that  other  travelers  will  exercise  due 
care. 

A  traveler  on  a  public  street  or  highway  has  the  right  to 
assume  that  other  travelers  will  observe  the  law  of  the  road, 
obey  all  regulations  relative  to  the  use  of  the  liigliwav,  and  in 


V.  Siippl.  801;  Bcarnett  v.  Aiiheiisei- 
Busch  Agency,  80  Misc.  R.  151,  140  N. 
Y.  Siippl.  1029;  Oaiitier  v.  Lange,  89 
Misc.  372,  151  N.  Y.  Siippl.  902; 
Guecco  V.  Pedersen,  165  App.  Div.  235, 
151  N.  Y.  Suppl.  105;  Tremaine  v. 
Johne,  145  N.  Y.  Suppl.  46;  Moody  v. 
Osgood,  54  N.  Y.  488. 

Pennsylvania. — Wjiin  v.  Allard,  5 
Watts  &  S.  524. 

Bhode  Isla^id. — Frey  v.  Rhode  Island 
Co.,  37  R.  I.  96,  91  Atl.  1. 

Texas. — Oarter  v.  Walker  (Te.x. 
Civ.),  165  S.  W.  483. 

Washington.— AWison  v.  Chicago  M. 
&  St.  P.  Ry.  Co.,  83  Wash.  591,  145 
Pac.  608 ;  Bowden  v.  Walla  Walla  Val- 
ley Ry.  Co.,  79  Wash.  184,  140  Pac. 
549. 

Wisconsin. — Pietsch  v.  McCarthy. 
159  Wis.  251,  150  N.  W.  482;  Wood 
V.  Luscomh,  23  Wis.  287. 

England. — Pluckwell  v.  Wilson.  5 
Car.  &  P.  375;  Williams  v.  Holland. 
6  Car.  &  P.  23;   Wayde  v.   T.adv  Carr. 

27 


2  Dowl.   &   R.   2.5.->. 

Absence  of  contributory  negligence 
on  the  part  of  a  plaintiff  is  declarotT 
to  be  as  much  a  part  of  a  cause  of  ac- 
tion as  tlie  negligence  of  the  defend- 
ant. Tompkins  v.  Barnes,  145  N.  V. 
App.   Div.    637,    130   N.   Y.   Suppl.   320. 

86.  Berz  Co.  v.  Peoples  Gas,  Light  & 
Coke  Co.,  209  III.  App.  304;  Bernardo 
V.  Legaspi,  29  Phillipines  Rep.   12. 

87.  Belk  V.  People,  125  111.  584,  17 
N.  E.  744;  Kennard  v.  Burton,  25  Me. 
39;  Parker  v.  Adams,  12  Mete.  (Mass.) 
415;  Weher  v.  Beeson,  197  Mich.  607. 
164  N".  W.  255;  McClung  v.  Pennsyl- 
vania Taximeter  Cab  Co.,  252  Pa.  St. 
478,  97  Atl.  694;  Clay  v.  Wood,  5  Esp. 
(Eng.)  44;  Chaplin  v.  Hawes.  3  Car. 
&  P.  (Eng.)  555;  Wayde  v.  Lady  Carr, 
2  Dowl.  &  R.    (Eng.)   255. 

88.  Persons  in  other  Vfliicle<,  sec- 
tions 398-411.  Pedestrians,  .sections 
453-487.  Cyclists,  sections  503  514. 
Horseback  riders,  section  490.  Guests, 
sections   688-695. 


418 


The  Law  of  Automobiles. 


general  exercise  reasonable  care  to  avoid  injury  to  their 
fellow  travelers.^®  He  may  rely  on  this  assumption  until  he 
discovers  that  it  is  contrary  to  the  actual  fact.    Of  course,  an 


89,  California. — Robinson  t.  Clemona 
(Cal.  App.),  190  Pac.  203. 

Illinois. — Trzetiatowski  v.  Evening 
American  Pub.  Co.,  185  111.  App.  451; 
Kilroy  v.  Justrite  Mfg.  Co.,  209  111. 
App.  499. 

Jndiona.— Indianapolis  St.  Ky.  v. 
Hoffman,  40  Ind.  App.  508,  82  N.  E. 
543;  Elgin  Dairy  Co.  v.  Shepard,  108 
N.  E.  234. 

Iowa. — Pilgrim  v.  Brown,  168  Iowa, 
177,  150  N.  W.  1. 

Missouri. — Freeman  v.  Green  (Mo. 
App.),  186  S.  W.  1166. 

New  York. — Buscher  v.  New  York 
Transportation  Co.,  106  N.  Y.  App. 
Div.  493,  94  N.  Y.  Suppl.  796;  Clarke 
V.  Woop,  159  N.  Y.  App.  Div.  437,  144 
N.  Y.  Suppl.  595;  Crombie  v.  O'Brien, 
178  App.  Div.  807,  165  N.  Y.  Suppl. 
858 ;  Thies  v.  Thomas,  77  N.  Y.  Suppl. 
276;  Enstrom  v.  Neumoegen,  126  N.  Y 
Suppl.  662. 

Oregon. — Pinder  v.  Wickstrom,  80 
Oreg.  118,  156  Pac.  583. 

Permsylvania. — Frankel  v.  Morris, 
252  Pa.  St.  14,  97  Atl.  104;  Brown  v. 
Chambers,  65  Pa.  Super.  Ct,.  373.  T 

Utah. — Richards  ,  y.  Palace  Laundry 
Co.,   186  Pac.  439.     ' 

Washington. — Ballard  v.  Collins,  63 
Wash,  493,  115  Pac.  1050. 

Wisconsin. — Zimmermann  v.  Med- 
nikoff,  165  Wis.  333,  162  N.  W.  349; 
John, V.  Pierce   (Wis.),  178  N.  W.  297. 

Canada. — Toronto  General  Trusts 
Corporation  v.  Dunn,  15  West.  L.  R. 
314,  20  Man.  L.  R.  412. 

Assumption  as  to  speed. — It  has 
been  held  that  when  a  traveler  is-  vio- 
lating the  law  of  the  road,  he  cannot 
assume  that  an  automobilist  will  pro- 
ceed at  a  proper  rate  of  speed.  Brag- 
don  v.  Kellogg,  118  Me.  42,  105  Atl. 
433,    wherein    it    was    said:       "Such 


operators  cannot  confine  their  antici- 
pation to  a  legal  rate  of  speed  as  a 
protection.  They  are  held  to  antici- 
pate that,  according  'to  fhe  usual  ex 
perience  of  mankind,  the  result  ought 
to  be  reasonably  apprehended.'  These 
operators  must  anticipate  not  accord- 
ing to  the  'legal,'  but  the  'usual,'  ex- 
perience of  mankind  in  running  auto- 
mobiles on  the  public  highways.  It  is, 
then,  a  matter  of  common  knowledge, 
the  'usual  experience'  that  automobiles 
are  more  often  driven  without  any 
reference  to  legal  speed  than  in  ob- 
servance of  it.  True,  in  the  trial  of 
automobile  cases  there  are  almost  al- 
ways two  rates  of  speed  that  might  be 
marked,  plaintiff's  1  and  plaintiff's  2, 
in  which  the  plaintiff  is  seldom  ever 
going  over  a  speed  of  from  8  to  12 
miles,  while  the  defendant  is  going  at 
from  25  to  45  miles  an  hour,  and  some- 
times so  fast  that  his  speed  produces  a 
result  in  the  nature  of  a  blur,  as  he 
passes.  Nevertheless,  the  truth  is  that 
automobile  operators  pay  little  atten- 
tion to  the  legal  rate  of  speed.  Hence 
it  is  'the  usual  experience'  of  opera- 
tors that  they  are  not  authorized  to 
rely  on  the  legal  presumption  that  an 
approaching  car  is  coming  at  a  legal 
rate  of  speed,  but  must  exercise  due 
care  in  the  operation  of  their  own  car, 
especially  in  approaching  corners, 
curves,  and  turns  in  the  road,  where 
their  vision  may  be  wholly  or  partially 
obscured.  Accordingly,  the  claim  that 
an  operator  has  a  right  to  rely  on  the 
presumption  of  a  legal  rate  of  speed 
cannot  be  admitted." 

It  is  a  question  for  the  jury  whether 
a  plaintiff  assumed  that  the  driver  of 
an  automobile  would  so  act.  Tooker  v. 
Perkins,  86  Wash.   567,  150  Pac.   1138. 


N?:GLifiENCE  IN  Operation  of  Motor  Vehicles.       419 

assiimptioji  along  this  line  cannot  he  made,  when  it  is  apparent 
that  a  traveler  is  not  conducting  himself  in  a  proper  manner.^ 
And  the  general  doctrine  is  not  to  be  coiistined  as  meaning 
that  the  driver  of  an  antomobile  will  he  permitted  to  rely 
upon  this  assumption  to  the  exclusion  all  liability  for  negli- 
gence on  his  part.  It  might  be  that  a  person  would  be  pro- 
ceeding along  the  street,  either  in  another  vehicle  or  on  foot, 
unconscious  of  the  approach  of  the  automobile  and  where  this 
is  apparent  to  the  driver  of  the  latter,  he  should  act  as  an 
ordinarily  prudent  man  would  under  the  same  conditions.  Tf 
he  does  not,  and  thereby  injures  such  person,  he  may  still  be 
regarded  as  negligent  and  liable  for  any  injury  resulting  from 
his  want  of  such  care.^^  It  has  been  held  that  a  person  may 
rely  on  the  obedience  of  another  traveler  to  a  provision  of 
law,  though  he  has  no  actual  knowledge  of  the  law  at  tho  time.*' 

Sec.  353.  Conflict  of  laws. 

Where  an  action  for  injuries  arising  out  of  an  automobile 
accident  which  happened  in  one  State  is  brought  in  the  courts 
of  another  State,  the  case  is  governed  by  the  law  of  the  juris- 
diction where  the  accident  hapi)ened.^^  The  law  of  the  place 
where  the  injury  was  received  determines  whether  a  right  of 
action  exists,  but  the  law  of  the  place  where  the  action  is 
brought  regulates  the  remedy  and  its  incidents,  such  as  plead- 
ing, evidence  and  practice.'^ 

Sec.  354.  Joinder  of  causes  of  action  for  injuries  to  two  per 
sons. 

Where  both  a  husband  and  wife  who  Avere  injured  in  an 
automobile  accident  brought  an  action  in  favor  of  both,  alleg-- 
ing  separate  causes  of  action  for  the  injuries  each  sustained, 
it  was  held  that  a  demurrer  on  the  ground  that  several  causes 

90.  O'Brien  v.  Billing  (Pa.),  110  93.  Gprsman  v.  .\tchison.  otc.  B.  Co. 
Atl.  89.  (Mo.),  229  S.  W.  167;  Unitp<l  Transp. 

91.  Chase  v.  Seattle  Taxicab  &  Co.  v.  Hass.  91  Misc.  (N.  T.)  311.  155 
Transf.  Co.,  78  Wash.  537,  139  Pac.  N.  Y.  Suppl.  affirmod  155  N.  Y.  Suppl. 
499.  1145. 

92.  Speer  v.  Southwest  Missouri  R.  94.  Levy  v.  Steiger,  233  Mo.  600.  12  ♦ 
Co.,  190  Mo.  App.  328,  177  S.  W.  320.  N.  E.   477. 


420 


The  Law  or  Automobiles. 


of  action  were  improperly  united  and  that  there  was  a  defect 
and  misjoinder  of  parties  plaintiff  was  properly  sustained.^^ 


Sec.  355.  Damages  —  in  general. 

One  whose  motor  vehicle  is  injured  in  a  highway  accident, 
if  entitled  to  relief,  is  allowed  compensatory  damages.^*'  P'or 
personal  injuries,  a  plaintiff  is  also  allowed  compensatory 
damages  f^  and,  in  some  cases,  punitive  damages  are  awarded 
as  a  punishment  against  the  defendant.^^  Loss  of  earnings 
while  a  plaintiff  was  incapacitated  is  considered  as  an  element 
of  his  damage,  and  evidence  with  reference  to  the  same  is  to 
be  considered  by  the  jury  although  the  testimony  may  l)e 


95.  Brickuer   v.   Kopmeier,    133   Wis. 
582,  113  N.  W.  414. 

96.  See  chapter  XXVI. 

97.  Weil  V.  Hagan,  161  Ky.  292,  170 
B.  W.   618. 

No  damages  as  warning  to  others. — 
In  Weil  V.  Hagan,  161  Ky.  292,  170  S. 
W.  618,  the  court,  referring  to  a  speech 
of  the  counsel  for  the  plaintiff  asking 
the  jury  to  find  a  verdict  ag,ainst  tht> 
defendant  in  order  to  protect  the  lives 
of  travelers  and  as  a  warning  to  the 
drivers  of  automobiles,  said :  "  If  as 
a  matter  of  fact  plaintiff  and  his  proj) 
erty  were  injured  by  reason  of  defend- 
ant's negligence,  he  was  entitled  to 
such  a  sum  as  would  reasonably  com- 
pensate him  for  the  damages  actually 
sustained,  but  no  more.  He  was  not 
entitled  to  a  verdict  that  would  protect 
the  lives  of  citizens  traveling  on  the 
highway,  or  that  would  be  a  warning 
to  drivers  of  automobiles.  Counsel  for 
plaintiff  insists  that  he  did  not  go  out- 
side of  the  record  in  making  the  state- 
ment complained  of,  for  the  record 
shows  that  the  lives  of  one  or  more 
citizens  were  endangered,  and,  Vjeinij 
established  by  the  record  the  words 
about  the  warning  were  within  the 
limits  of  legitimate  argument.  Any  of 
us   know   that    in   the   minds    of    many 


citizens  there  is  a  natural  prejudice 
against  automobile  owners  and  drivers 
growing  out  of  the  fact  that  some  of 
them  operate  their  machines  in  a  reck- 
less manner.  Because  of  this  prejudice, 
it  is  extremely  difficult  to  get  a  jury 
who  .will  calmly  and  dispassionately 
weigh  the  facts  of  a  particular  case, 
without  taking  into  consideration  the 
recklessness  of  other  automobile  owners 
and  drivers.  We  therefore  conclude 
that  an  argument  like  the  one  in  ques- 
tion, which  was  evidently  designed  to 
j)lay  on  and  increase  this  natural  preju- 
dice, and  therefore  to  arouse  the  pas- 
sions of  the  jury,  was  not  within  the 
bounds  of  legitimate  argument.  Where 
an  automobile  owner  or  driver  is  negli- 
gent and  injures  another,  he  should  an- 
swer only  for  tho  reasonable  conse- 
quences of  his  own  acts.  He  should 
not  be  mulcted  in  damages  in  order 
that  a  verdict  in  his  case  may  operate 
as  a  warning  to  others.  As  the  lan- 
guage complained  of  was  not  within 
the  range  of  legitimate  argument,  we 
conclude  that  the  trial  court  should 
have  sustained  defendants'  objection 
thereto  and  admonished  the  jury  not 
to  consider  it." 
98.  Section  357. 


Negligence  in  Operation  of  Motor  Vehicles.        421 

indefinite  and  uncertain  and  is  entitled  to  hut  little  \vei?:ht.^ 
An  averment  of  loss  of  time  is  said  to  be  the  same,  in  legal 
effect,  as  averring  loss  of  earnings,  and,  where,  under  such  an 
averment,  evidence  was  received  without  objection  showing 
that  diminution  of  earnings  in  the  future  was  certain,  it  was 
held  that  defendant  was  not  prejudiced  by  lack  of  specific 
averment  on  the  subject.'  As  to  the  selection  of  a  physician 
to  treat  an  injury,  it  is  said  that  the  duty  of  a  party  injured 
to  use  reasonable  care  to  obviate,  so  far  as  possible,  bad 
results  from  the  injury  and  thereby  diminish  the  damages, 
extends  no  further  than  to  select  one  of  good  repute,  and  that 
for  lack  of  care  and  skill  shown  by  such  physician  in  his  treat- 
ment, the  patient  is  not  answerable,  nor  is  the  circumstance 
admissible  to  mitigate  the  damages  for  which  the  tortfeasor 
is  liable.^ 

Sec.  356.  Damages  —  mental  anguish. 

There  is  a  decided  difference  of  opinion  in  the  various 
jurisdictions  as  to  the  damages  to  be  allowed  for  "mental 
anguish."  Tn  some  jurisdictions,  the  rule  is  adopted  that, 
when  there  is  no  physical  injury  or  contact  with  an  instru- 
mentality frightening  one,  there  can  be  no, recovery  for  mental 
anguish  sustained  by  a  plaintiff.^  But  in  other  jurisdictions, 
a  more  liberal  view  is  taken,  and  it  is  held  that  where  sul)- 
stantial  injury  can  be  traced  to  the  fright  of  one  caused  by 
the  negligent  operation  of  a  motor  vehicle,  the  fact  that  the 
plaintiff  did  not  sustain  any  physical  injury  other  than  in 
consequence  of  the  fright  docs  not  deprive  him  of  his  riglit  of 
recovery.''  In  one  case  in  which  it  was  alleged  that  the  defend- 
ant negligently  ran  into  a  carriage  which  had  stopped  at  the 
side  of  the  road  to  allow  defendant  to  pass  in  his  automobile 

99.  Wolfe  V.   Ives,   83  Conn.    1T4.   7(i  652,   ]27   S.  W.  415. 

Atl.  526,  19  Ann.  Cas.  752.     The  courf  2.  SchoU   v.   Grayson.   147   Mo.    App. 

said  in  this  case  that  the  fact  that  the  652.  127  S.  W.  415. 

plaintiff  could  not  state  accurately  his  3.  Mitchell     v.     Roolie.«ter     Ry.     Co., 

earnings    for    any    particular    day    or  151   N.  Y.  107,  45  N.  E.  354.  34  L.  B. 

period,  and  that  he  kept  no  books  of  A.  781. 

account,  went  rather  to  the  weight  than  4.  Spearman     v.     McCrary.     4     Ala. 

to  the  admissibility  f)f  his  testimony.  App.  473,  58  So.  927. 

1.  Scholl   V.   Grayson,    147   Mo.   App. 


422  The  Law  oJ)-  Automobiles. 

and  that  the  plaintiff  received  "a  severe  fright  and  sliock;  that 
due  to  such  fright  and  shock;  as  aforesaid  caused  by  the  negli- 
gence of  the  defendant,  the  said  plaintiff  suffered  injury  to 
her  body;  that  at  the  time  she  was  pregnant,  and  as  a  result 
of  said  fright  and  shock  there  resulted  a  miscarriage,"  causing 
severe  pain  and  suffering  and  resulting  in  permanent  injury 
to  her  health,  it  was  decided  that  when  physical  injury  directly 
flows  from  extreme  fright  or  shock,  caused  by  the  ordinary 
negligence  of  one  who  owes  the  duty  of  care  to  the  injured 
person,  such  fright  or  shock  is  a  link  in  the  chain  of  proximate 
causation  as  efficient  as  physical  impact  from  which  like  results 
fiow.^  In  an  action  to  recover  for  injuries  caused  by  the  negli- 
gent operation  of  an  automobile,  in  frightening  plaintiff's 
horse  and  overturning  his  buggy,  there  has  been  held  to  be  no 
error  in  the  admission  of  evidence,  as  a  part  of  the  history  of 
the  case,  that  plaintiff's  wife  and  child  were  in  the  buggy 
and  that  she  held  the  child  in  her  arms,  where  the  court  by  its 
instructions  negatived  the  idea  that  compensation  was  to  be 
allowed  plaintiff  for  mental  anguish  because  of  their  presence.^ 

Sec.  357.  Damages  —  punitive  damages. 

In  a  tort  action,  punitive  damages  may  be  allowed  by  the 
jury,  where  the  acts  of  the  defendant  manifested  a  wanton 
disregard  of  the  lives  or  safety  of  others,  or  were  wilful  or 
malicious.'     And  in  some  jurisdictions,  exemplary  damages 

5.  Pankopf  v.  Hinkley,  141  Wis.  wrongful  act  is  done  knowingly,  wan- 
146,  123  N.  W.  625.  24  L.  B.  A.  (N.  S.)  tonly,  and  recklessly,  under  such  cir- 
1159.  cumstances  as  indicate  that  the  wrong- 

6.  Neidy  v.  Littlejohn^  146  Iowa,  doer  knew  that  the  act  was  fraught 
355,  125  N.  W.  198.  with  probable  injury  to  person  or  prop- 

7.  Bowles  V.  Lowery,  5  Ala,  App,  erty.  Leinkauf  &  Strauss  v.  Morris,  66 
555,  59  So.  696 ;  National  Casket  Co.  Ala.  406.  To  justify  the  imposition  of 
V.  Powar,  137  Ky.  156,  125  S.  W.  279 ;  exemplary  damages,  malice  must  a©- 
Moore  v.  Hart,  171  Ky.  725,  188  S.  W.  company  the  wrong  complained  of,  or 
861;  Williams  v.  Baldrey,  52  Okla.  123,  such  gross  negligence  Or  oppression  or 
152    Pac.     814.      "Mere    recklessness,  fraud  as  amounts  to  malice.     Wilkihr 

., without  more,  does  not  constitute  wan-  son  v.  Searcy,  76  Ala.  176;  Stringer  r. 

ton  or  wilful  injury.     Exemplary  dam-  Railroad  Co.,  99  Ala.  397,  13  So.  75." 

ages  are  allowable  to  one  injured  by  Bowles  v.  Lowery,  5  Ala.  App.  555,  59 

the  wrong  of  another,  \vhen  the  wrong  So.  606. 

is  maliciously  perpetrated,  or  where  the  Mitigation    of    punitive    damages.— 


Negligence  in  Operation  of  Motor  Vehicles.       423 

are  allowed  in  the  case  of  gross  negligence  on  the  part  of  the 
defendant.^  Thus,  it  has  been  held  that,  where  an  automobile 
was  run  rapidly  in  the  night  time  with  no  lights  and  a  child 
was  struck,  punitive  damages  were  justified.^  And  punitive 
damages  are  sometimes  allowed  when  an  automobilist  con- 
tinues to  drive  his  machine  toward  a  horse  which  he  knows  is 
frightened  on  account  of  the  machine."'  It  is  not  permissible 
in  some  jurisdictions  to  recover  exemplary  damages  when 
the  complaint  alleges  only  simple  negligence.^  Punitive  dam- 
ages should  not  be  so  excessive  as  to  indicate  that  the  jury 
was  influenced  by  passion  Or  prejudice,  and  they  nmst  have 
some  reasonable  relation  to  the  injury  and  the  cause  thereof 
and  must  not  be  disproportionate  to  the  one  or  the  other." 

Sec.  358.  Damages  —  increased  damages. 

Where  a  statute  permits  double  or  treble  damages  for  in- 
juries resulting  from  a  violation  of  the  law  of  the  road,  and 
two  causes  of  action  are  set  forth  in  a  complaint,  one  for 
which  single  damages  only  are  recoverable  and  the  other  for 
which  double  or  treble  may  be  awarded,  in  the  discretion  of 
the  judge,  in  case  of  a  general  verdict  which  leaves  it  uncer- 
tain on  which  cause  damages  were  assessed,  a  recovery  for 
single  damages  only  can  be  allowed."  "r 

Sec.  359.  Function  of  jury. 

Speaking  in  general  terms,  in  a  negligence  action,  the  ques- 
tions whether  the  defendant  was  guilty  of  negligence  and 

Where   punitive   dnmages   are   claimed,  9.  Buford  v.  Hopewoll,  140  Ky.  668, 

evidence   is   not   admissible  in   mitiga-  131  S.  W.  502. 

tion  tliereof  to  the  effect  that  the  10.  Searcy  v.  Golden,  173  Ky.  48, 
driver  was  careful  and  competent,  the  188  S.  W.  1098.  And  see  section  548. 
skill  of  the  driver  not  having  been  an  11.  Louisville  &  N.  R.  Co.  v.  Mar- 
issue  under  the  pleadings.  Adler  v.  kee,  103  Ala.  160,  15  So.  511,  49  Am. 
Martin,  179  Ala.  97,  59  So.  597.  St.  Rep.  21 ;  Roach  v.  Wright.  195  AI*. 
8.  Williams  v.  Benson,  87  Kan.  421,  333,  70  So.  371;  Bowles  v.  Lowery.  5 
124  Pac.  531 ;  Buford  V.  Hopewell,  140  Ala.  App.  555,  59  So.  696. 
K5'.  666,  131  S.  W.  502;  Searcy  v.  12.  Buford  v.  Hopewell.  140  Ky. 
Golden,  172  Ky.  42,  188  S.  W.  1098;  666,  131  S.  W.  502. 
Williams  v.  Baldroy,  52  Okla.  126,  152  13.  Dunbar  v.  Jones,  87  Conn.  253, 
Pac.  814.  87    Atl.    787;    Tillinghast    v.    Leppert, 

93  Conn.  247,  105  Atl.  615. 


424  The  Law  of  Automobiles. 

whether  the  plaintiff  was  guilty  of  contributory  negligence, 
are  within  the  province  of  the  jury.  On  account  of  the  com- 
plications which  arise  from  the  many  different  classes  of 
highways  and  travelers,  the  different  surrounding  circum- 
stances in  each  particular  case,  the  application  of  the  law  of 
the  road  and  regulations  relative  to  the  use  of  the  highway, 
the  usual  conflicting  evidence  in  such  cases  as  to  the  speed  of 
vehicles  and  other  matters,  it  is  clear  that  in  automobile  cases, 
the  questions  of '  negligence  and  contributory  negligence  are 
peculiarly  for  the  jury.  It  may  be  in  some  cases  that  the 
court  is  able  to  determine  the  negligence  of  a  party  as  a  matter 
of  law,  as  in  the  case  of  the  violation  of  a  statute  or  ordi- 
nance,'^ or  when  a  pedestrian  has  failed  to  take  rudimentary 
precautions  for  his  safety,^^  or  the  driver  of  an  automobile 
neglects  to  look  for  approaching  cars  when  crossing  a  rail- 
road'" or  street  railway"  track.  But,  nevertheless,  the  general 
rule  is,  that  the  negligence  of  the  respective  parties  in  an 
action  for  injuries  arising  out  of  the  use  of  the  highway, 
presents  a  problem  for  the  determination  of  the  jury.'*    The 

14.  Section  297.  196    111.    App.    81;    Osberg   v.    Cudahy 

15.  See  chapter  XVIII.  Packing  Co.,  198  111.  App.  551;  Walker 

16.  Sections  557-566.  v.  Hilland,  205  111.  App.  243. 

17.  Sections  592-598.  Indiana. — Rump    v.    Woods,    50   Ind. 

18.  Alabama. — Yarbrough  v.   Carter,       App.  347,  98  N.  E.  369. 

179  Ala.  356,  60  So.  833;  Adler  V.  Mar-  Iowa. — Menefee      v.      Whisler,      169 

tin,  179  Ala.  97,  59  So.  597;  Reaves  v.  Iowa,   19,   150   N.   W.   1034;   Topper  v. 

Maybank,    193   Ala.    614,    69    So.    137;  Maple,  181  Iowa,  786,  165  N.  W.  28. 

Taxicab  &  Touring  Car  Co.  v.  Cabiness,  Kansas. — Ratcliffe  v.  Speith,  95  Kan. 

9   Ala.   App.    549,    63    So.   774;    White  823,    149   Pac.    740;    Pens   v.   Kreitzer, 

Swan    Laundry    Co.    v.    Wehrhan,    202  98    Kan.    759,    160    Pac.    200;    Keil   v. 

Ala.  87,  79  So.  479.  Evans,  99  Kan.  273,  161  Pac.  639. 

California. — Parmenter     v.     McDou-  Maryland. — Taxicab     Co.     of     Balti- 

gall,  172  Cal.  306,  156  Pac.  460;  Black-  more  City  v.  Emanuel,  125  Md.  246,  93 

well  v.  Renwiek,  21  Cal.  App.   13T.  131  Atl.  807. 

Pac.   94 ;   Baillargeon  v.  Myer,  27  Cal.  Massachiisetts. — Dudley      v.      Kings- 

App.    187,   149   Pac.   378.  bury,    199    Mass.    258,    85    N.    E.    76; 

Colorado. — Kent     v.     Treavorgy,     22  Chandler   v.    Matheson   Co.,    208    Mass. 

Colo.  App.  441,  125  Pac.  128.  .'Jfi9.  95  N.  E.  103;  Huggon  v.  Whipple 

JlKnois.— Crandall  v.  Krause.  165  1)1.  &  Co.,  214  Mass.  64,   100  N.  E.   1087; 

App.  15;  Kirlin  v.  Chittenden,  176  111.  Griffin   v.   Taxi   Service  Co.,   217   Mass. 

App.  550;  Rasmussen  v.  Drake,  185  111.  293.  104  N.  E.  838. 

App.   526;   Antrim  v.  Noonan.   186  111.  Michifjan. — Johnson    v.    Clark    Motor 

App.  360;  Ferry  v.  City  of  Waukegan,  Co.,   173   Mich.   277,   139   N.  W.  30,  44 


Negligence  ix  Operation  of  .\roTOR  Vehicles.       425 


jury  must  base  its  verdict  upon  the  evidence  in  the  case,  and 
if  the  plaintiff's  evidence  is  entirely  irreconcilable  with  the 
facts  as  to  the  position  the  two  automobiles  were  found  after 


L.  R.  A.  (N.  S.)  830;  Gooseii  v. 
Packard  Motor  Co.,  174  Mich.  654,  140 
N.  W.  947;  Schock  v.  Colling,  175  Midi. 
313,  141  N.  W.  675;  Granger  v.  Far- 
rant,  179  Mich.  19.  146  N.  W.  218; 
Brown  v.  Mitts,  187  Mich.  469,  153  N. 
W.   714. 

Minnesota. — George  A.  Hornel  Co.  v. 
Minneapolis  St.  Ry.  Co.,  130  Minn.  469, 
153  N.  W.  867;  Benson  v.  Larson,  133 
Minn.  346,  158  N.  W.  426;  Wenworth 
V.  Butler,  134  Minn.  382,  159  N.  W. 
828. 

Missouri. — Bongner  v.  Ziegenheim, 
165  Mo.  App.  328,  147  S.  W.  182; 
Haacke  v.  Davis,  166  Mo.  App.  249,  148 
S.  W.  450;  Harris  v.  Pew,  185  Mo. 
App.  275,  170  S.  W.  344;  Wiedeman  v. 
St.  Louis  Taxicab  Co.,  182  Mo.  App. 
530,  165  S.  W.  1105,  1106;  William<* 
V.  Kansas  City  (Mo.  App.),  177  S.  W. 
783. 

New  Bampshire. — Hamel  v.  Peabody, 
78  N.  H.  585,  97  Atl.  220. 

New  Jersey. — Rabinowitz  v.  Haw- 
thorne, 89  N.  J.  Law,  308,  98  Atl.  315; 
Heckman  v.  Cohen,  90  N.  J.  L.  322, 
100  Atl.  695 ;  Siegeler  v.  Nevweiler,  91 
N.  J.  L.  273,  102  Atl.  349. 

New  YorTc. — Ward  v.  International 
Ry.  Co.,  206  N.  Y.  83,  99  N.  E.  268, 
Ann.  Cas.  1914A  1170;  Millman  v. 
Appleton,  139  N.  Y.  App.  Div.  738,  124 
N.  Y.  Suppl.  482;  Cowell  v.  Saperston, 
149  App.  Div.  373,  134  N.  Y.  Suppl. 
284;  Taylor  v.  Glens  Falls  Automobile 
Co.,  161  App.  Div.  442,  146  N.  Y. 
Suppl.  699 ;  Breese  v.  Nassau  Electric 
Co.,  162  App.  Div.  455,  147  N.  Y. 
Suppl.  416;  Stern  v.  International  Ry. 
Co.,  167  App.  Div.  503,  153  N.  Y. 
Suppl.  520;  Aronson  v.  New  York  Taxi- 
cab  Co.,  125  N.  Y.  Suppl.  756;  Harris 
v.  Burns,  133  N.  Y.  Suppl.  41S;  Gnecco 
V.  Pederson,  154  N.  Y.  Suppl.  12. 


North  Dakota. — Mcsscr  v.  Bruening, 
25  N.  D.  599,  142  N.  W.  158;  Armann 
v.  Caswell,  30  N.  D.  406,  152  N.  \V. 
813;  Messer  v.  Bruening,  32  N.  D.  515, 
156   N.  W.  241. 

Pennsylvama. — Haring  v.  Connell. 
244  Pa.  St.  439,  90  Atl.  910;  Price  v. 
Newell,  53  Pa.  Super.  Ct.  628;  Bickley 
V.  Southern  Pennsylvania  Tr.  Co.,  56 
Pa.  Super.  Ct.  113;  Bew  v.  John  Daley, 
Inc.,  260  Pa.  418,   103   Atl.   832. 

Tennessee. — Studer  v.  Plumlee,  l.'JO 
Tenn.  517,  172  S.  W.  305. 

Washington. — Hillelirant  v.  Manz,  71 
Wash.  250,  128  Pae.  892;  Lewis  v. 
Seattle  Taxicab  Co.,  72  Wash.  320,  130 
Pac.  34 1  ;  Chase  v.  Seattle  Taxicab 
Co.,  78  Wash.  537,  139  Pac.  499; 
Brunei-  v.  Little,  97  Wash.  319,  166 
Pac.    1166. 

Wisconsin. — Friedrich  v.  Boulton, 
164  Wis.  526,  159  N.  W.  803 ;  Shortle 
V.  Shoill    (Wis.),   178  N.   W.   304. 

Upon  the  general  question  of  neg- 
ligence being  for  the  jury,  Mr.  Cham 
berlayne  says,  hi  his  recent  work  on 
Evidence,  "It  is  not  disputed  that  the 
finding  of  the  constituent  facts  is  mat 
ter  for  the  jury.  It  is  only  in  cases 
where  but  one  inference  is  logically  per- 
missible that  the  court  says  that  all 
facts  arc  established  and  rules,  as  a 
matter  of  law,  as  to  the  existence  of 
negligoiice,  ignoring  the  possibility  that 
the  jury  might  have  reached  a  conclu- 
sion not  permitted  by  the  rules  of  rea- 
soning. States  of  fact,  from  which 
more  than  one  inference  is  reasonably 
possible,  or  where  the  evidence  as  to 
the  cxi-^tence  of  material  facts  is  con- 
flicting, present  questions  for  the  jury, 
whose  finding,  if  rational,  should  not 
be  reversed."  Chamberlayne's  Modern 
Law  of  Evidence,  §  125. 


426  The  Law  of  AuT0M0Bnj5S. 

their  collision,  the  verdict  for  the  plaintiff  must  he  deemed  to 
be  founded  on  mistake,  and  mil  be  set  aside."  An  appellate 
court  must  recognize  that  certain  facts  are  controlled  by  im- 
mutable, physical  laws;  and  it  cannot  permit  a  jury  verdict 
to  change  such  facts,  because  to  do  so  would,  in  effect,  destroy 
the  intelligence  of  the  court.^  The  function  of  the  jury  in 
particular  cases  is  further  discussed  in  other  parts  of  this 
work.^^ 

Sec.  360.  Traction  engines. 

The  use  of  a  steam  traction  engine  and  trailers  upon  the 
public  highways,  is  not  necessarily  a  nuisance,^^  but  the  law 
imposes  on  the  owner  of  a  traction  engine  the  duty  to  act 
with  due  regard  for  the  rights  and  safety  of  persons  travel 
ing  upon  a  public  road  in  moving  the  engine  over  such  road, 
and  he  may  be  liable  for  injuries  due  to  negligence  on  his 
part.  When  it  is  shown  that  a  steam  roller,  which  frightened 
plaintiff's  horse  and  caused  it  to  run  away,  was  operated  by 
the  defendant  without  sending  a  person  ahead  to  warn  travel- 
ers of  its  approach,  in  violation  of  the  statute  on  the  subject, 
a  verdict  for  the  plaintiff  is  warranted  by  the  evidence,  if 
there  be  no  contributory  negligence  on  his  part.^ 

19.  Ladham    v.  .Ypung,    145   N.    Y.  22.  McCarter    v.    Ludlam,    etc.,    Co., 
Suppl.  1089.     .;;,,;'>  joff  >..,'!••  ,'>,;:  71  N.  J.  Eq.  330,  63  Atl.  761;  Miller 

20.  Austin   v.    Newton    (Cal.   App.),  v.  Addison,  69  Md.  731,  54  Atl.  967. 
189  Pac.  471.  23.  Buchanan's     Sons     v.     Cranford 

21.  See  sections  452,   487,   516,   540,  Co..  112  N.  Y.  App.  Div.  278,  98  N.  Y. 
677,  614,  677.  Suppl.  378. 


Collisions  With  Other  Vehicles.  427 


CHAPTER  XVI. 

COLLISIONS  WITH   OTHER    VEHICLES. 

Section  361.  Care  in  avoiding  other  vehicles,  in  general 

362.  Proof    of    defendant's    negligence    required    to    support    aftion    for 

injuries. 

363.  Unavoidable  accident — generally. 

364.  Unavoidable  accident — skidding    to    avoid    injury    to    pedestrian. 

365.  Unavoidable  accident — deflection    to   avoid   dog. 

366.  Unavoidable  accident — failure  of  brakes  to  work. 

367.  Unavoidable  accident. — vehicle  obscured  by  glare  of  other  lights. 

368.  Unavoidable  accident — care  to  avoid   dangerous  situation. 

369.  Injury  from   wagon. 

370.  Excessive   speed. 

371.  Turning  to  right  to  pass  approaching  vehicle — duty  of  ench  to  ex- 

ercise reasonable  care. 

372.  Turning  to  right  to  pass  approaching  vehicle — law  of  road. 

373.  Turning  to  right  to  pass  approaching  vehicle — statute  requiring  turn 

to  right  of  center  of  road. 

374.  Turning  to  right  to  pass  approaching  vehicle — seasonable    turn    to 

right. 

375.  Turning  to  right  to  pass  approaching  vehicle — violation   of  law  of 

road  not  negligence  per  se. 

376.  Turning  to  right  to  pass  approaching  vehicle — presumption  of  neg- 

ligence from  violation  of  law  of  road. 

377.  Turning  to  right  to  pass  approaching  vehicle — rebuttal      of      pre- 

sumption of  negligence  from  violation. 

378.  Turning  to  right  to  pass  approaching  vehicle — obedience  to  law  of 

road  does  not  excuse  negligence. 

379.  Turning  to  right  to  pass  approaching  vehicle — trelile   dninages   un- 

der statute. 

380.  Overtaking  and  passing — in  general. 

381.  Overtaking  and  passing — forcing  forward  vehicle  in  dangerous  situ- 

ation. • 

382.  Overtaking  and  passing — law  of  the  road. 

383.  Overtaking  and  passing — effect  of  violation  of  law  of  road. 

384.  Overtaking  and  passing — reading  statute  to  jury. 

385.  Overtaking  and  passing — collision  with   second    vehicle  after  paw- 

ing first. 

386.  Overtaking  and  passing — unexpected   stop  of  forward   car. 

387.  Overtaking  and  passing- -passing  near  corner. 

388.  Turning  comers — in   general. 

389.  Turning  corners — turning   towards   thi-   riglil. 

390.  Turning  corners — turning   towards   the   left. 

391.  Approaching  intersecting  streets — in    general. 

392.  Approaching  intersecting  streets— crowded    thoroughfares. 

393.  Approaching  intersecting  streets— priority   of   first   arrival. 


428  The  Law  of  Automobiles. 

Section  394.  Appioachiiijr  intersectintp  streets — juiority   oivon   by   statute   or   or- 
dinance. 

395.  Vehicle  standing  in  street. 

396.  Proximate  cause. 

397.  Joint  liability  of  both  drivers  to  third  person. 

398.  Contrilnitory  negligence — generally. 

399.  Contributory  negligenece — proximate    result   of    contributory   negli- 

gence. 

400.  Contributory  negligence — unskillful   driving. 

401.  Contributory  negligence — alertness. 

402.  Contributory  negligence — wantonness   or  recklessness  of   defendant. 

403.  Contributory  negligence — violation  of   law  of  road. 

404.  Contributory  negligence — sudden  stop. 

405.  Contributory  negligence — failure   to   give   passing  vehicle   sufficient 

space. 

406.  Contributory  negligence — absence  of  statutory  lights. 
,                407.  Contributory  negligence — excessive  speed. 

408.  Contributory  negligence — passenger  in  dangerous  position. 

409.  Contributory  negligence — reliance   on   obedience  of  law  of  road  by 

other  vehicles. 

410.  Contributory  negligence — acts  in  emergency. 

411.  Contributory  negligence — last   clear   chance. 

412.  Pleading. 

413.  Negligence  is  gonerally  a   question   for  the  jury. 

Sec.  361.  Care  in  avoiding  other  vehicles,  in  general. 

The  right  to  use  the  streets  and  highways  by  means  of 
automobiles  is  not  superior^  or  inferior^  to  the  use  by  other 
vehicles.  The  duty  of  one  operating  an  automobile  on  a 
public  way  is  to  use  reasonable  care  to  avoid  injury  to  other 
travelers,  whether  they  choose  their  method  of  transporta- 
tion by  wagon,  motorcycle  or  automobile.^  The.  duties  of  all 
are  equal  and  reciprocal.  One  using  an  automobile  must  not 
negligently  or  carelessly  exercise  his  rights  so  that  injury 
will  result  to  fellow  travelers  lawfully  using  the  highway,  but 

1.  Section  50.  76    So.    522;    Spawn    v.    Goldbedg    (N. 

2.  Section  49.  .T.).'llO  Atl.  565;   Boggs  v.  Jewell  Tea 

3.  Carter  v.  Brown,  136  Ark.  23,  206       Co.,  263  Pa.  St.  413.  106  Atl.  781. 

S.  W.  71;  Moore  v.  Hart,  171  Ky.  725,  '' Everything   possible."— It    is    error 

188   S.   W.    861;    Standard   Oil   Co.    of  for  the  court  to  charge  that   it   is  the 

Kentucky  v.   Thompson    (Ky.),   226   S.  duty    of    the    driver    to    do    everything 

W.    368;     Simmons    v.    Peterson,    207  possible    after    he    had    discovered    the 

Mich.   508.   174  N.   W.   536;    Oarson   v.  danger   to   prevent   an   accident.     Sim- 

Turrish.    140    Minn.    445,    168    N.    W.  mons   v.   Peterson,   207   Mich.    508,    174 

349;    Ulmer   v.   Pistole,    115   Miss.    485,  X.  W.  536. 


Collisions  With  Other  Vehicles.  429 

lio  must  have  due  regard  for  the  equal  rights  of  others  on  the 
highway,  taking  into  consideration  the  tendency  of  the 
machine  to  frighten  horses/  or  to  cause  injury  to  his  fellow- 
travelers.^  In  other  words,  while  it  is  true  that  both  a  person 
with  an  automobile  and  a  person  with  a  team  have  the  right 
to  use  the  highway  with  their  respective  vehicles;  yet  it  is 
also  true  that  each  is  obligated  to  exercise  his  rights  with  due 
regard  to  the  corresponding  rights  of  the  other  and  neith<M- 
has  a  monopoly  of  the  highway.^ 

A  public  highway  is  open  in  all  its  length  and  liroadth  to 
the  reasonable,  common  and  equal  use  of  the  people  on  foot 
or  in  vehicles.     The  owner  of  an  automobile  has  the  same 
right  as  the  owners  of  other  vehicles  to  use  the  highway,  and, 
like  them,  he  must  use  reasonable  care  and  caution  for  the 
safety  of  others.     A  traveler  on  foot  has  the  same  right  to 
the  use  of  the  public  highway  as  an  automobile  or  any  other 
vehicle.    In  using  such  highway  all  persons  are  bound  to  the 
exercise  of  reasonable  care  to  prevent  accidents.    Such  care 
must  be  in  proportion  to  the  danger  in  each  case."'    The  degree 
of  care  and  caution  to  be  used  in  each  case  depends  upon  the 
character  of  the  vehicle  used  and  the  locality  and  surround- 
ings in  which  it  is  being  used.    The  more  dangerous  the  char- 
acter of  the  vehicle  and  the  greater  its  liability  to  do  injury 
to  others  the  higher  is  the  degree  of  care  and  caution  to  be 
exercised  by  the  person  charged  with  the  duty  of  its  opera- 
tion.^   A  person  with  a  horse  and  wagon,  and  a  person  with 
an  automobile,  each  has  a  right  to  use  the  highways  mth  his 
respective  vehicle,  but  it  is  the  duty  of  each  to  exercise  his 
right  with  due   regard   to   the   corresponding  rights   of  the 
other.^     So  pedestrians  and  persons  using  vehicles  of  other 

4.  See  eliaptor  XX.  a?  to  friohten-  7.  Cecc-hi  v.  IJndsay,  1  Boyce's 
ing  horses.  (Del.).  185.  75  Atl.  376.  per  Hastings, 

5.  Graham  v.  Hagmaini,  270  111.  252,  -T.,  jurlgnient  reversed  in  Lindsay  r. 
110  N.  E.  337;  Mclntyre  v.  Onior,  166  Coeclii,  1  Boyce's  (Dol.l  133.  80  Atl. 
Ind;  57,  76  N.  E.  750,  4  L.  R.  A.    (N.  .-)23. 

■  S.)    1130,    8   Ann.   Cas.    1087;    Haynes  8.  Graham  v.  Ilagmami.  270  111.  252. 

Automobile    Co.    v.     Sinnett.    46    Tnd.  110  N.  E.  337;  Carson  v.  Turri.sh.  140 

App.    110,   91    N.    E.    171.  Minn.    445,    168    X.   W.    340.     And    see 

6.  Gurnev   v.   Piel,    105    Me.    .")01.   74  section  277. 

Atl.    113T."-  9.  Towle   v.    Morsp.    103   Me.    250.   6S 


430  The  Law  of  Automobiles. 

types  have  equal  rights  with  those  who  use  self-propelling 
vehicles  on  the  public  streets.  A  reciprocal  duty  of  care 
exists  among  them.  The  measure  of  this  duty  is  ordinary  and 
reasonable  care  according  to  the  circumstances.  In  places 
where  many  pass  or  congregate  a  greater  degree  of  care  is 
required  than  where  there  are  few  travelers.^"  And  generally 
for  the  purpose  of  avoiding  collision  and  accident  all  travelers 
should  observe  due  care  in  acconmiodating  themselves  to  each 
other.  Their  rights  are  mutual  and  co-ordinate,  and  it  is  the 
duty  of  each  so  to  exercise  his  right  of  passage  as  not  to  cause 
injury  to  another  having  a  like  right.  Each  is  under  the 
obligation  to  exercise  ordinary  care,  and  each  has  the  right 
to  expect  that  such  ordinary  care  will  be  exercised  by  the 
other  and  to  rely  upon  this  in  determining  his  own  manner  of 
using  the  road." 

Sec.  362.  Proof  of  defendant's  negligence  required  to  support 
action  for  injuries. 

Inasmuch  as  the  operator  of  an  automobile  is  not  an  insurer 
against  damage  which  may  arise  from  its  operation  on  the 
public  highways,^^  a  plaintiff  who  seeks  to  recover  damages 
for  an  injury  resulting  from  a  collision  alleged  to  be  due  to 
the  negligence  of  another  must  establish  the  fact  of  such  negli- 
gence to  the  satisfaction  of  the  jury.  If  he  succeeds  in  this 
burden,  he  may  recover ;  otherwise,  his  action  wiU  f ail.^^    The 

Atl.  1044.  "The  m«re  fact  that  au-  all  times  exercise  ordinary  care  and 
tomobiles  are  run  by  motor  power  and  caution  for  their  own  safety  and  also 
may  be  operated  at  a  dangerous  and  for  the  safety  of  all  others  who  are 
high  rate  of  speed  gives  them  no  su-  traveling  thereon  in  the  exercise  of 
perior  rights  on  the  highway  over  other  their  lawful  rights."  Graham  v.  Hag- 
vehicles,  any  more  so  than  would  the  mann,  270  111.  252,  110  N.  E.  337. 
fact  that  one  is  driving  a  race  horse  10.  Dugan  v.  Lyon,  41  Pa.  Super, 
give  such  driver  superior  rights  on  the  Ct.  52;  Deputy  v.  Kimmell,  73  W.  Va. 
highway  over  his  less  fortunate  neigh-  595,  80  S.  E.  919. 

bor  who  is  pursuing  his  journey  behind  11.  Lawler     v.      Montgomery      (Mo. 

a  slower  horse.     Highways  are  estab-  App.),    217    S.    W.    856;    Spangler    v. 

lished    and    maintained    at    public    ex-  Markley,  39  Pa.  Super.  Ct.  351;  Brown 

pense  for  the  mutual  benefit  of  all,  and  v.  Chambers,  65  Pa.  Super.  Ct.  373. 

all  persons  have  a  right  to  use  them,  12.  Section  283. 

subject  only  to  the  duty  which  the  law  13.  Calif orTiia.— Meier  v.  Wagner,  27 

imposes  upon  them  that  they  shall  at  Cal,  App.  579,   150  Pac.  797;  Furtado 


Collisions  With  Otheu  Nlhicles. 


431 


iiierc  fact  ol"  a  collision  is  not  a  suflicient  basis  upon  which 
to  rest  a  charge  of  iiegligence.^^  But  a  prima  facie  case  of 
negligence  is  sometimes  shown  by  evidence  that  the  operator 
of  the  automobile  violated  a  statute,  a  municipal  ordinance, 
or  a  recognized  rule  of  the  road,^^  but  nevertheless,  proof  of 
negligence  is  essential  to  sustain  the  action,  the  violation  of 
the  regulation  being  considered  as  negligence  or  as  evidence 
of  neglige nce.^*^  Moreover,  it  is  possible  under  unusual  circum- 
stances that  the  doctrine  of  res  ipsa  loquitor  may  arise  from 
a  collision,^'^  as,  for  example,  where  one  vehicle  runs  into 
another  standing  by  the  side  of  the  highway;^**  but  ordinarily 
the  doctrine  has  no  application  in  actions  arising  from  colli- 
sions between  vehicles.  Collisions  between  two  vehicles  may 
occur  when  neither  party  is  guilty  of  negligence;  they  may 
occur  when  both  parties  are  at  fault;  or  they  may  occur  when 


V.  Bird,  26  Cal.  App.  153,  146  Pac.  58; 
Diamonfl  v.  Weyerhaeuser,  178  Cal. 
540,  174  Pac.  38. 

'  Georgia. — ^Sheppard  v.  Johnson,  11 
Ga.  App.  280,  75  S.  E.  348.  See  also, 
Shore  v.  Ferguson,  142  Ga.  657,  83  8. 
E.  518. 

Indiana. — Picken  v.  Miller,  59  Ind. 
App.  115,  108  N.  E.  968. 

Iowa. — Withey  v.  Fowler  Co.,  164 
Iowa,  377,  145  N.  W.  923. 

Kansas. — Anderson  v.  Sterrit,  95 
Kan.  483,  148  Pac.  635. 

Maryland. — Gittings  v.  Schenuit,  122 
Md.  282,  90  Atl.  .51. 

Michigan.- — Schock  v.  Cooling,  175 
Mich.  313,  141  N.  W.  675. 

Ifirmesoto.— Eisenmenger  v.  St.  Paul 
City  Ry.  Co.,  125  Minn.  399,  147  N.  W. 
430;  Chase  V.  Tingdale  Bros.,  127  Minn. 
401,  149  N.  W.  654. 

Missouri. — Rowe  v.  Hammond,  173 
Mo.  App.  203,  157  S.  W.  880;  .Inlmson 
V.  Springfield  Traction  Co.,  178  Mo. 
App.  445,   163  S.  W.  896. 

New  Jersey. — Meyer  &  Peter  ▼. 
Creighton,  83  N.  J.  L.  749,  85  Atl.  344, 

New  York. — Nemzer  v.  Newkirk  Ave. 
Automobile  Co.,  154  N.  Y.  Suppl.  117; 


James  v.  JMorton,  79  Misc.  Rep.  255, 
139  N.  Y.  Suppl.  941;  Albertson  v. 
Ansbacher,  102  Misc.  (N.  Y.)  527,  169 
N.  Y.  Suppl.  188. 

North  Carolina. — Linville  v.   Nissen, 
162  N.  C.  95,  77  S.  E.  1096. 

Rhode    Island. — Hermann    v.    Rhode 
Island  Co.,  36  R.  I.  447,  90  Atl.  813. 

Texas. — Texas  Traction  Co.  v.  Wiley 
(Civ.  App.),    164   S.  W.   1028. 

Washington. — Lloyd  v.  Calhoun,  78 
Wash.  438,  139  Pac.  231;  Tschirley  v. 
Lambert,  70  Wash.  72,  126  Pac.  80. 
»  Trespass. — It  has  been  thought  tliat 
an  action  of  trespass  may  be  main- 
tained by  the  owner  of  a  vehicle  on  an 
allegation  that  the  drier  of  another 
v^rongfully  drove  his  vehicle  against 
the  plaintiff's  vehicle.  Such  an  action 
is  based,  not  on  the  negligence  of  the 
defendant  driver,  but  on  the  wrongful- 
ness of  his  act.  Reed  v.  Guessford,  7 
Boyee's   (30  Del.)   228,  105  Atl.  428. 

14.  Diamond    v.    Weyerhaeuser,    178 
Cal.  540,  174  Pac.  38. 

15.  Sections  267,  297. 

16.  Hartje   v.   Moxley,    235    II).    164, 
85  N.  E.  31«. 


432  The  Law  of  Automobiles. 

one  party  is  guilty  and  one  is  innocent  of  blame.  Speaking 
in  general  terms,  there  is  no  liability  imposed  on  either  party 
in  the  tAvo  cases  first  mentioned;  in  the  last  mentioned  one, 
the  guilty  traveler  is  responsible  for  such  damages  as  proxi- 
mately result  from  his  blame.  In  an  action  to  recover  dam- 
ages for  injuries  received  by  a  plaintiff  who  was  thrown  from 
a  Avagon  which,  it  was  alleged,  was  struck  by  the  defendant's 
automobile,  the  failure  of  the  plaintiff  to  show  that  the  wagon 
was  injured  by  the  collision  is  held  not  to  invalidate  a  finding 
that  the  automobile  struck  it." 

The  court  should  instruct  the  jury,  in  all  such  cases,  as  to 
the  respective  rights,  duties  and  obligations  of  the  parties  in 
each  case.^" 

Sec.  363.  Unavoidable  accident  —  generally. 

AVhere  an  automobile  collides  with  another  vehicle  on  the 
public  ways,  and  no  proof  of  negligence  is  proved  as  against 
the  owner  or  driver  of  the  automobile,  he  is  not  liable  for 
damages  accruing  from  the  collision.  This  rule  necessarily 
follows  from  the  general  proposition  that  the  operator  of  an 
automobile  is  not  an  insurer  against  accidents.^^  If  actionable 
negligence  is  not  proved,  the  injury  must  be  classed  as  an 
unavoidable  accident  for  which  there  is  no  liability.^^  If  some 
unforseen  emergency  occurs,  which  naturally  would  over- 
power the  judgment  of  the  ordinarily  careful  driver  of  a  motor 
vehicle,  so  that  momentarily  or  for  a  time  he  is  not  capable 

17.  Bauliofer  v.  Crawford,  16  Cal.  Missouri. — Flannigan  v.  Nash,  190 
App.  679,  117  Pac.  931 ;  Onell  v.  Cliap-       Mo.  App.  578,  176  S.  W.  248. 

pell,  38  Cal.  App.  375,  176  Pac.  370.  Wisconsin. — Koenig  v.  Sproesser,  161 

18.  Section  395.  Wis.   8,    152   N.   W.  473. 

19.  Klein    v.    Burleson,    138    N.    Y.  21.  Section  362. 

App.  Div.  405,  122  N.  Y.  Suppl.  752.  22.  Instruction     as     to     unavoidable 

2Q.  As  to  propriety  or  sufficiency  of  accident. — The  failure  of  the  presiding 

instructions  in  particular  cases  see  the  judge  to  instruct  as  to  the  law  of  un- 

following  decisions:  avoidable   accidents   is   not   ground  for 

Indiana. — Rump    v.    Woods,    50   Ind.  reversal,   where   instructions   have   been 

App.  347,  98  N.  E.  369.  properly   given   to   the   effect   that   the 

Kent  lick  y.-^Helm  v.  Phelph,  157  Ky.  defendant  is   not  liable   without   proof 

795,  164  S.  W.  92.  of  his  negligence.     Larrow  v.   Martell, 

Michigan.— Brown      v.      Mitts,      187  92   Vt.  435,  104  Atl.  826. 
Mich.  469,   153  N.  W.  714. 


Collisions  With  Other  Vehicles.  433 

of  intelligent  action  and  as  a  result  injury  is  inflicted  upon  a 
third  person,  the  driver  is  not  negligent.  The  law  does  not 
require  supernatural  poise  or  self  control.-''  But  the  mere 
fact  that  the  driver  of  an  automobile  became  "rattled"  does 
not  necessarily  excuse  his  negligence,  it  appearing  that  the 
collision  occurred  outside  of  the  traveled  portion  of  the  high- 
way and  that  the  circumstances  were  not  such  as  to  justify 
his  conduct  on  the  ground  of  a  sudden  emergency.^^  And 
whether  the  surprise  occasioned  by  the  sally  of  a  dog  from  a 
yard  into  the  highway  is  such  as  reasonably  to  cause  the 
driver  of  a  truck  to  be  governed  for  an  instant  by  impulse 
rather  than  sound  judgment,  and  whether  it  is  a  discomposing 
exigency  or  a  usual  peril  of  the  road,  are  matters  for  the  jury.^-^ 

Sec.  364.  Unavoidable  accident  —  skidding  to  avoid  injury  to 
pedestrian. 

Where  the  driver  of  an  automobile  applies  the  brakes  sud- 
denly in  an  emergency  to  avoid  a  pedestrian  in  danger,  and 
by  reason  of  the  application  of  the  brakes,  the  car  skids  and 
strikes  another  automobile,  there  is  ample  ground  for  holding 
that  the  driver  was  not  guilty  of  negligence.^^  But  if  the 
defendant  is  running  his  auto  at  an  excessive  rate  of  speed, 
he  may  be  found  negligent,  and  he  will  be  responsible  for 
injury  to  another  vehicle,  though  the  collision  arises,  in  part, 
from  the  defendant's  attempt  to  avoid  children  in  the  street." 

Sec.  365.  Unavoidable  accident  —  deflection  to  avoid  dog. 

One  exercising  due  care  should  not  hesitate  to  prefer  the 
safety  of  human  beings  to  that  of  dogs.  Hence,  when  the  driver 
of  a  motor  vehicle  deflects  his  course  to  avoid  a  dog  which 
has  suddenly  run  into  the  street,  he  may  be  found  guilty  of 
negligence  in  a  collision  with  another  vehicle  in  the  street.^* 

23.  Massie  v.  Barker,  224  Mass.  420,       113  N.  E.  199. 

113  N.  E.  199.     See  also  Giese  v.  Kim-  26.  Moir  v.  Hart.   189  III.  App.  566. 

hall,  184  Iowa  1283,  169  N.  W.  639.  27.  Conlon    v.    Trenkhorst.    195    El. 

24.  Tschirley  v.   Lambert,    70   Wash.       App.  335. 

72.  126  Pac.  80.  28.  Massie  v.  Barker.  224  Mass.  420. 

25.  Massie  v.  Barker,  224  Mass.  420,       113  N.  E.  199. 

28 


434  The  Law  oi-  Automobiles. 

Sec.  366.  Unavoidable  accident  —  failure  of  brakes  to  work. 

The  fact  that  the  brakes  failed  to  work  when  the  driver  saw 
the  danger  of  a  collision  with  another  vehicle  will  not  excuse 
his  failure  to  use  the  steering  mechanism  and  thus  avoid  the 
collision,  where  such  mechanism  was  in  working  order  and 
there  was  ample  room  to  steer  past  the  vehicle.^* 

Sec.  367.  Unavoidable  accident  —  vehicle  obscured  by  glare 
of  other  lights. 

If  an  automobile  carries  the  lights  approved  by  the  law  but 
sustains  a  collision  with  a  buggy  on  account  of  the  glare  of 
the  lights  of  another  vehicle,  the  negligence  of  the  driver  of 
the  automobile  is  a  question  for  the  jury.^*  The  jury  may 
properly  find  it  is  the  driver's  duty  to  stop  his  machine  when 
his  view  is  obscured  with  the  glare  of  lights.  So,  too,  when 
the  view^  of  the  chauffeur  is  dazzled  from  lights  of  buildings 
along  the  street,  it  may  well  be  said  that  proper  care  requires 
the  stopping  of  the  automobile.^ 

Sec.  368.  Unavoidable  accident  —  care  to  avoid  dangerous 
situation. 
The  driver  of  a  vehicle  in  a  street  must  exercise  reasonable 
care  to  avoid  getting  into  a  dangerous  situation,  from  which 
he  will  be  unable  to  extricate  himself  without  colliding  with 
another  vehicle ;  and,  if  he  omits  such  care,  his  later  vigilance, 

29.  Russell    v.    Electric    Garage    Co.,  unable  to  do  so,  that  claim  might  have 

90  Neb.  719,  134  N.  W.  253,  wherein  it  been  made  with  some  show  of  reason, 

was  said:      "Observing  then  that  his  We  do  not  think  it  is  a  sufficient  exer- 

brakes    were    not    having    the    desired  cise  of   diligence  by  the  driver  of  an 

effect,  we  think  it  was  plainly  his  duty  automobile,  when  he  sees  he  is  about 

to    have    used    his    steering    lever    and  to  collide  with  a  vehicle  of  any  kind, 

turned  out  so  as  to  avoid  the  collision.  to  use  one  of  the  methods  at  hand  for 

that  the  mechanism  of  his  car  was  all  avoiding  a  collision,  and,  when  he  sees 

in   working  order,   and  that   there  was  that  is  not   going  to  have  the   desired 

ample  room  to  have  passed  the  hack  on  effect,   sit,    either  helpless   or  careless, 

either    side,    is    admitted.      The    driver  and  fail  to  use  other  means  at  hand." 

says  he  was  helpless.     That,  under  the  30.  Jolman  v.  Alberts,  192  Mich.  25, 

evidence,  is  an  unwarranted  conclusion.  158  N.  W.   170;   Topper  v.  Maple,   181 

If  he  had  testified  that,  when  he  found  Iowa,  786,  165  N.  W.  28. 

his  brakes  were  not  going  to  prevent  a  31.  Buzich    v.    Todman,     179     Iowa, 

collision,  he  tried  to  turn  out,  but  was  1019,  162  N.  W.  259. 


•    CoioLisiOiS'ri  VViTH  Utheii  X'khicles.  4;Jo 

though  of  the  greatest  degree,  will  not  avail  him  when  danger 
arises  from  his  prior  negligence."'  For  example,  when  the 
driver  of  an  automobile  has  proceeded  at  an  excessive  speed, 
the  fact  that  when  he  discovered  a  wagon  in  his  path,  the 
greatest  diligence  and  effort  were  unable  to  avert  a  collision, 
does  not  excuse  him  from  liability .^^ 

Sec.  369.  Injury  from  wagon. 

After  a  collision  between  an  automobile  and  horse-drawn 
vehicle,  the  resulting  litigation,  if  any,  is  almo^?t  uniformly 
inaugurated  by  a  traveler  in  the  slower  conveyance  or  by  the 
owner  thereof.  Very  seldom  is  an  action  brought  to  recover 
the  damages  which  the  owner  or  a  passenger  of  the  auto- 
mobile has  sustained.  But,  nevertheless,  if  the  driver  of  the 
automobile  was  not  guilty  of  contributory  negligence,  the 
driver  of  the  other  conveyance  is  liable  to  respond  for  such 
damages  as  proximately  result  from  his  negligence.^  Thus, 
where  an  automobile  which  was  standing  in  a  proper  place 
along  a  street  was  struck  and  damaged  bj'  a  ladder  which 
projected  from  a  wagon,  the  owner  was  permitted  to  recover 
for  the  injury  to  the  car.^^  And  where  a  wagon  loaded  with 
long  iron  pipes  backed  Avithout  warning  into  an  automobile, 
the  chauffeur  may  be  entitled  to  recover  for  his  injuries.^' 
And,  where  a  teamster  coming  along  a  lane  leading  into  a 
highway  negligently  stopped  his  team  across  the  highway  so 
as  to  leave  insufficient  space  for  an  automobile  to  pass,  and 
the  chauffeur  was  thereby  injured,  it  was  held  that  a  verdict 
in  favor  of  the  chauffeur  was  sustained  by  the  evidence."  As 
in  other  cases  of  negligence,  the  autoist  cannot  recover  if  any 
negligence  on  his  part  contributed  to  the  injury.^ 

32.  Altenkirch    v.    National    Biscuit       175  N.  W.  219. 

Co.,  127  N.  Y.  App.  Div.  307,  111  N.  Y.  35.  Denny  v.  Strauss  &  Co.,  109  N. 

Suppl.  284.  Y.  Suppl.  26. 

33.  Yahnke  v.  Lange,  168  Wis.  512,  36.  Haag  v.  Cohen  (Mo,  App.),  229 
170  N.  W.  722.  S.  W.  296. 

34.  See  Neel  v.  Smith  (Iowa),  147  37.  Manion  v.  Loomis  Sanatorium, 
N.  W.  183;  Roper  v.  Greenspon.  —  Mo.  162  N.  Y.  App.  Div.  421,  147  N.  Y. 
App.    746,    210    S.    W.    922;    Coluni.I>ia,  Suppl.  761. 

Taxicab  Co.  v.  Stroh   (Mo.  App.),   215  38.  Roper  v.  Greenspon,  272  Mo.  288, 

S.  W.  748;  Stoddard  v.  Reed  (N.  Dak.),       198  S.  W.  1107,  L.  R.  A.  1918  D.  126; 


436  The  Law  of  Automobiles. 

Sec.  370.  Excessive  speed. 

Negligence  may  be  charged  against  the  driver  of  a  motor 
vehicle  on  the  ground  that  he  operated  the  vehicle  at  an  mi- 
reasonahle  speed.^^  Especially  is  this  so,  when  the  permitted 
speed  is  prescribed  by  statute  or  municipal  ordinance,  and  the 
express  terms  of  the  requirement  are  infringed. 

Sec.  371.  Turning  to  right  to  pass  approaching  vehicle  — 
duty  of  each  to  exercise  reasonable  care. 

It  is  the  general  rule  of  highway  travel  that  each  traveler, 
whether  by  automobile,  wagon,  or  other  means  of  conveyance, 
must  exercise  reasonable  care  to  avoid  injury  to  his  fellow 
travelers.^"  Thus,  when  the  driver  of  a  horse-drawn  convey- 
ance and  an  automobile  are  approaching  each  other  on  a 
public  highway,  the  legal  measure  of  duty  is  the  same  on  both, 
each  being  reciuired  to  act  with  reasonable  care  to  avoid  an 
accident  or  collision."^  When  two  cars  meet  it  is  the  duty  of 
each,  so  far  as  practicable,  to  yield  to  the  other  the  space  and 
opportunity  necessary  for  its  safe  and  convenient  passage.*^ 

Sec.  372.  Turning  to  right  to  pass  approaching  vehicle  —  law 
of  road. 

The  law  of  the  road,*^  founded  originally  on  custom,  but 
later  based  on  positive  statute  and  municipal  regulations,  in 
this  country,  requires  that  meeting  vehicles  shall,  as  a  general 
rule,  pass  each  other  toward  the  right.''*     In  England,  the 

Roper  V.  Greenspon  (Mo.  App.),  192  S.  41.  Wing  v.  Eginton,  92   Conn.   336, 

W.  149.     See  also  Cook  v.  Standard  Oil  102  Atl.  655 ;  Webb  v.  Moore,  136  Ky. 

Co.,    15    Ala.    App.    448,    73    So.    763;  708,  125  S.  W.  152. 

Mahar  v.  Lochen,  166  Wis.  152,  164  N.  42.  Wing  v.  Eginton,   92  Conn.   336, 

^V.  847.  102  Atl.  655;  Offner  v.  Wilke,  208  111. 

Collision  with  steel  beams  on  wagon.  App.  463. 

— In  an  action  for  injuries  received  by  43.  See  chapter  XIV,  as  to  the  law 

the   driver  of  an  automobile  who  was  of  the  road,  generally, 

struck  by   steel  beams   on   a  wagon,   it  44.  Alabama. — Morrison  v.  Clark,  196 

was  held  that   the  plaintiff  was  guilty  Ala.  670,  72  So.  305. 

of  contributory  negligence  in  failing  to  Zowo.— Pilgrim  v.  Brown,   168  Iowa, 

see    the    beams.      Roper    v.    Greenspon  177,   150   N.  W.    1;    Baker  v.   Zimmer- 

(Mo.  App.),  192  S.  W.  149.  man,    179   Iowa,   272,    161    N.   W.   479; 

39.  Sections  303-325.  Buzich  v.  Todman,  179  Iowa,  1019,  162 

40.  Section  361.  N.  W.  259;  Dirks  v.  Tonne.  183  Iowa, 


Collisions  AVith  Other  Vkhr'les.  437 

primary  rule  is  that,  when  two  vehicles  meet,  each  should 
keep  to  the  left.  One  is  not  permitted  to  pursue  his  course 
because  in  his  judgment  there  is  sufficient  room  for  the  other 
to  pass  without  coming  in  collision."^  The  object  of  the  law 
of  the  road  is  to  prevent  errors  of  judgment  and  a  monopoly 
of  the  center  of  the  road  by  persons  disposed  to  use  it  for 
their  own  advantage  and  to  the  disadvantage  of  others/'' 
Where  a  collision  occurs  between  two  meeting  vehicles,  it  is 
proper  to  regard  the  rights  of  the  one  who  is  obeying  the 
law  of  the  road  as  superior  fo  the  one  who  is  not  obeying  such 
law.*"  Hence  it  is  said  that  a  presumption  of  negligence  is 
raised  as  against  the  driver  of  the  vehicle  on  the  w^rong  side  of 
the  road.^^ 

Sec.  373.  Turning  to  right  to  pass  approaching  vehicle  — 
statute  requiring  turn  to  right  of  center  of  road. 
In  some  jurisdictions  the  law  of  the  road  has  been  codified 
by  statute  so  as  to  require  each  driver  to  turn  to  the  right 
of  the  center  of  the  road.-^^  Such  a  statutory  requirement  has 
been  thought  to  be  a  recognition  of  the  common  law  rule  ol' 
the  road,  which  would  exist  without  statutory  enactment.^*^ 
But  it  has  also  been  said  that  the  Legislature  by  such  a  statute 
"thereby  intended  to  require  persons  so  using  the  public  high- 

403,   167   N.   W.    103;    Vickery  v.  Arm-  37  N.  Dak.   ISO.   I(i3  N.  W.  268. 

stead,  180  N.  W.  893.  45.  Hayden     v.     McColly,     166     Mo. 

Maine.— 'Palmer    v.     Baker,     11     Me.  Apj).  675,  150  S.  W.  1132. 

338  46.  Hayden  v.  McColly,  166  Mo.  App. 

Masmchusetts.—Jaqmtli    v.   Richard-  675,   L50  S.  W.  1132. 

son    8  Mete.  213.  47.  Morrison  v.  Clark,  196  Ala.   670, 

1/t.fsoMri.— Marshall    v.    Taylor,    168  72    So.    305;    Hiscock    v.    Phinney,    81 

Mo.  App.  240,  153  S.  W.  527.  Wash.   117,  142  Pac  461. 

New  Jersey.— Unw'm  v.  State,  73  N.  48.  Section  267. 

J.  L.  529,  64  Atl.  163,  affirmed  State  v.  49.  Diehl    v.    Roberts,    134   Cal.    164, 

Unwin,  75  K  J.  L,  500,  68  Atl.  110.  66    Pac.   202;    Stohlman   v.   Martin,   28 

Neiv    For/.-.— Tooker    v.    Fowlers    &  Cal.  App.  338,  152  Pac.  310;  Dunn  v. 

Sollars  Co.,  147  App.  Div.   164,  132  N.  Moratz,    92    111.    App.    277;    Baker    v. 

Y.    Suppl.    213;    Smith   v.    Dygert,    12  Zimmerman,  179  Iowa,  272,  161  N.  W. 

Barb.    (N.   Y.)    613;    Easring  v.   Lan-  -'.19  \    Wright  v.    Fleischman,   41   Misc. 

Singh,  7  Wend.   (N.  Y.)    185.  (X.   Y. )    533.   85   N.  Y.   Suppl.   62. 

Nevada.— Week     v.     Reno     Traction  50.  Wright    v.    Fleischman.   41    Misc. 

Co.,  38  Nev.  285,   149  Pac.  65.  (N.  Y'.)   533,  85  N.  Y.  Suppl.  62. 

North  Dakota. — Hendricks  v.  Hughes, 


438  The  Lam'  of  Automobilks. 

ways  to  keep  to  the  right  of  the  center  of  such  thoroughfares 
at  all  times  when  possible  to  do  so,  regardk^ss  of  whether 
they  should  actuallj'  meet  or  see  any  other  person  traveling 
on  such  highway  in  an  opposite  direction."^'  The  violation 
of  such  a  statute  has  heen  hold  to  he  negligence,^^  but  ordi- 
narily it  is  thought  that  a  violation  of  the  law  of  the  road  is 
merely  prima  facie  evidence  of  negligence.^  The  expression 
"center  of  the  road,"  as  used  in  such  statutes,  is  construed 
as  meaning  the  center  of  the  traveled  or  wrought  part  of  the 
road."  When  the  highway  is  covered  with  snow,  travelers 
who  meet  must  turn  to  the  right  of  the  beaten  or  traveled  part 
of  the  road,  irrespective  of  the  position  of  what  is  the  wrought 
or  traveled  part  of  the  road  when  there  is  no  snow^  on  the 
ground.^  This  rule  to  turn  to  the  right  of  the  center  of  the 
road  applies  to  vehicles  passing  on  the  same  side  of  roads  and 
streets  which  are  so  wide  that  to  pass  safely  there  is  no 
necessity  to  turn  to  the  right  of  the  center  line.^  A  statute 
requiring  vehicles  to  keep  to  the  center  of  the  street  has  no 
application,  when  the  deviation  is  not  intentional,  but  is  merely 
the  result  of  the  skidding  of  the  car  across  the  center  line.^^ 

Sec.  374.  Turning  to  right  to  pass  approaching  vehicle  — 
seasonable  turn  to  right. 

Statutes  have  been  enacted  in  some  States  requiring  that 
vehicles  which  meet  on  the  highway  shall  seasonably  turn  to 
the  right.^^  It  is  not  necessary  for  an  auto  driver  to  turn 
towards  the  right  as  soon  as  he  sees  that  another  vehicle  is 
approaching;    all    that   is   required,   is    that   he    shall    turn 

51.  Stohlman  v.  Martin,  28  Cal.  App.       (N.  Y.)  613. 

338,  152  Pac.  319.  56.  Wright    v.   Fleischman,   41    Miac. 

52.  Slaughter  v.  Goldberg,  Bo%veTi   &.-       (N.  Y.)  533,  8,5  N.  Y.  Suppl.  62. 

Co.,  26  Cal.  App.  318,  147  Pae.  90.  57.   Chase    v.     Tingdale    Bros.,     127 

53.  Section  267.  Minn.  401.-  149  N.  W.  654. 

54.  Baker  v.  Zimmerman,  179  Iowa.  58.  See  Martin  v.  Carruthers  (Colo.), 
272,  161  N.  W.  479;  Clark  v.  Common-  195  Pae.  105;  Ricker  v.  Gray,  118  Me. 
wealth,  4  Pick  (Mass.),  125;  Shelly  v.  492,  107  Atl.  295;  Flynt  v.  Fondern 
Norman  (Wash.),  195  Pac.  243.  But  (Miss.),  84  So.  188 ;  Columbia  Taxicab 
see  Daniel  v.  Clegg,  38  Mich.  32.  Co.  v.  Roemmich  (Mo.  App.).  208  S.  W. 

55.  Jacquith  v.  Richardson,   8  Mete.  859. 
(Mass.)  213;  Smith  v.  Dygert,  12  Barb. 


Collisions  Witti  Othkk  Vehicles.  430 

** seasonably. "^^  Such  a  requirement  is  held  to  mean  that  each 
should  turn  to  the  right  in  such  season  that  neither  shall  l>e 
retarded  by  reason  of  the  other's  occupying  his  half  of  the 
way.''^  It  is  not  always  necessary  that  the  traveler  turn  out 
so  far  that  his  vehicle  is  entirely  on  the  right  side  of  the  centet- 
line  of  the  highway;  but,  in  some  cases,  if  he  turns  far  enough 
so  that  the  other  vehicle  may  pass  safely,  it  may  be  held  that 
compliance  has  been  made  with  the  statute/'^  Ordinarily,  the 
driver  of  a  team  will  not  be  regarded  as  negligent  in  failing 
to  turn  out  further,  where  there  is. already  sufficient  space  to 
allow  an  automobilist  to  pass  in  safety .^^  But  a  verdict  against 
the  defendant  is  warranted  by  evidence  showing  that  he  was 
driving  upon  the  wrong  side  of  the  road,  at  an  excessive  rate 
of  speed,  and  did  not  turn  to  the  right  in  time  to  avoid  a 
collision  with  th«  plaintiff.^  Where  it  appears  that  plaintiff's 
carriage  at  the  time  of  a  collision  ^nth  an  automobile  was^ 
moving  slowly  within  about  a  foot  of  the  right-hand  side  of 
the  road  and  was  lighted  with  lamps  on  each  side :  and  that 
defendant's  automobile  coming  at  a  high  rate  of  speed  fron; 
the  opposite  direction  ran  into  the  carriage  without  any  warn- 
ing of  any  kind,  the  negligence  of  the  defendant  is  properh 
submitted  to  the  jurj^" 

Sec.  375.  Turning'  to  right  to  pass  approaching  vehicle  —  vio- 
lation of  law  of  road  not  negligence  per  se. 
The  failure  of  the  driver  of  a  vehicle  to  turn  to  the  right 
upon  meeting  another  vehicle  on  the  highway,  is  not  generalh 
negligence  per  se,^^  though  decisions  are  to  be  found  holding 
snch  conduct  to  be  negligence  as  a  matter  of  law.^^    On  the 

69.  Peters  v.  Cuneo.  123  N.  Y.  App.  139  Pac.  231. 

Div.  740,  108  N.  Y.  Suppl.  264.  64.  Milliman  v.  Appleton,  139  N.  Y. 

60.  Morrison  v.  Clark,   196   Ala.  670.  App.  Div.  738,  124  N.  Y.  Suppl.  482. 
72  So.  305;  Neal  v.  Randall,  98  Mc.  69.  65.  Morrison  v.  Clark,  196  Ala.  670, 
56  Atl.  209,  63  L.  R.  A.  668 :  Bragdon  72   So.   305  ;    Needy   v.   Littlejohn,   137 
V.  Kellogg  (Me.),  105  Atl.  433.  Iowa,    704,    115    N.    W.    483;    Neal    v. 

61.  Buxton  V.  Ainsworth,  138  Mich.  Knndall,  98  Me.  69,  56  Atl.  209.  63 
532,  101  N.  W.  817,  11  Det.  Lea.  ^  L.  R.  A.  668.  See  also  Hul)bar.l  v. 
&84',  5  Ann.  Cas.  146.  Bartholomew,  163  Iowa,  58,  140  N.  W. 

62.  Savoy  v.   McLeod,    111    Me.   234,  13.    And  see  section  267. 
88  Atl.  721.  48  L.  R.  A.   (N.  S.)   971.  66.  See  sections  267.  207. 

63.  Llovd  V.  Calhoun.  78  Wash.  438. 


440  The  Law  of  Automobiles. 

contrary,  as  a  general  rule,  a  question  of  the  defendant's 
negligence  remains  one  for  the  jury.''"  Thus,  in  an  action  to 
recover  for  injuries  alleged  to  have  been  caused  by  the  de- 
fendant's failure  to  give  the  plaintiif's  buggy  half  of  the 
road,  it  has  been  held  that,  if  the  plaintiff's  horse  and  buggy 
were  outside  of  the  traveled  road,  the  defendant  need  not  give 
one-half  of  the  road,  but  could  run  his  automobile  on  the 
travele'd  path,  provided  there  was  room  to  pass  and  the  plain- 
tiff's horse  had  shown  no  signs  of  fright.^^  Properly  con- 
sidered, the  rule  of  the  road  is  a  rule  of  negligence,  and  the 
fact  that  a  person  was  on  the  wrong  side  of  the  road  when  a 
collision  took  place,  does  not  per  se  make  him  liable  for  dam- 
ages, but  his  liability  is  determined  by  the  rules  of  law  applic- 
able to  cases  of  negligence. *^»  A  presumption  of  negligence 
may  arise  when  the  defendant  is  on  the  wrong  side  of  the  high- 
way ,'^*^  but  the  presumption  is  one  which  may  be  rebutted  by 
evidence  showing  a  sufficient  reason  for  the  deviation  from 
the  usual  custom.^^  Indeed,  the  circumstances  may  be  such 
that  the  defendant  would  have  been  deemed  guilty  of  negli- 
gence had  he  not  diverted  his  automobile  to  the  left  of  the 
center  of  the  highway ."^^ 

Sec.  376.  Turning  to  right  to  pass  approaching  vehicle  —  pre- 
sumption of  negligence  from  violation  of  law  of 
road. 

Where  a  collision  occurs  between  two  vehicles  meeting  each 
other  on  a  road  whose  width  is  adequate  to  permit  a  safe 
passage,  a  presumption  arises  that  the  traveler  on  the  wrong 
side  of  the  road  is  guilty  of  negligence,  and  a  burden  of  ex- 

67.  Needy  v.  Littlejohn,  137  Iowa.  Massachusetts. — Parker  v.  Adams. 
704,  115  N.  W.  482;  McFern  v.  Gard-  12  Mete.  416;  Rice  v.  Lowell  Buick  Co., 
ner,'  121  Mo.  App.  1,  97  S.  W.  972.  229  Mass.  53,  118  N.  E.  185. 

68.  Needy  v.  Littlejohn,  137  Iowa,  New  Hampshire. — Brooks  v.  Hart.  14 
704,  115  N.  W.  483.  N.  H.  307;  Taylor  v.  Thomas,  77  N.  H. 

69.  Alahama.—See  McCray  v.  Sharpe,  410,  92  Atl.  740. 

188  Ala.  375,  66  So.  441.  Compare  Cool   v.   Peterson,    189    Mo. 

Kansas— Giles   v.    Ternes,   93   Kans.  App.  717,   175  S.  W.  244. 
140,  143  Pac.  491.  70.  Section  267. 

Maine.— P&\raeT    v.    Barker,    11    Me.  71.  Sections  270-274. 

338;    Neal   v.   Randall,   98   Me.   69,    56  72.  Section  275. 

Atl.  209,  63  L.  R.  A.  668. 


Collisions  With  Other  Vkhtclks. 


441 


planation  is  placed  on  him  to  show  facts  excusing  his  failure 
to  travel  on  the  proper  side  of  the  road."-'  In  other  words, 
the  act  of  traveling  on  the  wrong  side  of  tlie  liighway  is  prima 
facie  evidence  of  negligence."*  If  the  violation  of  the  law  is 
unexplained,  however,  it  may  afford  conclusive  evidence  of 
carelessness.'^  Tliis  rule  is  especially  foi-ccful  in  case  of  an 
accident  happening  in  the  dark.'*'  It  is  proper  for  the  presid- 
ing judge  to  charge  that  the  presumption  is  against  the  party 
who  was  on  the  wrong  side  of  the  street  at  the  time  of  the 
accident.'" 


Sec.  377.  Turning  to  right  to  pass  approaching  vehicle  —  re- 
buttal of  presumption  of  negligence  from  viola- 
tion. 

The  presumption  that  the  one  on  the  wrong  side  of  the  high- 
way is  guilty  of  negligence,  is  one  which  may  be  rehutted."^^ 


73.  Califorma. — Slaughter  v.  Gold- 
berg, Bowen  &  Co.,  26  Cal.  App.  318, 
147  Pac.  90;  Stohlman  v.  Martin,  2S 
Cal.  App.  338,  152  Pac.  319;  Shupe  v. 
Kodolph,  197  Pac.  57. 

Iowa. — Baker  v.  Zimmerman,  179 
Iowa,  272,  161  N.  W.  479. 

Maine. — Stobie  v.  Sullivan,  118  Me. 
483,   105  Atl.  714. 

Massachusetts. — Pcrlstein  v.  Ameri- 
can Export  Co.,  177  Mass.  730,  59  N.  E. 
194. 

Michigan. — Daniels  v.  Clegg,  38  Mich. 
32;  Buxton  v.  Ainsworth,  138  Mich. 
532,  101  N.  W.  817,  11  Det.  Leg.  N. 
684,  5  Ann.  Cas.    177. 

Missouri. — Columbia  Taxicab  Co.  v. 
Roemmich   (Mo.  App.),  208  S.  W.  859. 

Netv  Hampshire. — Brooks  v.  Hart, 
14  N.  H.  307. 

New  York. — Clarke  v.  Woop,  159  N. 
Y.  App.  Div.  437,  144  N.  Y.  Suppi. 
595. 

Pennsylvania. — Presser  v.  Dougherty, 
239  Pa.  St.  312.  86  Atl.  854. 

And  see  section  267. 

74.  7iMno«.— Frank  C>  Wel>er  Co.  v. 
Stevenson    Grocery    Co.,    194    111.    App. 


432;  Yellow  Cab  Co.  v.  John  G.  Carl- 
sen,  211  111.  App.  299. 

Maine. — Bragdon  v.  Kellogg.  105  Atl. 
433. 

Massachusetts. — Sijofford  v.  Harlow, 
3  Alien,  1 7ti ;  Steele  v.  Burkhardt,  104 
]Mass.  59.  See  also  Perlstein  v.  Ameri- 
can Exp.  Co.,  177  Mass.  530,  59  N.  E. 
194,   52  L.   R.  a.  959. 

J/onfflHu.— Savage  v.  Boyce,  53  Mont. 
470,   164   Pac.   887. 

New  York. — ^Burdick  v.  Worrall,  4 
Barb.   (N.  Y.)   596. 

Pennsylvania. — Compare  Foot  v. 
American  Produce  Co.,  195  Pa.  St.  190; 
45  Atl.  934.  49  L.  R.  A.  764. 

Hhode  I.<tlu7id. — Angell  v.  Lewis.  20 
K.  I.  391,  39  Atl.  521. 

75.  Martin  v.  Carruthera  (Colo.),  195 
I'ac.  105;  Bragdon  v.  Kellogg  (Me.), 
105  Atl.  433. 

76.  Angoll  v.  Lewis,  20  R.  I.  391,  30 
Atl.  521. 

77.  McGeo  v.  Young.  132  Ga.  606.  64 
S.  E.  689. 

78.  Morrison  v.  Clark,  196  Ala.  670. 
72  So.  .305;  Riepe  v.  Elting,  S9  Iowa. 
82.    56    X.    \f.    285,    26   L.    R.    A.    760: 


442 


The  Law  or  Automobiles. 


A  deviation  from  the  usual  custom  is  often  proper,  and  is 
sometimes  necessary,''*  for  a  too  rigid  adherence  to  the  rule, 
when  an  injury  might  have  been  averted  by  an  exercise  of 
reasonable  care  in  a  variance,  may  render  a  traveler  liable.*^ 
Circmnstances  may  be  such  that  owing  to  the  condition  of 
the  road  or  street,  the  situation  of  other  vehicles  or  the 
occurrence  of  a  sudden  emergency,  that  a  driver  who  turns 
to  the  wrong  side  of  the  road  will  be  regarded  as  justified  in 
adopting  the  course  thus  pursued.^^  Thus,  the  driver  of  an 
automobile  has  been  permitted  to  turn  to  the  left  for  the  pur- 
pose of  avoiding  a  collision.^^  Likewise,  if  one  is  obliged  by 
reason  of  an  obstacle  in  the  road  to  go  to  the  wrong  side  of 
the   highway,   and  his   vehicle   there   collides   with   another 


Rice  V.  Lowell  Buick  Co.,  229  Mass. 
53,  118  N.  E.  185.  And  see  sections 
270-274. 

79.  Turley  v.  Thomas,  8  Carr.  & 
PajTie  (Eng.)  103.  "But  it  is  not  to 
be  understood  that  we  intend  to  hold 
that  the  fact'  that  the  driver  of  a 
motor  vehicle  may  violate  the  statute 
by  driving  on  the  wrong  side  of  the 
road  or  street  is  itself  necessarily  an 
net  of  negligence  in  all  cases.  He 
might  for  a  sufficient  reason  be  com- 
pelled to  drive  on  the  left  of  the  center 
of  the  road  or  street,  nnd  do  so  in  such 
manner  as  to  leave  to  approaching  vehi- 
cles, pedestrians,  or  animals  ample  op- 
portunity to  pass  with  perfect  safety 
to  themselves,  in  which  case,  if  damage 
occurred  by  collision  with  his  vehicle, 
the  question  as  to  whose  negligence  was 
directly  responsible  therefor  would  de- 
pend for  its  solution  upon  the  other  cir- 
cumstances attending  the  accident.  In 
brief,  and  in  other  words,  the  fact  that 
he  was  driving  over  the  highway  on  the 
left  of  the  center  of  the  roadway  might, 
where  injury  to  another  had  resulted 
therefrom,  constitute  prima  facie  evi- 
dence of  negligence,  but  it  would 
amount  to  no  more  than  that,  and  its 
evidentiary  effect  might  properly  be 
overcome    or    dispelled    by    other    evi- 


dence."    Stohlman  v.   Martin,  28  Cal. 
App.  338,  152  Pac.  319. 

80.  United  States. — Allen  v.  Mackey, 

I  Sprague  (U.  S.)  219.    The  Commerce, 
3  W.  Rob.  295. 

California. — Stohlman  v.  Martin,  28 
Cal.  App.  338,  152  Pac.  319. 

Kentucky. — Johnson  v.  Small,  5  B. 
Mon.   (Ky.)  25. 

Massachusetts. — Smith    v.     Gardner, 

II  Gray  (Mass.)  418. 

Missouri. — Hayden  v.  MeCoUy,  166 
Mo.  App.  675,  150  S.  W.  1132. 

New  Hampshire. — Brooks  v.  Hart,  14 
N.  H.  307. 

Wisconsin. — O'Malley  v.  Dom,  7  Wis. 
236. 

81.  Stohlman  v.  Martin,  28  Cal.  App. 
338,  152  Pac,  319 ;  Foster  v.  Curtis,  213 
Mass.  79,  99  N.  E.  961;  Shelly  v.  Nor- 
man (Wash.),  195  Pac,  243. 

82.  Bragdon  v.  Kellogg  (Me.),  105 
Atl.  433;  Columbia  Taxicab  Co.  v. 
Roemmich  (Mo.  App.),  208  S.  W.  859; 
Stack  V.  General  Baking  Co.  (Mo.),  223 
S.  W.  89;  Clarke  v.  Woop,  159  N.  Y. 
App,  Div.  437,  144  N.  Y.  Suppl.  595. 
But  where  the  collision  would  not  have 
occurred  had  not  one  of  the  parties 
turned  to  the  left,  the  violation  of  the 
law  of  the  road  is  no  excuse,  though  he 
thought   that    the   driver   of   the   other 


Collisions  Witu  Other  X'ehicles.  443 

without  his  fault,  he  is  not  necessarily  liable.^  So,  where  the 
driver  of  an  automobile  turned  a  curve  at  a  high  rate  of  speed, 
it  has  been  held  that  there  could  be  no  recovery  for  injuries 
caused  by  a  collision  with  another  automobile,  even  though 
the  latter  was  on  the  wrong  side  of  the  highway,  it  appearing 
that  such  driver  knew  that  automobiles  were  liable  to  be  on 
such  side  in  order  to  avoid  rough  stone  and  gravel  on  the 
other  side.^^  And,  where  the  plaintiff,  acting  as  a  reasonably 
prudent  man,  turns  to  the  left,  owing  to  the  negligent  opera- 
tion by  the  defendant  of  his  automobile,  he  may  be  held  to  be 
excused  from  obeying  the  laAv  of  the  road.^^  A  statute  requir- 
ing vehicles  to  keep  to  the  right  of  the  center  of  the  street  has 
no  application  where  a  vehicle,  through  no  fault  of  its  driver, 
skids  on  a  slippery  pavement,  and  is  thrown  across  the  center 
line.^  A  deviation  from  the  rule  is  also  frequently  neces- 
sary in  the  crowded  streets  of  a  large  city.-'  And.  it  has  been 
said  that,  when  a  light  vehicle  passes  one  heavily  laden,  the 
former  should  yield  to  the  latter.^^  One  vehicle  may  generally 
occupy  any  part  of  the  road,  so  long  as  that  particular  portion 
is  not  being  used  or  sought  to  be  used  by  another:^  but  a 
person  not  having  his  vehicle  in  position  so  that  he  can 
properly  pass  other  travelers,  is  bound  to  use  more  care  and 
caution  against  collision  with  another  vehicle  he  might  chance 
to  meet,  than  if  he  were  pursuing  his  course  according  to  the 
law  of  the  road.^    x\nd,  when  the  other  vehicle  approaches, 

conveyance  did  not  intend  to  turn  out.  87.  Wayde    v.    Cnir.    2    Dow.    &    Ky. 

there  being  sufficient  room  to  the  right  2r)5. 

to  escape  a  collision.    Lloyd  v.  (Jalhoun,  88.  See  Lee  v.  Foley,  113  La.  663,  37 

82  Wash.  35,   143   Pac.  458,  overruling  So.  594. 

78  Wash.  438,  139  Pac.  231.  89.  ^Torrison  v.   Clark,   196  Ala.  670, 

83.  Strmisf   v.    Whittlesey.    41    Conn.  72  So.  305;   Baker  v.  Zinunerman,   179 
559  Iowa,   272,   161   K   W.  479;   Buzich  v. 

84.  Wheeler    v.    Wall.    157    Mo.    .\pp.  Todman      (Iowa).     162     N.     W.     2.59; 
38    137  S.  W.  63.  Parker    v.    Adams,    12    Mete.    (Mass.) 

85.  Columbia   Taxicab   Co.    v.   Roem-  403;  Daniel  v.  Clegg,  38  Mich.  32. 
mich     (Mo.    App.^,    208    S.    W.    859:  90.  New   York   Transp.    Cki.    v.   Gar- 
Lloyd   V.   Calhoun,    78   Wash.    438.    139  side.    1:-.7   Fed.   521,   85   C.   C.    A.    2S5 ; 
Pac.   231.  Fahrney    v.    O'Donnell.    107    111.    App. 

86.  Chase     v.     Tingdale     Bros.,      127  608:    \ngo11  v.  Lewis.  20  R.  I.  391.  39 
Minn.  401.  149  N.  W.  654.  Atl.    521;    Pleickoll  v.   Wilson.   5   Carr. 

&  Payne  (Eng.)    103. 


444  The  Law  of  Automobiles. 

he  must  usually  turn  to  his  own  side  of  the  road,^i  Cor,  in 
taking  the  wrong  side  of  the  highway  he  might  be  held  to  have 
assumed  the  risk  of  consequences  accruing  from  his  inability 
to  get  out  of  the  way  of  a  vehicle  on  the  right  side  of  the 
street.^2  tj^^  £^^^  ^^^^  j^  ^yr^^  ^^^rk  so  that  the  driver  of  an 
automobile  could  not  see  an  approaching  vehicle,  does  not 
excuse  his  failure  to  drive  on  the  proper  side  of  the  street; 
on  the  contrary,  the  darkness  is  more  an  aggravating  than  a 
mitigating  circumstance,  for,  when  it  is  so  dark  that  the 
driver  of  a  motor  vehicle  cannot  see  but  a  short  distance 
ahead  the  situation  calls  for  unusual  care.^^  And,  if  one  gives 
up  the  entire  beaten  track  of  the  road  to  another  traveler,  he 
is  not  chargeable  wdth  negligence  because  he  is  on  the  left  side 
of  the  highway .^^ 

Sec.  378.  Turning  to  right  to  pass  approaching  vehicle  — 
obedience  to  law  of  road  does  not  excuse  negli- 
gence. 
The  mere  fact  that  the  driver  of  an  automobile  is  on  the 
right  side  of  the  road  does  not  necessarily  determine  the 
presence  or  absence  of  negligence  on  his  part.    The  law  does 
not  allow  a  person  on  the  right  side  of  the  street  to  run  down 
everything  in  his  path.     The  speed  of  the  automobile  and 
other  surrounding  circumstances  are  all  to  be  considered  on 
the  question  of  his  negligence.^^    Thus,  though  one  has  turned 
to  his  side  of  the  highway  when  meeting  another  vehicle,  an 
issue  may  remain  for  the  jury  as  to  whether  reasonable  care 
does  not  require  that  he  should  have  turned  out  fai'ther  and 
thus  have  avoided  the  collision.^^ 

91.  Parker      v.      Adams,      12      Mete.  94.  Baker   v.   Zimniprniiin,    179   Iowa, 
(Mass.)  403;  Daniel  v.  Clegg,  38  Mich.       272,  161  N.  W.  479. 

32.  95.  Hoover      v.      TJoicliajd.     03      Pa. 

92.  Fahrney    v.    O'Donnell,  107    111.       Super.  Ct.  .^17.     See  also  Wa1T<er  v.  Lee 
App.  608.       '  (N.  Car.)  106  S.  E.  682. 

93.  Stohlman     v.     Martin,  28     Cal.           96.  Wing  v.   Eginton,  *i2  Conn.   336, 
App.  338,  152  Pac.  319.  102  Atl.  65.5. 


Collisions  With  Other  Vehicles.  445 

Sec.  379.  Turning-  to  right  to  pass  approaching  vehicle  — 
treble  damages  under  statute. 
The  plainlil'l',  in  order  to  recover  treljle  damages  under  a 
statute,  providing-  that  drivers  of  any  vehicles  "for  the  con- 
veyance of  persons"  meeting  each  other  in  a  highway  shall 
turn  to  the  right  and  slacken  speed,  and  any  driver  of  such 
vehicle  who  shall,  by  failure  to  do  so,  drive  against  another 
vehicle,  shall  pay  to  the  party  injured  treble  damages,  must 
show  by  the  complaint,  as  well  as  evidence,  that  the  defendant 
was  driving  such  a  vehicle;  and  a  mere  description  of  the 
vehicle  as  a  w^agon  or  team  is  insufficient.^' 

Sec,  380.  Overtaking  and  passing  —  in  general. 

Persons  traveling  along  a  street  or  highway  in  the  same 
direction,  should  exercise  ordinary  care  to  avoid  injury  to 
each  other.^^  The  rear  machine  until  it  gives  a  signal  of  a 
desire  to  pass,  should  remain  behind  sufficiently  far  that  a 
collision  will  not  result  from  the  swerving  or  slowing  of  the 
forward  car.^  The  fact  that  the  driver  of  the  rear  vehicle 
did  not  give  any  warning-  of  his  approach,  and  attempts  to 
pass  without  warning,  may  be  considered  a  failure  of  the 
duty  to  exercise  reasonable  care.^  And  negligence  may 
generally  be  inferred  where  the  driver  of  an  automobile  col- 

97.  Rowell  V.  Crothers.  75  Conn.  124,       S.  W.  389. 

52  Atl.   818.  New    Jersey. — Decou    v.    Dcxheimer, 

98.  Arkdtisas. — Bennett     v.     Snyder,       73  Atl.  49. 

227  S.  W.  402.  Pennsylvania.— FiTper  v.  Adams  Exp. 

California.— Furtado  v.  Bird.  26  Cal.  Co.,   113   Atl.   562;   -Wolleston   v.   Park, 

App.  153,  146  Pac.  5S.  47  Pa.  Super.  Ct.  90. 

Delatoarc. — Simeone  v.  Lindsay,  6  Rhode  Island. — O'Donnell  v.  John- 
Pen.  224,  65  Atl.   778.  son,   90  Atl.    165;    Rogers   v.   Mann,   70 

Georgia. — Rouche    v.     McCloudy,     19  Atl.   1057. 

Ga.  App.  558,  91  S.  E.  999.  Washington.— Cloherty     v.     Griffiths. 

Kansas.— ATTington    v.     Horner,     88  82  Wash.  634,  144  Pac.  912. 

Kan.  817,  129  Pac.  1159.  Wisconsin. — Olson     v.     Holway.     152 

Kentucky.— Moore  v.   Hart,   171  Ky.  Wis.    1,    139    N.    W.    422;     Mahar    v. 

725,  188  S.  W.  861.  Lochen,    166  Wis.   152,  164   N.  W.   847. 

Louisiana. — Holtz  v.  Lange,   148  La.  99.  Spencer  v.  Magrini  (Wash.).  195 

— .  88  So.   245.  Pac.  1041. 

Mtssonri.— Marshall    v.    Taylor.     168  1.  Moore  v.   Hart,   171   Ky.  725.   188 

Mo.  App.  240,  153  S.  W.  527:  Schmitt  S.  W.  861.     And  see  section  329.  as  to 

V.   Standard   Oil  Co.    (Mo.   App.),   221  warning  of  approach. 


446 


The  liAW  OF  Automobiles. 


lides  with  the  rear  of  a  carriag-c  which  could  liave  heen  seen 
a  considerahle  distance  away.^  Tt  is  no  excuse  that  the  autoist 
miscalculated  the  space  mthin  which  he  attempted  to  pass." 
Ordinary  care  in  passing  a  conveyance  upou  a  good  A\ddc 
improved  highway  in  the  summer  season,  is  an  entirely  differ- 
ent rule  from  that  of  passing  a  conveyance  in  the  winter 
season  over  a  slippery,  contracted  and  drifted  road,  with 
sudden,  abrupt  and  uneven  surfaces.'*  In  the  case  of  two  cars 
traveling  in  the  same  direction  the  front  one  has  the  superior 
right  and  may  maintain  its  position  in  the  center  of  the  high- 
way if  there  is  sufficient  space  on  its  left,  as  prescribed  by 
statute,  to  enable  the  approaching  car  safely  and  conveniently 
to  pass.  If  the  position  of  the  forward  car  in  the  center  of  the 
highway  does  not  leave  such  room  for  passage,  then  it  nmst, 
upon  request  or  equivalent  notice,  if  practicable  and  safe,  so 
turn  aside  as  to  leave  such  room  for  passage.  If  at  the  moment 
there  is  not  sufficient  room  in  which  it  can  do  this,  it  is  its 
right,  and  it  is  the  duty  of  the  rear  car,  to  wait  until  a  place 
is  reached  where  this  may  be  done.^    An  automobile  has  no 


2.  Shaver  v.  Smith,  179  Ky.  26,  200 
S.  W.  8;  Decou  v.  Dexheimer  (N.  J. 
L.),  73  Atl.  49;  Pratt  v.  Burns,  189 
N.  Y.  App.  Div.  33,  177  N.  Y.  Suppl. 
817. 

3.  Shaver  v.  Smith,  179  Ky.  26,  200 
S.  W.  8.  "The  automobile  was  ap- 
proaching the  wagon  from  the  rear.  It 
does  not  appear  that  the  wagon  sud- 
denly pulled  in  front  of  the  automo- 
bile. The  driver  had  the  machine  under 
perfect  control.  It  was  broad  day- 
light, and  the  position  of  the  wagon 
was.  known  to  the  driver  of  the  machine. 
Under  these  circumstances  the  machine 
collided  with  thp  wagon,  and  the  only 
excuse  that  the  driver  of  the  machine 
offered  is  that  the  wagon  was  in  the 
-way,  and  he  miscalculated  the  distance 
between  his  machine  and  the  wagon. 
Even  if  the  wagon  was  on  the  wrong 
side  of  the  road  and  in  the  way,  this 
did  not  give  to  the  driver  of  the  ma- 
chine   the    right    to    run    against    the 


wagon.  Under  the  circumstances  he 
should  have  stopped  his  car  and  re- 
quested the  driver  of  the  wagon  to  turn 
out,  rather  than  keep  on  driving  and 
come  in  collision  with  him.  .  .  .  On 
the  other  hand,  if  he  ran  into  the 
wagon  merely  because  he  miscalculated 
the  distance,  there  can  be  no  question 
that  the  collision  was  due  to  his  fault. 
Since  the  driver  was  under  the  duty  to 
use  ordinary  care  to  avoid  coming  into 
contact  with  the  wagon,  and  since  the 
uncontradicted  evidence  shows  that  he 
failed  to  use,  such  care,  we  conclude  that 
the  trial  court  should  have  directed  the 
jury  to  find  for  plaintiff,  and  have  left 
to  the  jury  only  the  question  of  dam- 
ages under  a  proper  instruction." 
Shaver  v.  Smith,  179  Ky.  26,  200  S. 
W.   8. 

4.  Burnham    v.    Butler,     31     N.     Y. 
480. 

5.  Mark  v.  Fritsch,  195  N.  Y.  282,  88 
N.   E.   380,  22,  L.   E.  A.    (N.   S.)    632, 


Collisions  With  Other  Vehicles.  447. 

right  to  assume  that  the  forward  conveyance  will  turn  out 
to  permit  him  to  pass.*^  He  cannot  drive  his  car  ahead  and 
take  the  chance  that  the  forward  vehicle  will  move  to  one  side 
in  time  to  permit  him  to  make  a  safe  passaged  If  the  driver 
ahead  does  not  move  so  as  to  afford  the  faster  vehicle  an 
opportunity  to  pass,  the  latter  must  slacken  his  speed  so  as 
to  avoid  the  danger  of  a  collision,  even  bringing  it  to  a  stop 
if  necessary.^  It  is  sometimes  laid  down  as  a  rule  that  he 
who  attempts  to  pass  another  in  the  highway  going  in  the 
same  direction,  has  the  right  to  do  so  in  such  a  manner  as  may 
be  most  convenient  under  the  circumstances,  and  if  damage 
result  to  the  person  passed,  the  former  nmst  answer  for  it, 
unless  the  latter  by  his  own  recklessness  or  carelessness 
brought  the  disaster  upon  himself.^  This  general  rule  has 
been  held  applicable,  not  only  where  both  vehicles  are  moving, 
but  also  when  one  attempts  to  pass  a  vehcile  standing  in  the 
street.^**  After  turning  to  the  left  and  moving  past  the  for- 
ward vehicle,  the  driver  of  the  faster  conveyance  should  not 
turn  back  towards  the  right  until  he  has  proceeded  far  enough 
so  that  the  turn  can  be  made  with  safety." 

Sec.  381.  Overtaking  and  passing  —  forcing  forward  vehicle 
in  dangerous  situation. 
Where  an  automobile  approaches  another  car  at  the  rear 
without  warning  and  attempts  to  pass  at  an  excessive  speed, 
and  turns  so  close  to  the  forward  car  as  to  force  it  over  the 
bank  at  the  side  of  the  road,  the  driver  of  the  approaching 

affirming   126   App.  Div.    (N.   Y.)    920,  sier,  50  Que.  S.  E.   (Canada)   159. 

110  N.  Y.  Suppl.  1137,  per  Hiscock,  J.  10.  Altenkirch    v.     National     Biscuit. 

6.  O'Donnell  v.  Johnson,  36  R.  I.  Ck).,  127  N.  Y.  App.  Div.  307.  Ill  N.  Y. 
308,  90  Atl.  165.  Suppl.   284. 

7.  Hoppe  V.  Peterson,  165  Wis.  200.  11.  House  v.  Fry,  30  Cal.  App.  157, 
161  N.  W.  738.  15"   Pac.   500;    Moreno  v.  Los  Angeles 

8.  Morrison  v.  Clark,  196  Ala.  670,  72  Transfer  Co.  (Cal.  App.).  186  Pac.  800; 
So.  305;  Fnrtado  v.  Bird,  26  Cal.  App.  Shepherd  v.  Marston  (Me.),  109  Atl. 
153,  146  Pac.  58 ;  Shaver  v.  Smith,  179  387 ;  Sebastine  v.  Haney,  68  Pitts.  Leg. 
Ky.  26,  200  S.  W.  8.  Joum.   (Pa.)    100;  Howarth  v.  Barrett 

9.  Altenkirch  v.  National  Biscuit  (Pa.),  112  Atl.  536.  And  see  section 
Co..  127  N.  Y.  App.  Div.  307,  111  N.  Y.  253. 

Suppl.   284.      See   also   Menard  v.   Lus- 


448  The  Law  of  Automobiles. 

car  may  be  liable  though  the  actual  impact  was  without  suffi- 
cient momentum  to  force  the  car  over  the  bank.^- 

Sec.  382.  Overtaking  and  passing  —  law  of  the  road. 

In  England  when  one  vehicle  overtakes  another,  the  rule  of 
the  road  requires  that  the  forward  vehicle  move  toward  the 
left  side  of  the  road,  and  that  the  rear  vehicle  pass  to  the 
right.  In  this  country,  however,  the  general  practice  is  to  the 
contrary,  and  it  is  now  generally  enacted  by  statute  that  the 
rear  conveyance  shall  pass  on  the  left  side  of  forward  vehicle.^^ 
And  a  corresponding  duty  is  placed  upon  the  driver  of  the 
forward  conveyance  to  turn  towards  the  right  so  as  to  give 
free  opportunity  for  passage;  but  this  duty  is  not  generally 
imposed  unless  the  road  is  sufficiently  wide  to  give  a  reason- 
able opportunity  for  passage  and  unless  the  driver  of  the 
forward  vehicle  knows  or  should  know  the  wishes  of  the  rear 
driver  in  respect  to  .passing.^^  Statutory  enactments  of  this 
nature  are  not  generally  applicable  as  between  an  automobile 
and  a  pedestrian  upon  the  highway.^^  But  they  may  be  con- 
strued as  affecting  the  right  of  the  driver  of  an  automobile 
in  passing  a  street  car;  and,  if  the  driver  goes  on  the  wrong 

12.  Granger  v.  Farrant,  179  Mich.  19,  able,  even  if  the  jury  should  have  found 

146  N.  W.   218,  wherein  it  was  said:  that  the  impact   was  not   sufficient  to 

"It   is   true   that   the   evidence   on   the  forcibly  throw  the  Skinner  car  out  of 

part   of   the   plaintiff    sought    to    show  its  course." 

that  the  defendant's  car  collided  with  13.  Hamilton,   Harris   &   Co.   v.   Lar- 

the  car  in  which  the  plaintiff  was  rid-  rimer,  183  Ind.  429,  105  N.  E.  43;  Man- 

ing.     But  the  evidence  of  the  plaintiff  ceaux  v.  Hunter  Canal  Co.,  148  La.  — , 

was  not  confined  to  the  claim  that,  by  86  So.  665  ;   Pannell  v.  Allen,  160  Mo. 

reason  of  the  collision,  the  car  in  which  App.    714,    142    S.    W.    482;    Unwin    v. 

the  plaintiff  was  riding  was  forced  or  State,    73    N.   J.   ^.    529,   64   Atl.    163, 

pushed  over  the  embankment.   We  think  affirmed   State  v.   Unwin,   75  N.   J.   L. 

it  was  material  for  the  plaintiff  to  show  500,  68  Atl.  110.     See  also  Schaffer  v. 

that   the   defendant   was   operating   his  Miller,   185  Iowa,  472,  170  N.  W.  787. 

car   at   an    unreasonable   and   unlawful  And  see  section  252. 

rate  of  speed,  and  that,  without  notice  14.  Morrison  v.  Clark,   196  Ala.  670, 

or  warning,  he  came  upon  and  passed  72  So.  305;  Dunkelbeck  v.  Meyer,  140 

the    Skinner    car,    and    forced    his    car  Minn.   283,   167   N.  W.   1034;   Piper  v. 

across  and  in  front  of  the  Skinner  ear,  Adams   Exp.  Co.    (Pa.),   113  Atl.   562; 

in  such  a  manner  as  to  disconcert  the  Hoppe  v.  Peterson,   165  Wis.   200,   161 

driver,  and  cause  his  car  to  go  over  the  N.  W.  738. 

embankment,  to  the  injury  of  the  plain-  15.  Brown  v.  Thayer,  212  Mass.  392, 

tiff;  and  that  defendant  might  be  li-  99  N.  E.  237. 


Collisions  With  Other  Vehicles.  449 

side,  the  violation  of  the  rule  ol  llu'  road  may  Ix'  considered 
as  evidence  of  negligence.^''  A  regulation  of  this  nature  does 
not  necessarily  prohibit  one  from  driving  a  team  and  wagon 
along  the  left  side  of  the  road,  but  may  merely  require  its 
driver  to  turn  to  the  right  when  he  is  overtaken  by  one  wjio 
indicates  a  desire  to  pass.^'^  A  regulation  requiring  a  traveler 
to  keep  to  the  right  of  the  center  of  the  highway  or  to  turn 
to  the  right  upon  meeting  another  traveler,  is  held  inapplica])le 
to  the  situation  where  one  traveler  overtakes  another  and 
wishes  to  pass.^^  Conversely,  a  statute  relative  to  the  conduct 
of  drivers  in  overtaking  and  passing  vehicles  on  the  highway 
is  not  applicable  to  vehicles  meeting  and  passing.^^  Under 
modern  statutes,  it  is  sometimes  required  that  the  driver  of 
the  rear  vehicle  shall  give  a  signal  of  his  intention  to  pass.^ 

Sec.  383.  Overtaking  and  passing-  —  effect  of  violation  of  law 
of  road. 

The  violation  of  the  law^  of  the  road  in  passing  a  forward 
traveler  on  the  wrong  side  is  generally  held  not  to  be  negli- 
gence per  se;"^  for  the  guilty  party  may  furnish  some  reason 
for  his  acts  which  will  excuse  his  violation  of  the  rule.  The 
violation  is  generally  considered  to  raise  a  presumption  of 
negligence  on  the  part  of  the  guilty  driver,  but  the  presump- 
tion is  one  which  may  be  rebutted  by  evidence  showdng  that 
the  variance  from  the  rule  was  justified  by  the  surrounding 
circumstances."^  Where  one  driving  on  the  right-hand  side  of 
a  wide  road  is  overtaken  by  an  automobile,  which  strikes  one 
of  the  rear  wheels  of  his  wagon,  a  clear  case  of  negligence  is 
established.^^ 

16.  McGourtv  v.  DeMarco,  200  Mass.  283,  167  N.  W.  1034.     And  see  section 
57,  85  N.  E.  891.  264. 

17.  Pens   V.    Kreiter,   98   Kans.    759,  21.  Foster  v.    Curtis,   213   Mass.    79, 
160  Pac.  200.  99  N.  E.   961,  Ann.  Cas.   1913E  1116; 

18.  Smoak    v.    Martin,    108    S.    Car.  Granger  v.  Farrant,  179  Mich.  19,  145 
472,  94  S.  E.  869.  N.    W.    218;    Maliar    v.    Lochen,    166 

19.  Morrison  v.  Clark,   196  Ala.  670,  Wis.  152,  164  N.  W.  847. 
72  So.  305;   Zellraer  v.  McTaigiie,   170  22.  Sections  267-274. 

Iowa,  534,  153  N.  W.  77.  23.  Salinen   v.   Ross,    185   Fed.   997; 

20.  Dunkelbeck  v.  Meyor,   140  Minn.       Decon  v.  Dexheimer  (N.  J.  L.),  73  Atl. 

49. 

29 


450  The  Law  of  Automobiles. 

Sec.  384.  Overaking  and  passing  —  reading-  statute  to  jury. 

Where  a  statute  provides  that  if  a  person  traveling  on  a 
highway  is  informed  that  another  person  traveling  in  the 
same  direction  desires  to  pass  him,  he  shall  turn  to  the 
right,  if  there  is  sufficient  room  to  enable  him  to  do  so,  it  has 
been  held  in  an  action  for  injuries  sustained  by  the  plaintiff, 
owing  to  her  horse  having  been  frightened  by  the  defendant's 
automobile,  when  the  defendant  was  attemi^ting  to  pass  the 
plaintiff  going  in  the  same  direction  after  having  given  warn- 
ing, that  it  is  not  error  for  the  court  to  read  the  statute  to  the 
jury.2* 

Sec.  385.  Overtaking   and   passing  —  collision   with   second 
vehicle  after  passing  first. 

"When  the  driver  of  an  automobile  overtakes  a  slower  con- 
veyance and  turns  and  passes  the  same  on  the  left,  he  must 
exercise  due  care  to  avoid  a  third  vehicle  coming  from  the 
opposite  direction.^^  Unless  the  street  is  sufficiently  wide,  the 
overtaking  automobile  is,  considered  from  the  point  of  view 
of  a  vehicle  approaching  from  the  other  direction,  on  the 
wrong  side  of  the  highway.  Due  care  would  seem  to  require 
that  one  should  not  pass  a  traveler  in  front  at  a  time  when 
the  passage  will  bring  him  into  danger  of  collision  with 
another  vehicle.^  He  is  not  entitled  to  pass  a  vehicle  on  the 
left  at  the  risk  of  other  vehicles  which  have  equal  rights  and 
which  are  coming  from  the  other  direction." 

24.  Nadeaa  v.  Sawyer.  73  N.  H.  70.  automobile  directly  behind  the  ped- 
69  Atl.  369.  dler's  wagon,  which  obstructed  defend- 

25.  Section  254.  ant's  view.     From  this   and  from  the 

26.  Nafziger  v.  Mahan  (Mo.  App.),  fact  as  the  jury  might  have  found,  that 
191  S.  W.  1080.  the  automobile  turned  rather  sharply  to 

27.  Smith  v.  Bainard,  82  N.  J.  L.  the  left,  struck  the  left  fore  wheel  of 
468,  81  Atl.  734,  wherein  it  was  said:  plaintiff's  wagon  at  an  angle,  as  testi- 
*' Returning  to  the  nonsuit,  the  situa-  fied,  and  with  enough  force  to  throw 
tion  was  this:  Plaintiff's  wagou  on  all  three  occupants  out  of  it  and  kill 
the  right  of  the  road  going  east,  com  one  of  them,  it  was  entirely  open  to  tho 
pelled  to  turn  out  slightly  to  the  left  jury  to  infer  that  defendant  had  '  failed 
by  a  wagon  standing  at  the  south  curb,  to  keep  a  proper  lookout  and  have  his 
and  in  the  act  of  passing  tlie  peddler's  automobile  under  proper  control;'  and 
wagon,  which  was  going  west  and  about  that  if  he  had  done  either,  the  accident 
in  the  middle  of  the  road  ;  defendant 's  would  not  liave  i  esulted.     As  has  been 


Collisions  With  Other  Vehicles.  451 

Where  an  automobilist,  on  overtaking  and  attempting  to 
pass  two  heavily  loaded  trucks  on  a  road,  drove  his  automobile 
between  the  rear  truck  and  a  passing  carriage,  cleared  the 
rear  truck,  and  struck  the  head  one,  resulting  in  injury  to 
himself  and  his  automobile,  and  the  drivers  of  the  trucks  had 
stopped  their  horses  to  res.t  them,  and  the  head  truck  was 
nearer  the  center  of  the  road  than  the  other  and  because  it 
was  dark  and  the  road  curved  sharply  and  was  on  a  grade, 
the  automobilist 's  lights  did  not  disclose  the  trucks  until  he 
was.  upon  them,  it  was  held  that  the  accident  was  f-ansod  by 
the  automobilist 's  own  negligence.^ 

Sec.  386.  Overtaking  and  passing  —  unexpected  stop  of  for- 
ward car. 

The  driver  of  a  vehicle  may  be  charged  mth  negligence,  if 
he  suddenly  stops  his  conveyance  so  that  a  vehicle  proceeding 
closely  behind  is  unable  to  avoid  a  collision.^  In  case  of  a  col- 
lision under  such  circumstances,  the  negligence  of  both  parties 
is  a  question  within  the  province  of  the  jury.^*  Statutes  and 
municipal  ordinances  in  many  cases  require  the  driver  of  the 
forward  conveyance  to  indicate  his  intention  of  bringing  his 
car  to  a  stop;'^  and  a  violation  of  such  a  regulation  may  form 
a  basis  for  a  charge  of  negligence.^^  Where  an  automobile  is 
passing  over  the  street  in  front  of  another  motor  vehicle  and 
sufficiently  near  to  render  a  collision  probable  or  possible  in 
case  it  should  suddenly  stop,  it  would  seem  that  due  care 
would  require  that  some  warning  be  given  to  indicate  such  an 
intention.    So,  where  an  automobile  passed  another  and  after 

said,  if  the   defendant's  duty  was   to  the  jury." 

pass  the  peddler's  wagon  on  the  left,  he  28.  Lorenze    v.     Tisdale,     127     App. 

was  not  entitled  to  do  so  entirely  at  Div.    CN.   Y.)    433,    111   N.    Y.   Suppl. 

the   risk  of  other  vehicles  with   rights  173. 

equal    to   his   own    and   which,    coming  29.  Strever  v.  Woodward,   178   Iowa, 

from   the   opposite    direction,   had   pri-  30.  158  N.  W.  504. 

marily  at  least  as  much  right  as  he  to  30.  Scott  v.  CLeary,  157  Iowa,  222. 

utilize  the   space   to  the  south  of  the  138   N.  W.  513;   Earle  v.   Pardington. 

peddler's  wagon.     As  to  such  vehicles  116  N.  Y.  Suppl.  675. 

a  duty  of  reasonable  care  rested  upon  31.  Section  264. 

him   to  discover  and   avoid   them;   and  32.  Clark  v.  Weathers.   178  Tnwn.  07, 

whether  he   exercised   such   care,  under  ITiO  X.  W.  ^HH. 

the   circum8ta.nce8,  was  a  question    for 


452 


Thk  T.aw  of  Automobiles. 


coming  in  front  of  it  suddenly  stopped,  causing  a  collision, 
evidence  of  a  custom  to  give  warning  of  such  intention  was 
held  to  be  properly  received  as  bearing  upon  the  question  of 
the  exercise  of  due  care.^  The  act  of  the  driver  of  an  auto- 
mobile, who,  while  driving  twenty-five  feet  from  the  curb  in 
violation  of  a  traffic  ordinance,  twice  gives  a  stop  signal,  but 
stops  only  after  the  second  one,  constitutes  such  negligence 
as  precludes  the  owner  of  the  auto  from  a  recovery  of  dam- 


38.  O'Neil  v.  Potts  (Minn.),  153  N. 
W.  856.  The  court  said  in  this  con 
nection:  "This  evidence  of  the  cus 
torn  does  not  appear  to  have  been 
offered  to  show  that  drivers  of  automo- 
biles were  bound  by  the  practice.  De- 
fendant insisted  that  it  was  proof  of 
what  the  ordinary  driver  does  under 
like  cireumstances,  that  it  was  evidence 
to  go  to  the  jury  on  the  issue  of  negli- 
gence, and  that  it  bore  on  the  question 
as  to  whether  or  not  plaintiff,  Mrs. 
O'Neil,  or  the  defendant  or  both  had 
failed  to  exercise  due  care  in  driving 
their  automobiles.  The  foundation  laid 
and  the  proof  of  the  custom  were  not 
in  highest  degree  satisfactory,  but  we 
cannot  say  that  there  was  not  some  evi- 
dence tending  to  show  the  custom  of 
usual  practice.  The  court  admitted  the 
testimony  as  bearing  upon  the  question 
of  ordinary  care.  The  case  was  sub- 
mitted to  the  jury  under  proper  instruc- 
tions. The  court  charged  that:  'It  is 
a  question  for  the  jury  to  determine 
whether,  in  the  exercise  of  care  an<l 
prudence,  the  plaintiff  should  have 
given  any  warning,  or  could  have  given 
any  warning,  or  whether  there  was  any- 
thing further  she  could  have  done  to 
prevent  the  collision  which  she  did  not 
do.  It  is  a  question  of  fact  for  the 
jury  to  determine  from  all  the  evidence 
in  the  case.'  There  was  no  exception 
taken  to  this  instruction,  nor  is  it  ehal 
lenged  as  error..  The  learned  trial 
judge  submitted  the  case  on  the  theory 
that    every   person   operating   an    auto- 


mobile  must   use   that   degree    of    care 
which   a   person    of   ordinary   prudence 
would  exercise  under  the  same  or  simi- 
lar cireumstances,  that  in  some  situa- 
tions greater  care  is  required  than  in 
otliens,  depending  upon  the  dangers  in- 
volved ;  that  the  care  must  be  commen 
surate    with   the   danger,   and   that   the 
failure  to  exercise  such  care  is  negli- 
gence.    In  submitting  the  case  to  the 
jury  on  the  question  of  Mrs.  O 'Neil's 
contributory   negligence   the    court    in- 
structed the  jury  that  the  same  rules 
and  the  same  degree  of  care  would  be 
required  on  her  part  as  would  be  re- 
quired on  the  part  of  defendant,  that 
it  was  her  duty  to  use  reasonable  care 
under     the     circumstances,     and     that 
whether  or  not  she  used  reasonable  care 
in  the  management  of  her  car  was  a 
question  for  the  jury  to  determine.  .  .  . 
The  evidence  in  relation  to  the  custom 
is  far  from  conclusive,  but  we  cannot 
say    that   it    was   improperly   admitted. 
The   f(uestioii    as   to   whether   a   proper 
Foundation  was  laid  was  largely  in  the 
discretion   of   the  trial   court.     It   was 
nowhere   claimed   that   the   custom  was 
binding  upon  the  plaintiff.     It  was  in- 
troduced  as   evidence  tending  to   show 
what    was   usually  done   by   drivers   of 
automobiles      under      similar      circum- 
stances.    The  failure  to  conform  to  the 
practice  was  not  in  itself  want  of  ordi- 
nary care  (Texas  &  P.  Ry.  v.  Behymer, 
189    U.    S.    468;    Wabash    Ry.    v.    Mc- 
Daniels.   107  U.  S.  454)." 


Collisions  With  Other  Vehicles.  453 

ages  sustained  by  another  car  running  into  its  rear.'*  In  an 
action  for  damages  for  injury  to  an  automobile  in  a  collision 
claimed  to  have  been  caused  by  the  defendant's  turning 
sharply  across  the  path  of  the  plaintiff's  automobile,  thereby 
necessitating  a  similar  turn  by  the  latter  and  a  consequent 
collision  with  a  car  in  the  rear,  the  questions  of  negligence 
and  contributory  negligence  were  held  to  be  questions  of  fact.*^ 

Sec.  387,  Overtaking:  and  passing-  —  passing:  near  comer. 

When  two  automobiles  moving  in  the  same  direction  are 
approaching  an  intersecting  road  or  street,  the  driver  of  the 
rear  car  should  consider  that  the  driver  of  the  forward  car 
may  desire  to  turn  the  corner  into  the  intersecting  street.  If 
the  forward  car  should  turn  to  the  left  at  the  saiiio  time  that 
the  rear  car  should  attempt  to  pass  on  the  left,  a  collision  is 
possible.  It  is  noAv  a  matter  of  statute  law  in  many  jurisdic- 
tions that  the  driver  of  the  forAvard  vehicle,  when  wishing  to 
turn  a  corner  under  such  circumstances,  shall  give  a  signal 
of  his  intention.36  The  signal  should  be  given  although  the 
driver  of  the  forward  car  is  unaware  of  the  approach  of  the 
other  car.37  When  a  signal  is  given  in  accordance  with  the 
statute,  and  a  collision  nevertheless  results,  it  is  a  question  for 
the  jury  whether  the  parties  are  guilty  of  negligence.^^  In  an 
action  for  damages  due  to  the  defendant's  automobile  colliding 
A^ath  the  plaintiff's  carriage,  going  in  the  same  direction,  the 
question  Avhether  the  defendant  was  negligent  in  attempting 
to  pass  the  plaintiff  on  the  left,  as  the  law  provides,  near  a 
corner  which  they  were  approaching,  when  he  knew  that  if 
the  plaintiff  should  turn  the  corner  a  collision  would  occur, 
and  that  a  delay  of  a  few  moments  would  show  whether  the 
plaintiff  was  to  turn  or  not,  was  one  for  the  jury.^  Where 
the  driver  of  a  horse,  before  turning  into  an  intersecting 
street,  looks  behind  and  sees  the  defendant's  automobile  oth- 

34.  Russell    v.    Kemp,    95    Misc.    (N.       Pao.  660. 

Y.)  582,  159  N.  Y.  Suppl.  865.  38.  Dnly  v.  ra«>p.  SS  N.  T.  L.  2n.5.  0') 

35.  Page  v.  Brink'."?  Ohicagrt  Pity  Ex-       At!.  973. 

press  Co.,  192  111.  App.  389.  39.  See  Mendelson  v.  Van  Rensselaer. 

36.  Daly  v.  Case,  88  N.  .T.  L.  295,  95  118  App.  Div.   (N.  Y.)   51fi.   103  N.    V. 
Atl.  973.  Suppl.  578. 

37.  Litherbury  v.  Kimmet  (Cal.),  19.'i 


454  The  Law  of  Automobiles. 

fourth  of  a  block  away  and  going  at  between  eighteen  and 
twenty  miles  an  hour,  and  is  struck  by  the  automobile  when 
it  attempts  to  pass  on  the  side  toward  which  he  is  driving,  it 
is  a  question  for  the  jury  whether  the  accident  is  the  result 
of  the  defendant' s  sole  negligence/^^  In  an  action  for  injuries 
to  a  plaintiff's  horse  and  buggy,  where  the  evidence  is  con- 
flicting as  to  whether  the  plaintiff  was  guilty  of  contributory 
negligence  in  driving  on  the  left  side  of  a  street  near  a  turn, 
it  was  held  that  the  findings  for  the  plaintiff  were  supported 
by  evidence  that  the  automobile  struck  the  left  side  of  the 
buggy  before  it  had  turned  straight  with  the  street.'^ 

Sec.  388.  Turning  corners  —  in  general. 

The  driver  of  an  automobile  when  turning  a  corner  is  bound 
to  exercise  due  care  not  to  cause  injury  to  other  travelers. 
The  turning  of  a  corner  at  a  high  rate  of  speed  may  justify 
the  jury  in  charging  the  driver  of  an  automobile  with  negli- 
gence.^ Where  one  turns  a  corner  on  a  wet  pavement  at  such 
a  speed  that  the  automobile  skids  and  a  collision  with  another 
vehicle  results  from  the  skidding  or  from  the  attempt  of  the 
driver  to  straighten  his  course,  the  jury  may  properly  charge 
the  driver  with  negligence.^^  If  the  driver  turns  the  corner 
at  an  excessive  speed,  he  may  be  liable  for  injuries  sustained 
in  a  collision  with  another  vehicle,  though  the  collision  would 
not  have  happened  had  there  not  been  children  in  the  street 
whom  the  driver  tried  to  avoid,  for  the  jury  may  properly 
find  that  the  excessive  speed  was  a  proximate  cause  of  the 
collision.^*  The  course  to  be  pursued  around  a  comer  is  now 
generally  prescribed  by  statute  or  municipal  ordinance,  and 
the  requirements  should  be  obeyed.*^ 

40.  Hallissey  v.  Rothschild  &  Co.,  203  N".  W.  179.     And  see  section  308.    . 
111.  App.  283.  43.  Wright  v.   Young,   160  Ky.   636, 

41.  Schoening  v.  Young,  35  Wash.  90.  170  S.  W.  25.     And  see  section  338. 
104  Pac.  132.  44.  Conlon    v.    Trenkhorst,    195    111. 

42.  Wright   v.   Young,   160   Ky.   636,  App.  335. 

170  S.  W.  25;  MacDonald  v.  Kusch,  188  45.  City  of  Oshkosh  v.  Campbell,  151 

N.  Y.  App.  Div.  491,  176  N.  Y.  Suppl.       Wis.  567,  139  N.  W.  316. 
823;  Calahan  v.  Moll,  160  Wis.  523,  152 


Collisions  With  Other  Vehicles.  455 

Sec.  389.  Turning  corners  —  turning-  towards  the  right. 

When  the  driver  of  an  automobile  desires  to  turn  to  the 
right,  his  course  is  generally  simple.    His  principal  duties  are 
to  avoid  pedestrians  at  the  crosswalks  and  vehicles  proceed- 
ing along  the  street  into  which  he  is  turning.     Statutory  or 
municipal   regulations  may   require  him   to  keep  a  certain 
distance  from  the  curb  when  turning  the  corner,  or  may  re- 
quire him  to  turn  as  close  to  the  curb  as  possible.**^    Where 
an  ordinance  required  a  person  driving  an  automobile,  upon 
turning  the  corner  of  any  street,  ^'to  leave  a  space' of  at  least 
six  feet  from  the  curb  and  the     .     .     .     automobile,"  and  it 
appeared  that  along  the  street  a  building  was  being  erected 
and  that  debris  had  been  piled  at  the  corner  around  which 
a  fence  or  barricade  had  been  constructed,  compelling  pedes- 
trians to  leave  the  regular  walk,  step  into  the  street  and  walk 
around  the  outside  of  the  fence  or  barricade,  it  was  held  that 
such  fence  became  the  curb  within  the  meaning  of  the  ordi- 
nance.^'' 

Sec.  390.  Turning-  corners  —  turning-  towards  the  left. 

One  wishing  to  turn  a  corner  towards  the  left  must,  not  only 
exercise  due  care  to  avoid  approaching  vehicles,  but  must 
also  use  reasonable  care  to  avoid  a  collision  with  a  vehicle 
which  is  approaching  from  his  rear  and  attempting  to  pass  on 
the  left  side  at  the  same  time  that  he  is  moving  toward  the 
left  to  turn  the  corner.    Moreover,  he  must  take  proper  pre- 
cautions for  the  avoidance  of  vehicles  proceeding  along  the 
intersecting    street.      Municipal    regulations    and    statutory 
enactments  now  generally  prescribe  the  course  to  be  followed 
by  one  turning  toward  the  left  at  a  street  intersection.    When 
so  turning,  the  driver  is  generally  forbidden  to  cut  the  corner, 
but  must  pass  to  the  right  of  the  center  of  the  intersecting 
streets.    The  failure  to  obey  such  a  requirement,  if  it  is  the 
proximate  result  of  a  collision  with  another  vehicle,  may  pre- 
clude the  guilty  driver  from  recovering  for  his  injuries  on  the 
theory  of  contributory  negligence,  and  may  render  him  liable 

46.  Frank   C.   Weher   Co.   v.    Steven-  47.  Domke    v.     Gunning.     62    Wash. 

3on  Grocery  Co.,  194  III.  App.  432.  629,  114  Pac.  436. 


456  The  Law  of  Automobiles. 

for  the  injuries  sustained  by  the  persons  in  the  other  vehicle.'^*' 
Indeed,  if  no  excuse  is  shown  for  the  cutting  of  the  corner 
and  it  is  a  proximate  cause  of  a  collision,  a  finding  of  negli- 
gence can  hardly  be  avoided.'^^  But  the  violation  is  not  generally 
considered  negligence  as  a  matter  of  law.^^  The  failure  to 
make  a  wide  turn  may  be  excused  when  the  condition  of  the 
highway  makes  such  a  turn  impracticable  or  dangerous.^^ 
Where  the  primary  cause  of  an  automobile  collision  is  the 
defendant's  violation  of  the  rules  of  the  road  by  running  on 
the  wrong  side  of  the  road  when  approaching  an  intersecting 
road  and  cutting  the  corner  at  the  intersection,  he  cannot 
evade  the  consequences  of  his  negligence  by  setting  up  that 
the  plaintiff,  who  originally  was  on  the  proper  side  of  the 
cross  street,  swerved  in  the  emergency  to  the  wrong  side  of 
the  cross  street  in  an  attempt  to  avoid  the  coUision.^^  Where 
the  defendant's  automobile  collided  with  the  plaintiff's  car- 
riage in  attempting  to  pass  when  the  plaintiff  was  turning  a 
corner,  the  question,  whether  the  plaintiff's  attempt  to  turn 
the  corner  by  keeping  to  the  left  in  the  usual  beaten  path  when 
the  law  required  keeping  to  the  right,  was  held  to  be  a  matter 
for  the  jury.^* 

48.  Arkansas. — Temple  v.  Walker,  127  Washim.gton. — Hellan  v.  Supply  Laun- 

Aik.  279,  192  S.  W.  200.  dry    Co..    94    Wash.    683,    163    Pac.    9: 

Illhwis.—Wiilker  x.  HilUiTid.  20.5  Til.  Stubbs  v.  Molbergh,  108  Wash.  89,  182 

App.  243.  Pac.  936,  6  A.  L.  R.  318. 

Massachys<tls.—B,ice  v.  Lowell  Buick  49.  Jacobs  v.  Richard  Carvel  Co.,  1,50 

Co.,  229  Mass.  53,  118  N.  E.  185.  N.  Y.  Suppl.  766. 

MicMr/a?).-— Everhard  v.  Dodge  Bros.,  50.  Toniple  v.  Walker,  127  Ark.  27'.i, 

202  Mich.  48,  167  N.  W.  953.  192  S.  W.  200.     See  also  Eberle  Brew 

Missouri. — Bricknell  v.  Williams.  180  ing  Co.  v.  Briscoe  Motor  Co.,  194  Mich. 

Mo.  App.  572,  167  S.  W.  607.  140.   160  N.  W.  440. 

iVew  Yor/^;.— .Jacobs  V.  Richard  Carvel  51.  Hamilton  v.  Young    (Iowa),   171 

Co.,  156  N.  Y.  Suppl.  766;  MacDonald  N.  W.  694. 

V.  Kuseh,  188  N.  V.  App.  Div.  491,  176  52.  Bain    v.     Fuller,    29    D.     L.     R. 

N.  Y.  Suppl.  823.  (Canada)   113. 

South  Dakota. — Boll  v.  Grue.sncr.  176  53.  Mendelson  v.  Van  Rensselaer,  IIS 

N.  W.   517.  >f-  Y.  App.  Div.  :.16.  103  N.  Y.  Suppl. 

Texas.— Zucht    v.    Brooks    (Te.\.   Civ.  578. 
App.),  216  S.  W.  684. 


Collisions  With  Other  \'ehicles.  457 

Sec.  391.  Approaching-  intersecting  streets  —  in  general. 

In  the  absence  of  statute'  or  municipal  ordinance  givinji^ 
travelers  in  one  direction  special  privileges,  il'  two  travelers 
are  approaching  each  other  at  right  angles,  as  a  general  rule, 
the  rights  of  each  are  equal,  and  each  is  bound  to  exercise 
reasonable  care  to  avoid  injury  to  the  other. ^  To  succeed  in 
an  action  for  injuries  arising  from  the  collision,  the  plaintiff 
must  show  the  negligence  of  the  other  party.*  If  the  driver 
of  each  of  the  colliding  vehicles  is  guilty  of  negligence  con- 
tributing to  the  injury,  neither  can  recover.^'  A\liat  is  a 
proper  degree  of  care  may  vary  according  to  the  circumstances 
of  particular  cases.  Under  some  conditions,  a  speed  which 
would  not  be  considered  excessive  or  even  moderate  under 
other  circumstances,  would  he  deemed  reckless.  If  the  street 
intersection  is  one  which  is  nmch  frequented  by  vehicles  and 
pedestrians,  a  much  greater  degree  of  vigilance  would  be 
required  than  at  one  over  which  there  was  little  traffic.^^  The 
degree  of  care  which  the  driver  must  exercise  is  one  which  a 
reasonably  prudent  man  would  exercise  under  the  same  cir- 
cumstances. A  driver  of  a  motor  vehicle  is  bound  to  know 
that  at  street  intersections  other  vehicles  may  approach  to 
cross  or  to  turn  into  the  street  along  which  he  is  traveling. 
He  should,  therefore,  operate  his  car  Avlth  that  degree  of  care 
which  is  consistent  with  the  existing  conditions,  the  rate  of 

54.   CaK/ornw.— Bidwell   v.   Los    An-  que,  72  N.  H.  531,  57  Atl.  927. 

geles,    etc.,    R.   Co.,    169   Cal.    780,    148  New  Jersey. — Erwin  v.  Traud,  90  N. 

Pac.  197.  J.    L.    289,    100    Atl.    184;    Paulsen    v. 

Illinois.— Hnton   v.   Iseman,   212   111.  Klinge,  92  N.  J.  L.  99,  104  Atl.  95. 

App.  255.  New      York. — Towner     v.      Brooklyn 

Indiana.— Elgin   Dairy   Co.   v.   Shep-  Heights  R.  Co.,  44  N.  Y.  App.  Div.  628. 

jjard  (Ind.  App.),  103  N.  E.  433.  60    N.    Y.    Suppl.    289;    Van    Ingen    v. 

Iowa. — Wagner  v.  Kloster,  175  N.  W.  Jewish  Hospital.   182  App.  Div.  10,  169 

840.  N.    Y.   Suppl.  412. 

Louisiana. — Shields  v.  Fairchild,   130  Pennsylvanyj. — Boggs   v.   Jewell   Tea 

La.  648,  58  So.  497.  Co.,  263  Pa.  413,  106  Atl.  781;  Brown 

Minnesota. — Carson    v.    Turrish.    140  v.  Chambers.  65  Pa.  Super.  Ct.  373. 

Minn.  445,  168  N.  W.  340.  And   see  sections  260-262. 

Missouri. — W^arrington  v.  Byrd   (Mo.  55.  P>ayles  v.  Plumb,  141  N.  Y.  App. 

App.),  181  R.  W.   1079.  Div.  786,  126  N.  Y.  Suppl.  425. 

Nebraska. — Barrett  \.  Alamito  Dairy  56.  Bernardo   v.   Legaspi,    29    Philip- 
Co.,  181   N.  W.   5.50.  pine  Rep.  12. 

New     Hampshire.— (i'lW^vrt     v.     Bur-  57.  Section  279. 


458  The  Law  of  Automobiles. 

speed  and  his  control  over  the  car  varying  according  to  the 
traffic  at  the  particular  place.  'He  should  keep  a  careful 
watch  ahead  so  as  to  avoid  injury  to  persons  approaching  in 
vehicles  on  the  intersecting  street.^*  But  if  a  driver,  as  a 
reasonable,  cautious  and  prudent  man,  believes  he  can  drive 
over  the  intersection  before  the  other  car  reaches  it,  he  is  not 
negligent  in  undertaking  to  do  so,  and  if  the  driver  of  the 
other  car  causes  a  collision  by  reason  of  his  negligent  speed, 
the  latter  may  be  liable.^^  The  weather  conditions,  such  as  a 
blinding  snow  storm  or  a  heavy  rain,  may  affect  the  degree 
of  care  to  be  exercised.^^  Where  there  is  an  obstruction  to  an 
automobilist's  view  of  a  street  crossing,  he  must  exercise  a 
degree  of  care  such  as  a  reasonably  prudent  man  would  exer- 
cise under  the  same  circumstances,  to  avoid  injury  to  pedes- 
trians or  other  vehicles  at  the  crossing.^^  The  question  of 
which  of  the  parties  was  guilty  of  negligence,  is  generally  for 
the  jury."^ 

Sec.  392.  Approaching  intersecting  streets  —  crowded  thor- 
oughfares. 

It  is  a  fundamental  rule  in  the  law  of  negligence  that  the 
degree  of  care  to  be  exercised  is  proportionate  to  the  danger. 
Thus  the  operator  of  a  motor  vehicle  when  approaching  an 
intersecting  street  where  traffic  is  crowded  must  exercist^  a 
greater  degree  of  alertness  and  care  than  when  approaching 

58.   Alabama. — Ray  v.   nraimun.    196  uot  an  absolute,  control  of  the  automo- 

Ala.  113,  72  So.  16.  bile   is   required   of   the   driver.      Bald- 

lowa. — Fisher   v.   Ellstou,    174   Iowa,  win's  Adm'r  v.  Maggard,  162  Ky.  424, 

864,  156  N.  W.  422.  172  S.  W.  674. 

Massachusetts. —  Newton       v.       Mc-  59.  Wagner  v.   Kloster    (Iowa),    17.') 

Bweeney,  225  Mass.  402,  114  N.  E.  667.  N.  W.  840. 

Mississippi. — Ulmer    v.    Pistole.    115  60.  See  section  278. 

Miss.  485,  76  So.  522.  61.  Deputy   v.   Kimmell,    73    W.    Va. 

Missouri.— Rov!e    v.    Hammond,    172  595,  80  S.  E.  919. 

Mo.  App.  203,  157  S.  W.  880;  Mitchell  62.  Whattey    v.    Nesbitt    (Ala.).    85 

V.  Brown  (Mo.  App.),  190  S.  W.  354.  So.  550;  Gustavson  v.  Hester,  211  111. 

Pennsylvania. — McClung  v.   Pennsyl-  App.    439;    Rabinowitz   v.    Hawthorne, 

vania  Taximeter  Cab  Co.,  252  Pa.  St.  89  N.  J.  L.  308,  98  Atl.  315 ;  Mead  Co., 

478,  97  Atl.  694;  Bew  v.  John  Daley.  Inc.  v.   Products  Mfg.  Co.,    110   Misc. 

Inc.,  260  Pa.  418,  103  Atl.  832.  (N.  Y.)  648,  180  N.  Y.  Suppl.  641. 

Not  absolute  control. — A  rea.sonable, 


Collisions  With  Other  Vehicles.  459 

a  street  in  the  more  open  or  suburban  sections  of  a  city." 
Indeed,  where  one  of  the  intersecting  streets  is  a  main  artery 
of  traffic,  the  vehicle  approaching  from  a  street  of  minor 
importance  should  wait  and  give  way  to  the  traffic  along  the 
more  crowded  thoroughfare.**  The  rule  of  the  equal  rights  of 
travelers  at  street  intersections  gives  way  in  some  cases  to 
the  imperative  need  not  to  interfere  with  the  traffic  along  the 
congested  Avay.  But  it  has  been  held  that,  in  the  absence  of 
positive  regulation  on  the  subject,  it  is  not  proper  to  show  a 
custom  giving  priority  to  travelers  on  certain  streets  as 
against  those  on  cross  streets.^  Where  by  ordinance,  it  is 
made  unlawful  for  the  driver  of  an  automobile  to  pass  over 
a  crossing  at  a  greater  speed  than  four  miles  an  hour,  a 
bicyclist  or  person  in  another  vehicle  is  entitled  to  the  pro- 
tection afforded  thereby.^ 

Sec.  393.  Approaching  intersecting  streets  —  priority  of  first 
arrival. 

When  two  vehicles  are  approaching  a  street  intersection  on 
different  streets,  neither  is  justified,  as  a  general  rule,  in 
assuming  that  the  other  will  slacken  his  speed  so  as  to  give 
him  priority  at  the  crossing.*^  When  one  sees  that  there  is 
apparent  danger  of  a  collision,  due  care  would  seem  to  require 
that  he  decrease  his  speed ;  or,  if  both  discover  the  danger  at 
the  same  time,  each  should  take  steps  to  avoid  the  impending 
collision.*^  But,  where  a  vehicle  reaches  a  crossing  distinctly 
ahead  of  one  approaching  on  an  intersecting  street,  the  one 
first  arriving  is  generally  regarded  as  having  the  right  of 
way.^^    If  the  later  arrival  proceeds  neglectful  of  the  other's 

63.  Ceechi      v.      Lindsay,      1      Boyce  67.  Brown   v.   Chambers,   65   Pa.   Su- 
(Del.)   185,  75  Atl.  376,  reversed  Lind-  per.  Ct.  373.     And  see  section  260. 
say  V.  Ceechi,  3  Boyce   (Del.)    133,  80          68.  See    Elgin    Dairy    Co.    v.    Shep- 
Atl.    523;    Grier   v.    Samuel,    4    Boyce  pard  (Ind.  App.),  103  N.  E.  433;  Pas- 
(Del.)    106,  86  Atl.   209.  cagoula   St.    Ry.    &   Power  Co.   v.    Mr- 

64.  Monrufel  v.  B.  C.  Electric  Co.,  9  Eachem,  109  Miss.  380.  69  So.  \S^. 
D.  L.  R.  (Canada)  569.  69.  Rump   v.   Keebles.    175   111.    App 

65.  Carson  v.  Turrish.  140  Minn.  445,  619:    Mayer  v.   Mellette,   65   Ind.   App. 
168  N.  W.  349.  54.   114  n.  E.  241;  Barrett  v.  Alimito 

66.  Ludwigs  v.  Dumas,  72  Wash.  68,  Dairy  Co.    (Neb.).   1^50;   Rabinowitz  v. 
129  Pac.  903.  Hawthorne.    89   N.   J.   L.   308.   98    Atl. 


460  The  Law  oi--  x\.utoimobiles. 

rights  and  a  collision  ensues,  the  injury  resulting  may 
properly  be  attributed  to. the  negligence  of  such  later  arrival^" 
It  is  the  latter's  duty  to  slacken  his  speed  or  stop  his  car  so 
that  a  collision  will  not  ensue.^^  Thus,  if  a  wagon  reaches  a 
street  crossing  ahead  of  an  automobile,  it  has  the  primary 
right  to  proceed  across  the  street ;  and  this  is  so  although  the 
driver  of  the  wagon  saw  the  automobile  approaching,  pro- 
vided it  was  not  so  near  that  a  collision  would  naturally  he  ex- 
pected to  follow.  The  driver  of  the  wagon  is  under  no  duty 
to  anticipate  the  negligence  of  the  jjersons  in  the  motor 
vehicle.'^  The  rule  granting  priority  to  the  first  arrival  is 
not  in  hostility  to  the  principle  of  the  equality  of  right  in  the 
streets.  The  principle  of  equality  suggests  the  right  of  the 
first  one  at  a  crossing  to  use  it.  The  right  is  not  an  absolute 
one  exercisable  arbitrarily  or  irrespective  of  the  existence 
of  other  conditions,  or  without  regard  to  the  rights  and  safety 
of  others.  The  principle  is  little,  if  anything,  more  than  a 
convenient  and  usually  fair  rule  for  the  guidance  of  travelers, 
and  in  no  sense  is  it  a  fixed  test  of  negligence.  It  must  be 
exercised  with  decent  respect  to  the  rights  of  others  and  with 
due  regard  to  the  character  of  the  travel  and  other  conditions 
present.'^  The  relative  rights  of  travelers  at  street  intersec- 
tions may  be  modified  by  statutory  or  municipal  regulation.^^ 

Sec.  394.  Approaching  intersecting  streets  —  priority  given 
by  statute  or  ordinance. 

While  under  the  common  law  rule  travelers  at  intersecting 
streets  have  equal  rights,  with  a  priority  given  to  one  who 

315:    McClung    v.    Pennsylvania    Taxi  Pa.  St.  478,  97  Atl.  694;  Yuill  v.  Berry- 
meter  Cat)  Co.,  252  Pa.  St.  478,  97  Atl.  man,  94  Wash.  458,  162  Pac.  513. 
694 ;  Boggs  v.  Jewell  Tea  Co.,  263  Pa.  71.  Yuill  v.  Berryman,  94  Wash.  458, 
St.  413,  106  Atl.  781 ;  Brown  v.  Cham-  162  Pac.  513. 

bers,   65  Pa.  Super.  Ct.   373;   Yuill  v.  72.  Robinson  v.  Clemons  (Cal.  App.), 

Berryman,  94  Wash.  458,  162  Pnc  513;  190  Pac.  203;  Barrett  v.  Alamito  Dairy 

W,  F.  Jahn  &  Co.  v.  Paynter,  99  Wash.  Co.    (Neb.),   181  N.  W.  550;   Brown  v. 

614,   170  Pac.   132.  Chambers,  65  Pa.  Super.  Ct.  373. 

70.  Rump   V.   Keebles,    175   111.   App.  73.  Carson  v.  Turrish,  140  Minn.  445, 

619;   Rabinowitz  v.   Hawthorne,   89   N.  168  N.  W.  349. 

J.    L.    308,    98    Atl.    315;    McChmg    v.  74.  Section  394. 
Pennsylvania    Taximeter   Cab   Co..   ;252 


Collisions  With   0th kr  Vehicles.  461 

reaches  the  intersection  distinctly  in  advance  ol"  another,  the 
rule  may  be  changed  by  statute  or  inunifipal  ordinance.  A 
regulation  may  properly  be  enacted  ^iviHji,-  to  travelers  along 
one  street  the  priority  over  those  api)r()aching  along  a  cross 
street,  the  intention  being  to  relieve  the  crowded  condition 
of  traffic  along  the  street  to  which  priority  is  given.'^^  And, 
even  where  an  advantage  may  not  be  grounded  on  the  traffic 
conditions,  modern  regulations  generally  require  the  traveler 
to  give  way  to  one  approaching  an  intersecting  street  on  the 
right  side.''®  One  of  the  difficulties  involved  under  such  a 
regulation  is  determining  when  one  approaching  from  the 
right  is  close  enough  so  that  he  can  be  said  to  be  ''approach- 
ing the  intersection.""  Such  a  regulation  imposes  on  the 
less  favored  traveler  an  affirmative  duty  to  keep  out  of  the 
other's  way,  and  requires  him  to  slow,  to  stop,  and  if  need  be 
to  reverse,  if  otherwise  the  vehicles  are  likely  to  come  into 
contact.'^  An  ordinance  giving  a  prior  right  to  travelers  on 
certain  streets  is  not  abrogated  by  a  statute  regulating  the 
operation  of  motor  vehicles,  where  the  statute  does  not  covor 

75.  Ray  V.  Brannan,  196  Ala.  113.  72  J.    L.    289.    100    Atl.    1^4:    Paulsen    v. 
So.   16;  Bruce  v.  Ryan,  138  Minn.  264,  Klinge,  92  N.  J.  L.  99,  104  Atl.  95. 
164  N.  W.  982.  New  Forfc.— Brillinger  v.  Ozias,  188 

76.  California. — Mathes  v.  Aggeler  &  N.  Y.  App.  Div.  221,  174  N.  Y.  Suppl. 
Musser  Seed  Co.  (Cal.),  178  Pae.  713;  282. 

Johnson  v.  Hendrick   (Cal.  App.),  187  P enmylvania.— Bickler     v.     Pullman 

Pac.    782;    Maxwell    v.    Western    Auto  Taxi  Service  Co.,  66  Pitts.  Leg.  Journ. 

Stage  Co.    (Cal.  App.),   189   Pae.  710;  (Pa.)    93;    Weber    v.    Breenbaum,    11.-? 

Kinney  v.  King   (Cal.  App.),  190  Pac.  Atl.  413. 

834;     Howard    v.    Worthington     (Cal.  South  Dakota. — Boll  v.  Gmesner.  176 

App.),  195  Pac.  709.  "NT.  W.  517. 

Connecticut. — Newman  v.  Apter,  112  Wa^hinpton. — Chilhet;;     v.     Parsons, 

Atl.    350;    Battilyon    v.    Smith    &   Son.  ^86    Pac.    272;    Nnr.t    v.    Hunter.    109 

Inc.,    112    Atl.    649;    Lamke    v.    Harty  Wash.  343.  186  Pac.  851. 

Bros.  Trucking  Co.,  114  Atl.  533.           '  "^"^^  bathes  v.  Aggeler  &  Musser  Seed  . 

Jott;a.-Kime   v.    Owens,    182   N.    W.    .  ^"•'  ^"^^  ^^1-  ^97,  178  Pac.  713:  Lee  v. 

399  Pesterfield,  77  Okla.  317,  188  Pac.  674. 

ir       7     J      nu-        ^^         xt-  t_   i       .. , «  78.   Kiunev  V.  King  (Cal.  Ann.).  190 

Maryland. — Chiswell  v.   Nichols,   112       „  •  "  '  ' 

^^j    ggg  Pac.  834;  Golden  Eagle  Dry  Goixlf.  C«. 

V.    Mockbee     (Colo.).     ISO    Par.     S.iO; 

Mvnncsota.-C^rBon  v.  Turrish,  140  Brillingor  v.  O^ias.  186  N.  Y.  App. 
Minn.  445,  168  N.  W.  349;  Lindahl  v.  dj^  221.  174  N.  Y.  Suppl.  282:  Hull  v. 
Morse,  181  N.  W.  323.  Crescent  Mfg.  Co..  109  Wash.   139.   186 

New  Jersey. — Erwin  v.  Traud,  90  N.      i>ac.  322. 


462  The  Law  of  Automobiles. 

the  subject  of  priorities  at  intersecting  streets.'^  The  viola- 
tion of  traffic  regulations  of  this  character  is  to  be  considered 
on  the  question  of  the  negligence  of  the  parties,^*^  and,  like 
other  violations  of  the  law  of  the  road,  may  create  a  presump- 
tion of  negligence  against  the  guilty  traveler.^^  It  still  re- 
mains, however,  the  province  of  the  court  and  jury  to  deter- 
mine whether  the  respective  parties  have  exercised  the  degree 
of  care  imposed  on  them;  and  the  fact  that  one  party  is 
entitled  to  priority  does  not  relieve  him  from  the  duty  of 
exercising  reasonable  care  to  avoid  injury  to  other  travelers.^ 
The  driver,  not  entitled  to  priority  may  properly  assume  that 
the  other  will  not  approach  at  an  excessive  speed.^'  One 
entitled  to  priority  under  the  law  is  nevertheless  required  to 
keep  a  lookout  for  cars  approaching  from  his  left ;  and,  if  he 
fails  in  this  respect,  he  may  be  charged  with  negligence." 
But,  until  he  discovers  to  the  contrary,  he  is  entitled  to  assume 
that  he  will  be  accorded  the  right  of  way.^^  One  entitled  to 
priority  along  a  certain  street  is  not  necessarily  allowed  to 
carry  such  privilege  wdth  him  when  he  is  turning  from  such 
street  into  a  cross  street.^^    When  making  the  turn,  he  must 

79.  Bruce   v.    Ryan,    138    Minn.    264,       Spawn  v.  Goldberg,  110  Atl.  565. 

164  N.  W,  982;  Freeman  v.  Green  (Mo.  New  Zorfc.— Ward  v.  Clark,  189  N.  Y. 

App.),  186  S.  W.  1166.    See  also  Seager  App.  Div.  344,  179  N.  Y.  Suppl.  466; 

V.  Foster,  185  Iowa,  32,  169  N.  W.  681,  Blum  v.  Gerardi.  Ill  Misc.  (N.  Y.)  617, 

8  A.  L.  R.  690.  182  N.  Y.  Suppl.  297  ;  Schultz  v.  Nichol- 

80.  Covel  V.  Price,  39  Cal.  App.  646,  son,  116  Misc.   (N.  Y.)   114. 

179  Pac.  540 ;  Bruce  v.  Ryan.  138  Minn.  Oklahoma. — Lee     v.     Pesterfield,     77 

264,  164  N.  W.  982.  Okla.  317,  188  Pac.  674. 

81.  Section  267.  Washington. — Greater    Motors    Corp. 

82.  Alabama. — Ray  v.   Brannan,    176  v.  Metropolitan  Taxi  Co.,  197  Pac.  327. 
Ala.  113,  72  So.  16.  83.  Golden  Eagle  Dry  Goods  Co.   v. 

Colorado.— Golden   Eagle  Dry  Goods  Mockbee  (Colo.).  189  Pac.  850. 
Co.  V.  Mockbee,  189  Pac.  850.                     ^      84.  Ulmer  v.  Pistole,  115  Mass.  485, 

Michigan. — Gleck   v.   Luckenbill,    183  76  So.  522;  Erwin  v.  Traud,  90  N.  J.  L. 

N.  W.  729.                                                  •  289,  100  Atl.  184.     But  see  Oberholzer 

Minnesota. — Roseman     v.     Petersou,  v.  Hubbell  (Cal.  App.),  171  Pac.  436; 

179  N.  W.  647 ;  Lindahl  v.  Morae,  181  Ward  v.  Clark,   189   N.  Y.  App.  Div. 

N.  W.  323.  344,  179  N.  Y.  Suppl.  466. 

Missouri. — Schneider  v.  Hawks  (Mo.  85.  Freeman   v.   Green    (Mo.   App.), 

App.),  211  S.  W.  681.  186  S.  W.  1166. 

New  Jersey. — Erwin  v.  Traud,  90  N  86.  Clark      v.      Fotheringham,      100 

J.   L,    289,    100   Atl.    184;    Paulsen   v.  Wash.  12,  170  Pac.  323. 
Klinge,  92  N.  J.  L.  99,  104  Atl.  95; 


Collisions  With  Other  Vehicles.  463 

exercise  caution  to  avoid  a  collision  with  vehicles  passing 
along  the  cross  street,  and  reasonable  care  may  require  that 
he  yield  or  delay  his  turn,  if  another  vehicle  is  then  passing." 

Sec.  395.  Vehicle  standing  in  street. 

For  a  reasonable  period,  the  owner  of  an  automobile  may 
permit  the  same  to  remain  motionless  in  the  street,  when  it 
will  not  unduly  impede  travel  along  the  street,  and  when  such 
practice  is  not  forbidden  by  statute  or  municipal  ordinance.^ 
When,  therefore,  a  motor  car  or  other  vehicle  is  lawfully 
standing  on  the  side  of  the  street  with  sufficient  room  for  other 
vehicles  to  pass  without  a  collision,  it  may  be  negligent  for 
another  vehicle  to  run  into  it.^^  Thus,  when  an  automobile 
which  was  standing  in  a  proper  place  along  a  highway  was 
struck  and  damaged  by  a  ladder  which  projected  from  a 
wagon,  the  owner  of  the  automobile  was  permitted  to  recover 
for  his  damages.^*^  It  may  be  that  in  some  cases  the  doctrine 
of  res  ipsa  loquitor  would  apply  when  a  standing  vehicle  is 
struck  by  a  moving  one,  so  as  to  place  on  the  driver  of  the 
moving  vehicle  the  burden  of  explaining  the  cause  of  the  acci- 
dent f^  but  the  doctrine  is  not  applicable  when  it  is  shown  by 
the  plaintiff  that  his  automobile  was  injured  on  account  of  a 
collision  between  a  street  car  and  a  truck  whereby  the  truck 
was  thrown  against  his  car.^^  Even  if  the  doctrine  were 
applicable  in  such  a  case,  it  would  not  operate  to  shift  the 
burden  of  proof  upon  the  truck  owner  to  show  that  the  proxi- 
mate cause  of  the  accident  was  negligence  in  the  operation  of 
the  railway,  as  the  truck  owner  was  bound  only  to  overcome 
any  presumption  of  negligence   on  his  part  which,   in   the 

87.  Buzich  v.  Toaman,  179  Iowa,  M'sc.  (N.  Y.)  527,  169  N.  Y.  Suppl. 
1019,  162  N.  W.  259;  W.  F.  Jahn  &  188;  Baum  v.  American  Ry.  Express 
Co.  V.  Paynter,  99  Wash.  614,  170  Pac.  Co.,  177  IST.  Y.  Suppl.  156;  Smoak  v. 
132;  Clark  v.  Fotheringham,  100  Wash.  Martin,  108  S.  Car.  472,  94  S.  E.  869. 
12,  170  Pac.  323.  90.  Denny  v.  Strauss  &  Co..  109  N.  Y. 

88.  See  section  340,  et  seq.  Suppl.  26. 

89.  Collins  v.  Marsh,  176  Cal.  639,  91.  Bauhofer  v.  Crawford,  16  Cal. 
169  Pac.  389;  Mitchell  v.  Kramer.  211  App.  679,  117  Pac.  931. 

111.  App.  563;  Odon  v.  Schmidt,  52  La.  92    O'Donohoe  v.  Duparquet,  Huot  & 

Ann.   219,   28   So.  350;   Denson   v.   M<'-  Moneuse  Co.,  67  Misc.  CN.  YA  435.  123 

Donald   Bro.s..    144    xMinii.    2.^2.    1 7 J    X.  .\.   V.  Suppl.  193. 
W.    108;    Albcrtson    v.   .\j;bbuLhLT,    iOJ 


464  The  Law  of  Automobiles. 

absence  of  explanation,  might  be  inferred  from  the  happening 
of  the  accident.^3  ^nt,  when  negligence  is  shown  on  the  part 
of  the  drivers  of  two  machines  approaching  an  intersecting 
street,  thereby  causing  one  to  swerve  and  strike  an  automobile 
standing  by  the  curb,  the  drivers  may  be  concurrent  tort- 
feasors and  may  be  sued  jointly  or  severally.^'  The  law  of 
the  road  requiring  vehicles  to  keep  on  the  right  side  of  the 
highway  has  no  application  in  an  action  for  injuries  arising 
from  a  motor  vehicle  running  into  carriage  or  other  convey- 
ance standing  by  the  side  of  the  highway .^^ 

A  person  leaving  an  automobile  unattended  in  the  street 
must  exercise  reasonable  care  to  avoid  injury  to  other  per- 
sons f'  and  whether  he  has  fulfilled  his  duty  of  care,  is  gen- 
erally a  question  for  the  jury.^^  The  absence  of  lights  on  a 
motor  vehicle  after  dark,  may  be  sufficient  to  charge  its  opera- 
tor with  negligence,^^  though  the  leaving  of  an  unlighted  car 
without  indication  of  danger  in  a  public  highway,  is  not  negli- 
gence as  a  matter  of  law.^^  The  driver  should  fix  the  brakes 
or  otherwise  adjust  its  mechanism  so  that  it  will  not  auto- 
matically start. 

Sec.  396.  Proximate  cause. 

Assuming  the  negligence  of  an  automobile  driver,  it  is  a 
general  rule  in  the  law  of  negligence  that  one  is  liable  for 
those  injuries  which  proximately  result  from  an  act  of  negli- 
gence.^ There  must  be  a  casual  connection  between  the  act  of 
negligence  and  the  resulting  injury.^    But  his  liability  extends 

93.  O'Donohoe  v.  Duparquet,  Huot  &  349,  132  Pac.  33,  48  L.  R.  A.  (N.  S.) 
Moneuse  Co.,  67  Misc.  (N.  Y.)  435,  123       827.    And  see  sections  344-348. 

N.  Y.  Suppl.  193.  99-  Nesbit  v.  Crosby,  74  Conn.   554, 

94.  Foley  v.  Lord,  232  Mass.  368,  122       51  Atl.  550. 

N.  E.  393.  1-  Hartje  v.  Moxley,  235  111.  164,  85 

95.  Smoak  V.  Martin,  108  S.  Car.  482.  N.  E.  216;  Greater  Motors  Corp.  v. 
94  S.  E.  869.  Metropolitan    Taxi    Co.    (Wash.),    197 

96.  American   Express   Co.   v.    Tony,  Pac.  327. 

126  Md.  254,  94  Atl.  1026.  2.  Morrison   v.   Clark,    196   Ala.   670, 

97.  American  Express  Co.  v.  Terry,  72  So.  305;  Ackerman  v.  Fifth  Ave. 
126  Md.  254,  94  Atl.  1026.  See  also  Coach  Co.,  175  App.  Div.  508,  162  N.  Y. 
Harris  V.  Burns,  133  N.  Y.  Suppl.  418.  Suppl.     49;      Carlisle     v.      Hargreaves 

98.  Jaquith    v.    Worden,    73    Wash.  (Wash.),  192  Pac.  894. 


Collisions  With  Other  Vehicles.  40.") 

to  all  injuries  which  are  the  proximate  result  of  the  negli- 
gence in  question.^  When  a  motor  vehicle  is  not  licensed  and 
registered  according  to  the  statute  on  the  suhject,  the  viola- 
tion of  the  law  does  not  generally  make  the  automobile  a 
trespasser,  and  its  owner  is  not  liable  as  such,  though  a 
different  rule  prevails  in  Massachusetts.*  The  failure  to  ob- 
serve the  law  is  not  a  proximate  cause  of  an  injury  occasioned 
by  the  machine.  But,  when  one  negligently  manages  a  motor 
vehicle  so  as  to  cause  another  conveyance  to  collide  with  a 
third  vehicle,  the  injury  to  the  second  or  third  vehicle  may 
be  held  to  be  the  proximate  result  of  the  negligence.^  Thus, 
where  the  driver  of  an  automobile  negligently  comes  into  a 
street  at  a  high  rate  of  speed  or  unlawfully  cuts  the  corner, 
so  that  another  automobile  in  veering  away  to  avoid  an  acci- 
dent, collides  with  a  plaintiff's  car,  the  driver  of  the  first 
mentioned  auto  may  be  liable  for  the  damages  to  the  plain- 
tiff's car.^  In  such  a  case,  whether  the  injury  is  the  proximate 
result  of  the  act  of  neglect,  may  be  a  question  for  the  jury." 
And  when  automobiles  collide  with  such  force  as  to  force  one 
of  them  against  a  pedestrian  or  other  vehicle,  the  negligent 
driver  may  be  liable  for  the  injuries,  although  it  was  not  his 
car  which  struek  the  pedestrian.^  Similarly,  if  a  collision 
forces  a  car  across  a  sidewalk  and  against  a  building  so  that 
an  occupant  of  the  building  is  thrown  down,  there  may  be 
liability.^  So,  too,  when  one  machine  strikes  a  wagon  and 
throws  out  an  occupant  thereof,  and  another  machine  follow- 
ing close  behind  strikes  the  occupant,  an  action  may  be  main- 
tained against  the  drivers  of  both  machines.^" 

3.  Haynes  v.  Sosa  (Tex.  Civ.  App.),  7.  Hellan  v.  Supply  Laundry  Co.,  94 
198  S.  W.  976.  Wash.  683,  163  Pac.  9. 

4.  Sections   125-127.  8.  Stuart  v.  Doyle   (Conn.),   112  Atl. 

5.  Page  V.  Brink's  Chicago  City  Ex-  653;   Sullivan  v.  William  Ohlhaver  Co., 
press  Co.,   192  111.  App.   389;   Jackson  291  111.  359,  126  N.  E.   191;  Meech  v. 
V.  Burns,  203  111.  App.  196;  Conley  v.  Sewall,  232  Mass.  460.  122  N.  E.  446. 
Lafayette  Motor  Car   Co.    (Mo.  App.),  9.  Howarth    v.    Barrett     (Pa.).     112 
221  S.  W.  165.  Atl.  536. 

6.  Jackson   v.    Burns,    203    111.    App.  10.  Baggy  v.  Miller,  180  Iowa   114i'.. 
196;  Hellan  v.  Supply  Laundry  Co.,  94  l'>2  N.  W.  854. 

Wash.  683,   163  Pac.  9. 

30 


466 


The  Law  or  Automobiles. 


Sec.  397.  Joint  liability  of  both  drivers  to  third  person. 

Where,  by  reason  of  the  concurrent  negligence  of  both 
drivers  of  two  colliding  vehicles,  a  passenger  in  one  is  injured, 
he  has  his  remedy  against  both  drivers."  The  cause  of  action 
is  a  joint  tort,  for  which  both  drivers  are  jointly  and  severally 
liable.^2  t^o  defendants,  under  such  circumstances,  may  be 
joined  as  defendants,  although  there  is  no  common  duty, 
common  design,  or  concert  of  action  between  them.^*  It  is  not 
material  that  one  of  the  defendants  is  a  taxicab  company,  and 
hence  as  a  common  carrier  of  passengers  is  charged  with  the 
highest  degree  of  care  to  avoid  injury  to  its  passenger."  The 
negligence  of  one  of  the  drivers  is  no  excuse  for  the  negli- 
gence of  the  other;  each  defendant  is  bound  to  answer  for 
the  results  of  his  own  negligence.^^    Thus,  the  fact  that  the 


11.  As  to  injuries  to  guests,  see 
Chapter  XXIV.  As  to  liability  for  in- 
juries to  a  passenger  carried  for  hire, 
see  sections  169-170. 

12.  Kilkenny  v.  Bockius,  187  Fed. 
382;  Carter  v.  Brown,  136  Ark.  23,  206 
S.  W.  71;  Blackwell  v.  American  Film 
Co.  (Cal.  App.),  192  Pac.  189;  Zucht 
V.  Brooks  (Tex.  Civ.  App.),  216  S.  W. 
684.  "  It  is  difficult  to  imagine  a  more 
typical  case  of  a  joint  tort  than  the 
case  of  two  drivers,  who  by  their  simul 
taneous  negligence  come  into  collision, 
with  a  force  that  is  the  resultant  of  the 
momentum  of  each  or  both,  and  which 
resultant  is  so  transmitted  to  a  passen 
ger  as  to  throw  him  out  of  one  of  the 
vehicles,  to  his  injury.  For  a  court  to 
analyze  an  event  of  this  kind  into  two 
causes  of  action,  so  distinct  and  inde- 
pendent that  the  two  defendants  could 
not  be  joined  in  a  single  action,  would 
bfe  to  ignore  physical  law  as  well  as 
common  law."  Kilkenny  v.  Bockius, 
187  Fed.  382. 

Amendment  of  complaint.— When  a 
complaint  alleges  that  two  defendants 
owned  and  negligently  operated  both 
automobiles,  whereby  they  came  into 
collision  to  the  damage  of  the  plaintiff. 


and  the  facts  are  that  the  defendants 
severally  owned  and  severally  operated 
the  automobiles,  the  declaration  should 
be  amended  to  state  the  case  the  plain- 
tiff intends  to  present  to  the  jury.  Kil- 
kenny V.  Bockius,  187  Fed.  382. 

Joint  tort-feasors. — "  Where  two  par- 
ties are  guilty  of  separate  acts  of  negli- 
gence which  jointly  and  concurrently 
co-operate  and  cause  an  injury,  the  par- 
ties are  joint  tort-feasors.  In  a  suit 
against  two  defendants  a  petition  is 
not  subject  to  demurrer  upon  the 
ground  that  there  was  a  misjoinder  of 
actions  or  parties  defendant,  where  the 
petition  alleges  that  the  plaintiff  was 
injured  in  a  collision  between  two  auto- 
mobiles caused  by  the  concurrent  negli- 
gence of  the  two  defendants  in  ap- 
proaching each  other  from  intersecting 
roadways,  each  driving  an  automobile 
at  an  illegal  rate  of  speed.  .Akin  v. 
Brantley  (Ga.  App.),  106  S.  E.,  214. 

13.  Mitchell  v.  Brown  (Mo.  App.), 
190  S.  W.  354;  Carlton  v.  Boudar,  118 
Va.  521.  88  S.  E.  174,  4  A.  L.  R.  1480. 

14.  Carlton  v.  Boudar,  118  Va.  521. 
88  S.  E.  174,  4  A.  L.  R.  1480.  And  see 
section  282. 

15.  BlackweU  v.   American  Film  Co. 


Collisions  With  Other  Vehicles. 


467 


vehicle  in  which  the  plaintiff  was  riding  did  not  have  the 
lights  required  by  statute,  does  not  excuse  the  negligence  of 
the  driver  of  the  automobile  colliding  therewith.^*^  When  each 
defendant  attempts  to  show  that  the  other  is  solely  blamable 
for  the  accident,  the  jury  may  find  a  verdict  against  both; 
or,  in  case  of  conflicting  evidence,  may  believe  the  evidence 
produced  by  one  of  the  defendants  and  exonerate  him  while 
holding  the  other." 


Sec.  398.  Contributory  negligence  —  generally. 

As  a  general  rule  a  traveler  injured  by  a  collision  on  the 
highway  must  be  free  from  contributory  negligence,  and 
where  a  suit  is  brought,  the  plaintiff  must  prove,  not  only 
want  of  care  on  the  part  of  the  defendant,  but  also  reason- 
able care  on  his  part.^''    If  both  parties  are  in  pari  delicto, 


(Cal.  App.),  192  Pac.  189.  See  also 
Hackworth  v.  Ashby,  165  Ky.  796,  178 
S.  W.  1074,  wherein  it  was  said:  "The 
issue  in  this  case  was  whether  the  de- 
fendants, through  the  driver  of  their 
car,  were  negligent,  and  whether  such 
negligence,  if  any,  caused  or  con- 
tributed to  the  plaintiff's  injuries. 
These  things  being  found  to  be  true, 
negligence  on  the  part  of  Carrather's 
in  driving  the  car  in  which  plaintiff 
was  riding  would  not  excuse  the  negli- 
gence of  defendants,  for  even  if  Car 
lather's  was  negligent,  and  his  negli- 
gence concurred  with  negligence  upon 
the  part  of  the  defendants  in  causing 
plaintiff's  injuries,  she  may  recover 
from  the  defendant  tlierefor.  Paducah 
Traction  Company  v.  Sin,  111  S.  W. 
356,  33  Ky.  Law  Bep.  798.  Nor  ia  the 
degree  to  which  defendants  negligence 
contributed  in  causing  the  injury  necea 
sary  to  be  determined."  See  also 
Mi  chell  V.  Brown  (Mo.  App.),  190  S. 
W.  354;  Carlton  v.  Boudar,  118  Va. 
521.  88  S.  E.  174,  4  A.  L.  E..1480. 

16.  Carlton  v.  Boudar,   118  Va.  521, 
88  S.  E.  174,  4  A.  L.  E.  1480. 

17.  Mitchell   v.   Brown    (Mo.   App.), 


190  S.  W.  354. 

18.  Connecticut. — Hawkins  v.  Qarford 
Trucking  Co.,  114  Atl.  94. 

Illinois.— YcWow  Cab  Co.  v.  John  G. 
Carl.sen,  211  111.  App.  299;  Quatavson 
V.  Hester,  211  111.  App.  439. 

Iowa. — Dirks  v.  Tonne,  183  Iowa, 
403,  167  N.  W.  103. 

Kentucky. — Standard  Oil  Co.  of  Ken- 
tucky V.  Thompson,  226  S.  W.  368. 

Maine. — Sylvestei  v.  Gray,  118  Me. 
74,  105  Atl.  815. 

Michigan. — Geeck  v.  Luckenbill,  183 
N.  W.  729. 

Mimnesota. — Hornden  v.  Miller,  145 
Minn.  483,  175  N.  W.  891. 

New  York. — Albertson  v.  Ansbacher, 
102  Misc.  (N.  Y.)  527,  169  K.  Y.  Suppl. 
188. 

Ohio. — Chesrown  v.  Bevier,  128  N.  E. 
94. 

Tennessee. — Bejach     v.     Colby,     141 
Tenn.  686,  214  S.  W.  869. 
4      Fermont. — Bianchi  v.  Millar,  111  Atl. 

524. 
%>     Washington. — Abling  v.  Nielson,  186 
_  Pac.  887. 

^     Wisconsin. — Yahnke    v.    Lange,     168 
_^Wis.  512,  170  N.  Y.  722. 


468  The  Law  of  Automobiles. 

the  law  will  afford  relief  to  neither."  Modifications  of  the 
general  rule  have  been  made  by  statute  in  some  jurisdictions. 
Thus  in  a  few  States,  the  doctrine  of  ''comparative"  negli- 
gence is  in  force.^'^  And,  within  recent  years  statutes  in  some 
jurisdictions  have  removed  the  burden  from  the  plaintiff  of 
showing  absence  of  contributory  negligence,  and  placed  on 
the  defendant  the  affirmative  burden  of  establishing  such 
defense.21  whether  the  driver  of  a  vehicle  or  a  passenger 
therein  has  been  guilty  of  contributory  negligence  which  was 
the  proximate  cause  of  an  accident,  is  generally  a  question' 
for  the  jury.  In  another  place  in  this  work  is  discussed  the 
questions  relative  to  the  imputation  of  the  negligence  of  the 
driver  of  a  vehicle  to  a  passenger  therein.^^ 

Sec.  399.  Contributory  negligence  —  proximate  result  of  con- 
tributory negligence. 

One  of  the  fundamental  propositions  of  the  law  of  negli- 
gence is  that  of  the  contributory  negligence  of  an  injured 
person,  to  bar  a  recovery,  must  be  the  proximate  cause  of  the 
injury  sustained.  Negligence  on  the  plaintiff's  part  which 
does  not  contribute  to  the  injury  will  not  prevent  his  recov- 
gj.y  23     Thus,  negligence  in  the  management  of  his  vehicle 

19.  Berz  Co.  v.  Peoples'  Gas  Light  ifaiJie.— Kennard  v.  Burton,  25  Me. 
&  Coke  Co.,  209  111.  App.  304;  Hilton      39. 

V.  Iseman,  212  111.  App.  255.  Massachusetts. — Parker  v.  Adams,  12 

20.  Robison  V.  Troy  Laundry  (Neb.),       Mete.    (Mass.)   415. 

180  N.  W.  43.  Missouri. — Lawler      v.      Montgomery 

21.  Howard  v.  Worthington  (Cal.  (Mo.  App.),  217  S.  W.  856;  Stack  v. 
App.),  195  Pac.  709;  Hallowell  v.  General  Baking  Co.  (Mo.),  223  S.  W. 
Cameron  (Cal.),  199  Pac.  803;  Levy  v.  89;  Alyea  v.  Junge  Baking  Co.  (Mo. 
Steiger,  233  Mass.  600,  124  N.  E.  477.  App.),  230  S.  W.  341. 

22.  Sections  B79-687.                               *  Nebraska. — Robinson  v.   Troy  Laun- 

23.  California.— Jlonse  v.  Fry,  30  Cal.  ^  dry,  180  N.  W.  43. 

App.  157,  157  Pac.  500;  Wilkinson  v.  -*'  Permsylvania. — Hardie  v.  Barrett, 
Rohrer  (Cal.  App.),  190  Pac.  650.         --  257  Pa.  42,  101  Atl.  75. 

Georgia.— Schofield  v.  Hatfield  (Ga.j>  Washin.gton.—DeLy8  v.  Powell-San- 
App.),  103  S.  E.  732.  ^L^OTS  Co.,  90  Wash.  31,  155  Pac.  407. 

Illinois. — Graham  v.  Hagmann,  270  _':  Wisconsin. — Mahar  v.  Lochen,  166 
111.  252,  110  N.  E.  337;  Moyer  v.  Shaw  4i  Wis.  152,  164  N.  W.  847;  Benesch  v. 
Livery  Co.,  205  111.  App.  273.  ^_  Pagel,  .177  N.  W.  860. 

Iowa. — Clark  v.  Weathers,  178  lowa,-^  England. — Chaplin  v.  Hawes,  3  Car. 
97,  159  N.  W.  585.  S.&  ?•  555 ;  Wayde  v.  Lady  Carr,  2  Dowl. 

*^&  R.  255;  Clay  v.  Wood,  5  Esp.  44. 


(*()i,i,isi()Ns   With   Otiiki;   N'khicles.  4(>1' 

after  n  collision  caused  by  the  (Icri'iidaiirs  negligence,  will 
not  relieve  the  defendant  from  liability,  unless  the  plaintiff's 
conduct  actually  contributed  to  the  result.'-^  And  the  failure 
of  plaintiff's  vehicle  to  have  the  statutory  lights  fastened 
thereto,  will  not  forbid  a  recovery,  unless  the  absence  of  lights 
is  one  of  the  proximate  causes  of  the  collision.-^  So,  the  fact 
that  a  motor  truck  was  not  kept  reasonably  close  to  the  right- 
hand  curb,  as  required  by  ordinance,  will  not  bar  an  action 
for  injuries  thereto,  where"  the  colliding  automobile  had  ample 
space  to  pass.^  And  the  fact  that  the  plaintiff's  machine  was 
not  duly  registered  and  licensed  according  to  the  statutory 
requirements,  does  not  generally  bar  the  plaintiff's  remedy.^^ 
Likewise,  the  failure  of  the  chauffeur  to  have  a  license  as 
required  by  law,  is  not  ordinarily  the  proximate  cause  of  a 
collision  with  another  vehicle,  and  will  not  preclude  a  recovery 
for  his  injuries.^^ 

Sec.  400.  Contributory  negligence  —  unskillful  driving. 

Unskillful  or  reckless  driving  on  the  part  of  one  injured  by 
a  collision  between  two  vehicles  will  generally^  be  a  bar  to  a 
recovery  for  his  injuries,  if  his  conduct  actually  contributed 
to  the  injury.  AVhere  the  plaintiff  w^as  unable  to  stop  his 
motor  vehicle  in  time  to  avoid  a  collision  with  a  wagon  across 
the  road,  and  one  of  the  causes  of  the  accident  was  the  unex- 
pected failure  of  the  transmission  gears  to  work,  and  they  had 
never  before  failed,  it  was  held  that  the  driver  of  the  motor 
vehicle  was  not  guilty  of  contributory  negligence  as  a  matter 
of  law.^®    When  one  automobile  negligently  attempted  to  pass 

24.  Belk  V.   People,    125  111.   584,    17  Suppl.  761.  wherein   it  was  said:     "It 

N.  E.  744.  cannot  be  said  that,  as  matter  of  law, 

26.  Section  347.  the  plaintiff  was  guilty  of  contributory 

26.  House  v.  Fry,  30  Cal.  App.  157,  negligence,  barring  recovery  in  view  of 
157  Pac.  500.  the  absence  of  evidence  that  the  trans 

27.  Dixon  v.  Boeving  (Mo.  App.),  mission  had  ever  before  caught,  or  that 
208  S.  W.  279.     And  see  section  125.  any  difficulty  whatever  had  ever  before 

28.  Moyer  v.  Shaw  Livery  Co.,  205  been  experienced  in  reversing  the  mo- 
111.  App.  273;  Stack  v.  General  Baking  tion  of  the  car;  that  the  plaintiff  was 
Co.  (Mo.),  223  S.  W.  89.  .\nd  see  sec-  an  e.xperienced  chauffeur  and  machinist, 
tion  226.  and    thoroughly    familiar  with   this   car 

29.  Manion  v.  Loomis  Sanatorium,  by  reason  of  having  operated  it  for 
162   N.   Y.   App.   Div.    421,    147    N.   Y.  tliree  seasons,  and  knew  that  he  could 


470  The  Law  of  Automobiles. 

another  motor  vehicle  and  as  a  result  thereof,  the  latter  was 
crowded  off  the  bank,  it  was  held  to  be  a  question  for  the  jury 
whether  the  driver  was  guilty  of  contributory  negligence  in 
his  control  and  management  of  his  car.'** 

Sec.  401.  Contributory  negligence  —  alertness. 

Reasonable  care  requires  that  one  driving  along  a  public 
highway  should  exercise  the  degree  of  alertness  exercised  by 
an  ordinary  prudent  man  to  avoid  collisions  with  other  con- 
veyances. The  driver  of  a  vehicle  cannot  be  said  to  be  in  the 
exercise  of  due  care  if  he  is  asleep  while  proceeding  along  the 
public  highway  and,  if  he  sustains  a  collision  with  another 
conveyance  while  in  such  condition,  he  will  not  generally  be 
permitted  to  recover.^^  But  there  is  no  imperative  duty  rest- 
ing upon  pedestrians  or  upon  travelers  in  a  horse-drawn 
vehicle  on  public  highways  to  keep  a  continuous  lookout  for 
automobiles,  under  penalty  that,  if  they  fail  to  do  so  and  are 
injured,  contributory  negligence  will  be  conclusively  imputed 
to  them.'2  The  duty  resting  upon  the  driver  of  an  ordinary 
horse-drawn  vehicle  to  be  watchful  for  the  approach  of  auto- 
mobiles and  to  prevent  injury  from  them,  is  no  greater  than 
the  duty  resting  upon  the  drivers  of  automobiles  to  be  watch- 
ful for  travelers  in  other  vehicles  in  order  to  prevent  injury- 
ing  them.  The  rights  and  duties  of  each  in  the  premises  are 
reciprocal.'^  To  enable  an  automobilist  to  recover  for  injuries 
received  in  a  collision  with  another  vehicle,  he  should  have 
had  the  machine  under  reasonable  control  and  running  at 

stop  it  within  100  feet,  traveling  at  the       of    the   highway    to   pass   in    safety   in 

speed   of   twenty   miles   per   hour,   and       the  rear  of  the  wagon." 

hence  in  less  than  that  distance  travel 

ing   from   twelve   to   fifteen   miles   pe 

hour,  and  that  the  teamster  was  cross 

ing  the  road  diagonally  from  the  lan( 

headed  towards  the  bam  upon  the  op 

posite  side  of  the  highway,  and  travel 

ing  at  a  pace  which  the  uncontradieterl 

testimony    shows    would,    had    he    con 

tinued  it,   have   taken   him   sufficiently 

far   to   have  allowed  the   plaintiff  by 

continuing   along   the   right   hand   aid6      App.  631. 


30.  Granger  v.  Farrant,  179  Mich.  19. 
146  N.  W.  218. 

31.  Grogitzki  v.  Detroit  Ambulance 
Co.,  186  Mich.  374,  152  N.  W.  923.  See 
also  Savage  v.  Boyce,  55  Mont.  470.  164 
Pac.   887. 

32.  Graham  v.  Hagmann,  270  111. 
252,  110  N.  E.  337. 

33.  Graham  v.  Hagmann,  270  IH. 
252,    110  N.   E.   337,   affirming    180    I'l. 


Collisions  With  Other  Vehicles.  471 

such  a  speed  as  would  enable  him  to  stop  before  striking  an 
obstruction,  lie  is  held  to  have  seen  that  which  with  ordinary 
care  he  would  have  seen  in  time  to  avert  an  injury.^^  A 
traveler  is  not  required  to  be  continuously  on  the  alert  to  see 
if  an  approaching  vehicle,  which  is  upon  the  proper  side  of 
the  road,  will  violate  the  law  of  the  road,  there  being  no 
intervening  obstacle  or  cause  to  lead  a  person  in  the  exercise 
of  reasonable  care  to  anticipate  that  such  a  course  will  be 
pursued.^^  One  approaching  a  railroad  crossing  is  charged 
with  grave  duties  as  to  stopping  and  looking  for  the  trains,''' 
but  the  rules  as  to  railroad  crossings  have  no  application  to 
the  usual  travel  upon  public  highways,  as  between  automobiles 
and  other  highway  conveyances.^  One  approaching  a  street 
intersection  is  not  necessarily  required  to  stop,  look,  and 
listen,  as  is  required  in  many  States  if  one  is  approaching  a 
railroad  crossing.  A  question  for  the  jury  is  generally  pre- 
sented.^ But  one  who  attempts  to  cross  an  intersecting  street 
without  looking  in  either  direction  may  be  adjudged  to  be 
guilty  of  contributory  negligence  as  a  matter  of  law.-^^ 

■  34.  Roper  v.  Greenspon   (Mo.  App.).  therein.      They    travel    on    fixed    tracks 

192  S.  W.  149 ;  Farrell  v.  Fire  Ins.  Sal-  and  cannot  turn  aside,  and  the  danger 

vage  Corps,  189  N.  Y.  App.  Div.  795,  to  be  encountered  in  entering  thereon  is 

179  N.  Y.  Suppl.  477.  .so  well  known  and  is  a  matter  of  such 

35.  Tsehirley  v.  Lambert,  70  Wash.  common  knowledge  that,  when  a  trav- 
72,  126  Pae.  80.  Seo  also  Trout  Auto  eler  on  a  public  highway  fails  to  use 
Livery  Co.  v.  People's  Gas  Light  &  the  ordinary  precautions  before  driving 
Coke  Co.,  168  III.  App.  56.  thereon,  the  general  knowledge  and  ex- 

36.  See  Chapter  XXI.  perience  of  mankind  condemn  such  con- 

37.  Oberholzer  v.  Hubbell  (Cal.  duct  as  negligence.  But  a  public  .'Street 
App.),  171  Pac.  436;  Graham  v.  Hag-  crossing  is  not  ordinarily  a  dangerous 
mann,  270  111.  252,  110  N.  E.  337.  place,  and  all  persons  entering  thereon 

Distinction    between    railroad    cross-  have  a  right  to  assume  that  all  others 

ings  and  street  crossings. — "  Railroads  about  to  use  the  same  will  exercise  due 

are   engaged  in   the  performance   of  a  care  and  caution   to   prevent   injury   to 

business  of  a  quasi  public  nature,  and  them."     Graham  v.  Hagmann.  270  111. 

in  carrying  out  the  purposes  for  which  252,   110  N.  E.   337. 

they  are  created  must  necessarily  often  38.  Oberholzer      v.      Hubbell       (Cal. 

operate  their  trains  at  such  a  high  rate  App.),    171    Pac.    436;    Warrington    v. 

of  speed  that  they  cannot  be  brought  Byrd  (Mo.  App.),  181  S.  W.  1079. 

to  a  sudden  stop  without  endangering  39.  Jacobson  v.  O'Dette  CR.  !.■),  10-? 

the   lives    and    safety   of    those    ridine  .\tl.  653. 


472  Thk  Law  of  Automobiles. 

Sec.  402.  Contributory  negligence  —  wantonness  or  reckless- 
ness of  defendant. 
The  fact  that  the  plaintiff  was  guilty  of  contributory  negli- 
gence which  was  one  of  the  causes  of  a  collision  with  another 
vehicle  on  the  highway,  will  not,  as  a  general  proposition,  bar 
a  recovery  for  his  damages,  if  the  injury  was  principaUy 
caused  by  the  wanton  or  reckless  operation  of  the  defendant's 
vehicle.^"  Thus,  though  one  is  on  the  wrong  side  of  the  high- 
way, or  is  otherwise  in  a  position  where  another  has  a  primary 
right  to  pass  and  is  thus  perhaps  guilty  of  contributory  negli- 
gence, nevertheless  the  driver  of  another  vehicle  cannot  run 
him  down  with  impunity.*^ 

Sec.  403.  Contributory  negligence  —violation  of  law  of 
road. 
When  a  collision  is  the  result  of  a  violation  of  the  hiw  of 
the  road,  negligence  is  prima  facie  charged  against  the  guilty 
party,^^  and  he  is  generally  not  entitled  to  recover  for  his 
injuries.''^  The  presumption  of  negligence  which  arises  from 
a  violation  of  the  law  of  tlie  road,  is  one  which  may  be  re- 
butted by  evidence  showing  some  excuse  for  the  variance  from 
the  proper  course/^    Thus,  the  plaintiff  may  rebut  the  infer- 

40.  Black  V.  "Blacksher,  11  Ala.  App.  282;  Russell  v.  Kemp,  95  Misc.  (N.  Y.) 
545,   66   So.   863;    Grooitski   v.   Detroit  582,   159   N.  Y.  Suppl.  865. 
Ambulance  Co.,  186  Mich.  374,  152  N.  Wisconsin.— RasweW    v.    Reuter,    177 
W.  923.  N.  W.  8. 

41.  Brooks  V.  Hart,  14  N.  H.  307.  Disregard      of      rules.— Wliere      the 

42.  Section  267.  driver  of  a  buggy  in  the  streets  of  a 

43.  California.— Kinney  v.  King  (Cal.  city  disregards  all  the  rales  prescribed 
App.),  190  Pae.  834.  for  vehicular  traffic  and  is  grossly  neg- 

lotoa.—Buzieh  v.  Todman,  179  Iowa,  ligent  from  the  standpoint  .of  common 

1019,  162  N.  W.  259;  Giese  v.  Kimball,  experience,  and  as  a  result  of  such  neg- 

184  Iowa.   1283.  '  ligence   is   brought   into   collision   with 

Louisiana.— Ueems  v.  Chavigny,   139  another   vehicle,  he  is  not  entitled  to 

La    539    71   So.  798.  recover    from   the   owner   of    the   other 

Maine.^Uk-ker  v.  Gray,  118  Me.  492,  vehicle   the  damages  which   he  thereby 

107  Atl.  295;  Sylvester  V.  Gray,  118  Me.  sustains.     Reems  v.   Chavigny,   139  La. 

74,  105  Atl.  815.  539,  71  So.  798. 

Missouri.— Barton  v.  Faeth,  193  Mo.  44.  Hoover  v.  Reichard,  63  Pa.  Super. 

App.  402,  186  S.  W.  53.  517.     "If  it  was  true  that  the  plaintiff 

New  Yorfe.— Brillinger  v.  Ozias,   184  was  so  situated,  as  he  claims,  that  he 

N.  Y.  App.  Div.  221,  174  N.  Y.  Suppl.  could  not  turn  from   his  course  in  the 


Collisions  With  Other  Vehicles.  47o 

ence  of  negligence  by  showing  that  he  was  compelled  to  drive 
his  machine  to  the  wrong  side  of  the  highway  in  order  to 
avoid  the  negligence  of  the  defendant/^  And  the  fact  that  the 
plaintiff  is  violating  the  law  of  the  road  does  not  authorize 
another  person  to  run  him  down,'*^  Nor  does  it  relieve  one 
from  the  obligation  of  exercising  reasonable  care  for  the 
avoidance  of  injury  to  such  traveler/'  Where  the  driver  of 
an  automobile  turned  a  curve  at  a  high  rate  of  speed,  it  was 
held  there  could  be  no  recovery  for  injuries  caused  by  collision 
with  another  automobile,  even  though  the  latter  was  on  the 
wrong  side  of  the  road,  it  appearing  that  such  driver  knew 
that  automobiles  were  liable  to  be  on  such  side  in  order  to 
avoid  rough  stone  and  gravel  on  the  other  side."*^  T\niere  a 
chauffeur  on  a  wet  day  drove  an  automobile  at  a  speed  of 
twelve  or  thirteen  miles  an  hour  on  a  street  where  the  vieAv 
was  obstructed,  and,  in  order  to  avoid  a  motor  truck  which 
was  about  to  turn  into  the  side  street,  handled  his  car  so  that 
it  skidded  sideways  into  the  truck,  he  is  guilty  of  contributory 
negligence,  though  the  truck  was  not  on  the  proper  side  of  the 
street  at  the  turning/^  AVhere  the  primary  cause  of  an  auto- 
mobile collision  was  the  defendant's  violation  of  the  law  of 
the  road  by  running  on  the  wrong  side  of  the  road  when 
approaching  an  intersection  and  cutting  the  corner  at  that 
intersection,  he  cannot  evade  the  consequences  of  his  negli- 
gence by  setting  up  that  the  plaintiff,  who  was  originally  on 
the  proper  side  of  the  street,  had  swerved  in  the  emergency 
to  the  wrong  side  in  an  attempt  to  avoid  the  collision.^  The 
circumstance  that  a  team  was  driven  on  the  left  side  of  the 
road  when  it  was  overtaken  by  an  automobile  driven  at  n 
dangerous  rate  of  speed,  does  not  necessarily  constitute  con- 
center of  the  highway,  because  other  440. 
vehicles    near    prevented   him   from    so  46.  Section  402. 

doing,  negligence  is  not  to  be  impute-l  47.  Ray    v.    Brannun.    HKi    Ala.    113, 

to  him   for  his   failure  to   turn  to  the       72  So.   16. 

right  when  meeting  the  vehicle  of  the  48.  Wheeler   v.    Wall,    157    Mo.    .\pi>. 

defendant."     Hayden  v.  McColly,   166       38.  137  S.  W.  63. 

.Mo.   App.  675,   150   S.   W.    1132.     And  49.  Ellison   v.   Atlantic  Refining  Co.. 

see  sections  270-274.  62  Ta.  Super.  Ct.  370. 

45.  Eberle    Brewing    Co.    v.    Briscoe  50.  Bain    v.    Fuller.    20    D.     L.     R. 

Motor  Co.,   194  Mich.   140.   160  N.  W.       (Canada)   113. 


474  The  Law  of  Automobiles. 

tributory  negligence  on  the  part  of  the  driver,  where  the 
statute  does  not  prohibit  the  driving  on  the  left  side  of  the 
road  but  only  requires  the  driver  to  turn  to  the  right  when 
another  overtakes  him  and  indicates  a  desire  to  pass.^^  But, 
in  a  case  where  the  collision  between  two  automobiles  would 
not  have  occurred  had  the  plaintiff  not  turned  to  the  left,  his 
recovery  of  damages  will  be  barred,  although  he  thought  that 
the  defendant  was  not  going  to  turn  out,  such  belief  not  being 
well  founded  and  there  being  an  opportunity  to  turn  to  the 
right.^^  Even  though  the  plaintiff  has  violated  the  law  of  the 
road,  there  always  remains  the  question  whether  the  viola- 
tion was  a  proximate  cause  of  his  injuries ;  if  not  the  proxi- 
mate cause,  the  violation  does  not  bar  his  right  of  action/'^ 

Sec.  404.  Contributory  negligence  —  sudden  stop. 

The  driver  of  a  vehicle  may  be  charged  with  negligence  if 
he  suddenly  slows  or  stops  his  vehicle  when  he  knows  that 
there  is  another  vehicle  so  close  behind  that  a  collision  will 
probably  ensue.^^  Particularly  is  this  so  when  the  driver  of 
the  forward  car  violates  a  positive  regulation  requiring  him 
to  give  a  signal  to  a  following  machine  of  his  intention  to 
stop.^^ 

Sec.  405.  Contributory  negligence  —  failure  to  give  passing 
vehicle  sufficient  space. 
Ordinarily  the  driver  of  a  team  will  not  be  regarded  as 
negligent  in  failing  to  turn  out  further  to  allow  an  automobilist 

51.  Pens  V.  Kreitzer,  98  Kans.  759,  driving  twenty-five  feet  from  the 
160  Pae.  200.  right-hand  curb  in  violation  of  a  traffic 

52.  Lloyd  v.  Calhoun,  83  Wash.  35,  ordinance  twice  gave  a  stop  signal  bufc 
143  Pac.  458,  overruling  78  Wash.  438,  stopped  only  after  the  second  one,  con- 
139   Pac.   231.  stitutes    such    contributory    negligence 

53.  House  v.  Fry,  30  Cal.  App.  157,  as  precludes  a  recovery  for  damages  by 
157  Pac.  500;  Wilkinson  v.  Rohrer,  defendant's  car  running  into  the  rear 
(Oal.  App.)  190  Pac.  650;  Mahar  v.  of  the  automobile.  Russell  v.  Kemp, 
Lochen,  166  Wis.   152,  164  N.  W.   847"  95  Misc.   (N.  Y.)   582,  159  K  Y.  Suppl. 

54.  Strever  v.  Woodward,  178  Iowa,  865. 

30,  158  N.  W.  504.  55.  Clark  v.  Weathers,  178  Iowa,  97^ 

Giving  stop  signal.— The  act  of  the       159  N.  W.  585. 
driver    of    an    automobile,    who,    while 


CuLLisioxji  With  Other  Vehicles.  475 

more  room  where  there  is  already  sufficient  space  for  him  to 
pass  ill  safety.^'^  Thus,  one  wlio  has  turned  sufficiently  to 
allow  an  approaching  automobile  one-hall*  of  the  road  is  not 
by  his  failure  to  pass  over  to  the  untraveled  part  of  the 
highway,  guilty  of  contrilmtory  negligence.^^  Wlien  an  auto- 
mobile coming  at  a  dangerous  speed  attempts  to  pass  a  wagon 
from  behind,  the  driver  of  the  wagon  is  not  guilty  of  con- 
tributory negligence  if  he  has  not  sufficient  time  to  turn  out.^ 
To  charge  one  with  contributory  negligence  in  failing  to  turn 
towards  the  right  so  as  to  permit  a  vehicle  in  the  rear  to  pass, 
it  must  be  shown  that  the  road  was  sufficiently  wide  to  enable 
a  safe  passage,  and  also  that  the  driver  of  the  forward  vehicle 
knew  or  should  have  known  the  intention  of  the  rear  driver  to 
pass.^^ 

Sec.  406.  Contributory    neg"lig"ence  —  absence     of    statutory 
lights. 

The  failure  of  a  traveler  to  have  a  light  fastened  to  his 
vehicle,  when  such  a  light  is  not  imperative  by  reason  of 
statute  or  municipal  ordinance,  is  not  negligence  per  se.®" 
But,  when  a  light  is  required  by  statutory  or  municipal  regu- 
lation, a  different  question  is  presented;  and,  if  the  omission 
of  duty  is  one  of  the  contributing  causes  to  a  collision  with 
another  vehicle,  its  operator  may  be  charged  with  negligence.^ 

56.  Savoy  v.   McLeod,   111  Me.   234,  such  ;is  to  make  it  negligence  to  fail  to 
88  Atl.  721,  48  L.  R.  A.  (N.  S.)  971.  warn    other    travelers    of    the    obstruc- 

57.  Traeger  v.  Wasson,  163  111.  App.  tion  tluis  occasioned.     But  whether  such 
572.  failure   can   be   said   to   be   negligence 

58.  Pens  v.   Kreitzer,   98   Kaus.    759,  must,  of  necessity,  depend  upon  the  cir- 
160  Pac.  200.  cumstances. "  Roper  v.  Groenspon  (Mo. 

59.  Dunkelbeck  v.  Meyer,  140  Minn.  App.).  192  S.  W.  149,  L.  R.  A.  1918  i>. 
283,  167  N.  W.  1034.  126.      And    see   sections   344-348   as   to 

60.  Decou     V.     Dexheimer,  —   N.    J.  lights. 

L.  — ,  73  Atl.  49.     See  also  Harding  v.  61.  Colorado. — Martin   v.   Carruthera, 

Cavanaugh,  91  Misc.   (N.  Y.)   511,  155  195  Pac.  105. 

N.  Y.  Suppl.  374.     "Generally  speak-  Connecticut. — Hale  v.  Rernikoff,   111 

ing,   at   common   law,   the   driver   of   a  .\tl.   907. 

wagon  upon  a  highway  at  night  is  un-  Iowa.— Topper   v.    Maple,    181    Iowa, 

der  no  duty  to  carry  a  light  to  warn  786,  165  N.  W.  28. 

others  of  the  presence  of  his  vehicle  or  Missouri. — Roper    v.    Grcenapon,    273 

its  load.     If  he  stops  in  the  highway,  Mo.    288,    198    S.   W.    1107;    Roper   t. 

the    circumstances    may    doubtless    be  Greenspon  (Mo.  App.),  210  S.  W.  923. 


476  The  Law  of  Automobiles. 

The  requirement  of  a  light  is  i'or  the  protection,  not  only  of 
the  immediate  vehicle,  but  also  of  other  vehicles  with  whicK 
it  might  come  into  collision.^^  Qf  course,  the  absence  of  a  light 
does  not  justify  the  driver  of  another  vehicle  in  running  down 
the  plaintiff's  conveyance.*^  And,  if  the  absence  of  the  light 
is  not  a  proximate  cause  of  the  collision,  the  disobedience 
of  the  regulation  is  not  material  and  the  plaintiff  will  not 
necessarily  fail  in  his  action.*'  If  the  defendant  should  have 
seen  the  plaintiff's  vehicle,  although  it  was  not  lighted,  the 
absence  of  the  light  is  not  the  proximate  cause  of  the  colli- 
sion." 

Sec.  407.  Contributory  negligence  —  excessive  speed. 

Contributory  negligence  on  the  part  of  the  driver  of  a 
vehicle  coming  into  collision  with  another,  may  be  based  on 
the  excessive  speed  of  the  plaintiff's  convey ance.**^  And, 
especially  is  this  true  when  the  proper  speed  is  prescribed  by 
statute  or  municipal  ordinance  and  such  regulation  is  violated. 
It  may  be  considered  prima  facie  negligence  or  negligence 
per  se  for  the  driver  of  an  automobile  to  exceed  the  speed 
limit,  and  if  the  speed  is  the  proximate  cause  of  a  collision 
with  another  vehicle,  such  driver  will  not  be  permitted  to 
recover  for  his  injuries.*^ 

New   YorA;.— Martin    v.    Herzog,    176  64.  Colorado.  -Martin    v.    Caruthers, 

N.  Y.  App.  Div.  614,  163  N.  Y.  Suppl.  195  Pac.   105.. 

189,  affirmed  228  N.  Y.  164,  126  N.  E.  Illinois.— Graham    v.    Hagmann,    270 

8I4';  Martin  v.  Herzog,  228  N.  Y.  164.  111.   252,   110  N.  E.   337,  affirming  189 

126  N.  E.  814.  IH-  App.  631  ;  Culver  v.  Harris,  211  111. 

O;iio__0hesrown  v.  Bevier,  128  N.  K.  App.  474. 

94  Mi'Ssouri. — Eoper  v.  Greenspon    (Mo. 

ffhode  Island.— 3.  Samuels  &  Bro.  v.  App.),   192   S.  W.   149. 

Rhode  Island  Co..  40  R.  T.  232.  100  Atl.  0/iio.— Chesrown  v.  Bevier,  128  N.  E. 

402.  ^4. 

Wisconsin. — ^Yahnko    v.    Tanor.    168  Pennsylvania. — Hardie     v.     Barrett, 

Wis.   512,  170  N.  W.  722.  2-.7  Pa.  42,  101  Atl.  75. 

62.  Martin  v.  Herzog,  176  N.  Y.  App.  65.  Ireson  v.  Cunningham,  90  N.  J. 
Div.  614.  163  N.  Y.  Suppl.  189,  af-  T-.  960,  101  Atl.  49.  See  also  Kopper 
/irmed,  228  N.  Y.  164,  126  N.  E.  814.  v.  Bernhardt,  91  N.  J.  L.  697.  103  Atl. 

63.  Decou   v.   Dexheimer    (N.  J.   T..),  186. 

73  Atl.  49.     See  also  Kopper  v.  Bern  66.  See  sections  303-325;  Surneian  r. 

hardt    (N.  J.   L.),   103  Atl.   186.  Simmons  fR.  I.>.  107  Atl.  229. 


Collisions  With  Other  Vehicles.  477 

Sec.  408.  Contributory  neglig^ence  —  passenger  in  dangerous 
position. 

Where  a  woman  in  an  automobile,  for  the  purpose  of  avoid- 
ing a  collision  with  an  approaching  truck,  reached  out  her 
hand  to  motion  to  the  driver  to  stop,  it  was  held  that  her  act 
was  not  one  which  rendered  her  guilty  of  contril)utory  negli- 
gence so  as  to  preclude  a  recovery  for  injury  to  her  hand 
struck  by  the  truck.'"'^  And,  where  the  owner  of  a  passenger 
automobile  truck  stood  on  a  step  at  the  rear  thereof  when  the 
truck  collided  with  an  automobile,  it  was  held  that  such 
owner  was  not  necessarily  guilty  of  contributory  negligence 
in  taking  such  a  position.^^  Similarly,  the  owner  of  an  auto- 
mobile is  not  necessarily  guilty  of  negligence  in  taking  a  posi- 
tion on  the  floor  between  the  front  seat  and  the  wind  shield 
with  his  feet  on  the  running  board.'^^  While  in  most  juris- 
dictions the  negligence  of  the  driver  of  an  automobile  is  not 
imputed  to  a  passenger  therein,'^  yet  such  passenger  is  bound 
to  exercise  reasonable  care.  Contributory  negligence  may  be 
charged  against  him  by  reason  of  the  fact  that  he  continues 
as  a  passenger  when  he  knows  that  the  driver  is  intoxicated.^- 

Sec.  409.  Contributory  negligence  —  reliance  on  obedience  of 
law  of  road  by  other  vehicles. 

A  traveler  is  not  necessarily  guilty  of  contributory  negli- 
gence in  assuming  that  other  travelers  will  obey  the  law  of  the 
road,  where  there  is  nothing  to  indicate  an  intention  to  violate 
it.''^  When  one  is  driving  a  vehicle  according  to  the  rule  of 
the  road  as  declared  by  statute  or  ordinance  greater  vigilance 

67.  Barton    v.   Faeth,    193   Mo.   Ap}).       148  Pac  927. 

402,  186  S.  W.  52;  Noot  v.  Hunter,  10')  73.  Ray  v.  Brannan,  196  Ala.  113,  72 

Wash.  343,  186  Pac.  851.  So.  16;  Moreno  v.  Los  Angeles  Transfer 

68.  Withey  v.  Fowler,  164  Iowa,  377.  Co.  (Cal.  App.),  186  Pac.  800;  Kilroy 
145  N.  W.  823.  V.  Justrite  Mfg.  Co.,  209  111.  App.  499 

69.  Moore  v.  Hart,  171  Ky.  725,  188  Columbia  Taxicab  Co.  v.  RoemmicI 
S.  W.   861.  (Mo.  App.),  208  S.  W.  859;  Presson  v 

70.  McClung  V.  Pennsylvania  Taxi-  Parker  (Mo.  App.),  224  S.  W.  1009 
meter  Cab  Co.,  252  Pa.  St.  478,  97  Atl.  Jacobs  v.  Ridiard  Carvel  Co..  156  N 
694.  Y.    Suppl.    766;    Stubbs    v.    Molberget, 

71.  Section  679.  108  Wash.  89,  182  Pac.  936,  6  A.  L.  B. 

72.  Lynn   v.  Goodwin,    170   Cal.    112,  318. 


478  The  Law  of  Automobiles.    . 

is  imposed  on  the  drivers  of  other  vehicles  than  upon  the 
driver  of  the  vehicle  proceeding  properly.''*  Thus,  where  tw^o 
travelers  have  equal  rights  at  a  street  intersection,  the  one 
first  at  the  crossing  is  generally  entitled  to  the  right  of  way, 
and  he  may  proceed  to  exercise  his  right  of  way  though  he 
sees  the  other  vehicle  approaching,  provided  the  other  is  not 
so  close  that  a  collision  may  naturally  be  anticipated.'^^  And, 
where  the  right  of  way  is  given  by  municipal  ordinance  to  the 
travelers  along  one  of  the  streets  in  preference  to  those  along 
the  cross  street,  the  privileged  traveler  is  entitled  to  assume 
that  drivers  on  cross  streets  will  respect  his  priority,  at  least 
until  he  observes  to  the  contrary.''^  So,  too,  one  approaching 
another  conveyance  from  the  rear  has  a  right  to  assume  that 
the  forward  vehicle  will  be  directed  to  the  right-hand  side  of 
the  road  so  as  to  permit  the  rear  one  to  pass,  until  it  becomes 
obvious  that  no  effort  will  be  made  to  do  so  or  the  danger  of  a 
collision  is  imminent.''^  The  driver  of  a  vehicle  may  assume, 
when  another  vehicle  is  approaching  in  accordance  with  the 
law  of  the  road,  that  it  will  so  continue.''^  A  driver  who  is 
obeying  the  law  of  the  road,  is  not  required  to  be  constantly 
on  the  alert  to  see  if  an  approaching  vehicle  which  is  upon 
the  proper  side,  will  violate  the  rule,  there  being  no  obstacle 
or  cause  to  lead  a  person  in  the  exercise  of  reasonable  care 
to  anticipate  that  such  a  course  mil  be  pursued.''^  .  A^Hien, 
under  a  regulation  authorizing  the  act,  a  driver  gives  a  signal 
that  he  intends  to  turn  a  corner  or  make  some  other  turn,  and 
he  suffers  a  collision  with  another  vehicle  as  he  is  making  the 
turn,  his  contributory  negligence  may  be  a  question  for  the 

74.  Shilliam    v.    Newman,    94    Wash.  Noet.  v.    Hunter,    109   Wash.    343,    186 
637,  162  Pac.  977.  Pac.  851. 

75.  Carbaugh    v.     White     Bus    Line  77.  Cook  v.  Standard  Oil  Co.,  15  Ala. 
(Cal.  App.),  195    Pac.  1066;  Barrett  v.  App.  448,  73  So.  763. 

Alamito  Dairy  Co.   (Neb.),  181  N.  W.  78.  Elgin  Dairy  Co.  v.  Shephard,  183 

550;   Rabinowitz  v.  Hawthorne,   89   N.  Ind.  466,  108  N.  E.  234. 

J.    L.    308,    98    Atl.    315;     Brown    v.  79.  Tsehirley  v.   Lambert,    70   Wash. 

Chambers,  65  Pa.  Super.  Ct.  373.     And  72,   126  Pac.  80;   Stubbs  v.  Molberget, 

eee  section  260.  108  Wash.  89,  182  Pac.  936,  6  A.  L.  R. 

7G.  Ray   v.   Brannan,    196   Ala.    113,  318.      See    also    Trout    Livery    Co.    v. 

72  So.  16;  Carbaugh  v.  White  Bus  Line  People's   Gas,   Light  &   Coke   Co..    168 

(Cal.  App.),   195  Pac.   1066;   Freeman  111.  App.  56. 
V,  Green  (Mo.  App.),  186  S.  W.  1166; 


Collisions  With  Other  Vehicles.  479 

jury.^  When  the  driver  of  one  vehicle  observes  that  the 
driver  of  another  is  not  obeying  the  law  of  the  road,  he  cannot 
proceed  regardless,  for  his  right  to  assume  the  obedience  to 
the  law  of  road  ceases,^^  Thus,  when  he  sees  that  another 
vehicle  is  unable  to  turn  out  because  of  a  rut  in  the  road,  he 
should  stop  or  take  other  steps  to  avoid  a  collision.*^  But  he 
may  until  the  vehicles  are  reasonably  close  together  assume 
that  the  one  on  the  wrong  side  will  turn  to  the  right  side  to 
permit  the  passage.^^  And,  although  one  may  rely  on  the 
obedience  of  the  law  of  road  by  others,  he  is  nevertheless 
required  to  exercise  reasonable  care  for  his  safety.  Mere 
reliance  will  not  always  suffice  to  establish  due  care  on  his 
part.^  It  is  a  question  for  the  jury  whether  one  injured 
assumed  that  the  driver  of  an  automobile  would  act  in  accord- 
ance with  the  law  of  the  road.^ 

Sec.  410.  Contributory  negligence  —  acts  in  emergency. 

When  one  is  suddenly  placed  in  a  dangerous  position  by 
the  negligence  of  another,  the  law  recognizes  that  he  may  not 
exercise  the  judgment  that  he  would  under  other  circum- 
stances, and  his  conduct  is  not  so  closely  scrutinized.^  The 
rule  is  that  where  one  without  his  own  fault  is,  through  the 
negligence  of  another,  put  in  such  apparent  peril  as  to  cause 
loss  of  self-possession,  and  as  a  natural  result  thereof  he,  in 
attempting  to  escape,  puts  himself  and  property  in  a  more 
dangerous  position,  this  is  not  in  law  contributory  negligence 
that  will  prevent  him  recovering  for  the  injury.^    Thus,  where 

80.  Daly  v.  Case,  88  N.  J.  L.  295,  95  85.  Tooker  v.  Perkins,  86  Wn»h.  567. 
Atl.  973.    See  also  Frank  C.  Weber  C(i.       150  Pac.  1138. 

V.  Stevenson  Grocery  Co.,  194  III.  App.  86.  See    Collins   v.    Marsh,    176    CaL 

432.  639,  169  Pac.  389 ;  Rhodes  v.  Firestone 

81.  Dirks  v.  Tonne,  183  Iowa,  403.  Tire  &  Rubber  Co.  (Cal.  App.),  197 
167  N.  W.  103.  Pac.    392;   Mayer  v.   Mellette,   65   Ind. 

82.  Dirks  v.  Tonne,  183  Iowa,  403,  App.  54,  114  N.  E.  241;  Brafjdon  v. 
167  N.  W.  103.  Kellogg   (Me.),   105  Atl.  433;   Fran.sf^n 

83.  Shaw  V.  Wilcox  (Mo.  App.).  224  v.  Talk  Paper  Co.,  135  Minn.  284,  160 
S.  W.  58;  John  v.  Pierce  (Wis.).  178  N.  W.  789;  Dixon  v.  Boeving  (Mo. 
N.  W.  297.         .  App.).  208  S.  W.  279. 

84.  Ray  v.  Brannan,  196  Ala.  113,  72  87.  Shupe  v.  Rodolph  (Cal.),  197 
So.   16.  Puc.   57;    Book   v.   Aschenbrenner.    165 


480  The  Law  of  Automobiles. 

the  primary  cause  of  an  automobile  collision  is  the  defendant's 
violation  of  the  rules  of  the  road  by  running  on  the  wrong 
side  of  the  road  when  approaching  an  intersection  and  cutting 
the  corner  at  the  intersection,  he  cannot  evade  the  conse- 
quences of  his  negligence  by  setting  up  that  the  plaintiff,  who 
was  originally  on  the  proper  side  of  the  cross  street,  had 
swerved  in  the  emergency  to  the  wrong  side  in  an  attempt  to 
avoid  the  collision.^  And  a  jury  may  be  justified  in  finding 
that  the  driver,  when  confronted  v/ith  a  collision,  is  not  negli- 
gent in  accelerating  the  speed  of  the  machine,  though  tempor- 
arily the  speed  is  excessive.^^  But  the  driver  of  an  automobile 
will  not  be  excused  from  negligence  because  of  the  fact  that  he 
became  ''rattled,"  it  appearing  that  the  collision  occurred 
outside  of  the  traveled  portion  of  the  highway  and  that  the 
circmnstances  were  not  such  as  to  justify  his  conduct  on  the 
ground  of  a  sudden  emergency.^"  The  driver  of  an  automobile 
will  not  be  charged  with  negligence  where  the  collision  is  the 
result  of  conduct  of  a  similar  character  on  the  part  of  the 
person  injured.  So  where  the  fall  of  a  horse  was  caused  by 
the  act  of  its  driver,  in  the  desire  to  avoid  a  collision,  where 
his  fear  was  unfounded,  it  was  held  that  the  defendant  was 
not  liable.®^ 

Sec.  411.  Contributory  negligence  —  last  clear  chance. 

Under  the  last  clear  chance,  or  similar  doctrine,  which  has 
a  considerable  application  in  some  States,  one  who  has  negli- 
gently exposed  himself  to  injury  is  not  precluded  from 
recovering,  if  the  defendant  discovered  the  peril  in  sufficient 
time  to  have  avoided  the  injury  and  negligently  failed  to  do 
so.^^    This  doctrine  may  be  applied  in  case  of  a  collision  of  a 

111.  App.  23;   Stack  v.  General  Baking  72,  126  Pac.  80. 

Co.  (Mo.),  223  S.  W.  89;  Henderson  v.  91.  Carter     v.     Wilker     (Tex.     Civ. 

Dimond  (E.  I.),  110  Atl.  388.  App.),  165  S.  W.  483. 

88.  Bain  v.  Fuller,  29  D.  L.  R.  92.  Howard  v.  Worthington  (Cal. 
(Canada)    113.  App.)    195   Pac.   709;    Shaw  v.  Wilcox 

89.  Mayer  v.  Mellette,  65  Ind.  App.  (Mo.  App.),  224  S.  W.  58;  King  v. 
54,  114  N.  E.  241;  Paul  v.  Pfefferkorn  Brenham  Auto  Co.  (Tex.  Civ.  App.), 
(Wis.),  178  N.  W.  247.  145   S.   W.    278.     See  also  Preason  v. 

90.  Tschirley  v.   Lambert,    70  Wash,  Parker  (Mo.  App.),  224  S.  W.  1009. 


Collisions  With  Other  Vehicles.  481 

motor  vehicle  with  another  convey ance.^^  As  was  said  in  one 
case,^*  **  A  man  does  not  become  an  outlaw,  with  the  brand  of 
Cain  upon  him,  and  whom  *  everyone  that  findeth'  him  may 
slay,  because  he  disregards  his  safety  and  puts  himself  in  the 
way  of  danger.  The  persons  and  lives  of  human  beings  are 
held  in  too  high  esteem  by  the  laws  of  every  civilized  com- 
munity to  permit  automobiles  and  other  vehicles  to  be  reck- 
lessly and  wilfully  run  over  them  and  mutilate  or  destroy 
them,  and  then  to  permit  the  guilty  parties  to  escape  punish- 
ment by  the  plea  that  the  victim  got  in  the  way  of  the  vehicle." 
And  in  a  few  States,  the  rule  is  extended  so  as  to  bring  the 
doctrine  into  play,  not  only  when  the  defendant  discovered 
the  peril  of  the  plaintiff  in  sufficient  time  to  avoid  the  injury, 
but  also  when  he  should  in  the  exercise  of  due  care,  have  done 
so.^^  In  other  States,  the  rule  is  not  so  extended.^*^  In  order 
to  apply  the  doctrine  it  should  appear  that  the  defendant  had 
an  opportunity  to  avoid  the  accident.^' 

Sec.  412.  Pleading. 

In  an  action  by  a  person  injured  by  a  collision  between  his 
vehicle  and  an  automobile,  while  he  need  not  set  forth  in  his 
pleading  a  detailed  and  minute  statement  of  the  circumstances 
of  the  cause  of  action,  yet  he  must  set  forth  the  facts  upon 
which  he  bases  his  action  with  a  particularity  and  certainty 
that  will  reasonably  inform  the  defendant  what  he  proposes 
to  prove  at  the  trial,  in  order  that  the  defendant  may  have  a 
fair  ojjportunity  to  meet  and  controvert  these  facts  in  defense. 
The  rules  of  pleading  require  that  the  time,  place  and  circum- 
stances of  the  matter  in  action,  so  far  as  relied  on  and  within 
the  knowledge  of  the  party,  must  be  specified  with  a  fullness 
and  fairness  that  will  reasonably  apprise  the  opposing  party 
of  what  he  is  required  to  meet.    So  while  an  averment  of  the 

98.  Schneider  v.  Hawks  (Mo.  App.),  96.  Collins   v.   Marsh,    176   Cal.    639, 

211  S.  W.  681;  King  v.  Brenham  Auto  169   Pac.   389.     See  also  Blackburn  v. 

Co.  (Tex.  Civ.  App.),  145  S.  W.  278.  Marple  (Cal.  App.),  184  Pac.  873. 

94.  King  V.  Brenham  Auto  Co.  (Tex.  97.  Lawrence  v.  Goodwill  (Cal. 
Civ.  App.),  145  S.  W.  278.  App.),  186  Pac.  781 ;  Carbaugh  v.  White 

95.  Whitman    v.    Collon,    196    Mich.  Bus  Line  CCal.  App.),  195  Pac.  1066. 
540,  162  N,  W.  950. 

31 


482 


The  Law  of  Automobiles. 


fact  of  a  collision,  without  stating  the  particular  act  of  negli- 
gence that  caused  it,  may  be  sufficient  in  those  exceptional 
cases  where  by  reason  of  the  relation  of  the  parties  the  law 
places  upon  one  a  high  duty  to  prevent  injury  to  another,  or 
where  the  act  itself  bespeaks  the  negligence  as  its  cause,  it 
cannot  be  held  that  from  the  mere  statement  of  the  fact  of 
collision  upon  a  highway,  between  wayfarers  with  equal  rights 
and  duties,  the  law  will  infer  the  collision  to  have  been  the 
result  of  negligence,  or  the  negligence  to  have  been  that  of  the 
defendant.  In  such  cases  the  fact  of  collision  is  not  the  cause 
of  action,  but  the  acts  of  negligence  that  caused  the  fact  of 
collision  constitute  the  cause  of  action.  It  therefore  devolves 
upon  the  plaintiff,  in  holding  the  defendant  accountable  for 
the  fact  of  collision,  which  may  have  been  the  result  of  in- 
evitable accident  or  of  one  of  many  negligent  acts  of  either 
party,  to  disclose  to  the  defendant  the  cause  of  the  collision 
and  to  state  the  acts  that  contributed  to  its  occurrence.^^    A 


98.  Campbell  v.  Walker,  1  Boyce's 
Del.  580,  76  Atl.  475,  holding  that  the 
expression  "so  negligently  and  care- 
lessly operated  and  ran  his  automobile ' ' 
states  no  fact  or  circumstance  that 
fastens  upon  the  defendant  the  negli- 
gence which  must  be  shown  to  entitle 
the  plaintiff  to  recover  and  is  subject 
to  the  objections  that  it  is  a  statement 
of  a  conclusion  of  fact,  arising  from 
acts  and  circumstances  not  set  forth  in 
the  declaration  and  that  it  is  a  state- 
ment so  general  as  to  admit  almost  any 
proof  to  sustain  it. 

Sufficiency  and  construction  of  com- 
plaint.— See  also   the   following  cases: 

Alabama. — Dozier  v.  Woods,  190  Ala. 
279,  67  So.  283;  MuUins  v.  Lemley 
(Ala.),  88  So.  831;  Taxieab  Co.  v. 
Grant,  3  Ala.  App.  393,  57  So.  141; 
Overton  v.  Bush,  2  Ala.  App.  623,  56 
So.   852. 

California. — Tognazzini  v.  Freeman, 
18  Cal.  App.  468,  123  Pac.  540;  Mathes 
V.  Aggeler  &  Musser  Seed  Co.,  179  Cal. 
697,  178  Pac.  713;  Saylor  v.  Taylor 
(Cal.  App.),  183  Pac.  843;  Wiley  v. 
Cole  (Cal.  App.),  199  Pac.  550. 


Georgia. — Fuller  v.  Inman,  10  Ga. 
App.  680,  74  S.  E.  287. 

Illinois. — O'Brien  v.  Crawford,  208 
m.  App.  485. 

Indiana. — National  Motor  Vehicle 
Co.  V.  Kellum,  184  Ind.  457,  109  N.  E, 
196;  Picken  v.  Miller,  59  Ind.  App.  115, 
108  N.  E.  968 ;  Meyers  v.  Winona  Inter- 
urban  Ey.  Co.,  58  Ind.  App.  516,  106  N. 
E.  377. 

/owe— Willis  v.  Schertz,  175  N.  W. 
321. 

Kansas. — Giles  v.  Ternes,  93  Kan. 
140,  143  Pac.  491. 

Minnesota. — Fairchild  v.  Fleming, 
125  Minn.  431,  147  N.  W.  434. 

Missouri. — Conley  v.  Lafayette  Motor 
Car  Co.  (Mo.  App.),  221  S.  W.  165. 

New  York. — Hicks  v.  Serrano,  74 
Misc.  274,  133  N.  Y.  Suppl.  1102,  af- 
firmed 149  App.  Div.  926,  133  N.  Y. 
Suppl.  1126. 

Washington.— Cloherty  v.  Griffiths, 
82  Wash.  634,  144  Pac.  912. 

Particulars  need  not  be  given. — See 
Lum  Yet  v.  Hugill,  1  Dom.  Law  Eep. 
(Canada)  897. 


Collisions  With  Other  Vehicles.  483 

count  of  a  declaration  alleging  the  fact  of  a  collision  of  the 
defendant's  automobile  with  the  vehicle  in  which  the  plaintiff 
was  riding  and  averring  that  the  collision  and  consequent 
injury  were  due  to  the  negligence  of  the  defendant  ''in  that 
the  defendant  is  blind  in  one  of  his  eyes  and  of  imperfect 
vision,  and  is  not  on  account  of  said  blindness  and  imperfec- 
tion of  vision  competent  to  run  and  operate  an  automobile  on 
the  public  roads  with  reasonable  safety  to  other  users  of  the 
said  public  roads,  and  plaintiff  alleges  that  on  account  of  the 
premises  it  was  negligence  for  the  defendant  to  operate  and 
run  said  automobile  then  and  there,  and  that  by  reason  of  said 
blindness  and  imperfect  vision  of  the  defendant  the  said  auto- 
mobile collided  with  and  struck  the  said  vehicle,"  is  held  to  be 
a  sufficient  allegation  and  not  demurrable.^^  It  was,  however, 
said  that  as  incompetence  is  the  one  ingredient  in  the  negli- 
gence charged,  the  plaintiff  must  show  at  the  trial,  in  order  to 
succeed  upon  such  count,  that  the  imperfection  of  the  defend- 
ant's vision  extended  to  the  point  of  rendering  him  incom- 
petent to  safely  operate  the  automobile,  as  otherwise  his 
vision,  though  shown  to  be  to  a  lesser  extent  imperfect,  could 
not  have  entered  into  the  cause  of  collision.^  Where  a  plain- 
tiff alleges  the  negligent  running  of  an  automobile  as  the 
cause  of  a  collision  with  a  vehicle  and  the  negligence  alleged 
was  careless  guiding  of  the  car  and  running  it  at  an  excessive 
rate  of  speed  and  the  defendant  pleaded  that  the  collision  was 
brought  about  by  circumstances  beyond  his  control,  in  that 
the  steering  gear  of  his  automobile,  just  before  he  reached  the 
spot  where  it  struck  plaintiff's  buggy,  became  choked  in  such 
a  manner  that  he  could  not  steer  the  same  to  the  right  to  avoid 
a  collision,  such  plea  was  held  to  be  in  the  nature  of  a  plea  in 
confession  and  avoidance,  which  required  the  defendant,  in 
case  the  plaintiff  proved  prima  facie  either  of  the  grounds  of 
negligence  averred  as  the  proximate  cause  of  the  alleged  in- 
juries, not  only  to  show  that  the  steering  gear  of  the  auto- 
mobile had  suddenly  become  so  deranged  that  he  could  not 
prevent  the  collision,  but  that  such  derangement,  and  not  the 

99.  Campbell    v.    Walker,    1     Boyce  1.  Per  WooUey,  J. 

(Del.)  580,  76  Atl.  475. 


484  The  Law  of  Automobiijss. 

grounds  of  negligence  relied  on  by  the  plaintiff,  was  the 
efficient  and  proximate  cause  of  the  collision  and  of  the  con- 
sequent injuries.^  A  complaint  alleging  that  defendant  did 
*' negligently,  carelessly  and  recklessly  drive  said  motor  car 
upon  said  avenue  at  such  unlawful  rate  of  speed,  without  keep- 
ing a  proper  lookout  before  him  and  without  giving  the  proper 
signals  of  his  approach,"  is  not  to  be  construed  as  alleging 
negligence  as  to  the  rate  of  speed  only,  but  as  alleging  in 
addition  thereto  negligence,  in  not  keeping  the  proper  lookout 
and  in  not  giving  the  proper  signals  of  his  approach.^  A 
complaint  alleging  that  the  defendant  carelessly  and  negli- 
gently drove  an  automobile  at  high  speed  and  with  great 
violence  against  the  plaintiff's  horses  standing  in  the  high- 
way, whereby  they  were  frightened  and  ran  away  and  were 
injured,  is  not  supported  by  evidence  showing  that  the  auto- 
mobile while  under  control  was  moving  slowly  in  the  direction 
of  the  horses,  but  did  not  come  in  contact  with  either  of  them.* 
But  a  complaint  alleging  that  the  defendant  ran  into  the  plain- 
tiff's vehicle  with  his  automobile  is  supported  whether  or  not 
the  defendant  was  driving  or  was  in  the  automobile.^  The 
general  rule  is  that  when  reliance  is  placed  on  particular  acts 
of  negligence,  the  proofs  must  be  confined  to  those  acts.^ 

Sec.  413.  Negligence  is  generally  a  question  for  the  jury. 

When  two  vehicles  collide  on  the  public  highway  with  dam- 
age to  one  or  both,  the  question  of  the  negligence  or  contribu- 
tory negligence  of  the  drivers  is  generally  for  the  jury.'' 

•    2.  Posener     v.     Harvey     (Tex.     Civ.  3.  Diamond  v.  Cowles,  174  Fed.  571, 

App.),  125  S.  W.  356.  98  C.  0.  A.  417. 

An   order   for    particulars   was    held  4.  Trout  Brook  Co.  v.  Hartford  Elec. 

properly  refused    in    an   action   to    re-  Co.,  77  Conn.  338,  59  Atl.  405. 

cover  damages  for  death  alleged  to  be  5.  Morrison  v.  Clarke,  196  Ala.  670, 

caused  by  the  negligent  operation  of  an  72  So.  305;  Shepard  v.  Wood,  116  N. 

'automobile,     where    the    statement    of  Y.  App.  Div.  861,  102  N.  Y.  Suppl.  306. 

claim  showed  some  particulars  of  negli-  6.  Hunter  v.  Quaintance  (Colo.),  168 

gence.     Cuperman  v.  Ashdown    (Mani-  PiEtc.  918.   ' 

toba),  16  West.  L.  R.  687.  7.  ^rfcOTWO*.— Bennett  v.  Snyder,  227 

Meeting  allegations  as  to  proceeding  S.  W.  402. 

at  slow  rate  of  speed. — Abrahamson  v.  Alabama. — Wyker  v.  Texas  Co.,  201 

Yuile,  7  E.  P.  Q.  61.  Ala.  585,  79  So.  7. 


Collisions  With  Other  Vehicles. 


485 


Especially  is  this  so,  when  the  evidence  as  is  usually  the  case, 


Arkansas. — Carter  v.  Brown,  136  Ark. 
23,  206  8.  W.   71. 

California. — Oberholzer  v.  Hubbell 
(Cal.  App.),  171  Pac.  436;  Diamond  v. 
Weyerhaeuser,  178  Cal.  540,  174  Pac. 
38.  Newman  v.  Overholtzer  (Cal.),  190 
Pac.  175;  Saylor  v.  Taylor  (Cal.  App.), 
183  Pac.  843;  Blackburn  v.  Marple 
(Cal.  App,).  184  Pac.  873;  Blackburn 
V.  Marple  (Cal.  App.),  184  Pac.  875; 
Maxwell  v.  Western  Auto  Stage  Co. 
(Cal.  App.),  189  Pac.  710;  Blackwell 
V.  American  Film  Co.  (Cal.  App.),  102 
Pac.  189;  Sinclair  v.  Pioneer  Track 
Co.  (Cal.  App.),  196  Pac.  281;  Rhodes 
V.  Firestone  Tire  &  Rubber  Co.  (Cal. 
App.),  197  Pac.  392.  "If  there  was 
any  substantial  evidence  tending  to 
show  that  the  collision  was  caused  by 
negligence  on  the  part  of  defendant's 
driver,  the  action  of  the  court  in  di- 
recting a  verdict  was,  of  course,  er- 
roneous. The  existence  or  nonexistence 
of  negligence  is  ordinarily  a  question 
of  fact  to  be  determined  by  a  jury.  On 
the  other  hand,  the  court  may  withdraw 
the  case  from  the  jurj'  and  direct  a 
verdict  where  the  evidence  is  undis- 
puted, *or  is  of  such  conclusive  char- 
acter that  the  court,  in  the  exercise  of 
a  sound  judicial  discretion,  would  be 
compelled  to  set  aside  a  verdict  re 
turned  in  opposition  to  it.'  "  Diamond 
V.  Weyerhaeuser,  178  Cal.  540,  174  Pac. 
38. 

Connecticut — Neuman  v.  Apt«r.  112 
Atl.  350. 

Georgia. — Rouche  v.  McCloudy,  19 
Ga.  App.  558.  91  8.  E.  999;  Pedcock  v. 
West  (Ga.  App.),  102  8.  E.  360. 

Illinois. — Page  v.  Brink's  Chicago 
City  Express  Co.,  192  111.  App.  389; 
Hallissey  v.  Rothschild  &  Co.,  203  Dl. 
App.  283:  Walker  v.  Hilland.  205  111. 
App.  243 :  Moyer  v.  Shaw  Livery  Co., 
205   111.   App.  273. 

Iowa. — Baker  v.  Zimmerman,  179 
Iowa,  272,   161   N.   W.   479;    Barnes  v. 


Barnett,  184  Iowa  936,  169  N.  W.  365; 
Wag-ner  v.  Kloster,  175  N.  W.  840; 
Ix)nnecker  v.  Van  Patten,  179  N.  W 
432;  MoSpadden  v.  Axmear,  181  N.  W. 
4. 

Kentucky.— S]&te  v.  Witt,  188  Ky. 
133,   221   8.  W.  217. 

Maine. — Lyons  v.  Jordan,  117  Me. 
117,  102  Atl.  976;  Shepherd  v.  Marston. 
109  Atl.  387. 

Maryland. — American  Express  Co.  v. 
Torry,  126  Md.  254,  04  Atl.  1026; 
Wingert  v.  Cohill,  110  Atl.  857;  Bucket 
V.  White,  111  Atl.  777. 

Massachusetts. — Massie  v.  Barker. 
224  Mass.  420,  113  N.  E.  199;  Walters 
V.  Davis.  129  N.  E.  443. 

Michigam.. — Jolman  v.  Alberts,  192 
Mich.  25,  158  N.  W.  170;  Eberle  Brew- 
ing Co.  V.  Briscoe  Motor  Co.,  194  Mich. 
140.  160  N.  W.  440;  Whitman  v.  Collin. 
196  Mich.  540,  162  N.  W.  950;  Hopkins 
v.  Tripp.  198  Mich.  94,  164  N.  W.  395: 
Harris  v.  Bernstein,  204  Mich.  685,  171 
X.  W.  521;  Simmons  v.  Peterson,  207 
Mich.  508,  174   N.  W.  536. 

Minnesota. — Dunkelheck  v.  Meyer, 
140  Minn.  283,  167  N.  W.  1034;  Yonng 
V.  Avery  Co.,  141  Minn.  483.  170  N.  W. 
693. 

Missotiri. — Brick  ell  v.  Williams,  180 
Mo.  App.  572,  167  S.  W.  607:  Warring 
ton  V.  Byrd  CMo.  App.),  181  S.  W 
1079 ;  Calhoun  v.  Mining  Co..  202  Mo 
App.  564.  209  S.  W.  318;  Pabst  Brew 
ery  Co.  v.  Laetner  (Mo.  App.),  208  8 
W.  487;  Shaw  v.  Wilcox  (Mo.  App.^ 
224  8.  W.  58;  Alyea  v.  Jnnge  Baking 
Co.    (Mo.  App.).  230  8.  W.  341. 

Nebraska. — Lord  v.  Roberts.  102 
Neb.  49,  165  N.  W.  892. 

New  Jersey. — Rabinowitr  v.  Haw- 
thorne. 89  N.  .T.  L.  30S.  98  .\tl.  315. 

New  York. — Milliman  v.  Applet  on. 
139  App.  Div.  738.  124  N.  Y.  Suppl. 
482:  Pratt  v.  Burns.  189  App.  Div.  33, 
177  N.  Y.  Supp.  817;  Harding  v.  Cava- 
naugh,  91  Misc.  (N.  Y.)  511,  155  N.  Y. 


486 


The  Law  of  Automobiues. 


is  conflicting.^  And  when  the  evidence  is  such  that  reason- 
able minds  might  reach  different  conclusions,  negligence 
becomes  a  question  of  fact.^  But,  where  the  plaintiff's  testi- 
mony is  entirely  irreconcilable  with  the  facts  surrounding 
the  accident,  such  as  the  position  of  the  automobiles  there- 
after, a  verdict  for  the  plaintiff  may  be  deemed  as  founded 
on  a  mistake,  and  may  be  set  aside.^'* 


Suppl.  374;  Blum  V.  Qerardi,  111  Misc. 
617,  182  N.  Y.  Suppl.  297. 

Pennsylvania. — Bew  v.  John  Daley 
Inc.,  260  Pa.  418,  103  Atl.  832;  Lan- 
caster V.  Reese,  260  Pa.  390,  103  Atl. 
891;  Dickler  v.  Pullman  Taxi  Service 
Co.,  66  Pitts.  Leg.  Joum.  93 ;  Sebastine 
V.  Haney,  68  Pitts.  Leg.  Journ.  100; 
Mechling  v.  Harvey,  68  Pitts.  Leg. 
Journ.    (Pa.)    149. 

Bhode  Island. — Rogers  v.  Mann,  70 
Atl.  1057;  Jacobson  v.  O'Dette,  108 
Atl.    653. 

Texas. — Melton  v.  Manning  (Civ. 
App.),  216  S.  W.  488. 

Utah. — Boeddcher  v.  Frank,  48  Utah, 
363,  159  Pac.  634. 

Vermont. — Bianchi  v.  Millar,  111  Atl. 
524. 

Washington. — ^Luger  v.  Windell,  187 


Pac.  407;  Kane  v.  Nakmoto,  194  Pac. 
.381;  McCreedy  v,  Fournier,  194  Pac. 
398;  Boeing  V.  Gottstein  Furniture  Co., 
196  Pac.  575. 

Wisconsin. — Paul  v.  Pfefferkorn,  178 
N.  W.  247;  Wagner  v.  Larsen,  182  N. 
W.  336. 

8.  Brown  v.  New  Haven  Taxicab  Co. 
(Conn.),  105  Atl.  706;  Forsythe  v.  Kil- 
1am,  193  HI.  App.  534;  Lyons  v.  Jordan 
(Me.),  102  Atl.  976;  Savage  v.  Boyce, 
53  Mont.  470,  164  Pac.  887;  Ireson  v. 
Cunningham,  90  N.  J.  L.  960,  101  Atl. 
49;  Whetstone  v.  Jensen,  96  Oreg.  576, 
189  Pac.  983. 

9.  Calhoun  v.  Miniiig  Co.  (Mo.  App.), 
209  S.  W.  318;  Shortle  v.  Sheill  (Wis.), 
178  N.  W.  304. 

10.  Ladham  v.  Young,  145  N.  Y. 
Suppl.   1089. 


Collision  With  Pedestrian.  487 

CHAPTER  XVII. 

COLLISION   WITH   PEDESTRIAN. 

Section  414.  General  duties  of  foot  travelers  and  drivers  of  motor  vehicles. 

415.  Proximate  cause. 

416.  Unavoidable  accident. 

417.  Persons  under  disability. 

418.  Children  in  street — in  general. 

419.  Children  in  street — child    suddenly    coming    in    front    of    or    near 

machine. 

420.  Children  in  street — climbing  on  machine. 

421.  Confused  pedestrian. 

422.  Workmen  in  street. 

423.  Driving  past  street  car — in  general. 

424.  Driving  past  street  car — moving  street  car. 

425.  Driving  past  street  car — statutory    and    municipal    requirements. 

426.  Driving  past  street  car — assisting  passenger  on  car. 

427.  Driving  past  street  car — auto  on  wroing  side  of  street. 

428.  Driving  past  street  car — liability  of  street  railway  company. 

429.  Driving  on  v?alk  or  place  reserved  for  pedestrians — in   general. 

430.  Driving  on  walk  or  place  reserved  for  pedestrians — sidewalk. 

431.  Driving  on  walk  or  place  reserved  for  pedestrians — safety  zone. 

432.  Passing  pedestrian  walking  along  road. 

433.  Motor  vehicle  on  wrong  side  of  street. 

434.  Turning  corner. 

435.  At  street  crossing — in  general. 

436.  At  street  crossing — unfavorable  weather  conditions. 

437.  At  street  crossing — view  obstructed. 

438.  Lookout  for  pedestrians. 

439.  Avoidance  of  person  standing  in  street. 

440.  Sudden  turning  or  backing  without  warning. 

441.  Speed  and  control  of  automobile — control    in    general. 

442.  Speed  and  control  of  automobile — stopping. 

443.  Speed  and  control  of  automobile — speed. 

444.  Speed  and  control  of  automobile — speed   prescribed   by   statute  or 

ordinance. 

445.  Speed  and  control  of  automobile — auto  turning  corner. 

446.  Vehicle  left  standing  in  street. 

447.  Lights. 

448.  Signal  of  approach. 

449.  Towing  disabled  vehicle. 

450.  Pleading. 

451.  Damages. 

452.  Function  of  jury. 


488 


The  Law  of  Automobiles. 


Sec.  414.  General  duties  of  foot  travelers  and  drivers  of  motor 
vehicles. 
In  the  absence  of  statutory  or  municipal  regulation  affect- 
ing the  question,  the  right  of  a  pedestrian  is  neither  superior 
nor  inferior  to  the  rights  of  the  operator  of  a  motor  vehicle. 
They  have  equal  rights  in  the  street.^     The  driver  of  the 


1.  United  States. — Lane  v.  Sargent, 
217  Fed.  237. 

Delaware. — Brown  v.  City  of  Wil- 
mington, 4  Boyce,  492,  90  Atl.  44 ;  Wol- 
laston  V.  Stiltz,  114  Atl.  198. 

Illinois. — Crandall  v.  Krause,  165  111. 
App.  15;  Wortman  v.  Trott,  202  111. 
App.  528. 

Indiana. — Harker  v.  Gruhl,  62  Ind. 
App.  177,  111  N.  E.  457. 

Kansas. — Eames  v.  Clark,  177  Pac. 
540. 

Kentucky. — Bruce 's  Adm'r  v.  Calla- 
han, 185  Ky.  1,  213  S.  W.  557. 

Massachvsetts. — Emery  v.  Miller, 
231  Mass.  243,  120  N.  E.  654. 

Michigan. — Tuttle  v.  Briscoe  Mfg. 
Co.,  190  Mich.  22,  155  N.  W.  724. 

Missouri. — Frankel  v.  Hudson,  271 
Mo.  495,  196  S.  W.  1121;  Reynolds  v. 
Kenyon  (Mo.),  222  S.  W.  476;  Carra- 
dine  v.  Ford,  195  Mo.  App.  684,  187 
S.  W.  285;  Young  v.  Bacon  (Mo.  App.), 
183  S.  W.  1079;  Dignum  v.  Weaver 
(Mo.  App.),  204  S.  W.  566;  Meenach 
V.  Crawford,  187  S.  W.  879;  MoflFatt  v. 
Link  (Mo.  App.),  229  S.  W.  836. 

New  York. — Seaman  v.  Mott,  127  N. 
Y.  App.  Div.  18,  110  N.  Y.  Suppl.  1040; 
Miller  v.  New  York  Taxicab  Co.,  120 
N.  Y.  Suppl.  899. 

Pennsylvania. — Schoepp  v.  Geret}', 
263  Pa.  St.  538,  107  Atl.  317;  Twinn  v. 
Noble   (Pa.),  113  Atl.  686. 

Vermont. — Aiken  v.  Metcalf,  90  Vt. 
196,  97  Atl.  669. 

Washi/ngton. — Locke  v.  Greene,  100 
Wash.  397,  171  Pac.  245. 

"It  is  true,  as  we  have  said,  that  in 
a  general  .sense  the  pedestrian  and  the 
Butomobilist  have  equal  rights  in  streets 


that  are  set  apart  for  the  use  of  vehi- 
cles as  well  as  the  accommodation  of 
foot  travelers,  and  each  has  rights  that 
the  other  is  bound  to  respect,  and  it  is 
also  true  that  the  automobile  must  use 
only  the  carriage  way  of  the  street, 
while  the  pedestrian,  except  at  street 
crossings,  uses  generally  only  the  side- 
walk. But  the  pedestrian,  in  the  use 
of  the  street  at  a  regular  crossing,  nas 
the  same  right  to  its  use  as  vehicles, 
and  is  under  no  legal  duty  to  give  way 
to  automobiles.  The  automobile  can  go 
around  him  as  well  as  he  can  go  around 
it.  It  can  get  out  of  the  way  of  the 
pedestrian  about  as  easily  and  quickly 
as  he  can  get  out  of  its  way,  although 
it  is  usually  the  case,  and  rightfully 
so,  that  the  pedestrian  endeavors  to 
keep  out  of  the  way  of  vehicles  at  street 
crossings ;  but,  if  he  does  not, — this 
does  not  excuse  the  driver  of  that  vehi- 
cle who  runs  him  down,  unless  it  be  that 
the  driver  was  free  from  negligence, 
and  the  pedestrian  by  his  own  want  of 
care  was  to  blame  for  the  collision." 
Weidner  v.  Otter,  171  Ky.  167,  188  S. 
W.  335. 

Prejudice  against  automobiles. — In 
Gregory  v.  Slaughter,  124  Ky.  345.  8 
L.  E.  A.  (N.  S.)  1228,  30  Ky.  L.  Rep. 
500,  99  S.  W.  247,  which  holds  an  auto- 
mobilist  liable  in  damages  for  collid- 
ing with  a  pedestrian  on  a  highway, 
the  court  says  in  the  opinion :  ' '  The 
appellant  complains  in  his  brief  that 
he  is  the  victim  of  public  prejudice 
against  automobiles.  This  may  be  true, 
and,  if  so,  that  prejudice  is  based  upon 
the  carelessness  of  a  large  number  of 
automobilists  of  a  character  similar  to 


Collision  With  Pedestrian. 


489 


machine  must  exercise  reasonable  care  to  avoid  injury  to  per- 
sons lawfully  in  the  street  ;2  and  such  persons  are  bound  to 


that  of  which  this  record  shows  appel- 
lant was  guilty.  The  owners  of  auto- 
mobiles have  the  same  right  on  the  pub- 
lic highways  as  the  owners  of  other 
vehicles;  but  when  ono  drives  so  dan- 
gerous a  machine  through  the  puhli<' 
thoroughfares  it  is  incumbent  upon 
him  to  exercise  corresponding  care  that 
the  safety  of  the  traveling  public  is  not 
endangered  thereby.  When  owners  of 
automobiles  learn  that  it  is  confidently 
believed  that  whatever  prejudice  may 
now  exist  against  them  in  the  public 
mind  will  entirely  disappear.'' 

2.  United  States. — Bishoj)  v.  Wight. 
221  Fed.  391,  137  C.  C.  200;  Litne  v. 
Sargent,  217  Fed.  237. 

Alabama. — Dozier  v.  Woods,  190  Ala. 
279,  67  So.  283;  White  Swan  Laundry 
Co.  V.  Wehran,  202  Ala.  87,  79  So.  479. 

Arkansas. — Texas  Motor,  Co.  v.  Bnf 
fington,  134  Ark.  320,  203  S.  W.  1013. 

California. — Park  v.  Orbrson  (Cal. 
App.),  184  Pac.  428;  Lampton  v.  Davis 
Standard  Bread  Co.  CCal.  App.),  191 
Pac.  710. 

Delaware. — Brown  v.  City  of  Wil 
mington,  4  Boyce,  492,  90  Atl.  44. 

Illinois. — Devine  v.  Brunswick-Balke 
Collender  Co.,  270  HI.  504,  110  N.  E 
780;  Kessler  v.  Washburn,  157  III.  App 
532;  Goldblatt  v.  Brocklebank,  166  III 
App.  315;  Miller  v.  p'.versole,  184  111 
App.   362. 

Indiana. — Wellington  v.  Reynolds. 
177  Ind.  49,  97  N.  E.  155;  Harker  v. 
Gruhl,  62  Ind.  App.  177,  111  N.  K. 
457 ;  Gardner  v.  Vance,  63  Ind.  App. 
27,  113  N.  E.  1006. 

Iowa. — Brown  v.  Des  Moines  Bottl- 
ing Works,  174  Iowa,  715,  156  N.  W. 
829;  Wine  v.  Jones,  183  Iowa,  1166, 
162  N.  W.  196,  168  N.  W.  318. 

Kentucky. — Gregory  v.  Slaughter. 
124  Ky.  345,  99  S.  W.  247.  30  Ky.  L. 
Rep.    500,    8    L.    R.    A.    (N.    S.>    1228; 


Forgy  v.  Rutledge,  167  Ky.  182,  180  8. 
W.  90;  Weidner  v.  Otter,  171  Ky.  167, 
188  S.  W.  335. 

Michigan. — Bounia  v.  Dubois,  169 
Mich.  422,  135  N.  W.  322;  Patterson 
V.  Wagner,  204  Mich.  261,  171  N.  W. 
.'556. 

Missouri. — Haacks  v.  Davis,  166  Mo. 
.App.  249,  148  S.  W.  450;  Canadine  v. 
Ford,  195  Mo.  App.  684,  187  S.  W.  285 ; 
Edraonston  v.  Barrock  (Mo.  App.),  230 
S.  W.   6.50. 

\(  ir  Jersey. — Pool  v.  Brown.  89  N. 
.1.  L.  314,  98  Atl.  262. 

New  York. — Brewster  v.  Barker,  129 
N.  Y.  App.  Div.  724,  113  N.  Y.  Suppl. 
1026;  Sommerman  v.  Seal,  176  App. 
Div.  598,  163  N.  Y.  Suppl.  770;  Gnecco 
V.  Pederson,  154  N.  Y.  Suppl.  12. 

\orth  Carolina. — Manley  v.  Aber 
nathy,   167  N.  C.  220.   83   S.   E.   343. 

Oregon. — Weygandt  v.  Bartle,  88 
Oreg.  310,  171  Pac.  587. 

Pennsylvania. — Virgilio  v.  Walker, 
2r,4  Pa.  241,  98  Atl.  S1.5:  Twinn  v. 
Noble  (Pa.),  113  Atl.  686. 

Rhode  Island. — Gouin  v.  Ryder,  38 
R.  I.  31,  94  Atl.  670;  Greenhalch  v. 
Barber,  104  Atl.  769. 

South  Carolina. — King  v.  HoUiday, 
108  S.  E.   186. 

Utah. — Musgrave  v.  Studebaker  Bros. 
Co.  of  Utah,  48  Utah,  410.  160  Pac. 
117. 

Vermont. — Aiken  v.  Metcalf.  90  Vt. 
196,  97   Atl.   669. 

Virginia. — Core  v.  Wilhelm,  124  Va. 
150,  98  S.  E.  27. 

Washington. — 'Burger  v.  Taxicab 
Motor  Co.,  66  Wash.  676,  120  Pac.  519. 

Oanad<i..— White  v.  Hegler,  29  D.  L. 
R.  480,  34  W.  L.  R.  1061. 

Degree  of  care. — Where  the  question 
as  to  whether  an  infant  who  was  killed 
by  an  automobile  was  free  from  con- 
tributory negligence  is  very  close  and 


490 


The  Law  of  Automobiles. 


exercise  the  same  degree  of  caution  for  their  own  safety.^ 


doubtful  and  probably  a  finding  of 
freedom  from  contributory  negligence 
is  against  the  weight  of  evidence,  a 
judgment  for  the  plaintiff  will  be  re- 
versed where  the  court  charged  that  in 
^view  of  the  congested  condition  of  the 
street  where  the  accident  occurred  it 
was  "the  duty  of  the  defendant  to  use 
great  care  and  caution  in  proceeding 
along  that  street."  The  court  should 
have  charged  that  the  defendant  should 
liave  exercised  the  care  and  caution 
which  a  careful  and  prudent  driver 
would  have  exercised  under  the  same 
circumstances.  Although  the  error  was 
slight,  it  is  sufficient  for  a  reversal 
where  the  preponderance  of  proof  in 
the  plaintiff's  favor  was  very  doubtful. 
Sommerman  v.  Seal,  176  N,  Y.  App. 
Div.  598,  163  N.  Y.  Suppl.  770.  "The 
driver  of  the  automobile  was  under  a 
legal  duty  to  use  reasonable  care  to 
avoid  colliding  with  vehicles  or  persons 
in  the  public  highway.  His  duty  was 
to  be  on  the  alert  to  observe  persons 
who  were  in  the  street  or  about  to  cross 
the  street  and  to  use  reasonable  care  to 
avoid  colliding  with  them.  He  was  un- 
der a  duty  to  have  his  automobile  under 
proper  control.  He  was  under  an  obli- 
gation to  take  notice  of  the  conditions 
existing  in  the  public  street  and  to 
propel  his  car  in  a  manner  suitable  to 
those  conditions.  He  was  under  a  duty 
to  observe  the  condition  which  existed 
at  the  crosswalk."  Pool  v.  Brown,  89 
N.  J.  Law,  314,  98  Atl.  262. 

The  operation  of  an  automobile  upon 
the  crowded  streets  of  a  city  necessi- 
tates exceeding  carefulness  on  the  part 
of  the  driver.  Moving  quietly  as  it 
does,  without  the  noise  which  accom- 
panies the  movements  of  a  street  car  or 
other  ordinary  heavy  vehicle,  it  is  neces- 
sary that  caution  should  be  continuously 
exercised  to  avoid  collisions  with  pedes- 
trians unaware  of  its  approach.  The 
jBpeed   should  be  limited,  warnings   of 


appioach  given,  and  skill  and  care  in 
its  management  so  exercised  as  to  an- 
ticipate such  collisions  as  the  nature  of 
the  machine  and  the  locality  might  sug- 
gest as  liable  to  occur  in  the  absence  of 
such  precautions.  The  pedestrian  also 
must  use  such  care  as  an  ordinarily  pru- 
dent man  would  use  under  like  circum- 
stances. Lampe  v.  Jacobsen,  46  Wash. 
533,  90  Pac.  654. 

"High"  care. — "Automotive  vehicles 
have  become  a  very  important  and 
necessary  part  of  the  business  and 
social  life  of  the  people,  and,  in  view 
of  their  advantages  and  benefits,  are 
permitted  to  operate  upon  the  public 
streets  and  highways,  though  carrying 
with  them  great  potential  possibilities 
of  danger  and  destruction.  Society, 
therefore,  in  conceding  them  the  right 
to  operate,  exacts  of  those  taking  their 
advantages  a  high  degree  of  care  in 
avoiding  the  known  evil  results  which 
follow  a  'different  course.  On  those 
portions  of  the  highways,  known  to  be 
used  by  such  vehicles,  between  the 
points  provided  for  the  passage  of 
pedestrians,  the  latter,  in  attempting  to 
cross,  do  so  in  large  measure  at  their 
peril,  subject  to  the  requirement  that 
the  drivers  of  such  vehicles  shall  not 
knowingly  or  wantonly  strike  and  in- 
jure them.  But  at  the  points  provided 
for  the  passage  of  pedestrians  they 
have  the  right  to  assume  that  the  opera- 
tors of  such  machines  will  observe  that 
high  degree  of  care  imposed  by  the  cir- 
cumstances. No  other  condition  is  con- 
sistent with  the  common  and  necessary 
right  to  use  such  avenues  of  inter- 
course. The  frequent  occurence  of  col- 
lisions and  accidents  argue  most  force- 
fully for  a  rigid  enforcement  of  all 
traffic  regulations  intended  to  prevent 
such  occunences.  Otherwise,  the  indi- 
vidual who,  through  choice  or  necessity, 
adopts  the  original  mode  of  locomotion 
provided  by  nature,  mu.st  "take  his  life 


Collision  With  Pedestrian. 


491 


The  law  imposes  reciprocal  obligations/    The  reasonable  care 
required  of  the  operator  of  a  motor  vehicle  takes  into  con- 


and  limb  in  his  own  hands."  We  do 
not  mean  by  this  that  he  is  lo  be  ex- 
cused for  failing  to  use  his  own  senses 
to  avoid  being  injured ;  but  the  greater 
duty  and  care  rests  upon  those  who  use 
these  dangerous  agencies  carrying  such 
great  possibilities  of  harm."  Mequet 
V.  Algiers  Mfg.  Co.,  147  La.  .364,  84 
So.  904. 

"Highest"  degree  of  care. — Statutory 
provisions  may  require  that  the  drivers 
of  motor  vehicles  exercise  the  "high- 
est" degree  of  care.  Reynolds  v.  Ken- 
yon  (Mo.),  222  8.  W.  476;  Dignum  v. 
Weaver  (Mo.  App.),  204  S.  W.  566. 
See  section  281.  The  statute  in  Mis- 
souri was  subsequently  repealed.  See 
Edmonston  v.  Barrock  (Mo.  App.),  230 
S.  W.  650. 

3.  See  chapter   XVIII. 

4.  Texas  Motor  Co.  v.  Buffington 
(Ark.),  203  S.  W.  1013;  Harker  v. 
Gruhl,  62  Ind.  App.  177,  111  N.  E. 
457;  Bruce 's  Adm'r  v.  Callahan,  185 
Ky.  1,  213  S.  W.  557;  Mears  v.  Mc- 
Elfish  (Md.),  114  Atl.  701 ;  Core  v.  Wil- 
helm,  124  Va.  150,  98  S.  E.  27;  Burger 
V.  Taxicab  Motor  Co.,  66  Wash.  676, 
120  Pac.  519.  "The  law  imposes  re- 
ciprocal obligations.  Those  reciprocal 
obligations  are  the  offspring  of  elemen- 
tary and  familiar  legal  principles, 
which,  by  reason  of  their  soundness  and 
wisdom,  have  become  firmly  imbedded 
in  the  law.  In  fact,  it  is  strict  ob- 
servance of  those  legal  principles  which 
tends  to  make  our  public  highways  pas- 
sable and  safe  to  the  drivers  of  vehi- 
cles and  pedestrians,  alike.  The  cir- 
cumstance that  new  elements  of  loco- 
motion such  as  electricity,  steam,  etc., 
have  been  added  to  vehicles,  using  pub- 
lic highways,  has  not  wrought  any  modi  ■ 
fication  of  those  legal  principles. '  *  Pool 
V.  Brown,  80  N.  J.  Law,  314.  98  Atl. 
262. 


"While  the  pavement  along  the 
streets  is  primarily  intended  for  pedes- 
trians, and  the  driveway  or  street  is 
intended  for  vehicles,  a  pedestrian 
nevertheless  has  the  same  right  in  the 
street  as  a  vehicle;  that  is  to  say,  their 
rights  are  co-ordinate,  concomitant,  and 
equal.  One  does  not  have  to  give  away 
absolutely  to  the  other;  each  is  obliged 
to  respect  the  rights  of  the  other  and 
to  do  no  act,  while  occupying  the  street, 
that  will  bring  unnecessary  delay  or  in- 
jury to  the  other.  A  pedestrian  may 
cross  the  street  between  the  intersec- 
tions at  pleasure,  but  he  must  take 
into  account  the  equal  right  of  vehicles 
and  their  probable  presence  in  the 
street.  He  cannot  obstruct  traflSc  by 
standing  in  the  street  unnecessarily,  nor 
arbitrarily  require  vehicles  to  move  out 
of  his  way,  buj.  his  use  of  the  street 
must  be  regulated  according  to  the  cor- 
responding rights  of  others."  Bruce 's 
Adm'r  v.  Callahan.  185  Ky.  1,  213  S. 
W.   557. 

"The  defendant  in  his  car  and  the 
plaintiff  on  foot  were  each  entitled  to 
the  use  of  the  highway.  They  had  re- 
ciprocal rights  and  duties  as  to  its  use. 
Neither  could  be  unmindful  of  the  fact 
that  the  road  was  intended  to  be  avail- 
able  for  every  legitimate  purpose  and 
method  of  public  travel.  The  driver 
of  the  automobile  was  obliged  to  an- 
ticipate that  pedestrians  might  be  ns- 
ing  the  thoroughfare.  It  was  especi- 
ally incumbent  upon  him  to  exercise 
reasonable  care  to  avoid  injury  to  trav- 
elers who,  out  of  regard  to  their  own 
safety,  would  naturally  make  use  of 
the  unpaved  margin.  The  fact  that  the 
headlights  on  the  automobile  approaeh- 
ing  from  the  city  may  have  made  it 
more  difficult  for  the  driver  of  the  de- 
fendant's ear  to  see  the  pedestrians  on 
the  side  of  the  road  did  not  relieve  hiM 


492 


The  Law  of  Automobilks. 


sideration  the  dangers  which  may  be  expected  of  such  a 
machine;  and  hence  his  care  may  be  deemed  greater  than  that 
of  one  driving  a  horse  and  wagon.^  And  it  must  be  recognized 
that  the  danger  to  pedestrians  from  motor  vehicles  is  as 
great,  or  even  greater,  than  the  danger  from  street  cars.^    In 


of  the  duty  to  the  proper  care  to  ob- 
serve their  presence.  If  he  cuuld  not 
Bee  them  because  of  any  insufficiency  of 
his  own  heidlights,  or  because  of  the 
glare  of  those  on  the  approaching  car, 
he  might  have  reduced  the  speed  of  his 
automobile  and  given  warning  signals 
to  any  one  possibly  exposed  to  the  dan- 
ger of  collision."  Mears  v,  MoEHisli 
(Md.),  114  Atl.   701. 

5.  Weihe  v.  Rathjen  Mercantile  Co  , 
34  Gal.  App.  303,  167  Pac.  287;  Brown 
V,  City  of  "Wilmington,  4  Boyce  (Del.) 
492,  90  Atl.  44;  Weidner  v.  Otter,  17 1 
Ky.  167,  188  S.  W.  335;  Tuttle  v.  Bris 
coe  Mfg.  Co.,  190  Mich  22,  155  N.  W. 
724 ;   Manley  v.  Abernathy,   167  N.  C. 
220,  83  S.  E.  343 ;  Aiken  v.  Metcalf ,  90 
Vt.  196,  97  AU.  669.     "The  owners  of 
automobiles  have  the  same  right  on  the 
public  highways  as  the  owners  of  other 
vehicles;  but,  when  one  drives  so  dan 
gerous   a  machine  through   the   public 
thoroughfares,  it  is  incumbent  upon  him 
to  exercise  corresponding  care  that  the 
safety  of  the  traveling  public  is  not 
endangered       thereby."        Gregory       v. 
Slaughter,  124  Ky.  345,  99  S.  W.  241, 
30  Ky.  Law  Rep.  500,  8  L.  R.  A.   (N. 
S.)   1228.     "It  is,  too,  a  familiar  rule 
in  the  law  of  negligence  that  the  care 
to  be  exercised   must   correspond  witli 
the  capacity  to  injure,  and  accordingly 
the  automobilist  is  under  a  much  higher 
-degree  of  care  to  look  out  for  the  pe 
destrian,  than  the  pedestrian  is  to  look 
out  for  the  automobilist.     The  pedes- 
trian cannot  merely  by  the  manner  in 
which  he  uses  the  street  harm  the  auto- 
mobilist, but  the  automobilist  may  bv 
his  manner  of  using  the  street  kill  the 
pedestrian;  and  so,  generally  speaking. 


the  pedestrian  is  only  required  to  look 
after  his  own  safety,  and  not  the  safety 
of  others,  while  the  automobilist  must 
look  out  for  the  safety  of  the  pedes 
tiian  rather  than  his  own."  Weidner 
V.  Otter,  171  Ky.  167,  188  S.  W.  335. 
■  The  plaintiff  and  defendant  had  equal 
and  reciprocal  rights  in  the  use  of  the 
highway,  and  each  was  bound  to  so 
make  use  of  his  own  right  as  not  to 
interfere  with  that  of  the  other.  Each 
\v;<s  bound  to  exercise  due  care;  but 
the  degree  of  watchfulness  which  this 
rule  imposed  upon  them  was  not  the 
same.  The  defendant  was  driving  a 
machine,  which  on  account  of  its  speed, 
weight  and  quietness  was  capable  of 
doing  great  damage,  and  the  law  puts 
upon  one  so  situated  a  greater  and 
more  constant  caution.  He  was  bound 
to  exercise  care  commensurate  with  the 
dangers  arising  from  the  lack  of  it. ' ' 
Aiken  v.  Metcalf,  90  Vt.  196,  97  Atl. 
669. 

Instruction  to  jury. — An  instruction 
to  the  jury  to  the  effect  that  the 
il  river  of  the  automobile  was  not  bound 
to  exercise  the  "highest  degree  of 
care"  but  "ordinary  care  at  and  just 
prior  to  the  time  and  place  in  question 
to  avoid  injuring  the  deceased,"  has 
been  held  to  be  proper.  (Jordon  v. 
Stadelman,  202  111.  App.  255. 

6.  Meenach  v.  Crawford  (Mo.),  187 
S.  W.  879,  wherein  it  was  said:  "In 
fact,  automobiles  are  more  dangerous 
to  travel  on  the  streets  than  street  cars ; 
the  latter  are  confined  to  permanently 
fixed  tracks,  while  the  former  are  not 
restricted  to  any  particular  portions  of 
the  street;  they  run  as  fast,  and  on 
account  of  their  great  weight,  collisions 


Collision  With  Pedestrian. 


493 


considering  whether  the  operator  of  a  motor  vehicle  was  negli- 
gent, among  the  things  to  he  considered  are  the  size,  weight, 
speed  and  noise  of  the  car  and  the  condition  of  the  streets.'^ 
What  is  reasonable  care  by  an  operator  of  a  motor  vehicle  on 
the  public  highways  depends  upon  the  circmnstances  of  the 
particular  case,  as  bearing  upon  the  conduct  and  the  affairs 
of  men;  for  what  may  be  deemed  reasonable  and  prudent  in 
one  case  may,  under  different  circumstances  and  surround- 
ings, be  gross  negligence.* 

Sec.  415.  Proximate  cause. 

Unless  an  injury  to  a  pedestrian  is  the  proximate  result  of 
an  act  of  negligence  on  the  part  of  the  operator  of  a  motor 
vehicle,  there  can  be  no  recovery.^  In  other  words,  the  negli- 
gence of  the  operator  of  the  machine  must  be  shown  to  be  the 
proximate  cause  of  the  plaintiff's  injuries.^**    The  burden  of 


with  them  are  just  as  disastrous  to  man 
and  property  as  are  collisions  with  the 
ears.  All  that  vehicles  and  pedestrians 
have  to  do  in  order  to  avoid  injury  from 
the  latter  is  to  keep  off  of  the  car 
tracks,  but  not  so  with  automobiles; 
one  can  never  tell  in  what  part  of  the 
street  they  will  appear,  nor  what  course 
they  will  take  in  the  presence  of  ap- 
parent or  threatened  collision.  A  per- 
son in  trying  to  diverge  from  the  course 
of  one  may  step  in  front  of  another,  or 
the  same  automobile  may  turn  in  the 
same  direction  i^e  pedestrian  takes  and 
run  him  down,  he  having  no  knowledge 
of  the  course  the  former  will   take." 

7.  Bellinger  v.  Hughes,  31  Cal.  A  pp. 
464,  160  Pac.  838;  CoUett  v.  Standard 
Oil  Co.,  186  Ky.  142,  216  S.  W.  356. 

8.  White  Swan  Laundry  Co.  v.  Wehr- 
han,  202  Ala.  87,  79  So.  479;  Ginter  v. 
O'Donoghue  CMo.  App.),  179  S.  W. 
732.  "In  order  to  determine  whether 
the  requisite  care  was  observed,  the 
running  of  the  car  must  be  viewed  in 
the  light  of  the  'exigencies  of  the  situa- 
tion.' "  Ginter  v.  O'Donoghue  (Mn. 
App.),  179  S.  W.  732. 

9.  Death   as   result    of   injuries. — In 


an  action  for  the  death  of  a  boy  al- 
leged to  have  been  caused  by  being  run 
over  by  the  defendant's  motor  truck  in 
a  public  street,  the  evidence  was  held 
sufficient  to  show  that  death  resulted 
from  the  injuries,  where  the  identity  of 
the  boy  was  clearly  established,  and 
though  the  character  and  extent  of  the 
injuries  were  not  shown,  the  evidence 
disclosed  that  he  died  within  an  hour 
after  he  was  injured,  and  it  also  ap- 
peared that  the  defendant's  counsel  in 
the  examination  of  witnesses  assumed 
that  the  boy  was  killed.  Devine  v. 
Ward  Baking  Co.,  188  El.  App.  588. 

10.  Feehan  v.  Slater.  89  Conn.  697, 
96  Atl.  159;  City  of  Hagerstown  v. 
Raltz  (Md.),  104  Atl.  267;  Bibb  v. 
Grady  (Mo.  App.),  231  S.  W.  1020; 
Cantanno  v.  James  A.  Steven.«ion  Co., 
172  N.  Y.  App.  Div.  252,  158  N.  Y. 
Suppl.  335 ;  Cohen  v.  Goodman  &  Sons, 
Inc.,  189  N.  Y.  App.  Div.  209,  178  N. 
Y.  Suppl.  528;  Frashella  v.  Taylor,  157 
N.  Y.  Suppl.  881;  Taylor  v.  Stewart, 
172  N.  C.  203,  90  S.  E.  134;  Scholl  v. 
Dubois.  04  Ohio,  93,  113  N.  E.  664: 
Flanigan  v.  McLean  CPa.  St.).  J 10  Atl. 
370. 


494  The  Law  of  Automobiles. 

establishing  that  the  injury  was  the  proximate  result  of  the 
negligence,  is  upon  the  plaintiff.^^  But  to  sustain  a  recovery 
for  the  injuries  in  question,  it  is  not  required  that  the  precise 
form  of  injury  which  resulted  could  have  been  foreseen ;  it  is 
sufficient  if  it  appears  that  the  defendant's  negligence  would 
probably  cause  harm  to  some  person^^  Even  the  violation  of 
a  municipal  or  statutory  regulation  affords  no  cause  of  action 
save  for  those  injuries  which  are  a  proximate  result  of  the  vio- 
lation.^^ Thus,  the  violation  of  a  statute  making  it  a  felony 
to  use  the  automobile  of  another  without  authority,  is  not  the 
proximate  cause  of  an  injury  to  one  occasioned  by  a  use  of  a 
machine  contrary  to  the  statute,  and  the  pedestrian  cannot 
recover  without  proof  of  other  negligence  on  the  part  of  the 
driver."  And  negligence,  if  any,  in  leaving  an  automobile  un- 
attended in  the  highway  is  not  generally  deemed  the  proxi- 
mate cause  of  an  injury,  when  the  intervening  act  of  a  tres- 
passer starts  the  machine.^^  But  the  fact  that  the  driver  of 
another  vehicle  or  a  pedestrian  (other  than  the  plaintiff)  in 
the  street  was  also  guilty  of  negligence  which  contributed  to 
the  accident,  does  not  excuse  the  defendant  from  responsi- 
bility for  his  own  acts  of  neglect  which  were  a  proximate  cause 
of  the  accident.^*^  For  example,  if  the  operator  of  a  motor 
car  makes  a  sudden  turn  to  avoid  a  careless  pedestrian  in  the 
street  and  thereby  collides  with  another  person,  the  driver's 
negligence,  if  any,  is  not  excused  by  the  negligence  of  the  per- 
il. Jabbour  v.  Central  Constr.  Co.  113  N.  E.  664. 
(Mass.),  131  N.  E.  194;  Amley  v.  Sagi-  South   Carolina. — Whaleye   v.   Osten- 

naw   Milling   Co.,    195   Mich.    189,    161       dorflP,  90  S.  Car.  281,  73  S.  E.  186. 
N.  W.  832.  Vermont.— Bervin  v.  Frenier,  91  Vt. 

12.  Regan   v,   Cummings,    228   Mass.       398,  100  Atl.  760. 

414,  117  N.  E.  800.  Washington. — Burlie  v.  Stephens,  193 

13.  Connecticut. — Feehan   v.    Slater,      Pac.  684. 

89  Conn.   697,   96   Atl.   159;   Cohen  v.  And  see  section  300. 

Goodman  &  Sons,  Inc.,  189  N.  Y.  App.  14.  Johnston  v.  Cornelius,  200  Mich. 

Div.  209,  178  N.  Y.  Suppl.  528.  209,   166  N.   W.   983,  L.   E.  A.    1918D 

Michigan. — Johnston     v.      Cornelius,  880. 

200  Mich.  209,  166  N,  W.  983,  L.  R.  A.  15.  Section  342. 

1918D  880.  16.  Solomon  v.  Braufman,  175  N.  Y. 

North  Carolma. — Taylor  v.  Stewart,  Suppl.    835;    Mehegan    v.    Faber,    158 

172  N.  C.  203,  90  S.  E.  134.  Wis.  645,  149  N.  W.  397. 

Ohio. — Schell  v.  Dubois,  94  Ohio,  93, 


Collision  With  Pedestrian.  495 

son  causing  the  swerve."  Or  if  one  driving  at  an  unreason- 
able speed  swings  his  machine  toward  the  sidewalk  to  avoid 
a  child,  and  collides  with  a  push  cart  which  is  thrown  against 
one  standing  on  the  sidewalk,  the  driver  may  be  liable.^^  So, 
too,  if  a  fire  auto,  in  dodging  a  street  car  which  unlawfully 
obstructs  its  path,  strikes  a  pedestrian,  the  act  of  the  motor- 
man  of  the  street  car  may  be  deemed  the  proximate  cause  of 
the  injury  to  the  pedestrian.^^  And  negligence  in  leaving  an 
automobile  unattended  in  the  highway  may  be  deemed  the 
proximate  cause  of  an  injury  sustained  by  a  pedestrian  when 
a  car  runs  into  the  standing  auto  and  pushes  it  against  the 
pedestrian.^**  Similarly,  a  driver  who  negligently  propels  his 
car  so  as  to  strike  another  motor  vehicle  and  push  it  against 
a  pedestrian  may  be  liable  for  his  injuries,  though  the  driver 
of  the  latter  car  was  also  guilty  of  negligence.^^  If  an  automo- 
bile is  negligently  driven  against  a  pedestrian  in  a  street 
thereby  throwing  such  pedestrian  against  a  third  person  so  as 
to  cause  injuries  to  the  latter,  the  negligence  of  the  driver  is 
said  to  be  the  proximate  cause  of  the  injuries  sustained  by 
such  third  person.^^    The  alleged  negligence  of  a  city  in  main- 

17.  Mehegan  v.  Faber,  158  Wis.  645,  defendant's  negligent  act  and  its  re- 
149  N.  W.  397.  sultant  consequence.    McNamee 's  act  in 

18.  Solomon  v.  Braufman,  175  N.  Y.  alighting  from  the  car  and  passing  to 
Suppl.  835.  the  pavement,  as  already  observed,  was 

19.  King  V.  San  Diego  Elec.  Ey.  Co.,  not  culpable  in  any  vpay,  and  it  would 
176  Cal.  266,  168  Pac.  131,  not  have  caused  the  injury  to  the  plain- 

20.  Keiper  v.  Pacific  Gas  &  Elec.  Co.  tiff  if  it  had  not  been  for  the  act  of 
(Cal.  App.),  172  Pac.  180.  the  defendant  in  driving  his  machine 

21.  Mathes  v.  Aggeler  &  Musser  against  him.  There  was  a  continuous 
Seed  Co.,  179  Cal.  697,  178  Pac.  713;  and  connected  succession  of  events 
Meech  v.  Sewall,  232  Mass.  460,  122  beginning  with,  and  caused  by,  the  neg- 
N.  E,  446,  ligent  act  of  the  defendant,  unbroken 

22.  Frankel  v,  Norris,  252  Pa.  14,  97  by  any  new  or  independe  ;t  cause,  and 
Atl,  104,  wherein  it  was  said:  ''The  ending  with  the  plaintiff's  injuries, 
proximate  cause  of  the  plaintiff's  in-  which  would  not  have  occurred  with^ut 
juries  was  manifestly  the  negligent  act  the  initial  wrongful  act  of  the  defend- 
of  the  defendant  in  driving  his  ma-  ant.  That  some  of  the  persons  who 
chine  past  the  street  car  after  it  had  were  alighting  from  the  car  would  in 
stopped.  It  was  a  breach  of  a  statu-  some  manner  be  injured  by  defendant's 
tory  duty  which  naturally  and  proxi-  illegal  act  was  readily  to  be  antici- 
mately  resulted  in  the  plaintiff's  in-  pated  and  should  have  been  foreseen 
juries.  There  was  no  intervening  cause  by  the  defend-int.  To  render  his  act 
which  broke  the  connection  between  the  the  proximate  cause  of  the  plaintiff's 


496 


The  Law  of  Automobiles. 


taining  a  faulty  contour  of  the  street  and  curbing,  and  in  per- 
mitting a  table  to  remain  on  the  sidewalk,  is  not  the  proximate 
cause  of  an  injury  to  a  child  on  the  walk  who  is  injured  by  an 
automobile  backing  upon  the  sidewalk  and  pushing  the  child 
against  the  table.^^  So,  too,  the  wrongful  act  of  municipal 
employees  in  permitting  an  obstruction  on  a  sidewalk  does  not 
render  it  liable  for  injuries  sustained  by  one  who  steps  into 
the  street  to  avoid  the  obstruction  and  is  thereby  struck  by  a 
motor  vehicle.^^  And  the  negligence  of  a  street  railway  com- 
pany in  having  a  glaring  light  which  blinded  the  driver  of  a 
motor  bus,  may  not  be  the  proximate  cause  of  an  injurj  to  a 
i^edestrian  from  the  bus,  for  under  such  circumstances  it  is 
the  duty  of  the  driver  to  stop  the  machine  and  his  negligence 
in  continuing  may  be  deemed  an  intervening  cause.^^  If  the 
jury  finds  that  the  proximate  cause  of  the  accident  was  the 


injury,  the  law  does  not  require  that 
the  defendant  should  have  foreseen  the 
particular  consequence  or  precise  form 
of  the  injury,  or  the  particular  manner 
in  which  it  occurred  if  by  the  exercise 
of  reasonable  care  he  might  have  fore- 
seen or  anticipated  that  some  injury 
might  result  from  his  negligent  act. 
29  Cyc.  495.  A  man  of  ordinary  in- 
telligence would  have  recognized  the 
great  danger  to  passengers  alighting 
from  the  car  and  passing  to  the  pave- 
ment in  running  his  machine  between 
the  car  and  the  curb.  The  fact  thai 
the  intervening  cause  was  a  human 
being  instead  of  an  inanimate  object 
does  not,  as  the  defendant  contends, 
under  the  facts  of  this  case,  make  it  a 
responsible  cause  which  ^^relieves  him 
from  liability.  McNamee  was  not  neg 
ligent,  as  pointed  out  above,  in  alight- 
ing from  the  ear  and  crossing  the  street 
to  the  pavement.  He;  was  simply  an 
innocent  instrument  in  the  continuous 
succession  of  events,  the  first  of  which 
was  the  negligent  act  of  the  defendant, 
which  resulted  in  the  plaintiff's  in- 
juries. But  if  his  conduct  was  culpable, 
the  jury  have  found,  under  the  court's 


instructions,  that  the  defendant  in  the 
natural  and  ordinary  course  of  events 
should  have  anticipated  what  happened, 
and  therefore  the  defendant's  negli- 
gence was  an  essential  link  in  the  chain 
of  causation,  and  the  connection  be- 
tween the  defendant's  negligent  act 
and  the  plaintiff's  injury  was  not 
broken.  1  Shear.  &  Bed.  Neg.  (6th 
Ed.),  §  32.  The  negligent  act  of  the 
defendant  must  therefore  be  regarded 
as  the  proximate  cause  of  the  plain- 
tiff's injuries." 

See  also  Walker  v.  Rodriguez,  139 
La.  251,  71  So.  499;  Greenhalch  v.  Bar- 
ber (R.  L),  104  Atl.  769. 

23.  City  of  Hagerstown  v.  Raltz 
(Md.),   104  Atl.   267. 

Steam  fom  engine  obstructing  view 
of  driver  and  causing  machine  to  strike 
pedestrian.  Verdict  against  construc- 
tion company  operating  the  machine, 
sustained.  Pisarki  v.  Wisconsin  Tunnel 
&  Constr.  Co.  (Wis.),  183  N.  W.  164. 

24.  Jones  v.  City  of  Ft.  Dodge,  185 
Iowa,  600,  171  N.  W.  16. 

25.  Kilgore  v.  Birmingham,  etc., 
Power  Co..  200  Ala.  238,  75  So.  996. 


Collision  With  Pedestrian. 


497 


negligence  of  the  driver  of  another  car,  which  caused  plain- 
tiff to  jump  suddenly  in  defendant's  path,  the  latter  would 
not  be  liable.^  In  the  absence  of  unusual  circumstances,  the 
driver  of  a  motor  vehicle  is  not  liable  for  injuries  sustained 
by  a  pedestrian  who  falls  on  ice  by  the  side  of  the  way  where 
he  stepped  to  avoid  the  machine.^  But  liability  has  been  sus- 
tained where  a  pedestrian  stepped  in  front  of  a  horse  while 
avoiding  an  automobile  negligently  driven.^ 


Sec.  416.  Unavoidable  accident. 

While  reasonable  care  is  exacted  of  the  driver  of  an  auto- 
mobile,^ this  is  far  from  requiring  him  to  be  an  insurer 
against  accidents  to  pedestrians.^"  In  an  action  by  a  pedes- 
trian for  injuries  received  in  a  collision  with  a  motor  vehicle, 
the  burden  is  placed  on  the  plaintiff  of  showing  that  some  neg- 
ligence of  the  defendant  was  the  proximate  cause  of  his  in- 
jury,^^  and  also,  in  those  jurisdictions  where  common  law  rules 


26.  Twinn  v.  Noble  (Pa.),  113  Atl. 
686. 

27.  White  v.  Metropolitan  St.  Ry. 
Co.,  195  Mo.  App.  310,  191  S.  W.  1122. 

28.  Maitland  v.  McKenzie,  28  O.  L 
R.    (Canada)   506. 

29.  Section  277. 

30.  Czarniski  v.  Security  Storajje  & 
Transfer  Co.,  204  Mich.  276,  170  N.  W. 
52.     And  see  section  283. 

Not  an  insurer. — "Drivers  upon 
highways  are  not  held  as  insurers 
against  accidents  arising  from  the  neg- 
ligence of  children  or  their  parents, 
and  though  in  law  such  negligence  in  a 
particular  case  may  not  be  a  defense, 
as  contributory  negligence,  for  a  driver 
also  guilty  of  negligence,  the  fact  of  an 
acc'dent  docs  not  establish  liability  or 
raise  a  presumpt'on  thnt  the  driver  is 
negligent."  Bnrger  v.  Bissell,  188 
Mich.  366,  154  N.  W.  107.  See  also 
Herald  v.  Smith  (Utah),  190  Pac.  032. 

31.  Arkansas. — Millsaps  v.  Brofrdon, 
97   Ark.  469,   134  S.  W.  632. 

Delaware. — Grior      v.       Samuel,       4 

32 


.  Boyce's  (27  Del.)  106,  86  Atl.  209; 
Wollaston  v.  Stiltz  (Del.),  114  Atl.  198. 

IlUnots. — Smith  v.  Schoenhoften 
Brewing  Co.,  201  111.  App.  552. 

Louisiana. — Halm  v.  P.  Graham  & 
Co.,  148  La.  — ,  86  So.  651. 

Massachnsetts. — Jabbonr  v.  Central 
Constr.  Co.,  131  N.  E.  194. 

Michigan. — Barger  v.  Bissell,  188 
Mich.  360,   154  N.  W.   107. 

Missouri. — W'inter  v.  Van  Blarcom, 
258  Mo.  418,  167  S.  W.  498. 

New  TorJc. — Pol  sky  v.  New  York 
Transp.  Co.,  96  App.  Div.  613,  88  N.  Y. 
Suppl.  1024;  Capell  v.  New  York 
Transp.  Co.,  150  App.  Div.  723,  135 
N.  Y.  Suppl.  691 ;  Cantanno  v.  James  A. 
Stevenson  Co.,  172  N,  Y.  App.  Div. 
252,  158  N.  Y.  Suppl.  335;  Brianzi  v. 
Crane  Co.,  196  App.  Div.  58. 

Oregon. — Sorsby  v.  Benninghoven.  82 
Orog.  345,  161  Pac.  251. 

Pennsylvania. — Foster  v.  Curtis,  63 
Pa.  Super.  Ct.  473. 

Virginia. — Hicka  v.  Bomaine.  116  Va. 
401,  82  S.  E.  71. 


498  The  Law  of  Automobiles. 

prevail,  that  he  was  not  guilty  of  contributory  negligence.^^ 
As  a  general  proposition,  these  questions  are  for  the  jury.^' 
The  mere  proof  of  the  injury  to  a  pedestrian  raises  no  pre- 
sumption of  negligence  on  the  part  of  the  driver  of  the  motor 
vehicle.'*  When  a  foot  traveler  suddenly  appears  in  front  of 
an  automobile  moving  at  a  reasonable  rate  of  speed,  and  obey- 
ing the  rules  of  the  road  for  automobile  travel  and  the  'driver 
cannot  by  the  exercise  of  due  diligence  stop  the  machine  be- 
fore it  strikes  such  person,  from  the  standpoint  of  the  driver, 
the  accident  is  unavoidable,  and  he  is  not  liable  for  the  en- 
suing injuries.^  And  the  same  doctrine  applies  when  the  per- 
son injured  is  a  child  who  darts  in  front  of  a  moving  auto- 
mobile.^*'  The  mere  fact,  however,  that  a  child  runs  in  front 
of  a  moving  motor  vehicle  so  suddenly  that  the  driver  has  no 
notice  of  danger,  does  not  necessarily  relieve  him  from  lia- 
bility. There  still  remains  the  question  whether  the  negligent 
driving  of  the  automobile  made  it  impossible  for  the  driver  to 
avoid  the  accident  after  seeing  the  child.^' 

Sec.  417.  Persons  under  disability. 

Persons  under  physical  disability,  such  as  aged,  crippled, 
intoxicated,  blind  or  deaf  persons  are  favored  by  the  law. 
Moreover,  their  conduct  as  bearing  on  the  question  of  oon- 

Instructions  to  jury. — ^Wliere,  in  an  34.  Horowitz     v.     Gottwalt     (N.    J. 

action  to  recover  for  personal  injuries  Law),  102  Atl.  930;  Brianzi  v.  Crane 

to  the  plaintiff,  who  was  injured  by  the  Co.,  196  App.  Div.  58 ;  Vannett  v.  Cole 

defendant's  vehicle  while  waiting  for  a  (N.  Dak.),  170  N.  W.  663;  Flanigan  v. 

street    car    to    pass,    the    only    specific  McLean  (Pa.  St.),  110  Atl.  370;  King 

charges  of  negligence   alleged  against  v.  Brillhart  (Pa.  St.),  114  At".  515. 

the  defendant  are  the  excessive  speed  35.  McMillen  v.  Shathmann,  264  Pa. 

of  the  vehicle  and  the  failure  to  give  13,  107  Atl.  332;  Magee  v.  Cavins  (Tex. 

warning   of   its  approach,  it  is  rever-  Civ.  App.),  197  S.  W.  1015. 

sible  error  for  the  court  to  refuse  to  36.  Hyde  v.  Huberger,  87  Conn.  704, 

charge  in  effect  that,  unless  the  plain-  87  Atl.  790;   Winter  v.  Van  Blarcom, 

fff  establishes  one  of  the  two  specific  258  Mo.  418,  167  S.  W.  498;  Sorsby  v. 

charges  of  negligence,  there  en  be  no  Benninghoven,   82  Oreg.   345,   161   Pac. 

recovery.     Capell  v.  New  York  Tranap.  251;  Stahl  v,  Sollenberger,  246  Pa.  St. 

Co.,  150  N.  Y.  App.  Div,   723,   135  N.  525,  92  Atl.  720.     And  see  section  419. 

Y.  Suppl.  691.  37.  Osberg  v.   Cudahy   Packing   Co., 

32.  See  Chapter  XVTII.                    '  198  111.  App.   551. 

33.  Section  452. 


Collision  With  Pedestrian.  499 

tributory  negligence,  may  not  be  so  carefully  scrutinized  by 
the  courts.^^  The  operator  of  motor  vehicle,  as  is  the  driver 
of  any  other  vehicle,  is  bound  to  exercise  the  degree  of  care 
which  an  ordinarily  prudent  man  would  exercise  under  the 
same  circumstances  to  avoid  injury  to  a  pedestrian  who  is 
lacking  in  the  capacity  of  a  normal  man,  such  as  an  intoxi- 
cated, aged,  blind,  or  deaf  person,  or  a  person  otherwise  in- 
firm.^^  As  has  been  said,***  ''It  is  a  rule  of  law  that  one  driving 
or  operating  a  vehicle  is  bound  to  consider  the  lack  of  capacity 
of  those  in  his  way  to  care  for  their  own  safety,  when  such  in- 
capacity is  known  or  should  have  been  known  by  him,  and 
the  law  exacts  greater  care  toward  those  who  are  unable  to 
care  for  themselves,  as  children,  blind  persons,  and  in  fact 
drunken  persons,  when  such  incapacity  is  known  or  should 
have  been  known  by  the  one  driving  or  operating  a  vehicle. ' ' 
Of  course,  no  special  care  is  imposed  on  the  driver  of  the  auto- 
mobile in  such  cases,  unless  he  knoAvs,  or  by  the  exercise  of 
reasonable  care  should  know,  that  the  person  was  under  some 
disability.*^  The  fact  that  an  injured  pedestrian  was  intoxi- 
cated at  the  time  of  an  accident,  may  be  considered,  not  only 
as  bearing  on  his  contributory  negligence,  but  also  on  the 
question  whether  the  driver  of  the  automobile  striking  him 
was  exercising  due  precautions.^  And,  reasonable  care  must 
be  exercised  so  as  to  avoid  collision  with  a  pedestrian  who  is 
deaf.''^  A  beggar  on  his  crutches  had  the  same  right  to  the  use 
of  the  streets  of  a  city  as  has  the  man  in  his  automobile.  Each 
is  bound  to  the  exercise  of  ordinary  care  for  his  own  safety 
and  the  prevention  of  injury  to  others  in  the  use  thereof." 
So,  too,  a  blind  person  may  lawfully  use  the  streets  and  high- 
ways, the  law  requiring  him,  how^ever,  to  use  ordinary  care 
under  the  circumstances.^^    Thus,  it  has  been  held  that  the 

38.  Section  481.  42.  Brown  v.  City  of  Wilmington,  4 

39.  Brown  v.  City  of  Wilmington,  4  Boyce's  (27  Del.)  492,  90  Atl.  44. 
Boyce's  (27  Del.)  492,  90  Atl.  44.     See  43.  Furtado   v.   Bird,   26  Colo.  App. 
also  Waruna  v.  Dick,  261  Pa.  602,  104  153,  146  Pac.  58. 

^^^-  '^'^^-  44.  Millsaps  v.  Brogdon,  97  Ark.  469. 

40.  Brown  v.  City  of  Wilmington,  4       134  S.  W.  632. 

Boyce  (Del.)  492,  90  Atl.  44.  45.  McLaughlin   v.   Qrifln,   55   Iowa, 

41.  Brown  v.  City  of  Wilmington,  4       302,  135  N.  W.  1107. 
Boyce  (Del.)  492,  90  Atl.  44. 


500  The  Law  of  Automobiles. 

driver  of  an  automobile,  who  met  an  old  man,  almost  blind, 
cautiously  walking  along  the  side  of  the  road,  was  guilty  of 
negligence  in  failing  to  stop  his  machine  or  turn  out,  the  old 
man  being  thereby  struck  by  the  machine  and  injured."^  And, 
where  an  aged  woman  was  struck  at  a  curve  by  an  automo- 
bile which  was  being  operated  by  a  beginner,  the  court  said  it 
was  satisfied  that  the  operator's  whole  attention  was  concen- 
trated on  the  "reverse  curve"  which  he  was  executing  per- 
haps for  the  first  time  in  his  life  in  so  contracted  a  space  and 
not  on  what  was  ahead  of  him,  and  did  not  see  the  old  lady 
until  he  was  right  upon  her,  and  then  lost  his  head,  and  it  was 
concluded  that  the  judicial  cause  of  the  accident  was  defend- 
ant's inattention  to  what  was  ahead  of  him,  in  combination 
with  his  lack  of  skill  in  the  management  of  his  machine.''^ 

Sec.  418.  Children  in  street  — in  general. 

Children,  aged  persons,  and  those  under  physical  disability 
are,  speaking  in  general  terms,  favored  by  the  law."*^  A  child, 
as  well  as  an  adult,  may  assume  that  motorists  will  obey  regu- 
lations relative  to  the  driving  of  motor  vehicles.*^  A  person 
operating  a  motor  vehicle  along  the  streets  of  a  city  or  vil- 
lage is  bound  to  recognize  the  fact  that  children  will  be  found 
playing  in  the  street  and  that  they  may  sometimes  attempt  to 
cross  the  street  unmindful  of  its  dangers.  While  it  is  said  in 
some  jurisdictions  that  he  is  bound  to  exercise  only  ordinary 
care,  this  is  construed  to  mean  care  commensurate  with  the 
danger  and  probability  of  injury.^    And  the  danger  of  injury 

46.  Apperson  v.  Lazro,  44  Ind.  App.  other,  but  he  was  only  requ'red  to  use 
186,  88  S.  E.  99.  See  also  McLaughlin  ordinary  care  wherever  he  might  be. 
V.  Gr'flin,  155  Iowa,  302,  135  N,  W.  While  it  is  a  correct  proposition  that 
1107.  what    might    be    ordinary    ca'-e    where 

47.  Navailles  v.  Dielmann,  124  La.  there  were  no  ch-ldren  or  persons  crrss- 
421    50  So.  449.  ing  a  street  would  not  be  ordinary  care 

48.  Section  417.  and  m-ght   be  negligence   where   there 

49.  Kolmkiewiz  v.  Burke,  91  N.  J.  were  children  and  a  crowded  s'reet,  yet 
L.  567,  103  Atl.  249.  ordinary  care  was  a'l  he  w^s  required 

50.  Thios  V.  Thomas,  77  N.  Y.  Suppl.  to  use,  and  ordinary  care  is  such  c  re 
276.  3S  an  ordinarily  reasonahlp  and  prudent 

Only  ordinary  care  required. — "Ap-  person  would  use  under  all  the  circnra- 
pellant  was  not  required  to  use  a  higher  stances  and  c^ndi  ions  ex'sMng  at  the 
degree  of  care  at  one  pi  ice  than  an-       time  and  place  and  which  are  or  ought 


Collision  With  Pkdestrian.  501 

to  a  child  being  greater  than  to  an  adult,  as  a  practical  propt)- 
sition,  the  courts  will  hold  the  driver  of  an  automobile  liable 
for  injuries  to  a  child,  when  the  circumstances  of  the  accident, 
if  the  injury  had  resulted  to  an  adult,  might  not  justify  a  ver- 
dict against  the  driver.  Thi.s  is  largely  on  account  of  the 
liberality  of  the  courts  in  their  consideration  of  the  contribu- 
tory negligence  of  the  infant.  The  conduct  of  children  is  not 
judged  by  the  same  rules  which  govern  that  of  adults:  and, 
while  it  is  their  duty  to  exercise  ordinary  care  to  avoid  the 
injuries  of  which  they  complain,  ordinary  care  for  them  is 
that  degree  of  care  which  children  of  the  same  age,  of  ordinary 
care  and  prudence,  are  accustomed  to  exercise  under  like  fir 
cumstances."  It  is  a  matter  of  common  knowledge,  that,  es- 
pecially in  cities  of  considerable  size,  children  use  the  streets 
as  a  playground,  not  confining  tlieniselves  to  the  sidewalk  but 
occupying  or  at  unexpected  moments  running  upon  or  across 
the  part  of  the  thoroughfare  used  by  vehicles.  Of  such  use  of 
the  streets  by  children,  motorists  or  users  of  other  vehicles 
must  be  assumed  to  have  knowledge,  and,  where  their  pres- 
ence can  be  observed,  a  degree  of  care  commensurate  with  the 
ordinary  emergencies  presented  in  these  instances  must  be 
exercised.  One  driving  a  vehicle  must  not  assume  that  chil- 
dren of  immature  age  will  exercise  care  for  their  protection 
and  will  not  expose  themselves  to  danger.^^  The  rate  of  speed 
is  not  necessarily  determinative  of  the  question.    What  would 

to  be  known  to  the  party."     Miller  v.  of  eare  required  to  be  exercised  will  be 

Eversole,   184  111.  App.  362.  greater  when  the  safety  of  children  or 

Instructions. — The  court  should  in  others  of  immature  judgment  is  in- 
struct the  jury  as  to  the  degree  of  care  volved,  and  when  such  facts  are  known 
to  be  exerc-sed  by  the  operator  of  a  to  tho  operator  of  the  car.  What 
car  as  well  as  by  the  child  injured  by  would  constitute  reasonable  care  in  one 
it.  Reaves  v.  Maybank,  193  Ala.  614,  eas(>  might  not  he  reasonable  care  in 
69  So.  137.  another."      Herald    v.    Smith    (Utah), 

Greater  care. — "An  operator  of  an  190  Pac.  932.  See  also  Qlinco  v.  Wimer 
automobile  on  a  public  street  is  not  an  (W.  Va.),  107  S.  E.  198. 
insurer  against  damages  to  children  or  51.  Sections  478-480. 
other  persons.  He  is  only  required  to  52.  Krug  v.  Walldren  Express  &  Van 
exercise  ordinary  care  or  such  care  as  Co..  214  111.  App.  18;  Reynolds  v.  Ken- 
an ordinarily  prudent  person  would  yon  (Mo.),  222  S.  W.  476:  Henild  v. 
exercise  under  like  dr  similar  circum-  Smith  (Utali).  190  Pac.  932;  Ratcliff© 
stances,   and.   as   indicated,   tlu-   -le^ree  v.  McDonald,  123  Va.  781.  97  S.  K.  :?07. 


502  The  Law  of  Automobiles. 

be  reasonable  on  one  street  would  not  be  in  another;  even  a 
much  less  rate  might  be  deemed  negligence  on  the  part  of  one 
operating  the  car.^  Even  as  low  a  speed  as  five  or  six  miles 
an  hour  may  be  gross  negligence  when  driving  through  a 
crowd  of  children  playing  in  the  street.^*  And,  independently 
of  statute  or  municipal  regulation  affecting  the  speed  of  auto- 
mobiles when  passing  schoolhouses,  it  is  expected  that  the 
driver  will  proceed  at  a  moderate  rate  at  such  places.^  A 
person  who  drives  so  dangerous  a  machine  as  an  automobile 
through  the  principal  street  of  a  large  city,  upon  a  bright, 
dry  day,  and  who  sees,  at  a  distance  of  150  feet  in  front  of 
him,  two  boys,  ages  ten  and  twelve,  respectively,  trailing  in  a 
soap  box  wagon  behind  an  ice  wagon,  should  take  such  pre- 
cautions in  his  driving  as  that,  in  no  event  or  situation,  con- 
ceivable to  an  intelligent  man,  will  he  run  over  and  kill  the 
boys/^  The  questions  of  negligence  and  contributory  negli- 
gence are  as  a  general  proposition  for  the  jury  to  decide.^'^ 

Sec.  419.  Children  in  street  —  child  suddenly  comings  in  front 
of  or  near  machine. 

When  a  motor  vehicle  is  proceeding  along  at  a  lawful  speed 
and  is  obeying  all  the  requirements  of  the  law  of  the  road  and 
all  the  regulations  for  the  operation  of  such  machine,  the 
driver  is  not,  as  a  general  proposition,  liable  for  injuries  re- 
ceived by  a  child  who  darts  in  front  of  the  machine  so  sud- 
denly that  its  driver  cannot  stop  or  otherwise  avoid  the  in- 
j^j.y  58    j^  jg  ^Q  j^g  remembered  that  the  driver  of  a  motor 

63.  Savoy  v.  McLeod,   111   Me.   234,  Eversole,  184  111.  App.  362. 

88  Atl.  721,  48  L.  R.  A.   (N.  S.)   971;  56.  Albert  v.  Mimch,  141  La.  686,  75 

Haacke  v.   Davis,    166   Mo.   App.    249,  So.  513. 

148    S.   W.    450;    Deputy   v.   Kimmell,  57.  Section  487. 

73  W.  Va.  595,  80  S.  E.  919.     See  also  58.  Connecticut.— Hyde  v.  Huberger, 

Lauterbach   v.    State,    132    Tenn.    603,  87  Conn.  704,  87  Atl.  790;  Kishalaski 

179  S.  W.  130.  V.  Sullivan  (Conn.),  108  Atl.  538.    "No 

54.  Haacke  v.  Davis,  166  Mo.  App.  evidence  was  offered  from  which  the 
249,  148  S.  W.  450.  jury  could  reasonably  have  found  neg- 

55.  Lampton  v.  Davis  Standard  ligent  conduct  on  the  defendant's  part. 
Bread  Co.  (Cal.  App.),  191  Pac.  710;  There  was  an  entire  absence  of  testi- 
Tripp  v.  Taft,  219  Mass.  81,  106  N.  E.  mony  that  he  was  traveling  at  an  ex- 
578 ;  Heidner  v.  Germschied,  41  S.  Dak.  cessive  speed,  that  he  did  not  have  Mr 
430,  171  N.  W.  208.    See  also  Miller  v.  car  \mder  suitable  control,  or  that  he 


Collision  With  Pedestrian. 


503 


vehicle  does  not  insure  other  travelers  against  accident.^' 
Thus,  where  the  street  was  clear  and  the  machine  was  being 
driven  at  a  sjieed  of  eighteen  miles  an  hour,  and  the  driver 
did  not  see  a  young  child  standing  behind  a  telegraph  pole, 
but  just  as  he  was  abreast  of  the  child  it  ran  out  and  was 
struck  by  the  rear  fender,  it  was  held  that  he  was  not  liable 
for  the  injuries,  the  speed  at  which  he  was  traveling  being 
permitted  by  statute.^  Similarly,  where  a  truck  was  stand- 
ing by  the  curb  with  the  hub  of  a  wheel  over  the  edge  of  the 
curb,  the  driver  is  not  liable  to  injuries  received  by  a  child  of 
tender  years  who  was  playing  'Hag"  and  ran  toward  the 


failed  to  exercise  due  care  in  any  re- 
spect or  at  any  time.  There  was  no 
testimony  to  indicate  that  the  plaintiff 
had  left  the  sidewalk,  where  he  was 
just  before  the  accident,  until  the  mo- 
ment before  he  was  hit,  or  that  there 
was  anything  in  the  situation  wliich 
called  for  special  precaution  on  the  de- 
fendant's part  to  avoid  the  accident 
which  were  not  taken.  On  the  contrary, 
the  evidence  indicated  strongly  that  the 
plaintiff  did  not  leave  the  walk,  or  come 
into  a  position  of  danger,  or  of  ap- 
parent danger,  until  the  defendant's 
ear  was  so  close  to  him  that  no  reason- 
able efforts  on  its  driver's  part  could 
have  avoided  running  him  down.  The 
case  is  not  one  in  which  the  plaintiff 
merely  failed  to  present,  as  he  was 
bound  to  do,  evidence  pointing  to  the 
defendant's  negligence  contributory  to 
the  injury  to  the  plaintiff ;  the  evidence 
presented  went  far  to  disprove  such 
negligence."  Hyde  v.  Hubinger,  87 
Conn.  704,  87  Atl.  790. 

Iowa. — Bishard  v.  Engelbnck,  180 
Iowa,  1132,  164  N.  W.  203. 

Maine. — Levesque  v.  Dumont,  116 
Me.  25,  99  Atl.  719. 

Massachusetts. — Lovelt  v.  Scott,  232 
Mass.  541,  122  N.  E.  646. 

Missouri. — Winter  v.  Van  IHarcom, 
258  Mo.  418,   167  S.  W.  498. 

New   York. — Jordan   v.    Am.    Sight- 


seeing Coach  Co.,  129  N.  Y.  App.  Div. 
313,  113  N.  Y.  Suppl.  786;  Chiappone 
V.  Grenebaum,  189  App.  Div.  579,  178 
N.  Y.  Supp.  854;  Meltzer  v.  Barrett, 
193  App.  Div.  183,  184  N.  Y.  Suppl. 
241;  Brianzi  v.  Crane  Co.,  106  App. 
Div.  58. 

Oregon.- — Sorsby  v.  Benninghoven,  82 
Orog.   345,   161   Pac.   251. 

Pennsylvania. — Stahl  v.  Sol!enberger, 
246  Pa.  St.  525,  92  Atl.  720;  Wetherill 
v.  Showell,  Fryer  &  Co.,  264  Pa.  St. 
449,  107  Atl.  808.  "The  defendant 
cannot  fairly  or  reasonably  be  charged 
with  negligence,  in  failing  to  stop  his 
automobile  and  avoid  the  accident,  un- 
less it  appeared  that  the  boy  entered 
the  roadway  at  a  .sufficient  distance 
from  the  automobile,  to  permit  of  its 
being  stopped  before  the  collision  oc- 
curred. If  the  boy  suddenly  left  the 
footway,  at  a  place  where  the  driver 
had  no  reason  to  expect  him  to  do  so, 
and  ran  directly  in  front  of  the  auto- 
mobile, the  result  could  hardly  have 
been  other  than  disastrous,  even  though 
the  machine  had  been  moving  at  a  very 
reasonable  rate."  Stahl  v.  Sollenber- 
ger,  246  Pa.   St.  525,  92  Atl.   720. 

Washington. — Burlie  v.  Stephens,  l'.»3 
Pac.  684. 

59.  Section  283. 

60.  Sorsby  v.  Benninghoven,  82  Oreg. 
345,  161  Pac.  251. 


504  The  Law  of  Automobiles. 

truck  at  the  moment  it  started  and  was  struck  by  the  hub.^ 
So,  too,  when  it  appeared  that  an  automobile  was  proceeding 
at  a  moderate  rate  on  the  proper  side  of  the  street,  that  it  was 
a  large  machine  which  could  have  been  seen  by  a  boy  if  he  had 
looked,  that  the  roadway  was  clear  in  front  of  it;  that  the  boy 
who  was  interested  in  catching  a  ball  suddenly  ran  in  front  of 
it  from  the  sidewalk  at  a  distance  of  from  four  to  twelve  feet 
and  that  the  automobile  was  stopped  so  that  its  wheels  skidded 
and  only  proceeded  five  feet  beyond  the  boy's  body,  it  was 
held  that  the  negligence  of  the  defendant  was  not  shown.®^ 

This  general  doctrine  necessarily  implies  that  the  operator 
of  the  machine  has  been  guilty  of  no  pre-existing  negligence 
which  contributed  to  the  injury  and  made  it  impossible  to 
avoid  the  accident  after  seeing  the  child.^  Thus,  if  one  is 
running  his  automobile  at  a  speed  in  excess  of  the  statutory 
limit,  he  cannot  escape  liability  because  the  child  who  was  in- 
jured ran  in  front  of  the  automobile  so  suddenly  that  the  acci- 
dent was  then  unavoidable.^  Moreover,  if  he  sees  or  should 
have  seen  the  child  soon  enough  to  have  avoided  an  injury,  an 
entirely  different  situation  arises.^ 

Sec.  420.  Children  in  street  —  climbing  on  machine. 

As  a  general  proposition  the  duty  of  the  driver  of  a  motor 
vehicle  is  to  keep  a  lookout  to  avoid  pedestrians  and  vehicles 
which  may  appear  in  front  of  his  machine.  He  is,  therefore, 
not  generally  required  to  look  out  for  children  who  may  at- 

61.  Cantanno  v.  James  A.  Stevenson  sions  cited  do  not  justify  its  applica- 

Co.,  172  N.  Y.  App.  Div.  252,  158  N.  Y.  tion  in  the  present  case." 

Suppl.  335,  wherein  it  was  said:     "The  62.  Jordan  v.  Am.  Sight-Seeing  Coaeh 

contention  of  the  learned  counsel  for  Co.,  129  N.  Y.  App.  Div.  313,  113  N. 

the  appellant  is  that  the  driver  should  Y.  Suppl.  786. 

have  watched  until  his  hub  was  clear  of  63.  Osberg   v.   Cudahy   Packing   Co., 

the  sidewalk.     If  the  child  before  the  198  111.  App.  551. 

truck   was    started    had    been    in    such  64.  Lauterbach   v.   State,    132   Tenn. 

relation  to  the  truck  as  to  show  a  proba-  603,  179  S.  W.  130;  Locke  v.  Greene, 

bility   that   its    progress    would    injure  100  Wash.  397,  171  Pac.  245. 

hira.  that  duty  might  arise.     But  the  65.  Yeager   v.   Gat«ly   &   Fitzgerald, 

mere   fact   that   children   were   playing  Inc.,    262   Pa.   466,    106   Atl.    76.      See 

near  it  and  might  run  into  it  furnishes  also  Goff  v.  Clarksburg  Dairy  Co.  (W. 

no  occasion  for  such  rule,  and  the  deci-  Va.),  103   S.  E.   58. 


CoLLisTox  With  Pedestrian.  505 

tempt  to  climb  on  the  side  or  rear  of  his  vehicle/"*  WTiore  it 
appeared  that  a  loaded  truck  was  proceedin.2:  at  a  moderate 
rate  of  speed ;  that  it  was  making  consideralilo  noise ;  that  as 
the  truck  approached,  a  boy  ran  out  in  the  street,  and  for 
about  ten  feet  ran  alongside  the  truck  behind  the  front  wheels, 
then  caught  hold  of  it  near  its  center  on  the  right  side  and 
hung  there  a, short  time,  and  then  seeming  to  lose  his  hold, 
fell  down  in  front  of  the  rear  wheel,  which  passed  over  him, 
it  was  held  that  the  driver  was  not  negligent."  Nor  is  it  the 
usual  duty  of  a  chauffeur  to  look  for  trespassers  on  the  far 
side  of  his  car,  though,  if  he  sees  a  child  there,  it  might  be  his 
duty  to  allow  him  an  opportunity  to  get  off  the  car  ])efore  bo 
starts  it.^^  If  the  driver  knows  that  a  child  is  climbing  on  the 
machine,  he  must  not  recklessly  operate  the  car  in  such  a  way 
as  to  cause  injury  to  such  child.^^  And,  though  he  has  driven 
the  child  from  the  machine,  he  may  be  said  not  to  have  ful- 
filled his'duty  if  he  starts  the  machine  wdthout  further  thought 
of  the  child.''*'  The  fact  that  his  machine  is  one  which  is  more 
or  less  attractive  to  children  and  excites  their  desire  to  climb 
thereon,  does  not  necessarilj^  affect  the  question.''^  Such  a 
child  is  regarded  by  the  law  as  a  trespasser,  toward  whom  the 
duty  of  the  driver  is  fulfilled  if  he  commits  no  intentional  and 
wilful  wrong.'^    The  doctrine  of  the  ''Turntable  Cases"  as  to 

66.  Hebard  v.  Mabie,  98  111.  App.  of  the  children  on  each  block  where  his 
643 ;  Smith  v.  Schoenhof en  Brewing  business  requires  him  to  stop.  An  auto- 
Co.,  201  HI.-  App.  552;  Ganilde  v.  mobile  is  a  legitimate  vehicle  on  the 
Uncle  Sam  Oil  Co.  of  Kan.,  100  Kans.  street,  and  entitled  to  stop  without  ac- 
74,  163  Pac.  627.  cumulating  children  upon  it.     I  am  not 

67.  Smith  v.  Schoenhofen  Browing  convinced  that  it  is  the  usual  duty  of 
Co.,  201  111.  App.  552.  a    chauffeur    to    search    for    infantile 

68.  Ostrander  v.  Armour  &  Co.,  176  trespassers  ensconced  on  the  far  side 
App.  Div.  152,  161  N.  Y.  Suppl.  961,  of  his  car." 

wherein  it  was  said:     "It  is  a  care  of  69.  Stipetich    v.    Security    Stove    iS: 

serious  moment  imposed  upon  the  busy  Mfg.  Co.   CMo.  App.),  218  S.   \>'.  964; 

teamster  to  mako  a   search   around   his  Higbee  Co.  v.  Jackson    (Ohiol.   128   N'. 

car  lest  a  child  too  young  for  discretion  E,  61. 

and  undirected   by  parents  has   tucked  70.  Ziehm  v.  Yale,  98  Ohio.  30('>,   W) 

herself   away    in   an   obscure   place  be-  N.  E.  702,  1  A.  L.  R.  1381. 

yond  the  casual   and  convenient   notice  71.  H(?bard    v.    Mabie,    98    111.    \p\>- 

of  the  driver.    The  driver,  by  such  rule,  543;   Gamble  v.  Uncle  Sam  Oil  Co.  of 

in    responsibility   supersedes   guardians  Kan..  100  Kans.  74,  163  Pac.  627. 

and    other    cu.stodians    in    watchfulness  72.  Canililp  v.  Uncle  Sam  Oil  Co.  of 


506  The  Law  of  Automobiles. 

attractive  or  alluring  nuisances  does  not  apply  to  a  motor 
vehicle  proceeding  along  the  streets.'^  Of  course,  if  the  driver 
of  the  vehicle  expressly  invites  a  child  or  other  person  to 
board  the  conveyance,  a  different  question  is  presented,  but 
the  mere  fact  that  children  had  previously  climbed  on  the 
vehicle  does  not  amount  to  an  invitation  in  a  particular  case.^* 

Sec.  421.  Confused  pedestrian. 

It  sometimes  happens  that  a  pedestrian  becomes  confused 
at  the  approach  of  an  automobile,  and,  first  starting  in  one 
direction  and  then  in  another,  misleads  the  driver  of  the  vehi- 
cle as  to  his  course  so  that  eventually  a  collision  becomes  un- 
avoidable. When  the  driver  of  the  machine  sees  that  the 
maneuvers  of  the  pedestrian  are  such  that  his  future  course 
is  uncertain,  he  must  exercise  such  care  as  is  warranted  by 
the  circumstances.^^  Where  the  pedestrian's  course  is  vacil- 
lating and  both  he  and  the  driver  of  the  automobile  are  turn- 
ing first  in  one  direction  and  then  in  the  other,  reasonable 
care  would  seem  to  require  that  the  machine  be  brought  under 
control  so  that  it  can  be  stopped  before  striking  the  foot  trav- 
eler.'^" The  questions  of  negligence  and  contributory  negli- 
gence in  such  cases  are  generally  for  the  jury,^''  though,  if 
the  driver  of  the  machine  has  brought  his  car  under  control, 

Kan.,    100    Kans.    74,    163    Pac.    627;  176  App.  Div.   152,  161  N.  Y.   Suppl. 

Ostrander  v.  Armour  &  Co.,  176  N.  Y.  961. 

App.  Div.  152,  161  N.  Y.  Suppl.  961.  75.  Eaymond   v.    Hill,    68    Cal.    473, 

73.  Gamble  v.  Unele  Sam  Oil  Co.  of  143  Pac.  743 ;  Westcoat  v.  Decker,  85 
Kan.,  100  KaJis.  74,  163  Pac.  627.  N.  J.  L.  716,  90  Atl.  290;  Citizens 
"The  attractive  nuisance  doctrine  can-  Motor  Car  Co.  v.  Hamilton,  32  Ohio 
not  be  extended  to  include  motor  Cir.  Ct.  Kep.  407 ;  Dougherty  v.  Davis, 
trucks,   nor  made   applicable   to   cases  51  Pa.  Supel-.  Ct.  229. 

like  this  one.    Motor  trucks  are  in  com-  76.  Little  v.  Maxwell,  183  Iowa,  164, 

mon  use,  and  no  more  attractive  nuis-  166  N.  W.  760;  Weil  v.  Kreutzer,  134 

ances  than   are  drays  and  other  ordi-  Ky.  563,  121  S.  W.  471;   24  L.  R.  A. 

nary  vehicles  used  for  carrying  persona  (N.  S.)  557.    See  also  Frankel  v.  Hud- 

and  goods  along  the  streets  and  high-  son,  271  Mo.  495,  196  S.  W.  1121. 

ways."     Gamble  v.  Uncle  Sam  Oil  Co.  77.  McKiernan  v.  Lehmaier,  85  Conn, 

of  Kansas,  100  Kans.  74,  163  Pac.  627.  Ill,  81  Atl.  969 ;  Heartsell  v.  Billows, 

74.  Gamble  v.  Uncle  Sam  Oil  Co.  of  184  Mo.  App.  420,  171  S.  W.  7;  Cough- 
Kansas,  100  Kans.  74,  163  Pac.  627;  lin  v.  Weeks,  75  Wash.  568,  135  Pac. 
Ostrander  v.   Armour   &  Co.    (N.  Y.),  649.     And  see  section  487. 


Collision  With  Pedestrian.  507 

and  the  oollision  results  because  the  pedestrian  has  suddenly 
jumped  in  front  thereof,  it  may  be  held  as  a  matter  of  law 
that  the  driver  was  not  guilty  of  negligence.''^  Thus,  where 
it  appeared  that  a  man  crossing  a  street  at  a  street  intersec- 
tion, and  after  reaching  a  space  between  two  surface  railway 
tracks,  upon  hearing  the  horn  from  the  defendant's  automo- 
bile which  was  then  between  twenty  and  forty  feet  from  him, 
threw  up  his  hands,  took  one  or  two  steps  in  front  of  the  ma- 
chine and  was  instantly  hit,  the  automobile  being  run  at  a 
speed  between  eleven  and  twelve  miles  per  hour,  it  was  held 
that  a  verdict  that  he  was  free  from  contributory  negligence 
and  that  the  accident  was  caused  solely  by  the  negligence  of 
the  chauffeur  was  against  the  weight  of  the  evidence.''^ 

Sec.  422.  Workmen  in  street. 

The  rights  of  a  workman  whose  duties  require  his  continual 
presence  in  a  street  are  somewhat  different  from  those  of  a 
pedestrian  who  uses  the  streets  merely  as  a  means  for  travel 
from  one  place  to  another.  The  operator  of  a  motor  vehicle 
should  appreciate  the  fact  that  the  employment  of  a  workman 
in  a  street  requires  that  his  attention  be  devoted  to  his  work 
rather  than  to  the  approach  of  vehicles.^**  Under  such  circum- 
stances, reasonable  prudence  on  the  part  of  the  driver  of  the 
machine  would  seem  to  require  that  he  have  his  car  under 
control  so  that  he  can  avoid  the  workman  if  the  latter  does 
not  notice  his  approach,  and,  in  case  of  a  collision,  he  may  be 
charged  Avith  negligence.^^     And  the  driver  may  be  deemed 

78.  Virgilio  v.  Walker,  254  Pa.  241,  736;  Burger  v.  Taxicab  Motor  Co.,  66 
98  Atl.  815.  See  also  Carlson-Leonard  Wash.  676,  120  Pac.  519.  "Plaintiff 
(Cal.  App.),  200  Pac.  40.  was  lawfully  upon  the  roadway,  in  the 

79.  Wall  V.  Merkert,  lb6  N.  Y.  App.  performance  of  his  duty,  in  plain  view, 
Div.  608,  152  N.  Y.  Suppl.  293.  and    the    driver    of    any    vehicle    upon 

80.  Burger  v.  Taxicab  Motor  Co.,  66  such  roadway  was  bound  to  take  notice 
Wash.  676,  120  Pac.  519.  of  him  and  to  exercise  the  care  enjoined 


81.  Carneghi  v.  Gerlach,  208  111.  App 
340;  Ostermeier  v.  Kingsman,  etc.,  Co. 
255  Mo.  128,  164  S.  W.  218;  Papic  v 
Freund  (Mo.  App.),  181  S.  W.  1161 
White  V.  East  Side  Mill  &  Lumber  Co. 
84  Oreg.  224,  161   Pac.  969,    164  Pac 


by  law  upon  the  drivers  of  such  vehicles 
not  to  injure  him;  and  plaintiff  could 
rightfully  assume  that  this  would  be 
done. ' '  Nehing  v.  Charles  M.  Monroe 
Stationery  Co.  (Mo.  App.),  191  S.  W. 
1054. 


508  The  Law  of  Automobu.es. 

guilty  of  negligence  if  he  fails  to  give  any  warning  of  his  ap- 
proach.^^  If  a  workman  in  the  street,  while  engaged  in  his 
work,  without  any  movement  on  his  part,  is  struck  from  be- 
hind by  a  motor  vehicle,  in  broad  day-light,  a  prima  facie  case 
of  negligence  is  established.^^  The  question  of  negligence  and 
contributory  negligence  are  generally  for  the  jury.^^  Thus, 
the  driver  of  an  automobile  has  been  held  liable  for  injuries 
received  by  a  workman  on  street  railway  tracks.^^  And  lia- 
bility may  be  imposed  where  a  car  has  struck  a  policeman  or 
traffic  officer  engaged  in  the  performance  of  his  duties  in  the 
street.**'  Similarly,  an  employee  of  a  city  sewer  gang  has  been 
allowed  to  recover  injuries  sustained  by  a  collision  with  a 
taxicab.*''  So,  too,  a  highway  or  bridge  employee,  may  recover 
for  injuries  sustained  from  a  motor  vehicle.**  A  flagman  at 
a  railroad  grade  crossing  may  maintain  an  action  for  injuries 
from  a  collision  with  an  automobire.® 

Sec.  423.  Driving  past  street  car  —  in  general. 

When  the  driver  of  an  automobile  sees  a  street  car  stand- 
ing at  a  regular  stopping  place,  it  is  his  duty  to  recognize  the 
fact  that  passengers  may  attempt  to  get  on  or  off  as  he  is 
passing  the  car,  and  he  should  exercise  due  precautions  to 
avoid  injury  to  such  persons.^    Not  only  must  he  expect  pas- 

82.  Sections  339-331.  T.  Suppl.  551;  White  v.  East  Side  Mill 

83.  Nehing  v.  Charles  M.  Monroe  &  Lumber  Co.,  84  Oreg.  224.  161  Pac. 
Stationery  Co.  (Mo.  App.),  191  S.  W.  969,  164  Pac.  736:  Heath  v.  Seattle 
1054.  Taxicab   Co.,    73   Wash.    177.    l.-^l    Pn--. 

84.  Carneghi  v.  Gerlach,  208  111.  App.  843. 

340 ;  Nehing  v.  Charles  M.  Monroe  Sta-  87.  Burger  v.  Taxicab  Motor  Co..  6(> 

tionery  Co.  (Mo.  App.),  191  S.  W.  1054.  Wash.  676,  120  Pac.  519. 

Sections  452,  487.  88.  Nehing  v.  Charles  M.  Monroe  Sta- 

85.  King  V.  Grien,  7  Cal.  App.  473,  tionery  Co.  (Mo.  App.),  191  S.  W.  1054. 
94  Pac.  777 ;  Dube  v.  Keogh  Storage  89.  Davis  v.  Barnes.  201  Ala.  120,  77 
Co.  (Mass.),  128  N.  E.  782;  Cecola  v.  So.  612.  See  also  Carter  v.  Redmond, 
44  Cigar  Co.,  253  Pa.  623,  98  Atl.  775;  142  Tenn.  258,  218  S.  W.  217. 
Morrison  v.  Conley  Taxicab  Co..  94  90.  United  States. — New  York  Transp. 
Wash.  436,   162  Pac.  365.  Co.  v.  Garside,  157  Fed.  521,  85  C.  C.  A. 

86.  James  v.  Mott,  (Mo.  App.),  215  285;  Taxi  Service  Co.  v.  Phillips.  187 
S.  W.  913 ;  Xenodochius  v.  Fifth  Ave.  Fed.  734,  109  C.  C.  A.  482 ;  Taxicab  Co. 
Coach  Co.,  129  N.  Y.  App.  Div.  26,  113  v.  Parks,  202  Fed.  909,  121  C.  C.  A. 
N.  Y.   Suppl.   135;   Fitzsimmons  v.  Is-  267. 

man,  166  N.  Y.  App.  Div.  262,  151  N. 


Collision  With  Pedestrian. 


509 


sengers  on  the  side  of  the  car  from  which  they  alight,  but  he 
must  anticipate  that  some  passen^i^ers  may  pass  behind  the 
car  to  the  other  side.^^  The  courts  in  some  jurisdictions  are 
constrained  to  say  that  more  than  ordinary  care  is  required 
of  the  operator  of  a  motor  car  when  he  is  passing  a  stationary 
street  car;^^  but  other  courts,  in  reaching  the  same  practical 


Arkansas. — Minor  v.  Mapes,  102  Ark. 
351,   144  S.  W.  219. 

California. — Bannister  v.  H.  Jevne 
Co.,  28  Cal.  App.  133,  151  Pac.  546. 

Connecticut. — Keams  v.  Widman,  108 
Atl.  681.      • 

Georgia. — See  Wadley  v.  Dooly.  13S 
Ga.  275,  75  S.  E.   153. 

Illinois. — Kerchner  v.  Davis,  183  111. 
App.  600;  Rasmussen  v.  Drake,  185  111. 
App.  526. 

Indiana. — -Wellington  v.  Koyiiolils. 
177  Ind.  49,  97  N.  E.   155. 

Maine. — Wetzler  v.  Gould,  110  Atl. 
686. 

Massachusetts. — Harnett  v.  Tripp, 
231  Mass.  382,  121  N.  E.  17. 

Michigan. — LevjTi  v.  Koppin,  183 
Mich.  232,  149  N.  W.  993. 

Minnesota. — Liehecht  v.  Crandall,  1 10 
Minn.  454,  126  N.  W.  69;  Kling  v. 
Thompson-McDonald  Lumber  Co.,  127 
Minn.  468,  149  N.  W.  947;  Johnson  v. 
Johnson,  137  Minn.  198,  163  N.  W.  160. 

Missouri. — Shamp  v.  Lambert,  141 
Mo.  App.  567,  121  S.  W.  770;  Bongnei 
V.  Ziegenheim,  165  Mo.  App.  328,  147 
S.  W.  182;  Meenach  v.  Crawford,  187 
S.  W.  879. 

New  York. — Kalb  v.  Redwood,  147 
N.  Y.  App.  Div.  77,  131  N.  Y.  Suppl. 
789 ;  Cowell  v.  Saperston,  149  App.  Div. 
373,  134  N.  Y.  Suppl.  284;  O'Neil  v. 
Kopke,  170  N.  Y.  App.  Div.  601,  156 
N.  Y.  Suppl.  664;  Stemfield  v.  Willi- 
son,  174  App.  Div.  842,  161  N.  Y.  Suppl. 
472 ;  Caesar  v.  Fifth  Ave.  Stage  Co.,  45 
Misc.  (N.  Y.)  331,  90  N.  Y.  Suppl.  359. 

Pennsylvania. — Kauffman  v.  Nelson, 
225  Pa.  St.  174,  73  Atl.  1105;  Frankel 
V.  Norns,  252  Pa.  14,  97  Atl.  104 ;  Mc- 


Evoy  V.  Quaker  City  Cab  Co.,  264  Pa. 
418,  107  Atl.  777. 

'Rhode  Island. — Marsh  v.  Boyden,  33 
R.  L  519,  82  Atl.  393. 

Texas. — Posener  v.  Long  (Civ.  App.), 
136  S.  W.  591. 

Vermont. — Adams  v.  Averill,  87  Vt. 
230,   88  Atl.  738. 

Washington. — Yanse  v.  Seattle  Taxi- 
cab  &  Transfer  Co.,  91  Wash.  415,  157 
Pac.  107. 

Canc(da.~T{ose  v.  Clark,  19  West.  L. 
R.  456. 

Auto  coming  from  behind  pedestrian. 
— ' '  The  complaint  in  this  case  shows 
that  appellee  was  in  the  center  of  Main 
Street,  running  north,  trying  to  catch 
a  street  car;  that  appellant,  driving  his 
automobile,  was  coming  up  behind  ap- 
pellee, and  gradually  approaching  him; 
that  appellant  saw  appellee  in  the  street 
ahead  of  him,  but  that  appellee  was  un- 
aware of  the  presence  of  the  machine. 
The  right  of  appellee  to  be  in  the  street 
for  the  purpose  of  boarding  a  street 
car  is  clear.  Under  the  conditions  al- 
leged in  the  complaint,  it  was  the  duty 
of  appellant  to  exercise  ordinary  care 
to  avoid  running  against  appellee." 
Wellington  v.  RejTiolds,  177  Ind.  49,  97 
N.  E.  155. 

91.  Johnson  v.  Johnson,  137  Minn. 
198,  163  N.  W.  160;  McMonagle  v. 
Simpers  (Pa.  St.),  110  Atl.  83. 

92.  Kelly  v.  Schmidt,  142  La.  91,  76 
So.  250.  "And  a  chauffeur,  driving  a 
machine  on  a  portion  of  the  public 
highway  which  is  usually  used  by  vehi- 
cles going  in  an  opposite  direction,  and 
driving  by  a  standing  street  car  at  the 
regular  place  for  taking  on  and  putting 


510 


The  Law  of  Automobiles. 


result,  say  that  only  reasonable  care  is  required,  but  that  rea- 
sonable care  is  such  care  as  is  commensurate  with  the  danger. 
The  amount  of  care  required  depends  on  the  character  of  the 
machine  as  to  size  and  weight,  the  speed  and  noise  thereof, 
and  the  condition  of  the  streets  and  other  surrounding  cir- 
cumstances.^^ It  may  be  considered  negligence  for  a  person 
in  charge  of  an  automobile  to  run  it  along  a  street  past  a 
street  car  that  has  stopped  to  allow  passengers  to  get  on  and 
off,  at  a  rate  of  not  more  than  six  or  seven  miles  an  hour.^^ 
The  questions  of  negligence,^^  and  contributory  negligence,^^ 
in  these  cases,  are  generally  for  the  jury.^^  Driving  close  to 
the  street  car  at  any  considerable  speed  is  sufficient  to  sustain 
a  charge  of  negligence.®^  Thus,  where  the  evidence  tended  to 
show  that  the  plaintiff,  after  alighting  from  a  street  car, 
looked  up  and  down  the  street  and  then  passed  behind  the  car 
toward  the  other  side  of  the  street  and  was  immediately 
struck  by  the  defendant's  automobile,  which  was  being  driven 
at  a  high  rate  of  speed  within  a  few  inches  of  the  car,  it  was 


off  passengers,  must  use  extra  precau- 
tions to  avoid  accidents.  Under  such 
circumstances  he  will  certainly  be  pre- 
sumed, in  case  of  accident,  to  have  seen 
a  person  standing  in  the  roadway,  or 
near  the  rear  end  of  the  street  car,  and 
his  employer  will  be  responsible  in  dam- 
ages for  an  accident  occurring  through 
his  fault."  Kelly  v.  Schmidt,  142  La. 
91,  76  So.  250. 

Greater  care. — The  driver  of  an  auto- 
mobile should  exercise  a  greater  degree 
of  care  at  points  where  persons  are  in 
the  habit  of  getting  on  and  off  cars 
than  under  ordinary  circumstances.  So 
a  defendant  was  held  liable  for  an  in- 
jury to  a  person  seeking  to  board  a  car 
at  such  a  point  where  the  driver  of  an 
automobile  attempted  to  pass  between 
the  car  and  a  vehicle  which  he  had  over- 
taken. Eose  V.  Clark,  19  West.  L.  R. 
(Canada)  456. 

93.  Bellinger  v.  Hughes,  31  Cal.  App. 
464,  160  Pac.  838. 

94.  Brewster   v.    Barker,    129    N.    Y. 


App.  Div.  907,  113  N.  Y.  Suppl.  1026. 
Twelve  miles. — A  speed  of  twelve 
miles  an  hour  when  passing  a  street 
car  has  been  held  sufficient  evidence  of 
negligence  to  justify  a  verdict  against 
the  owner  of  the  automobile.  Bannister 
V.  H.  Jevne  Co.,  28  Cal.  App.  133,  151 
Pac.  546. 

95.  Section  452. 

96.  Section  487. 

97.  Question  for  jury. — Where  a  per- 
son leaves  a  street  car  and  proceeds  at 
an  ordinary  pace  toward  the  sidewalk, 
it  cannot  be  said  as  a  matter  of  law 
that  the  driver  of  an  automobile  who 
saw  him  in  time  to  avoid  a  collision, 
but  in  fact  ran  into  him,  was  free  from 
negligence;  under  such  circumstances, 
the  questions  of  negligence  and  con- 
tributory negligence  are  for  the  jury. 
Hefferon  v.  Reeves,  140  Minn.  505,  167 
N.  W.  423. 

98.  Naylor  v.  Haviland,  88  Conn.  256, 
91  Atl.  186;  Johnson  v.  Johnson,  137 
Minn.  198,  163  N.  W.  160. 


Collision  With  Pedestrian.  511 

held  that  the  questions  of  negligence  and  contributory  negli- 
gence were  for  the  jury.^^  And,  where  there  was  evidence  that 
a  street  car  conductor  stepped  off  the  front  end  of  his  car  to 
the  street  for  the  purpose  of  going  to  the  rear  thereof,  and 
that  when  he  stepped  off,  an  automobile  going  from  three  to 
five  miles  an  hour  struck  him  though  there  was  plenty  of  room 
near  the  curb  for  the  auto  to  pass  in  safety,  it  was  held  that 
the  negligence  of  the  driver  of  the  automobile  was  a  question 
for  the  jury.^ 

Sec.  424.  Driving  past  street  car  —  moving  street  car. 

While  the  driver  of  an  automobile  is  bound  to  anticipate 
that  a  standing  street  car  is  receiving  or  discharging  passen- 
gers who  may  pass  along  the  street  in  front  of  his  machine, 
the  situation  is  different  in  case  of  a  moving  street  car.  The 
operator  of  a  motor  vehicle  is  not  bound  to  anticipate  that  a 
person  will  jump  from  a  moving  car  in  front  of  his  vehicle, 
and,  hence,  in  the  absence  of  statute  or  municipal  regulation 
affecting  the  question,  when  a  passenger  leaps  from  a  moving 
street  car  in  front  of  his  vehicle,  he  is  not  chargeable  Avith 
negligence  merely  because  of  his  failure  to  stop  or  slacken  the 
speed  of  his  machine  when  meeting  or  passing  the  street  car.- 

Sec.  425.  Driving  past  street  car  —  statutory  and  municipal 
requirements. 
Statutes  and  municipal  ordinances  have  been  enacted  in 
some  jurisdictions  which  bear  upon  the  operation  of  automo- 
biles when  passing  street  cars.^  These  regulations  are  of  two 
general  classes.  One  prescribes  the  distance  from  the  street 
car  which  an  automobile  must  take  when  passing.*    The  other 

99.  Dugan  v.  Lyon,  41  Pa.  Super.  Ct.       127  Minn.  468,  149  N.  W.  047;  Grouch 
52.  V.  Heffner,  184  Mo.  App.  365,  171  S.  W. 


1.  Caesar  v.  Fifth  Ave.  Sta^e  Co. 
45  Misc.  (N.  Y.)  331,  90  N.  Y.  Suppl 
359. 

2.  Brown  v.  Brashear,  22  Cal.  App 
135,  133   Pac.   505;    Horowitz   v.   Gott 


V.  Schenk,  25  Mont.  L.  Rep.   (Pa.)   18 
3.  EHing  V.  Thompson-McDonald  Co. 


23. 

4.  Bannister  v.  H.  Jevne  Co.,  28  Cal. 
App.  133,  151  Pac.  546;  Santina  v. 
Tomlinson  (Cal.  App.).  171  Pac.  437; 
Kolankiewiz  v.  Burke,  91  N.  J.  L.  567, 


wait   (N.  J.  Law),  102  Atl.  930;  Starr       103    Atl.    249;    Lorenzo    v.    Manhattan 


Steam  Bakery.  178  App.  Div.  706.  165 
N.  Y.  Suppl.  847. 


512 


The  Law  of  Automobiles. 


class  regulates  the  speed  of  the  machine,  in  some  cases  being 
so  drastic  as  to  require  the  stopping  of  the  automobile.^  Thus, 
it  has  been  enacted  by  statute  that,  ''When  a  motor  vehicle 
meets  or  overtakes  a  street  passenger  car  which  has  stopped 
for  the  purpose  of  taking  on  or  discharging  passengers,  the 
motor  veliicle  shall  not  pass  said  car  on  the  side  on  which  pas- 
sengers get  on  or  off,  until  the  car  has  started  and  any  passen- 
gers who  have  alighted,  shall  have  gotten  safely  to  the  side 
of  the  road."^  It  has  also  been  held  that  a  municipal  corpora- 
tion may  enact  an  ordinance  forbidding  automobiles  to  pass 
street  cars  while  they  are  receiving  or  discharging  passengers, 
and  that  the  violation  of  such  an  ordinance  is  negligence  per 
se?    The  effect  of  a  violation  of  a  statute  or  municipal  ordi- 


5.  Mann  v.  Scott,  180  Cal.  550,  182 
Pac.  281;  Hartnett  v.  Tripp,  231  Mass. 
382,  121  N.  E.  17;  Meenach  v.  Craw- 
ford (Me.),  187  S.  W.  879;  Horowitz 
V.  Gottwalt  (N.  J.  Law),  102  Atl.  930; 
Kolankiewiz  v.  Burke,  91  N.  J.  Law 
567,  103  Atl.  349;  Sehafer  v.  Rose- 
Gorman-Rose,  192  N.  Y.  App.  Div.  860, 
183  N.  Y.  Suppl.  161;  Lewis  v.  Wood, 
247  Pa.  St.  545,  93  Atl.  605;  Ward  v. 
Cathey  (Tex.  Civ.  App.),  210  S.  W. 
289;  Zimmermann  v.  Mednikoflf,  165 
Wis.  333,  162  N.  W.  349. 

6.  Pennsylvania  Statutes,  Act  of 
April  27,  1909  (p.  L.  265).  See  Lewis 
V.  Wood,  247  Pa.  St.  545,  93  Atl.  605; 
Frankel  v.  Norris,  252  Pa.  14,  97  Atl. 
104.  "It  will  be  observed  that  the  de- 
fendant in  violation  to  the  statute 
passed  the  street  car  after  it  had  stop- 
ped and  on  the  side  on  which  passen- 
gers were  getting  off.  It  is  clear,  there- 
fore, that  the  defendant  was  guilty  of 
negligence  which  resulted  in  the  plain- 
tiff's injuries.  Aside  from  the  act  of 
assembly,  it  was  a  reckless  and  negli- 
gent act  of  the  defendant  in  driving 
his  machine  at  such  speed  and  so  close 
to  the  street  car  when  the  passengers 
were  alighting  and  would  necessarily 
proceed  to  cross  the  street  to  the  side- 
walk.   His  conduct  was  clearly  a  viola- 


tion of  duty  which  made  him  respon- 
sible for  any  resultant  injury.  He  not 
only  disregarded  a  plain  duty  which  he 
owed  to  the  12  or  15  passengers  alight- 
ing from  the  street  car,  but  violated  the 
positive  command  of  a  statute  which 
required  him  not  to  pass  the  street  car 
while  it  was  at  rest.  He,  therefore,  not 
only  failed  to  observe  a  plain  duty  im- 
posed by  the  civil  law,  but  was  also  an 
offender  against  a  criminal  statute  of 
the  commonwealth.  The  court  was 
manifestly  correct  in  conceding  that  the 
defendant's  conduct  resulting  in  the 
plaintiff's  injuries  was  actionable  neg- 
ligence.'' Lewis  V.  Wood,  247  Pa.  St. 
545,  93  Atl.  605.  See  also  Carson  v. 
Raifman,  27  Que.  K.  B.  (Canada)  337 ; 
Evans  v.  Lalonde,  47  Que.  S.  C. 
(Canada)   374. 

7.  Schell  V.  DuBois,  94  Oh.  St.  93, 113 
N.  E.  664,  wherein  it  was  said:  "In 
this  case  the  ordinance  made  it  unlaw- 
ful for  a  person  to  drive  an  automobile 
past  a  street  ear,  standing  for  the  pur- 
pose of  receiving  or  discharging  passen- 
gers. It  is  inconceivable  that,  in  the 
midst  of  daily  experiences  which  arrest 
attention,  any  argument  is  needed  to 
show  the  wisdom  of  such  an  ordinance 
or  that  it  is  within  the  police  power  of 
the  Stato  whose  exercise  has  been  dele- 


Collision  AVith  Pedestrian.  513 

nance  regulating  the  conduct  of  automobile  drivers,  is  con- 
sidered more  at  length  at  another  place  in  this  work.*  Regu- 
lations of  this  character  may  apply  to  persons  intending  to 
become  passengers  as  well  as  those  leaving  the  car.^  And 
pedestrians,  who  are  crossing  the  street  close  to  a  standing 
street  car,  as  well  as  the  passengers  of  the  car,  are  entitled 
to  rely  on  the  obedience  by  motorists  of  regulations  and  can 
avail  themselves  of  the  benefit  thereof  in  case  of  a  collision.^" 
If  the  street  car  does  not  stop  at  its  usual  stopping  place,  but 
at  a  point  prohibited  by  a  city  ordinance,  it  may  be  error  to 
submit  the  violation  of  it  to  the  jury."  The  government  may 
well  be  said  to  be  as  interested  in  protecting  the  lives  and 
limbs  of  non-passengers  as  it  is  in  protecting  those  who  are 
passengers;  and  it  is  recognized  that  the  former  are  in  no 
better  position  to  protect  themselves  than  are  the  latter.^ 

Sec.  426.  Driving  past  street  car  —  assisting  passenger  on 
car. 

Due  precautions  should  be  taken  by  the  operator  of  an  au- 
tomobile to  avoid  injury  to  one  who  is  assisting  a  passenger 
to  board  a  street  car  or  Avho  is  moving  towards  the  sidewalk 
after  giving  such  assistance.  Thus,  where  it  appeared  that 
the  plaintiff,  having  assisted  friends  to  board  a  street  car, 
started  to  cross  the  street;  that  she  looked  up  and  do\\Ti  the 
street  when  crossing  the  first  and  second  car  tracks  and  saw 
nothing,  but  was  struck  by  an  automobile  when  she  had  nearly 
reached  the  curb ;  and  the  chauffeur  testified  that  the  plaintiff 

gated  to  the  city.     Such  an  ordinance  creased  mutual  oblgations  of  care  on 

must  be  reasonable,  and  must  not  con-  drivers  and  pedestrians." 

flict  with  general  laws.     The  right  of  8.  Sections  397-402. 

the  driver  of  an  automobile  to  the  use  9.  Crombie  v.  O 'Brian,  178  App.  Div. 

of  tho   public   thoroughfares   must   be  807,    165    N.   Y.   Suppl.   858;    Zimmer- 

recognized  and  not  unreasonably  inter-  mann  v.  MednikoflF,  165  Wis.  333,  162 

fered  with.     But  the  rights  of  pedes-  N.  W.  349. 

trians  and  others  must  be  equally  re-  10.  Meenach  v.  Crawford  (Mo.),  187 

spected.      All    must    realize    that    this  S.  W.   879;   Kolankiewiz  v.  Burke,  91 

comparatively  new  and  more  dangerous  N.  J.  L.  567,  103  Atl.  249. 

method  of  travel,  which  has  become  a  11.-  Horn  v.  Berg,  210  111.  App.  238. 

permanent  and  essential  factor  in  the  12.  Meenach  v.  Crawford  (Mo.),  187 

life    of   the    country,   has    imposed    in-  S.  W.  879. 

33 


514  The  Law  of  Automobiles. 

ran  from  beMnd  the  street  car  in  front  of  his  machine  and 
that  he  did  what  he  could  to  avoid  her,  but  was  unable  to  do 
so,  while  disinterested  witnesses  testified  that  the  automobile 
was  running  from  twenty  to  thirty  miles  an  hour  and  made  no 
effort  to  avoid  the  plaintiff,  and  that  the  impact  threw  her 
"ten  or  fifteen  feet,  and  it  appeared  that  it  was  windy  with  a 
flurry  of  snow,  it  was  held  that  the  negligence  of  the  chauf- 
feur and  the  contributory  negligence  of  the  plaintiff  were 
questions  for  the  jury.^^ 

Sec.  427.  Driving  past  street  car  — auto  on  wrong  side  of 
street. 

The  fact  that  an  automobile  passes  on  the  wrong  side  of  a 
street  car  discharging  passengers  has  a  material  bearing  on 
the  rights  of  the  parties.^*  In  the  first  place,  the  violation  of 
the  law  of  the  road  is  considered  to  constitute  a  prima  facie 
case  of  negligence  which  calls  upon  the  driver  to  explain  his 
conduct  in  violating  the  rule.^^  Then,  again,  on  the  question 
of  contributory  negligence  of  the  person  injured,  it  is  gen- 
erally held  that  one  is  not  required  to  anticipate  a  violation 
of  the  law  of  the  road  by  the  driver  of  an  automobile,  and  that 
the  pedestrian  is  not  required  to  look  out  for  motor  vehicles 
which  may  be  proceeding  on  the  wrong  side  of  the  street  with 

13.  Baker  v.  Close,  137  N.  Y.  App.  with  a  noisy  steam  train  making  the 
Div.  529,  121  N.  Y.  Suppl.  729.  crossing  at  the  same  time.     All  of  this 

14.  Harris  v.  Johnson,  174  Cal.  55,  was  done  in  total  disregard  of  the 
161  Pac.  1155;  Hart  v.  Eoth,  186  Ky.  rights  of  others  using  the  street.  Such 
535,  217  S.  W.  893.  "Defendant's  conduct  was  gross  negligence  on  the 
auto  truck  was  being  driven  at  a  great  part  of  the  driver,  and  it  resulted  in 
rate  of  speed,  without  lights;  and  the  the  death  of  plaintiffs'  son."  Kelly 
driver  gave  no  signal  as  he  approached  v.  Schmidt,  142  La.  91,  76  So.  250. 
the  intersection    of   these   two    streets,  15.  Sections  267,  433. 

and,  without  slacking  his  speed,  he  ran  Greater  vigilance. — When  an  auto 
his  auto  on  the  wrong  side  of  the  street,  driver  is  proceeding  along  the  wrong 
through  a  narrow  way  between  a  sta-  side  of  the  highway,  a  greater  degree 
tionary  electric  car  and  the  neutral  of  care  is  imposed  on  him  to  avoid  in- 
ground,  over  a  place  which  he  well  jury  to  persons  on  the  street.  New 
knew  to  be  used  by  passengers  in  get-  York  Transp.  Co.  v.  Garside,  157  Fed. 
ting  on  and  off  street  cars,  and  where  521,  85  C.  C.  A.  285. 
he  might  expect  traffic  to  be  congested, 


Collision  With  Pedestrian.  515 

the  same  degree  of  vigilance  as  for  vehicles  proceeding  in 
accordance  with  the  recognized  custom  of  travel.^" 

Sec.  428.  Driving  past  street  car  —  liability  of  street  railway 
company. 
There  is  a  conflict  of  authority  on  the  question  of  the  duty 
of  street  railways  in  furnishing  passengers  a  safe  way  to  the 
sidewalk  after  they  have  alighted  from  a  street  car.  But  it 
is  clear  that  the  company  must  exercise  the  highest  degree  of 
care  to  see  that  its  passengers  alight  in  safety,  its  duty  re- 
quiring it  to  warn  them  of  danger,  if  any,  at  the  place  of 
alighting.^'^  Thus,  there  may  be  a  (juestion  for  the  jury 
whether  a  street  car  company  has  fulfilled  its  duty  when  it 
permits  a  passenger  to  alight  immediately  in  front  of  an  ap- 
proaching motor  vehicle,  without  giving  him  any  warning  of 
the  impending  danger.'^  If  a  trespassing  boy  is  frightened 
off  a  moving  car  in  the  path  of  a  motor  vehicle,  the  companj^ 
may  be  liable."  The  fact  that  the  driver  of  the  vehicle  was 
also  guilty  of  negligence  does  not  excuse  the  negligence  of 
the  company.^ 

16.  Section  473.  this  condition  exists,  and  the  party  in- 

17.  Woods  V.  North  Carolina  Public  jured  is  not  negligent,  those  respon- 
Service  Co.,  174  N.  Car.  697,  94  S.  E.  siWe  for  the  causes  must  answer  iii 
459,  1  A.  L.  R.  942.  See  also  Logging  damages,  each  being  liable  for  the 
V.  Southern  Pub.  Utilities  Co.  (N.  whole  damage,  instead  of  permitting 
Car.),  106  S.  E.  822.  the  negligence  of  one  to  exonerate  the 

18.  Woods  V.  North  Carolina  Public  other.  It  is  in  the  application  of  this 
Service  Co.,  174  N.  Car.  697.  94  S.  E.  principle  it  is  held,  except  where  the 
459,  1  A.  L.  R.  942.  See  also  Ellis  v.  doctrine  of  comparative  negligence  pre- 
Hamilton  St.  Ry.,  18  O.  W.  X.  vails,  that  the, plaintiff  cannot  recover 
(Canada)   226.  if  his  own  contributory  negligence  con- 

19.  Thomas  v.  Southern  Penn.  Tract.  curs  with  the  negligence  of  the  defend- 
Co.  (Pa.),  112  Atl.  918.  ant  in  causing  the  injury,   because   as 

20.  Woods  v.  North  Carolina  Public  his  negligence  is  one  of  the  proximate 
Service  Co.,  174  N.  Car.  697,  94  S.  E.  causes,  he  as  well  as  the  defendant  is 
459,  1  A.  L.  R.  942,  wherein  it  was  liable  for  the  whole  damage,  and  as 
said:  "The  negligence  of  the  driver  there  is  no  contribution  among  tort- 
of  the  automobile  is  established  by  the  feasors,  he  cannot  recover  anything 
evidence,  but  this  does  not  relieve  the  from  the  defendant."  See  to  same 
defendant  from  liability,  if  it  was  also  effect:  Thomas  v.  Southern  Penn. 
negligent,  as  there  may  be  two  proxi-  Tract.  Co.  (Pa.),  112  Atl.  918. 

mate  causes  of  an   injury,  and   where 


516  The  Law  of  Automobiles. 

Sec.  429.  Driving-  on  walk  or  place  reserved  for  pedestrians  — 
in  general. 

When  a  foot  traveler,  while  occupying  a  part  of  the  street 
or  highway  which  is  devoted  exclusively  to  the  use  of  pedes- 
trians, is  struck  by  a  motor  vehicle,  it  can  usually  be  said  with 
some  degree  of  assurance  that  the  driver  of  the  machine  has 
been  guilty  of  negligence.  Thus,  when  one  is  on  the  side  of 
the  road  outside  of  the  ordinary  course  for  vehicular  traffic 
and  is  there  struck  by  an  automobile,  the  negligence  of  the 
driver  is  generally  at  least  a  question  for  the  jury.^^  Simi- 
larly, where  a  person  seated  on  a  park  bench  is  injured  by  a 
vehicle  driving  over  his  foot,  a  finding  of  negligence  on  the 
part  of  the  driver  will  be  sustained.^^  And,  where  a  State, 
through  a  State  fair  commission,  permits  a  race  of  high 
powered  automobiles  to  be  held  on  fair  grounds  on  a  track 
originally  made  for  horse  races,  and  only  protected  by  a 
wooden  fence  of  flimsy  construction  which  is  not  capable  of 
resisting  the  impact  of  such  machines,  it  has  been  held  liable 
for  injuries  caused  by  a  racing  machine  which  leaves  the  track 
and  plunges  through  the  fence  into  a  crowd  of  spectators.^* 
So,  too,  where  one  was  injured  by  an  automobile  while  pass- 
ing through  the  rear  portion  of  an  automobile  repair  and 
farm  implement  shop  in  order  to  transact  business  in  the 
front,  it  was  held  that  the  fact  that  he  reached  the  place  where 

21.  Brogini  v.  Steyner,  124  Md.  369,  tiff,  was  lawfully  entitled  to,  and  was 
92  Atl.  806,  where  it  was  said:  "The  merely  availing  himself  of,  its  reason- 
injury  here,  as  thus  shown,  was  not  able  use  would  amount  to  actionable 
suffered  by  a  pedestrian  who  was  cross-  negligence.  This  is  the  theory  of  the 
ing  a  public  thoroughfare,  but  by  one  declaration  filed  in  the  case,  and,  as 
■who  was  on  the  edge  of  the  road,  where  there  was  some  testimony  in  its  sup- 
it  was  not  likely  that  he  would  be  in  port,  we  must  hold  that  the  trial  court 
the  way  of  those  using  other  means  of  ruled  correctly  in  refusing  to  direct  a 
travel.  The  negligence  charged  here  verdict  for  the  defendant."  See  also 
consisted  in  driving  an  automobile  so  Kinmore  v.  Cresse,  53  Ind.  App.  693, 
close  to  a  person  thus  situated,  as  to  102  N.  E.  403;  Young  v.  Bacon  (Mo. 
bring  the  side  of  the  car  in  collision  App.),  183  S.  W.  1079. 
with  him  as  he  was  pursuing  his  course  22.  Silverman  v.  City  of  New  York, 
in  obvious  ignorance  of  its  approach.  114  N.  Y.  Suppl.  59. 
There  can  be  no  doubt  that  such  an  23.  Arnold  v.  State,  163  N.  Y.  App. 
undue  appropriation  of  a  highway  to  Div,  253,  148  N.  Y.  Suppl.  479. 
the  injury  of  one  who,  like  the  plain- 


Collision  With  Pedestrian.  517 

he  was  injured  by  passing  through  a  rubbish-strewn  alley 
and  the  rear  entrance  to  the  building,  did  not,  upon  the  facts 
of  the  case,  constitute  him  a  bare  licensee,  so  as  to  preclude 
him  from  invoking  the  rights  of  one  upon  the  premises  by  in- 
vitation.2*  Likewise,  where  a  child  playing  in  a  lot  at  the  side 
of  the  road,  was  struck  by  an  automobile  which  was  diverted 
from  the  highway  by  reason  of  a  collision  with  another  vehi- 
cle, negligence  may  be  charged  against  the  driver  of  the  latter 
vehicle.^^ 

Sec.  430.  Driving  on  walk  or  place  reserved  for  pedestrians 
—  sidewalk. 

When  one  is  standing  on  or  walking  along  a  sidewalk  or  side 
path  at  a  place  where  vehicles  are  not  expected  to  run,  and 
is  injured  by  an  automobile,  as  a  general  proposition,  the  cir- 
cumstances permit  a  charge  of  negligence  against  the  driver 
of  the  vehicle.2«  As  was  said  in  one  case,^^  ''When  a  defendant 
is  shown  to  have  so  driven  his  automobile  rapidly  over  a  part 
of  the  space  allotted  to  the  use  of  pedestrians  as  a  sidewalk 
as  to  have  inflicted  injury  on  a  person  or  property  and  it 
does  not  appear  from  the  plaintiff's  case  that  his  action  was 
without  fault  on  his  part,  it  is  incumbent  on  him  to  show  that 
it  was  not  practicable  in  the  exercise  of  care  under  the  circum- 
stances to  have  prevented  any  part  of  his  vehicle  from  occupy- 
ing the  sidewalk  space. ' ' 

As  automobiles  ordinarily  travel  on  the  part  of  the  street 
within  the  curbs  assigned  to  vehicular  traffic,  the  mere  fact 

24.  Jewison  v.  Dieudonne,  127  Minn.  "Proof   that   the   driver    permitted    liis 
163,  149  N.  W.  20.  machine  to  be  diverted  from   its  main 

25.  Dilger  v.  Whittier,  33  Cal.  App.  course  of  travel   on  the  street  to  the 
15,  164  Pac.  49.  sidewalk,  without  any  warning  to  the 

26.  Jacob  V.  IvinS,  250  Fed.  431 ;  people  standing  there  of  the  fact  of  its 
Brown  v.  Des  Moines  Bottling  Works,  coming,  would  be  proof  of  such  negli- 
174  Iowa,  715,  156  N.  W.  829 ;  Murray  gence,  prima  facie,  as  would,  in  and  of 
V.  Liebmann,  231  Mass.  7,  120  N.  E.  itself,  entitle  the  one  injured  by  the 
79;  Rogles  v.  United  Rys.  Co.  (Mo.),  act  to  recover  as  for  negligence." 
232  S.  W.  93;  Work  v.  Philadelphia  Brown  v.  Des  Moines  Steam  Bottling 
Supply  Co.  (N.  J.),  112  Atl.  183;  Phil-  Works,  174  Iowa,  715,  156  N.  W.  829. 
pot  V.  Fifth  Ave.  Coach  Co.,  142  N.  Y.  27.  McGettigan  v.  Quaker  City  Au- 
App.  Div.  811,  128  N.  Y.  Suppl.  35:  tomobile  Co..  48  Pa.  Super.  Ct.  602. 
Flynn   v.   Siezega    (R.   L),   113   Atl.    1. 


518 


The  Law  of  Automobiles. 


that  one  was  run  upon  the  sidewalk,  to  the  hurt  of  pedestrian 
lawfully  there,  may  bring  into  the  play  the  doctrine  of  res 
ipsa  loquitor}^  The  fact  that  a  person  on  the  sidewalk  is 
struck  by  an  automobile  has  been  said  to  cast  upon  its  driver 
the  burden  of  shomng  that  the  accident  did  not  result  from 
negligence  on  his  part.^^  Considerable  prudence  should  be 
exercised  when  one  is  driving  a  motor  vehicle  in  or  out  of  a 
private  driveway  across  a  sidewalk,  the  nature  of  the  crossing 
being  an  element  to  be  considered  on  the  care  to  be  exercised 
by  the  driver."'^  Thus,  when  one  is  standing  on  the  edge  of 
the  pavement  with  one  foot  on  the  curb,  and  the  driver  of  an 
automobile  either  through  reckless  management  or  inexperi- 
ence drives  his  machine  on  the  curb,  the  question  of  negligence 
is  for  the  jury.^    When  a  motor  vehicle  skids  so  as  to  injure  a 


28.  Ivins    V.    Jacob,    245    Fed.    892; 
Lazaromtz   v.   Levy,    194   N.    Y.    App. 
DiT.  400,  185  N.  Y.  Suppl.  359;  Brown 
T.    Des    Moines    Bottling    Works,    174 
Iowa,   715,   156   N.  W.   829.     "It   was 
the  duty  of  the  driver  of  the  automo- 
bile upon  the  traveled  part  of  the  street 
to  control  and  manage  his  automobile 
vsdth  such  reasonable  care  and  prudence 
as  not  to  divert  or  permit  its  course  to 
be  diverted  from  the  main  street  onto 
the  sidewalk  upon  which   people   were 
standing.     Therefore,  when  it  is  shown 
that  one  who  is  traveling  upon  the  por- 
tion of  the  street  set  apart  for  the  use 
of     vehicles,     suddenly,     and     without 
warning,  diverts  his  course   and   comes 
upon  the  sidewalk  upon  which  people 
are    standing,    he    violates    that    duty 
which  he  owes  to  those  rightfully   on 
the   sidewalk,    and    thus,    prima    facif. 
becomes  involved  in   negligence.     This 
involves  the  doctrine  of  res  ipsa  loqui- 
tur,   and    says:      'You    violated    your 
duty  to  those  rightfully  standing  upon 
the  sidewalk  by  allowing  your  car  to 
be   diverted   suddenly   from   its   course 
and  to  come  upon  the  sidewalk,  with- 
out  warning   to   those   rightfully   con- 
gregated there.'     It   would  be   a  doc- 


trine against  all  reason  to  uold  that 
one  driving  upon  the  traveled  portion 
of  a  street  with  a  dangerous,  heavy, 
and  fast-moving  vehicle  may  permit  his 
vehicle  to  be  suddenly  diverted  from 
its  course  upon  the  traveled  street  onto 
and  over  a  sidewalk  set  apart  for  tha 
use  of  pedestrians.  It  is  not  going 
too  far  to  say  that  such  an  act,  not 
only  involves  negligence,  but  it  would 
have  a  tendency  to  show  a  reckless  and 
wanton  disregard  to  the  rights  of  those 
upon  the  sidewalk,  and  a  violation  of  a 
palpable  duty,  which  the  law  enjoins 
upon  every  man  to  so  exercise  his  own 
right  that  he  may  not,  unreasonably  or 
unnecessarily,  imperil  the  safety  of 
others  in  the  exercise  of  their  rights." 
Brown  v.  Des  Moines  Steam  Bottling 
Works,  174  Iowa,  715,  156  N".  W.  829. 

29.  Trauerman  v.  Oliver's  A^m'r, 
125  Va.  458,  99  S.  E.  647. 

30.  J.  F.  Darniody  Co.  v.  Reed 
(Ind.),  Ill  N.  E.  317;  Crawley  v.  Jer- 
inain,  218  111.  App.  51;  Tuttle  v.  Bris- 
coe Mfg.  Co.,  190  Mich.  22,  155  N.  W. 
724. 

31.  May  v.  Allison,  30  Pa.  Super.  Ct. 
50.  See  also  !6enjamih  v.  McGraw,  208 
Mich.  75,  175  N.  W.  394. 


Collision  With  Pedestrlvn.  519 

person  on  the  sidewalk,  the  driver  thereof  may  be  liable  for 
the  ensuing  damages.^^  Similarly,  where  an  automobile 
skidded  on  a  turn  so  that  its  top  projected  over  the  sidewalk 
and  struck  a  boy,  the  owner  was  held  liable,  it  appearing  that 
there  were  no  conditions  making  it  necessary  for  the  driver 
to  make  such  a  short  turn  on  such  a  high  speed.^'  So,  too, 
when  one  standing  inside  of  the  curb  was  struck  by  a  spare 
tire  carried  on  the  running  board  of  an  automobile,  it  was  held 
that  there  was  sufficient  to  charge  the  automobilist  with  negli- 
gence.^^ And  when  a  tire  blew  out  and  by  reason  thereof  the 
locking  ring  was  released  and  struck  a  pedestrian,  and  it 
appeared  that  the  accident  could  have  been  avoided  had  the 
driver  stopped  the  machine  more  promptly,  a  question  of  neg- 
ligence was  presented  for  the  jury.^  Likewise,  when  a  per- 
son, who  was  leaning  against  a  pole  on  the  inside  of  the  curb, 
was  struck  and  killed  by  an  automobile,  liability  for  his  death 
was  sustained.^® 

Sec.  431.  Driving  on  walk  or  place  reserved  for  pedestrians  — 
safety  zone. 

When  one  reaches  a  "safety  zone"  in  a  street,  out  of  which 
vehicles  are  expected  to  remain,  he  may  reasonably  rely  on  the 
security  thereby  expected  to  be  afforded.  If  he  is  struck  by 
an  automobile  while  he  is  in  such  a  location,  it  is  reasonable 
to  charge  the  driver  thereof  with  the  results  of  the  collision.^ 

Sec.  432.  Passing  pedestrian  walking  along  road. 

The  situation  with  reference  to  pedestrians  on  a  village  or 
city  street  is  somewhat  different  than  as  to  pedestrians  travel- 
ing along  a  rural  highway.  In  the  latter  case,  the  pedestrian 
does  not  generally  have  the  benefit  of  a  sidewalk  or  other  path 

82.  Philpot  V.  Fifth  Ave.  Coach  Co..  35.  Regan    v.    Cummiugs,    228    Mass. 

142  N.   Y.   App.   Div.   811,   128   N.   Y.  414,   117  N.  E.   800. 

Suppl.  35;  Core  v.  Resha  (Tenn.),  204  36.  Mehegran  v.  Faber,  158  Wis.  645, 

S.  W.  1149.  149  N.  W.  397. 

33.  McGettigan  v.  Quaker  City  Auto-  37.  See  also  Crombie  v.  O'Brien,  178 
mobile  Co.,  48  Pa.  Super.  Ct.  602.  N.    Y.     App.     Div.     807;     JeflFares    v. 

34.  Murray  v.  Liebmann,  231   Mass.  Wolenden,  31  W.  L.  R.   (Canada)   428. 
7,  120  N,  E.  79. 


520 


The  Law  of  Automobiles. 


especially  devoted  to  his  needs.  As  in  other  cases  of  fellow 
travelers,  it  is  the  duty  of  the  driver  of  an  automobile  to  exer- 
cise reasonable  care  to  avoid  injury  to  one  walking  along  the 
highway.^^  If  the  foot  traveler  is  oblivious  of  the  approach  of 
the  vehicle,  the  driver  should  give  a  warning  of  his  approach.^* 
But  the  law  of  the  road  does  not,  as  a  general  proposition, 
have  much  importance  in  cases  of  this  kind.  A  statute  pro- 
viding that  vehicles  shall  turn  to  the  right  upon  meeting,  does 
not  have  any  application  as  between  an  automobile  and  a  pe- 
destrian meeting  on  the  highway."^  Nor  does  a  statutory  en- 
actment providing  a  rule  of  the  road  for  the  overtaking  and 
passing  of  vehicles  on  the  highway  necessarily  apply  as  be- 
tween an  automobile  and  a  pedestrian.^^  A  statutory  pro- 
vision may  limit  the  speed  at  which  a  motor  vehicle  shall  pass 
a  person  walking  along  the  highway .^^  Foot  travelers  have 
equal  rights  upon  the  highway  with  the  drivers  of  vehicles, 
and  the  usual  statement  of  their  obligation  is  that  they  must 
use  what  amounts  to  reasonable  care  in  the  particular  circum- 


38.  Dozier  v.  Wooas,  190  Ala.  279, 
67  So.  283;  Scheuermann  v.  Kuete- 
meyer  (Cal.),  199  Pac.  13;  Griffen  v. 
Wood,  93  Conn.  99,  105  Atl.  354; 
Dodge  V.  Toth  (Conn.),  110  Atl.  454; 
Van  Rensselaer  v.  Chism,  174  N.  Y. 
Suppl.  751,  186  App.  Div.  557.  See 
also  Brown  v.  City  of  'Wilmington,  4 
Boyce  (Del.)  42,  90  Atl.  44;  King  v. 
Brillhart  (Pa.),  114  Atl.  515.  "Trav- 
elers upon  a  public  highway  owe  a  duty 
to  others  traveling  upon  such  highway, 
and  that  duty  requires  them  to  so  rea- 
sonably conduct  themselves  in  the  use 
of  the  highway  as  that  they  will  not 
injure  others  who  are  also  traveling 
upon  such  highway."  ...  In  this 
case  each  simple  negligence  count 
shows  that  the  defendant  was  travel- 
ing in  an  automobile  upon  a  public 
highway,  and  that  the  plaintiff  was 
lawfully  walking  along  such  highway. 
The  law  therefore  cast  the  duty  upon 
the  defendant  to  drive  his  automobile 
in  such  a  reasonable  way  as  not  to  in- 


jure the  defendant.  Dozier  v.  Woods, 
190  Ala.  279,  67  So.  283.  "It  requires 
no  discussion  to  demonstrate  that  it 
might  have  been  found  negligent  on 
the  part  of  one  driving  an  automobile 
at  night  to  overtake  and  run  into  a 
pedestrian  traveling  so  far  as  appears 
continuously  in  a  direct  path  on  the 
right  of  a  road,  without  veering  to  one 
side  or  the  other."  Powers  v.  Loring, 
231  Mass.  458,  121  N.  E.  425. 

39.  Alport  V.  Ellis  (Mass.),  128  N. 
E.  634;  Dignum  v.  Weaver  (Mo.  App.), 
204  S.  W.   566. 

40.  Apperson  v.  Lazro,  44  Ind.  App. 
186,  88  N.  E.  99.    And  see  section  244. 

41.  Randolph  v.  Hunt  (Cal.  App.), 
183  Pac.  358;  Brown  v.  Thayer,  212 
Mnss.  392,  99  N.  E.  237;  Marton  v. 
Pickrell  (Wash.),  191  Pac.  1101.  See 
also  Feehan  v.  Slater,  89  Conn.  697,  96 
Atl.  159. 

42.  Eames  v.  Clark  (Kan.),  177  Pac. 
540. 


Collision  With  Pedestrian.  521 

stances.  It  may  be  that  as  a  matter  of  law  reasonable  care 
requires  a  pedestrian  who  is  about  to  be  overtaken  by  an  au- 
tomobile to  step  to  one  side  and  allow  it  to  pass,  so  that  it 
will  not  have  to  turn  out  and  go  around  him.  And  if  the  road, 
or  the  traveled  portion,  is  so  narrow  that  one  or  the  other 
must  get  outside  of  it  in  order  that  the  car  may  pass,  doubt- 
less this  should  be  done  by  him  who  is  on  foot,  because  he  can 
do  it  the  more  easily.  But,  where  the  beaten  track  is  wide 
enough  for  several  vehicles  to  pass,  there  can  be  no  hard  and 
fast  rule  that  pedestrians  must  get  completely  outside  of  the 
highw^ay  or  of  the  traveled  portion  of  it."*^ 

Sec.  433.  Motor  vehicle  on  wrong-  side  of  street. 

When  a  motor  vehicle  strikes  a  pedestrian  in  the  street,  if 
the  vehicle  is  traveling  on  the  wrong  side  of  the  highway,  a 
presumption  sometimes  arises  that  the  driver  thereof  is 
guilty  of  negligence.'*^  In  other  words,  the  evidence  that  the 
machine  was  on  the  side  of  the  road  forbidden  by  the  law  of 
the  road  creates  a  prima  facie  case  of  negligence.^'  The  pre- 
sumption created  by  violation  of  the  law  of  the  road  is  not 
conclusive.^^  It  may  be  rebutted  by  evidence  affording  some 
excuse  for  the  automobilist  proceeding  on  the  wrong  side  of 
the  road.''^  Thus,  he  may  pass  to  the  left  side  of  the  road  and 
proceed  there  for  a  reasonable  distance  in  order  to  avoid  an 

43.  Eames  v.  Clark  (Kan.),  177  Pac.  45.  Coonan  v.  Straka,  204  111,  App. 
540.  17;  Carpenter  v.  Campbell  Automobile 

44.  Slaughter  v.  Goldberg,  Bowen  &  Co.,  159  Iowa,  52,  140  N.  W.  225; 
Co.,  26  Cal.  App.  318,  147  Pac.  90;  Mc-  Steele  v.  Burkhardt,  104  Mass.  59; 
Gee  V.  Young,  132  Ga.  606,  64  S.  E.  Grier  v.  Samuel,  4  Boyce  (27  Del.)  74, 
689;  Buxton  v.  Ainsvvorth,  138  Mich.  85  Atl.  759;  Segerstrom  v.  Lawrence. 
532,   101   N.  W.   817,  11  Det.  Leg.   N.  64  Wash.  245,  116  Pac.  876. 

684,  5  Ann.  Cas.  177;  Moy  Quon  v.  M.  46.  Todd  v.  Orcutt  (Cal.  App.),  183 

Furuya  Co.,  81  Wash.  526,  143  Pac.  99.  Pac.  963. 

See     also     Trzetiatowski     v.     Evening  47.  Conder  v.  Griffith,  61  Ind.  App. 

American  Pub.  Co.,  185  111.  App.  451;  218,  111  N.  E.  816;  Riepe  v.  Elting,  89 

Devine  v.   Ward   Baking   Co.,    188    111.  Iowa,   82,   56   N.  W.   285,  26  L.   R.  A. 

App.  588;  Vos  v.  Franke,  202  111.  App.  769;    Carpenter    v.    Campbell    Automo- 

133;  Wortman  v.   Trott,  202  111.  App.  bilo  Co.,  159  Iowa,  52,  140  N.  W.  225; 

528;  Fitzsimmons  v.  Isman,  166  N.  Y.  Mickelson  v.  Fischer,  81  Wash.  423.  142 

App.  Div.   262,  151  N.  Y.  Suppl.  551.  Pac.  1160.     And  see  sections  270-274. 
And  see  section  267. 


522  The  Law  of  Automobiles. 

obstruction  in  the  street;  and,  in  case  of  a  collision  wdth  a 
pedestrian,  he  will  not  necessarily  be  charged  with  negli- 
gence/^ Or,  if  he  turns  to  the  wrong  side  of  the  road  in  an 
emergency  to  avoid  an  accident  he  may  not  be  liable.**  And, 
when  there  is  little  or  no  travel  upon  the  highway,  the  auto- 
mobile may  properly  be  driven  on  the  left-hand  side  of  the 
highway,  though  a  higher  degree  of  care  is  thereby  imposed 
on  the  driver.^^  Neither  at  common  law  nor  under  some  of 
the  State  statutes  is  negligence  to  be  inferred  from  the  fact 
that  the  vehicle  was  driven  along  the  center  of  the  road.^^ 
When  an  automobile  overtakes  a  slower  vehicle,  it  is  the  gen- 
eral rule  of  the  road  that  it  shall  pass  to  the  left  of  the  for- 
ward vehicle,^^  but  the  driver  of  the  machine  must  exercise  due 
care  in  making  the  passage  so  as  to  avoid  injuries  to  persons 
or  other  conveyances  which  he  might  strike  by  passing  to  the 
left  side  of  the  highway.  He  must  exercise  care  to  see  if  he 
'can  pass  to  the  left  with  safety  to  travelers  on  such  side  of 
the  highway.^^  But  the  driver  of  a  motor  vehicle  when  turn- 
ing to  the  right  to  pass  a  wagon  is  not  necessarily  bound  to 
anticipate  that  a  boy  sitting  on  the  rear  of  the  wagon  will 
jump  off  and  run  toward  the  machine.^*  If  he  passes  the 
vehicle  on  the  wrong  side,  and  thereby  strikes  a  pedestrian, 
he  may  be  charged  with  negligence.^^ 

48.  Clark  v.  Van  Vleck,  135  Iowa,  required  to  pass  the  vehicle  ahead  of 
194,  112  N.  W.  648.  See  also  Hood  &  him  to  the  left.  That  requirement, 
Wheeler  Furniture  Co.  v.  Eoyal  (Ala.  however,  is  subject  to  the  conditions 
App.),  76  So.  965.  existing  in  the  highway  and  does  not 

49.  Burlie  v.  Stephens  (Wash.),  193  relieve  the  driver  of  the  passing  vehi- 
Pac.  684.  cle  from  the  duty  of  exercising  reason- 

60.  Segerstrom  v.  Lawrence,  64  Wash.  able  care  to  ascertain  whether  he  can 

245,  116  P.  876;  Moy  Quon  v.  M.  Fur-  pass  the  vehicle  ahead  with  safety  to 

ruya  Co.,  81  Wash.  526,  143  Pac.  99;  other  vehicles  or  pedestrians  which  or 

Osborne     v.     Landis,     34     W.     L.     R.  who  may  happen  to  be  on  the  left  side 

(Canada)    118.      See    also    New    York  of  the  street."     Pool  v.  Brown,  89  N. 

Transportation    Company    v.    Garside,  J.  Law,  314,  98  Atl.  262.     And  see  sec- 

157  Fed.  521,  85  C.  C.  A.  285.  tion  254. 

51.  Linstroth  v.  Peper  (Mo.  App.),  54.  Bishard  v.  Engelbeck,  180  Iowa, 
188  S.  W.  1125.  1132,  164  N.  W.  203. 

52.  Section  252.  55.    Brautigan  v.  Union  Overall  Laun- 

53.  Pool  v.  Brown,  89  N.  J,  L.  314,  dry  Supply  Co.,  211  111.  App.  354; 
98  Atl.  262.  <' Under  the  traffic  law  of  Hanser  v.  Youngs  (Mich.),  180  N.  W. 
this  State,  the  driver  of  a  vehicle  is  409. 


Collision  With  Pedestrian.  523 

Sec.  434.  Turning  corner. 

Statutory  enactments  or  municipal  ordinances  generally 
prescribe  that  warning  shall  be  given  when  an  automobilist 
seeks  to  turn  a  corner  over  a  crosswalk.^''  In  some  cases  pro- 
visions are  made  as  to  the  distance  which  shall  exist  between 
the  automobile  and  the  curb."  A  provision  of  this  character 
is  designed  for  the  protection  of  pedestrians  seeking  to  cross 
the  street  at  the  corner.  Or  the  law  makers  may  take  an  en- 
tirely different  view  of  the  duty  of  the  drivers  of  motor  vehi- 
cles at  corners  and  require  that  they  keep  as  close  to  the  curb 
as  possible.^^  Such  a  regulation  is  intended  to  decrease  the 
hazard  of  a  collision  with  another  vehicle.  Where  an  ordi- 
nance required  a  person  driving  an  automobile,  upon  turning 
the  corner  of  any  street  **to  leave  a  space  of  at  least  six  feet 
between  the  curb  and  the  automobile,"  and  it  appeared  that 
on  a  lot  fronting  the  street  a  building  was  in  the  course  of 
erection  and  that  debris  was  piled  on  the  corner  of  the  street 
around  which  a  fence  or  barricade  had  been  constructed,  com- 
pelling pedestrians  to  leave  the  regular  walk,  step  into  the 
street  and  walk  around  the  outside  of  the  fence  or  barricade, 
it  was  held  that  the  fence  became  the  *'curb"  within  the  mean- 
ing of  the  ordinance.^®  When  making  a  turn  toward  the  left, 
the  law  of  the  road,  as  frequently  fixed  by  statutes  and  muni- 
cipal ordinances,  requires  that  the  driver  of  the  vehicle  shall 
not  cut  the  corner  but  shall  pass  around  the  center  of  the  in- 
tersection.''^ Independently  of  statutory  regulations  as  to  the 
conduct  of  automobile  drivers  when  turning  corners,  a  duty 
of  exercising  such  care  as  is  commensurate  with  the  great 
danger  at  such  places  is  imposed  on  the  operator  of  a  motor 
vehicle."     ''Those  who   handle   these  machines,   which    arp 

56.  Section  330.  (Minn.),  178  N.  W.  886;  Rule  v.  Clnar 

67.  City  of  Oshkosh  v.  Camphell,  1.51  Transfer   &   Storage   Co..    102    Xeb.    4. 

Wis.  567,  139  N.  W.  316.  165  N.  W.  883;  White  v.  East  Side  Mill 

58.  Pemherton  v.  Amy   (Cal.  App.),  &  Lumber  Co.,  84  Oreg.  224,   161  Pnr. 

183   Pac.   356,   affirmed,   182  Pac.   964.  969,    164    Pac.    736.      And    see    section 

69.  Domke    v.    Gunning,    62    Wash.  259. 

629.  114  Pac.  436.  •   61.  Anderson    v.    Schom,    189     App. 

60.  Pemberton.  v.    Amy    (Cal.).    182  Div.  495,  178  N.  Y.  Suppl.  603;  Doyle 

Pac.      964;       Unmacht      v.      Whitnev  v.  Holland   (R.  T.  >    100  Atl.  4M. 


524  The  Law  of  Automobiles. 

highly  dangerous  if  driven  rapidly,  especially  along  a  crowded 
thoroughfare,  and  more  especially  when  turning  at  the  angle 
of  two  intersecting  streets  or  roads,  should  strictly  obey  the 
law  and  exercise  that  degree  of  care  generally  which  is  com- 
mensurate with  the  great  hazard  produced  by  a  failure  to  do 
so.  They  should  hold  their  cars  well  in  hand  and  give  timely 
signals  at  points  where  people  should  reasonably  be  expected 
to  be,  and  where  they  have  a  right  to  be. '  '^^ 

Sec.  435.  At  street  crossing  —  in  general. 

At  a  street  crossing,  a  pedestrian  has  equal  rights  with  the 
driver  of  a  m.otor  vehicle.^^  It  is  the  duty  of  each  to  exercise 
reasonable  care.''*  While  ordinary  care  is  said  to  measure  to 
vigilance  of  the  driver  of  an  automobile,^^  the  vigilance  of  the 
driver  must  vary  according  to  the  danger  naturally  antici- 
pated from  the  operation  of  his  machine.  What  would  not  be 
an  excessive  or  even  moderate  speed  under  some  conditions, 
w^ould  be  considered  as  recldess  under  others.  When  ap- 
proaching a  street  intersection  or  crossing  which  is  much  fre- 
quented by  vehicles  and  pedestrians,  a  much  less  speed  and 
much  greater  amount  of  vigilance  is  required  than  between 

62.  Manly  v.  Abernathy,  167  N.  Car.  of  the  pedestrian  about  as  easily  and 
220,  83  S.  E.  343.  quickly  as  he  can  get  out  of  its  way, 

63.  Weihe  v.  Rathjen  Mercantile  Co.,  although  it  is  usually  the  case,  and 
34  Cal.  App.  302,  167  Pac.  287;  Brown  rightfully  so,  that  the  pedestrian  en- 
V.  City  of  Wilmington,  4  Boyce  (Del.)  deavors  to  keep  out  of  the  way  of  vehi- 
492,  90  Atl.  44;  Crandall  v.  Krause,  cles  at  street  crossings;  but,  if  he  does 
165  111.  App.  15 ;  Wortman  v.  Trott,  not,  this  does  not  excuse  the  driver  of 
202  111.  App.  528 ;  Switzer  v.  Baker,  that  vehicle  who  runs  him  down,  unless 
178  Iowa,  1063,  160  N.  W.  372;  Miller  it  be  that  the  driver  was  free  from 
V.  New  York  Taxicab  Co.,  120  N.  Y.  negligence,  and  the  pedestrians  by  his 
Suppl.  899.  "The  automobile  must  use  want  of  care  was  to  blame  for  the  col- 
only  the  carriage  way  of  the  street,  lision."  Weidner  v.  Otter,  171  Ky. 
while  the  pedestrian,  except  at  street  167,  188  S.  W.  335.  And  see  section 
crossings,  uses  generally  only  the  side-  414. 

walk.     But  the  pedestrian,  in  the  use  64.  Weihe  v.  Rathjen  Mercantile  Co., 

of  the  street  at  a  regular  crossing,  has  34  Cal.  App.  302,  167  Pac.  287 ;  Switzer 

the  same  right  to   its  use  as  vehicles  v.  Baker,   178  Iowa,   1063,   160  N.  W. 

and  is  under  no  legal  duty  to  give  way  372;  Shields  v.  Fairchild,  130  La.  648, 

to  automobiles.    The  automobile  can  go  58  So.  497. 

around    him    as    well    as    he    can    go  65.  Section  277. 
around  it.     It  can  get  out  of  the  way 


Collision  With  Pedestrian.  525 

crossings  or  at  crossing  where  the  traffic  is  less.^*^  The  degree 
of  care  which  the  driver  of  the  vehicle  must  exercise  is  that 
which  a  reasonably  prudent  man  would  exercise  under  the 
same  circumstances,  considering  the  nature  and  extent  of  the 
traffic  and  the  surrounding  circumstances.  Following  this 
line  of  reasoning,  it  is  sometimes  said  that  the  driver  of  an 
automobile  is  required  to  exercise  a  ''greater"  degree  of  care 
at  street  intersections." 

In  using  the  streets  and  highways  an  automobilist  does  so 
with  knowledge  that  at  street  intersections  other  vehicles  may 
approach  to  cross  or  turn  into  the  one  over  which  he  is  travel- 
ing, and  that  at  such  points  crosswalks  are  ordinarily  pro- 
vided for  the  use  of  pedestrians.  He  should,  therefore,  oper- 
ate his  car  wath  that  degree  of  care  which  is  consistent  with 
the  conditions  thus  existing,  the  rate  of  speed  and  his  control 
over  the  car  varying  according  to  the  traffic  at  the  particular 
place.  Under  all  circumstances  he  should  at  such  points  keep 
a  careful  w^atch  ahead  to  avoid  injury  to  pedestrians  using  the 
crosswalks.'^^  He  should  maintain  such  control  of  his  machine 
that,  on  the  shortest  notice,  he  can  stop  it  so  as  to  prevent  in- 
jury to  pedestrians."  It  is  the  duty  of  the  operator  of  an 
automobile,  when  approaching  a  street  crossing  used  by  pedes- 
trians, to  keep  a  lookout,  to  give  reasonable  and  timely  warn- 
ing of  the  movement  of  the  machine  by  the  usual  and  cus- 

66.  Vv'eihe  v.  Rathjen  Mercantile  Co.,  right   to  be."     Manlev  v.   Abernathy, 

34  Cal.  App.  302,  167  Pac.  287;  Brown  167  N.  Car.  220,  83  S.  E.  343. 

V.  City  of  Wilmington,  4  Boyce   (Del.)  67.  Weihe  v.  Rath.ien  Mercantile  Co., 

492,   90   Atl.   44.     "Those  who   handle  34  Cal.  App.  302,  167  Pac.  287;  Cccchi 

these  machines,  which  are  highly  dan-  v.  Lindsay,  1  Boyce  (Del.)  185,  75  Atl. 

gerous     if    driven     rapidly,     especially  376,    reversed    80    Atl.    523;    Grier    v. 

along    a    crowded    thoroughfare,    and  Samuel,   4   Boyce    (Del.)    106,   86  Atl. 

more    especially   when    turning   at    the  209;   Brown  v.  City  of  Wilmington.  4 

angle    of    two    intersecting    streets    or  Boyce   (Del.)   492,  90  Atl.  44;  Arnold 

roads,  should  strictly  obey  the  law  and  v.  McKelvey,  253  Pa.  324.  98  Atl.  559; 

cxcrc'se  that   degree  of   care  generally  Virgilio  v.  Walker,  254  Pa.  241,  98  Atl. 

which  is  commensurate  with  the  great  815. 

hazard  produced  by  a  failure  to  do  so.  68.  Rowe  v.  Hammond,  172  Mo.  App. 

They   should    hold    their    cars   well    --  203,  157  S.  W.  880;  Lyons  v.  Volz  (N. 

hand  and  give  timely  signals  at  pyints  J.),  114  Atl.  318. 

where  people  should  reasonably  be  ex-  69.  Virgilio  v.  Walker,  254  Pa.   241. 

pectcd   to   be  and  where   thoy   have   a  98  Atl.  815. 


526  The  Law  of  Automobiles. 

tomary  signals,  and  to  operate  it  at  a  reasonable  rate  of  speed, 
considering  the  amount  of  foot  and  vehicular  traffic  at  the 
crossing.'^"  If  the  pedestrian  is  upon  the  crosswalk  at  the  time 
of  the  arrival  of  the  motor  vehicle,  the  driver  should  slacken 
or  stop  the  machine ;  but  he  is  not  necessarily  bound  to  stop 
until  the  pedestrian  has  passed  over  the  entire  crosswalk  and 
reached  the  opposite  sidewalk.''^  Between  crossings,  the  same 
standard  of  care  is  not  required  of  the  operator  of  an  auto- 
mobile; although  he  must  exercise  reasonable  care  and  con- 
stantly be  on  the  lookout  for  the  safety  of  others.''^  Positive 
regulations  may  affect  the  duty  of  the  automobilist  at  street 
crossings,  such  as  limitations  as  to  speed,  requirements  as  to 
signals  or  warning;  or  regulations  may  give  the  pedestrian 
the  right  of  way  at  street  crossings.''^  If,  owing  to  the  dif- 
ferent methods  of  locomotion  and  travel,  the  law  recognizes  a 
right  of  precedence  in  the  use  of  a  crossing,  it  does  not  mean 
that  the  persons  having  such  right  may  loiter  upon  or  obstruct 
the  crossings  to,  the  exclusion  of  others  or  to  the  interruption 
of  street  traffic,  but  rather  that,  when  two  or  more  persons 
moving  in  different  directions  approach  a  crossing  at  the  same 
time  or  in  such  manner  that  if  both  or  all  continue  their  re- 
spective courses  there  is  danger  of  collision,  then  the  one  hav- 
ing the  preference  is  entitled  to  the  first  use  of  such  crossing, 
and  it  is  the  duty  of  others  to  give  him  reasonable  opportunity 
to  do  so.'* 

70.  Weidner  v.  Otter,  171  Ky.  167,  and  maintain  such  control  that,  on  the 
188  S.  W.  335.  shortest  possible  notice,  they  can  stop 

71.  Switzer  v.  Baker,  178  lowt  1063,  their  cars  so  as  to  prevent  danger  to 
160  N.  W.  372.  pedestrians;    on    the    other    hand,    be- 

72.  Virgilio  v.  Walker,  254  Pa.  341.  tween  crossings  drivers  are  not  held  to 
98  Atl.  815.  See  also  Weidner  v.  Otter,  the  same  high  standard  of  care,  al- 
171  Ky.  167,  188  S.  W.  335.  "The  laW  though,  of  course,  they  must  be  con- 
requires  that  every  person  shall  take  stantly  on  the  looTcout  for  the  safety  of 
due  care  for  the  safety  of  himself  anl  others."  Virgilio  v.  Walker,  254  Pa. 
others   according  to   the  circumstances  241,  98  Atl.  815. 

in  which  he  is  placed.     Vehicles  have  73.  Switzer  v.  Baker,  178  Iowa,  1063, 

the  right  of  way  on  the  portion  of  the  160    N.    W.    372;    Elmberg    v.    Pielow 

highway   set    apart   for   them,    but   at  (Wash.),  194  Pac.  549. 

crossings    all    drivers,    particularly    of  74.  Switzer  v.  Baker,  178  Iowa,  1063, 

motor  vehicles,  must  be  highly  vigilant  160  N.  W.  372. 


Collision  With  Pedestrian.  527 

Sec.  436.  At   street   crossing  —  unfavorable   weather   condi- 
tions. 

Among  the  circumstances  to  be  considered  by  the  driver  of 
an  automobile  at  a  street  crossing  are  the  weather  conditions. 
Thus,  in  a  blinding  snow  storm,  it  may  be  difficult  for  either 
the  pedestrian  or  the  driver  to  see,  less  so  for  the  former  when 
he  is  protected  by  a  wind  shield.  Under  such  circumstances 
more  caution  should  be  exercised  by  him  in  the  management 
of  the  car,  and  consideration  must  be  given  to  the  less  favor- 
able conditions  under  which  the  pedestrian  may  be  proceed- 
ing. A  similar  situation  may  exist  in  the  case  of  a  heavy  rain 
storm."^^  And,  if  there  is  ice  or  snow  upon  a  crosswalk  making 
it  more  difficult  for  a  person  to  walk  and  compelling  him  to 
proceed  at  a  slower  pace,  the  operator  of  the  vehicle  should 
exercise  a  degree  of  care  which  is  consistent  with  the  condi- 
tions presented. 

Sec.  437.  At  street  crossings  —  view  obstructed. 

Where  there  is  an  obstruction  to  an  automobilist's  view  of 
a  street  crossing,  he  must  exercise  a  degree  of  care  such  as 
a  reasonably  prudent  man  would  exercise  under  the  same  cir- 
cumstances to  avoid  injury  to  pedestrians  or  other  vehicles  at 
such  poinf* 

Sec.  438.  Lookout  for  pedestrians. 

A  motorist  is  bound  to  realize  that  other  vehicles  and  pe- 
destrians will  use  the  streets  and  highways,  and  he  is  bound 
to  anticipate  that  they  will  lawfully  occupy  portions  of  the 
street  in  his  course.  He  must,  therefore,  keep  a  reasonably 
careful  lookout  for  the  presence  of  such  other  travelers  in 
order  that  injury  to  them  may  be  avoided.'^    He  should,  keep 

75.  Harting  v.  Kjiapwurst,  178  111.  El.  App.  255;  Smith  v.  Tappen,  208 
App.  409.  See  also  Powers  v.  Wilson,  HI.  App.  433;  Arkin  v.  Page,  212  HI. 
138  Minn.  407,  165  N.  W.  231.  App.   282. 

76.  Deputy  v.  Kimmell,  73  W.  Va.  Indiana.— Hussen  v.  Scharfe,  130  N. 
595,  80  S.  E.  919.  E.  437. 

77.  United  States. — Pennison  v.  Mc-  Iowa. — Holderman  v.  Witmer,  166 
Morton,  228  Fed.  401,  142  C.  C.  A.  631.  Iowa,  406,  147  N.  W.  926. 

Illinois. — Coppock   v.    Schlatter,    193  Kentuclcy. — Weidner    v.    Otter,     171 


528 


The  Law  of  Automobiles. 


a  lookout  for  pedestrians,  not  only  at  street  crossings,  but 
between  street  intersections.'^^  The  duty  to  look  implies  the 
duty  to  see  what  is  in  plain  view,  unless  some  reasonable  ex- 


Ky.  167,  188  S.  W.  335;  Major  Taylor 
&  Co.  V.  Harding,  182  Ky.  236,  206  S. 
W.  285. 

Louisiana. — Eeed  v.  Sievers,  146  La. 
391,   83   So.  685. 

Minnesota. — Noltmier  v,  Rosenber- 
ger,  131  Minn.  369,  155  N.  W.  618. 

Missouri. — Eisenman  v.  Griffith,  181 
Mo.  App.  183,  167  S.  W.  1142;  Hop- 
flinger  v.  Young  (Mo.  App.),  179  S. 
W.  747;  Weiss  v.  Sodemann  Heat  & 
Power  Co.  (Mo.  App.),  227  S.  W.  837: 
Schinogle  V.  Baughman  (Mo.  App.), 
228  S.  W.  897. 

New  Hampshire. — Hamel  v.  Peabody, 
78  N.  H.  585,  97  Atl.  220. 

New  Jersey. — "The  driver  of  the 
automobile  was  under  a  legal  duty  to 
use  reasonable  care  to  avoid  colliding 
with  other  vehicles  or  persons  in  the 
public  highway.  His  duty  was  to  be 
on  the  alert  to  observe  persons  who 
were  in  the  street  or  about  to  cross  the 
street  and  to  use  reasonable  care  to 
avoid  colliding  with  them.  He  was  un- 
der a  duty  to  have  his  automobile 
under  proper  control.  He  was  un- 
der an  obligation  to  take  notice  of  the 
conditions  existing  in  the  public  street 
and  to  propel  his  car  in  a  manner  suit- 
able to  those  conditions.  He  was  un- 
der a  duty  to  observe  the  condition 
which  existed  at  the  crosswalk,  in  that 
for  a  distance  of  12  feet  the  view  of  a 
person  crossing  from  the  east  to  the 
west  side  of  Halsey  street  was  obscured 
by  the  top  of  the  wagon.  Pool  v. 
Brown,  89  N.  J.  Law,  314,  98  Atl.  263. 
New  York. — Keosayan  v.  Geiger,  188 
App.  Div.  829,  176  N.  Y.  Suppl.  585; 
Thies  V.  Thomas.  77  N.  Y.  Suppl.  276. 
Pennsylvania. — Kuehne  v.  Brown. 
257  Pa.  37,  101  Atl.  77. 

Bhode   Island. — Thomas   v.    Burdick, 
100  Atl.  398. 


Virginia. — Core  v.  Wilhelm,  98  S.  E. 
27. 

Washington. — Adair  v.  McNeil,  95 
Wash.  160,  163  Pac.  393. 

Canada.— White  v.  Hegler,  29  D.  L. 
R.  480,  34  W.  L.  R.   1061. 

And  see  sections  332-336. 

Not  negligence  per  se. — The  failure 
to  keep  a  lookout  is  not  necessarily 
negligence  per  se.  Texias  Motor  Co.  v. 
Buffington   (Ark.),  203  S.  W.   1013. 

More  lookout  required  of  driver 
than  of  pedestrians. — "It  is,  too,  a 
familiar  rule  in  the  law  of  negligence 
that  the  care  to  be  exercised  must  cor- 
respond with  the  capacity  to  injure, 
and  accordingly  the  automobilist  is  un- 
der a  much  higher  degree  of  care  to 
look  out  for  the  pedestrian  than  the 
pedestrian  is  to  look  out  for  the  auto- 
mobilist. The  pedestrian  cannot  merely 
by  the  manner  in  which  he  uses  the 
street  harm  the  automobilist,  but  the 
automobilist  may  by  his  manner  of  us- 
ing the  street  kill  the  pedestrian;  and 
so,  generally  speaking,  the  pedestrian 
is  required  only  to  look  after  his  own 
safety,  and  not  the  safety  of  others, 
while  the  automobilist  must  look  out 
for  the  safety  of  the  pedestrian  rather 
than  his  own."  Weidner  v.  Otter,  171 
Ky.  167,  188  S.  W.  335. 

78.  Ivy  V.  Marx  (Ala.),  87  So.  813, 
holding  that  the  fact  that  an  ordinance 
prohibits  the  crossing  by  the  pedestrian 
does  not  relieve  the  driver  of  his  duty 
to  keep  a  lookout  between  crossings. 

Pedestriaji  crossing  street  not  at 
regular  crossing.— In  White  v.  Hegler, 
29  D.  L.  R.  (Canada)  480,  34  W.  L.  R. 
1061,  it  was  said:  "I  think  it  is  the 
law  that  a  pedestrian  crossing  not  at  a 
crossing  and  not  looking,  and  there- 
fore being  very  careless,  would  be  en- 
titled to  damages  from  an  automobile 


Collision  With  Pedestrian.  529 

planation  is  presented  for  a  failure  to  see.'^  The  driver  of 
an  automobile  is  bound  to  operate  his  conveyance  with  refer- 
ence not  only  to  the  pedestrians  and  conditions  he  actually 
sees,  but  also  as  to  such  as  he  should  see  in  the  exercise  of 
reasonable  care.^**  In  other  words,  negligence  may  be  in- 
ferred from  the  failure  to  see  a  pedestrian  as  "svell  as  in  the 
management  of  an  automobile  either  before  or  after  seeing 
him.  "To  have  looked  too  late  was  not  to  have  looked  at  all." 
Moreover,  he  is  bound  to  take  notice  of  such  conditions  in  the 
street  as  obscure  an  approaching  pedestrian,  and  to  have  his 
machine  under  proper  control  so  as  to  avoid  injury  to  one  who 
is  so  obscured.^^  Testimony  on  the  part  of  the  driver  of  an 
automobile  or  of  the  occupants  thereof  that  they  did  not  see 
a  pedestrian  who  was  struck  by  the  machine,  may  tend  to  in- 
culpate rather  than  excuse  their  management  of  the  automo- 
bile.^^ So,  testimony  on  the  part  of  the  defendant  that  the 
automobile  was  proceeding  slowly  and  that  its  lights  were  in 
proper  order,  while  perhaps  exonerating  him  as  to  the  negli- 
gence in  those  respects,  may  afford  ground  for  charging  him 
with  negligence  in  failing  to  keep  a  proper  lookout  for  persons 
in  the  street.^^  Whether  one  is  negligent  in  not  seeing  a  pedes- 
trian sooner,  is  generally  a  question  for  the  jury.^^    The  duty 

driver    who    with    no    obstructed    view  App.),    198    Pac.    640;    Holderman    v. 

could   have   seen    the   pedestrian    at   a  Witmer,  166  Iowa,  406,  147  N.  W.  926. 

Buffic'ent    distance    to    avoid    him,    but  Question  for  jury. — The   rcasonable- 

who  for  instance  for  no  justifiable  pur-  ness   of   the   explanation   for  a  failure 

pose  kept  his  eyes  either  on  his  feet  in  to    see,    is    a  question    for    the    jury, 

the  car  or  on  a  window  at  the  side  of  Holderman  v.  Witmer,    166  Iowa,  406, 

the  street  and  so  did  not  see  the  pedes-  147  N.  W.  926. 

trian  and  ran  over  him — who,  in  other  80.  Walker    v.    Rodrijjuez,     139    La. 

words,  did  not  keep  a  lookout  to  see  251,  71   So.  499.     See  also  Coppock  v. 

that  he  did  not  run  into  anyone.    Also  Schlatter,  193  111.  App.  255. 

an  automobile  driver  who  does  not  keep  81.  Pool  v.  Brown,  89  N.  J.  L.  314. 

a  pood  lookout  and  docs  not  see  a  pe-  98  Atl.  262.     And  see  section  326. 

dcstrian  apparently  going  to  cross  his  82.  See    Holderman    v.    Witmer,    166 

path  without  looking,  is  not  entitled  to  Iowa,    406,    147    N.    W.    926;    Gray    v. 

go  on  and  leave  the  responsibility  upon  Batchclder,    208    Mass.    441,    94   N.    E. 

the  pedestrian.     He  must  use   reason-  702;  McMonagle  v.  Simpers  (Pa.  St."). 

able  care,  when  he  sees  the  danger,  to  110  Atl.  83. 

avoid  hira."  83.  Adair  v.   McNeil,  95  Wash.   160. 

79.  Warner  v.  BerthofF,  40  Cal.  App.  163  Pac.  393. 

776,  181  Pac.  808;  Stone  v.  Gill  (Cal.  84.  Booth  v.  Meagher,  224  Mass.  472 

34 


530  The  Law  of  Automobiles. 

to  look  for  other  persons  is  satisfied  by  looking  in  the  direction 
in  which  the  machine  is  proceeding ;  there  is  no  duty  cast  upon 
the  operator  of  looking  behind  to  see  that  children  do  not 
attempt  to  climb  on  the  machine,^^  or  to  see  that  pedestrians 
keep  clear  from  the  rear  end  of  his  vehicle  or  the  load 
thereon.^*^  But  he  must  anticipate  that  pedestrians  will  ap- 
proach from  the  side,  and  he  should  keep  a  lookout  toward 
the  side  as  well  as  the  front,  particularly  at  street  crossings.*^ 

Sec.  439.  Avoidance  of  person  standing  in  street. 

Where  a  person  is  standing  still  in  the  street  and  does  not 
observe  the  approach  of  an  automobile,  it  is  the  duty  of  the 
driver  to  turn  out  so  as  to  avoid  striking  him.''^  Especially  is 
this  so,  when  there  is  ample  room  for  the  auto  driver  to  pass 
the  pedestrian  in  safety.^^  He  is  not  permitted  to  run  him 
down  and  then  claim  that  such  pedestrian  was  guilty  of  con- 
tributory negligence  in  not  seeing  and  avoiding  the  automo- 
bile.^°  As  was  said  in  one  case,^^  '*  While  it  is  no  doubt  true 
that  a  person  in  a  highway  must  use  care,  yet  when  one  is 
rightfully  in  the  highway,  and  standing  there,  another  per- 
son certainly  cannot  run  him  down  without  being  guilty  of 

113  N.  E.  367;  Beno  v.  Kloka  (Mieh.),  (Cal.  App.),  193  Pac.  259.    "For  these 

178    N.    W.    646;    Marsters   v.    Isensee  defendants   to  proceed  up  the  avenue, 

(Oreg.))  192  Pac.  907.  even  at  a  speed  of  eight  miles  an  hour 

85.  Hebard  v.  Mabie,  98  111.  App.  (to  say  nothing  of  the  evidence  war- 
543.     And  see  section  333.  ranting  the   inference   that   they  were 

86.  Barton  v,  Craighill  (Pa.),  112  going  faster)  all  the  time  seeing  this 
Atl.  96.  boy    standing   in    the   gutter   with   his 

87.  Thomas  v.  Burdick  (R.  I.),  100  back  to  them,  and  apparently  unmind- 
Atl.  398;  Bulger  v.  Olataka  Yamoaka  ful  of  their  approach,  and  to  run  him 
(Wash.),  191  Pac.  786.  down    without    the    slightest    effort   to 

88.  Wells  v.  Shepard,  135  Ark.  466,  warn  or  avoid  him,  is  so  indicative  of 
205  S.  W.  806;  Amaz  v.  Forbes  (Cal.  carelessness  as  to  afford  abundant  evi- 
App.),  197  Pac.  364;  Nehing  v.  Charles  dence  to  make  a  question  for  the 
M.  Monroe  Stationery  Co.  (Mo.  App.),  jury."  Dervin  v.  Frenier,  91  Vt.  398, 
191    S.    W.    1054;    Humes    v.    Schaller,  100  Atl.  760. 

39   R.   I.   519,   99   Atl.    55;    Dervin   v.  89.  Stephenson  v.  Parton,  89  Wash. 

Frenier,    91    Vt.    398,    100    Atl.    760;  653,  155  Pac.  147. 

Stephenson  v.   Parton,    89   Wash.   653,  90.  Humes  v.  Schaller,  39  R.  I.  519, 

155    Pac.    147 ;    Ouellette    v.    Superior  99  Atl.  55. 

Motor  &  M.  Works,  157  Wis.  531,  147  91.  Stephenson  v.  Parton,  89  Wash. 

N.  W.  1014.    See  also  Coffman  >.  Singh  653,  155  Pac.  147. 


Collision  With  Pedestrian.  531 

negligence."  Thus,  it  is  held  that  one  running  an  autoino- 
bile  is  bound  to  take  notice  of  a  person  standing  in  the  road- 
way conversing  with  a  friend,  and  is  bound  to  use  care  not  to 
injure  him.^^  ^nd,  where  it  appeared  that  a  ''jumper"  on  a 
delivery  wagon,  after  alighting  and  while  taking  some  parcels 
from  the  wagon,  was  struck  by  an  automobile,  it  was  held  that 
the  negligence  of  the  parties  was  properrly  submitted  to  the 
jury.^3 

Sec.  440.  Sudden  turning  or  backing  without  warning. 

The  driver  of  an  automobile  will  be  liable  for  injuries  sus- 
tained by  a  pedestrian,  where  the  machine  makes  a  sudden 
turn  without  warning,  thereby  coming  in  collision  with  such 
pedestrian.^*  And,  where  one  passing  several  feet  back  of  a 
standing  automobile  is  injured  by  reason  of  the  sudden  back- 
ing of  the  machine  without  warning,  the  jury  is  justified  in 
charging  the  driver  with  negligence.^^  The  backing  of  a  ma- 
chine over  a  crossing  without  warning  in  a  direction  contrary 
to  the  general  traffic,  permits  an  inference  of  negligence.*® 
One  backing  a  machine  from  a  garage  to  the  street  should 
exercise  reasonable  diligence  to  give  a  warning  of  his  ap- 
proach or  to  ascertain  the  danger  to  which  other  travelers  are 
exposed.*'^  If  the  car  strikes  a  person  or  other  vehicle  before 
reaching  the  crosswalk,  the  situation  is  different  than  when 
a  pedestrian  along  the  walk  is  injured.*^  But  the  law  does 
not  absolutely  forbid  the  backing  of  a  vehicle,  and  the  jury 
may  properly  find  in  some  cases  that  the  driver  exercised 
due  care  in  the  maneuver.^^    The  mere  fact  that  the  chauffeur 

92.  Kathmeyer  v.  Mehl  (N.  J.),  60  S.  W.  699;  Glinco  v.  Wimer  (W.  Va.), 
Atl.   40.     See   also   Hanser  v.   Youugs       107  S.  E.  198. 

(Mich.),  180  N.  W.  409.  96.  Wirth  v.  Burns  Bros.,  229  N.  Y. 

93.  Gerhard  v.  Ford  Motor  Co.,  155       148,   128  N.  E.  111. 

Mich.  618,  119  N.  W.  904,  20  L.  R.  A.  97.  Texas    Motor    Co.    v.    Buffington 

(N.  S.)   232.  (Ark.),  203  S.  W.   1013. 

94.  O'Dowd  V.  Newnham,  13  Ga.  98.  Caplan  v.  Reynolds  (Iowa),  182 
App.  220,  80  .3.  E.  36.     See  also  Boh-  N.  W.  641. 

ringer   v.    Campbell,    154    N.    Y.    App.  99.  Sheldon  v.  James,   175  Cal.  474, 

Div.  879,  137  N.  Y.  Suppl.  241.  166  Pac.  8,  2  A.  L.  R.  1493;  Caplan  v. 

95.  Estrom  v.  Neumoegen,  126  N.  Y.  Reynolds  (Iowa),  182  N.  W.  641; 
Suppl.  660.  See  also  Suddarth  v.  Kirk-  Glinco  v.  Wimer  (W.  Va.),  107  8.  E. 
land  Daley  Motor  Co.  (Mo.  App.),  220  198. 


532 


The  Law  of  Automobiles. 


cannot  see  over  the  back  of  the  automobile  while  sitting  would 
not,  in  and  of  itself,  convict  him  of  negligence  in  the  backing 
of  the  car,  if  he  took  reasonable  precautions  before  so  doing 
by  looking  to  the  right  and  left,  or  by  standing  up  and  so 
looking  over  the  back  of  his  car.^ 

Sec.  441.  Speed  and  control  of  automobile  —  control  in  gen- 
eral. 

The  driver  of  an  automobile  is  bound  to  anticipate  that 
other  travelers,  both  in  carriages  and  on  foot,  will  use  the 
highway,  and  hence  it  is  his  duty  to  have  his  machine  under 
reasonable  control  so  as  to  avoid  injury  to  such  travelers.^ 
This  requires  that  the  speed  of  the  car  shall  be  reasonable 


1.  Sheldon  v.  James,  175  Cal.  474, 
166  Pac.  8,  2  A.  L.  R.  1493. 

2.  Alabama. — Hood  &  Wheeler  Furn- 
ture  Co.  V.  Royal  (Ala.  App.),  76  So. 
965. 

Illinois: — Kessler  v.  Washburn,  157 
111.  App.  532;  Crandall  v.  Krause,  165 
111.  App.  15. 

Iowa. — Brown  v.  Des  Moines  Steam 
Bottl-ng  Works,  174  Iowa,  715,  156 
N.  W.  829;  Gilbert  v.  Vanderwall,  181 
Iowa,  685,  165  N.  W.  165. 

Kentucky. — Baldwin's  Adm'r  v. 
Maggard,  162  Ky.  424,  172  S.  W.  674; 
Major  Taylor  &  Co.  v.  Harding,  182 
Ky.  236,  206  S.  W.  285 ;  Ferris  v.  Mc- 
Aidle,  92  N.  J.  L.  580,  106  Atl.  460. 

Louisiana. — Walker  v.  Rodriguez,  139 
La.  251,  71  So.  499. 

Michigan. — Levyn  v.  Koppin,  183 
Mich.  232,  149   N.  W.  993. 

Minnesota. — Johnson  v.  Johnson,  137 
Minn.  198,  163  N.  W.  160;  Geiger  v. 
Sanitary  Farm  Dairies,  178  N.  W.  501. 

Neiv  Jersey. — Pool  v.  Brown,  89  N. 
J.  L.   314,  98  Atl.   262. 

Neiv  York. — Bohringer  v.  Campbell, 
154  Ap:i.  Div.  879,  137  N.  Y.  Suppl. 
241  ;  Thies  v.  Thomas,  77  N.  Y.  Suppl. 
276;  Busacca  v.  McLaughlin  Supply 
Co.,  189  App.  Div.  584,  178  N.  Y. 
Suppl.  B49. 


North  Carolina. — Manley  v.  Aber- 
nathy,  167  N.  C.  220,  83  S.  E.  343. 

Oregon. — Weygandt  v.  Bartle,  88 
Oreg.  310,  171  Pac.  587;  Marstera  v. 
Isensee,  192  Pac,  907. 

Pennsylvania. — Lorah  v.  Rhinehart, 
243  Pa.  St.  231,  89  Atl.  967;  Reese  v. 
France,  62  Pa.  Super.  Ct.  128;  Healy 
V.  Shedaker,  264  Pa.  St.  512,  107  Atl. 
842;  Schweitzer  v.  Quaker  City  Cab 
Co.  (Pa.),  112  Atl.  442;  Mackin  v. 
Patterson  (Pa.),  112  Atl.  738;  Twinn 
V.  Noble  (Pa.),  113  Atl.  686.  "In  a 
crowded  city  street,  the  dictates  of 
common  prudence  clearly  require  that 
a  heavy  vehicle,  such  as  an  automo- 
bile, shall  be  kept  under  control  so  as 
to  avoid,  or  at  least  minimize,  the  dan- 
gers of  a  coirsion.  Common  experi- 
ence and  observation  show  that  the 
only  adequate  method  of  control  is  to 
run  the  machine  slowly."  Lorah  v. 
Rinehart,  243  Pa.  St.  231,  89  All.  967; 
Sehoepp  v.  Gerety,  263  Pa.  St.  538, 
107  Atl.  317;  Anderson  v.  Wood,  264 
Pa.   St.  98,   107  Atl.   658. 

Virginia. — Core  v.  Wilhelm,  124  Va. 
150,   98   S.   E.   27. 

Washington.—De'^tehleT  v.  Ball,  99 
Wash.  483,  170  Pac.  123;  Locke  v. 
Greene,  100  Wash.  397,  171  Pac.  245. 


Collision  With  Pedestrian.  533 

under  the  circumstances,^  and  that  it  shall  not  be  greater  than 
the  rate  prescribed  by  statute  or  municipal  ordinance.*  The 
control  required  of  the  driver  of  an  automobile  is  not  "al)so- 
lute"  control;  all  that  is  required  is  "reasonable"  control.'^ 
He  is  not  compelled  at  all  times  to  run  so  slowly  that  he  can 
stop  instantly.^  The  test  of  control  is  the  ability  to  stop 
quickly  and  easily.  When  this  result  was  not  accomplished, 
the  inference  is  obvious  that  the  car  was  running  too  fast  or 
that  a  proper  effort  to  control  it  was  not  made.'  When  the 
circumstances  at  a  given  point  demand  that  the  speed  be 
slackened  or  that  the  car  be  stopped,  the  sounding  of  the  horn 
or  any  other  warning  of  approach  will  not  be  sufficient.^  If, 
however,  the  machine  is  traveling  at  a  reasonable  speed  and 
is  under  reasonable  control,  there  will  ordinarily  be  no  lia- 
jjility  for  an  injury  to  a  pedestrian  who  unexpectedly  jumps 
in  front  of  the  machine  so  close  thereto  that  the  driver  by  an 
exercise  of  due  care  is  unable  to  avoid  a  collision.^ 

Sec.  442.  Speed  and  control  of  automobile  —  stopping. 

The  duty  to  have  an  automobile  under  reasonable  control 
naturally  implies  that  the  driver  shall  exercise  the  power  of 
control  whenever  reasonably  necessary  for  the  avoidance  of 
injuries  to  others.!**    If  a  pedestrian  is  crossing  his  course  in 

3.  Sections  305,  443.  from  all  the  evidence  in  this  case,  that 

4.  Section  444.  as  the  driver  of  the  defendant 's  truck 

5.  Baldwin's  Adm'r  v.  Maggard.  at  the  time  and  place  in  question  ap- 
162  Ky.  424,  172  S.  W.  674.  proached  the  place  where  the  deceased 

6.  McMillen  v.  Shaihmamn,  264  Pa.  was  injured  there  was  no  apparent  ne- 
13,  107  Atl.  332.  cessity  appearing  for  the  driver  of  said 

7.  Lorah  v.  Rinehart,  243  Pa.  St.  truck  stopping  or  slacking  the  speed 
231,  89  Atl.  967,  holding  that  the  jury  of  the  truck  in  order  to  prevent  injury 
may  take  into  consideration  in  judg-  to  the  deceased,  then  the  law  did  not 
ing  of  the  speed  of  an  automobile,  the  require  the  driver  of  the  truck  to  stop 
distance  it  traveled  after  striking  a  pe-  or  slacken  the  speed  of  the  truck." 
destrian  before  it  came  to  a  stop.  Devine     v.     Brunswick-Balke-Collendor 

8.  Kessler  v.  Washburn,  157  111.  App.  Co.,  270  111.  504,  110  N.  E.  780.  wherein 
^^^-  the  court  said:     "This  instruction  was 

9.  Lewis  V.  Steel,  52  Mont.  300,  157  clearly  erroneous.  It  is  not  a  question 
Pac.  575.     And  see  section  416.  as   to  whether  or  not,   in   approaching 

10.  Instructions  as  to  necessity  for  the  place  in  question,  there  was  no 
stopping.— It  has  been  held  error  for  'apparent  necessity  appearing  for  the 
the  court  to  charge:    "If  you  believe,      driver  of  said  truck  stopping  or  slack- 


534  The  LaA^  of  Automobiles. 

such  proximity  that  a  collision  is  possible,  the  speed  of  the 
car  should  be  slackened."  But  he  is  not  required  to  begin 
stopping  the  machine  as  soon  as  he  sees  a  pedestrian  in  front, 
irrespective  of  his  being  in  a  position  of  danger.^^  Moreover, 
the  circumstances  may  be  such,  as  when  a  collision  is  immi- 
nent, that  reasonable  care  in  the  operation  of  the  machine 
requires  the  stopping  thereof."  The  driver  of  an  automobile 
does  not  necessarily  fulfill  his  duty  by  proceeding  very  slowly, 
but  he  should  bring  his  machine  to  a  stop  if  it  is  necessary  in 
order  to  prevent  an  injury  to  a  pedestrian."  Thus,  when  one 
crossing  a  street  becomes  confused  and  vacillates  as  to  the 
course  he  shall  pursue,  reasonable  care  may  require  that  the 
driver  stop  his  automobile  in  order  to  avoid  the  collision.^ 
Likewise,  if  his  vision  is  obscured  by  the  glare  of  other  lights, 
he  should  stop  his  machine  instead  of  running  the  danger  of 
a  collision  by  proceeding.^*  And  it  may  be  the  duty  of  thp 
driver  to  stop  when  he  meets  or  overtakes  a  street  car  which 
is  receiving  or  discharging  passengers.^^  But,  in  the  absence 
of  statute  or  other  regulation  on  the  subject,  there  is  no  rule 
of  law  which  requires  the  driver  of  an  automobile  to  slack 
its  speed  while  he  is  passing  a  moving  street  car." 

ing  the  speed  of  the  truck  in  order  to  Kessler    v.    Washburn,    157    HI.    App. 

prevent   injury    to   the    deceased,'   but  532;     Crawford    v.     McElhinney,     171 

whether  or  not  the  driver  was  operat-  Iowa,    606,    154  N.  W.   310;    Walmer- 

ing  the  car  with  that  degree  of  care  Roberts   v.   Hennesey    (Iowa),    181    N. 

and   skill  which  an   ordinarily  prudent  W.  798 ;  Kelly  v.  Schmidt,  142  La.  91, 

and   skillful    driver   would   have    exer-  76  So.  250;  Thies  v.  Thomas,  77  N.  Y. 

cised  under  the  circumstances,  having  Suppl.    276.     See  also  Clark  v.   Jones 

due    regard    to    the    location,    circum-  (Oreg.),   179  Pac.  272. 

stances  and  surroundings  in  which  the  14.  Crawford     v.     McElhinney,     171 

driver    was    operating   his    car    at    the  Iowa,  606,  154  N.  W.  310;  Gagnon  v. 

time."  Robitaille,  16  R.  L.  N.  S.  235. 

11.  Levyn  v.  Koppin,  183  Mich.  232,  15.  Section  421. 

149  N.  W.  993.  16.  Hammond  v.  Morrison,  90  N.  J. 

12.  Selinger  v.   Cromer    (Mo.   App.),       L.  815,   100  Atl.   154. 

208  S.  W.  871.  17.  Section   423,  et  seq. 

13.  New   York    Transp.    Co.    v.    Gar-  18.  Starr  v.  Schenk,  25  Mont.  L.  Rep. 
side,   157  Fed.  521,  85  C.  C.  A.   285;       (Pa.)    18. 

Silvia  V.  Scotten  (Del.),  114  Atl.  206; 


Collision  With  Pedestrian. 


535 


Sec.  443.  Speed  and  control  of  automobile  —  speed. 

Independently  of  any  statute  or  municipal  regulation  affect- 
ing the  question,  it  is  the  duty  of  a  motorist  to  run  his  auto- 
mobile not  faster  than  a  reasonable  rate  of  speed.^  If  an 
excessive  speed  is  a  proximate  cause  of  injuries  to  a  child  or 
adult  in  the  street,  the  jury  may  be  warranted  in  holding  the 
driver  of  the  machine  liable  for  the  injuries  thus  received.^" 


19.  Section  305. 

Evidence, — The  testimony  of  an  oc- 
cupant of  an  automobile  that  the  pe 
destrian  who  was  killed  thereby  ap 
peared  so  suddenly  that  the  collision 
could  not  have  been  avoided,  even  if 
the  speed  had  not  exceeded  four  miles 
an  hour,  is  admissible  as  tending  to 
show  that  the  accident  was  not  due  to 
excessive  speed.  Lewis  v.  Steel,  52 
Mont.   300,  157  Pac.  575. 

20.  United  States. —  New  York 
Transp.  Co.  v.  Garside,  157  Fed.  521, 
85  C.  C.  A.  285. 

Arkansas. — Texas  Motor  Co.  v.  Buf- 
fington,  203  S.  W.  1013:  Tlughey  v. 
Lennox,  219  S.  W.  323. 

California. — Bannister  v.  H.  Jevne 
Co.,  28  Cal.  App.  133,  151  Pac.  546; 
Clohan  v.  Kelso  (Cal.  App.),  183  Pac. 
349. 

Connecticut. — Lynch  v.  Shearer,  83 
Conn.  73,  75  Atl.  88. 

Illinois. — Kessler  v.  Washburn,  157 
111.  App.  532;  Kuchler  v.  Stafford,  185 
ni.  App.  199;  Trzetiatowski  v.  Even- 
ing American  Pub.  Co.,  185  111.  App. 
451 ;  Osberg  v.  Cudahy  Packing  Co., 
198  111.  App.  551;  Brantigan  v.  Union 
Overall  Laundry  &  Supply  Co.,  211  111. 
App.  354. 

Indiana. — Harker  v.  Gruhl,  62  Ind. 
App.  177,  111  N.  E.  457. 

Kentucky. — Buford  v.  Hopewell,  140 
Ky.  666,  131  S.  W.  502;  Forgy  v.  Rut- 
ledge.  167  Ky.  182,  180  S.  W.  90; 
Weidner  v.  Otter.  171  Ky.  167.  188  S. 
W.  335. 

Massachusetts. — Rasmussen  v.  Whip- 
ple, 211  Mass.  546,  98  N.  E.  592;  Tripp 


V.  T.-ift,  219  Mass.  81.  106  N.  E.  578; 
Creedon  v.  Galvin,  226  Mass.  140,  115 
N.  P].  307 ;  French  v.  Mooar,  226  Mass. 
173,  115  N.  E.  235:  Buoniconte  v.  Lee, 
234  Mass.  173,  124  N.  E.  791;  Kamin- 
ski  v.  Foumier,  126  N.  E.  279. 

Michigan. — Levyn  v.  Koppin,  183 
Mich.  232,  149  N.  W.  993;  Wilson  v. 
.Johnson,  195  Mich.  94,  161  N.  W.  924. 

Minnesota. — Johnson  v.  Johnson,  137 
Minn.  198,  163  N.  W.   160. 

.Uis.t&uri. — Sullivan  v.  Chauvenet 
^Mo.),  222  S.  W.  759;- Hopflinger  v. 
Young  (Mo.  App.),  179  S.  W.  747. 

New  Jersey.- — Ilecknian  v.  Cohen,  90 
N.  J.  L.   322,   100  Atl.   695. 

\ew  York. — Bohringer  v.  Campbell, 
154  App.  Div.  879,  137  N.  Y.  Suppl. 
241 ;  Fittin  v.  Sumner,  176  App.  Div. 
617,  163  N.  Y.  Suppl.  443;  Dultz  v. 
Fisehowitz,  104  N.  Y.  Suppl.  357. 

Oregon. — Weygandt  v.  Bartle.  S8 
Oreg.  310,  171  Pac.  587. 

Pennsylvania. — Freel  v.  Wanamaker, 
208  Pa.  St.  279,  57  Atl.  563;  Lorah  v. 
Rinehart.  243  Pa.  St.  231,  89  Atl.  967; 
Schoepp  V.  Gerety,  263  Pa.  St.  538,  107 
Atl.  317;  Michalsky  v.  Putney,  51  Pa. 
Super.  Ct.  163;  Karaffa  v.  Ferguson, 
68  Pitts.  Leg.  Jour.  109. 

South  Dakota. — Heidner  v.  Germ- 
schied,  41  S.  Dak.  430.  171  N.  W.  208. 

Tennessee. — Lauterbach  v.  State,  132 
Tenn.  603,  179  S.  W.   130. 

Washington. — Heath  v.  Seattle  Taxi- 
cab  Co.,  73  Wash.  177.  131  Pac.  843; 
Adair  v.  McNeil.  95  Wash.  160.  163 
Pac.  393;  Deitchler  v.  Ball.  99  Wash. 
183,  170  Pac.  123;  Locke  v.  Greene, 
100  Wash.  397,  171  Pac.  245. 


536  The  Law  of  Automobiles. 

The  speed  of  the  vehicle  is  the  critical  point  in  determining 
whether  it  is  under  control.  Thus,  it  has  been  said,  "Common 
experience  and  observation  show  that  the  only  adequate 
method  of  control  is  to  run  the  machine  slowly.  "^^  What  is 
a  reasonable  rate  depends  upon  the  circumstances  of  each 
particular  case,^^  and  is  ordinarily  a  question  for  the  jury.^ 
With  a  clear  track  and  plenty  of  room,  the  rate  of  twelve  to 
fifteen  miles  an  hour  would,  no  doubt,  be  deemed  very 
moderate,  but  in  the  thick  of  traffic  where  the  streets  are 
crowded  with  vehicles  and  pedestrians,  a  jury  might  conclude 
that  a  prudent  person  with  due  regard  to  the  safety  of  him- 
self and  others,  would  drive  a  heavy  automobile  at  a  much 
slower  rate.^^  A  speed  of  five  or  six  miles  an  hour  when 
driving  through  a  crowd  of  children  playing  in  the  street  may 
be  gross  negligence.^^  But  a  speed  of  from  five  to  eight  miles 
an  hour  when  approaching  the  crossing  of  a  busy  street,  is 
not  necessarily  negligent.^*' 

Sec.  444.  Speed  and  control  of  automobile  —  speed  prescribed 
by  statute  or  ordinance. 

Statutory  and  municipal  regulations  as  to  the  speed  of  au- 
tomobiles are  to  be  obeyed,  and,  if  an  injury  results  to  a  pedes- 
trian from  a  violation  of  such  a  regulation,  the  driver,  as  a 
general  proposition,  jnust  answer  for  the  damages.^'    It  is 

21.  Lorah  v.  Rinehart,  243  Pa.  St.  Hunt  (Cal.  App.),  183  Pac.  358; 
231,  89  Atl.  967.  Heartsell  v.  Billows,  184  Mo.  App.  420, 

22.  Hood  &  Wheeler  Furniture  Co.  v.  171  S.  W.  7;  McCown  v.  Muldrow,  91 
Royal  (Ala.  App.),  76  So.  965;  Ginter  S.  Car.  523,  74  S.  E.  386;  Franey  v. 
V.  O'Donoghue  (Mo.  App.),  179  S.  W.  Seattle  Taxicab  Co.,  80  Wash.  396,  141 
732;  Lorah  v.  Rinehart,  243  Pa.  St.  Pac.  890;  Bruner  v.  Little,  97  Wash. 
231,  89  Atl.  967.  319,   166  Pac.   1166. 

23.  LaDuke  v.   Dexter    (Mo.   App.),  And  see  section  297. 

202  S.  W.  254.    And  see  section  325.  Homicide. — In  case  of  a  violation  of 

24.  Lorah  v.  Rinehart,  243  Pa.  St.  a  speed  statute  resulting  in  the  death 
231,  89  Atl.  967.  of  a  pedestrian,  the  circumstances  may 

25.  Haacke  v.  Davis,  166  Mo.  App.  be  such  that  a  prosecution  for  homi- 
249    148  S.  W.  450.  cide  can  be  sustained.     Lauterbach  v. 

26.  Gilbert  v.  Vanderwall,  181  Iowa,  State,  132  Tenn.  G03,  179  S.  W.  130. 
685,  165  N.  W.  165.  And  see  section  759. 

27.  Denison  v.  McNorton,  228  Fed.  Fire  apparatus. — As  a  general  rule 
401,    142   C.    C.   A.    631;   Randolph   v.      the  fire  apparatus  of  a  municipality  is 


Collision  With  Pedestrian. 


537 


sometimes  held  that  the  violation  of  the  prescribed  speed  is 
negligence  per  se;^^  in  other  jurisdictions  and  under  regula- 
tions with  different  language,  the  violation  is  thought  to  be 
prima  facie  evidence  of  negligence.^^  Some  regulations  do  not 
forbid  a  greater  speed  than  that  specified  but  merely  make 
the  greater  speed  prima  facie  evidence  that  the  automobile 
was  proceeding  at  an  unreasonable  speed ;  in  such  a  case,  the 
driver  may  show  that  under  the  circumstances  in  a  particular 
case,  the  speed  was  not  unreasonable  though  greater  than  the 
prescribed  rate.^*^  The  fact  that  the  operator  of  the  car  was 
proceeding  within  the  prescribed  limit  of  speed,  does  not 
necessarily  require  a  holding  that  he  was  free  from  negli- 
gence.^^ Though  the  speed  may  be  limited  by  statute  or  muni- 
cipal ordinance,  nevertheless  the  duty  remains  on  the  driver 
to  operate  his  machine  no  faster  than  a  reasonable  speed 
under  the  circumstances,  and  the  jury  may  be  authorized  to 
find  that  a  speed  below  the  limit  was  unreasonable.^^ 

Sec.  445.  Speed  and  control  of  automobile  —  auto  turning 
corner. 

When  an  automobile  is  turning  a  corner,  the  driver  should 
take  notice  that  pedestrians  may  be  crossing  the  street;  and, 


exempted  from  the  speed  limitations, 
and  a  pedestrian  injured  by  such  ap- 
paratus cannot  recover  for  his  injuries 
merely  because  the  speed  exceeded  the 
general  limit  prescribed  by  statute. 
Hubert  v.  Granzow,  131  Minn.  361,  155 
N.  W.  204. 

28.  Weimer  v.  Rosen,  100  Ohio,  361, 
126  N.  E.  307;  Whaley  v.  Ostendorff, 
90  S.  Car.  281,  73  S.  E.  186;  McCown 
V.  Muldrow,  91  S.  Car.  523,  74  8.  E. 
386;  Ludke  v.  Buick,  160  Wis.  440, 
152  N.  W.  190,  L.  R.  A.  1915D  968. 
And  see  section  321. 

29.  Bruhl  v.  Anderson,  189  111.  App. 
Rutledge,   167  Ky.   182, 

And  see  section  322. 
Michell,    196    HI.    App. 


461 ;   Forgy  \ 
180  S.  W.  90 

30.  Berg    v 
509. 

31.  Section  324. 

32.  Kessler    v.    Washburn, 


157     HI. 


App.  532;  Bohm  v.  Dalton,  206  111. 
App.  374;  Forgy  v.  Rutledge,  167  Ky. 
182.  180  S.  W.  90;  Ginter  v.  O'Donog 
hue  (Mo.  App.),  179  S.  W.  732;  Adair 
V.  McNeil,  95  Wash.  160,  163  Pac.  303. 
"No  owner  or  operator  of  an  autonio 
bile  is  necessarily  exempt  from  lia- 
bility for  collision  in  a  public  street 
by  simply  showing  that  at  the  time  of 
the  accident  he  did  not  run  at  a  rate 
of  speed  exceeding  the  limit  allowed 
by  the  law  or  the  ordinances.  On  the 
contrary,  he  still  remains  bound  to  an- 
ticipate that  he  may  meet  persons  at 
any  point  in  the  public  street  and  ho 
must  keep  a  proper  lookout  for  them 
and  keep  his  machine  under  such  con 
trol  as  will  enable  him  to  avoid  a  col 
lision  with  another  person,  using 
proper  care  and  caution."  Kessh^r  v 
Washburn.  157  HI.  App.  532. 


538  The  Law  of  Automobiles. 

under  such  circumstances,  the  speed  of  the  machine  should  be 
slowed  and  the  car  operated  with  care.^    A  pedestrian  cross- 
ing the  street  at  such  a  place  has  a  right  to  assume  that  the 
driver  of  an  automobile  will  operate  his  conveyance  with  due 
regard  to  the  rights  of  pedestrians  at  such  places.^*    Thus  it 
is  said :    "Those  who  handle  these  machines,  which  are  highly 
dangerous   if   driven   rapidly,   especially    along   a    crowded 
thoroughfare,  and  more  especially  when  turning  at  the  angle 
of  two  intersecting  streets  or  roads,  should  strictly  obey  the 
law  and  exercise  that  degree  of  care  generally  which  is  com- 
mensurate with  the  great  hazard  produced  by  a  failure  to  do 
so.    They  should  hold  their  cars  well  in  hand  and  give  timely 
signals  at  points  where  people  should  reasonably  be  expected 
to  be,  and  where  they  have  a  right  to  be."^^    j^  go^^e  juris- 
dictions there  have  been  enacted  drastic  regulations  as  to  the 
speed  of  motor  vehicles  when  turning  corners,  and  their  vio- 
lation may  form  the  basis  for  an  action  for  injuries  by  a  pe- 
destrian.^*^    Where  the  driver  of  an  automobile  traveling  at 
the  rate  of  ten  or  twelve  miles  an  hour  turned  his  car  across 
the  sidewalk  into  an  alley,  without  having  the  machine  under 
control  so  as  to  avoid  striking  persons  passing  along  the  street 
or  crossing  the  alley,  it  was  held  that  he  was  guilty  of  negli- 
gence.^'^ 

Sec.  446.  Vehicle  left  standing  in  street. 

The  mere  leaving  of  an  automobile  in  the  street  for  a  rea- 
sonable length  of  time  is  not  necessarily  negligence.'*  Proper 
precautions  should  be  taken,  however,  to  the  end  that  it  will 
not  automatically  start  and  thereby  cause  injury  to  a  person 
in  the  street.  Thus,  if  the  machine  is  stopped  on  a  hill,  the 
operator  should  set  the  brakes  and  use  care  to  the  end  that 
the  force  of  gravity  will  not  set  it  in  motion.^^    But,  when  the 

33.  Buscher  v.  New  York  Transpor-  36.  Heartsell  v.  Billows,  184  Mo. 
tation   Co.,   106   N.  Y.   App.   Div.  493,       App.  420,  171  S.  W.  7. 

94  N.  Y.  Suppl.  798.  37.  Kuchler     v.     Stafford,     185     HI. 

34.  Buscher  v.  New  York  Transpor-      App.  199. 
tation  Co.,   106  N.  Y.  App.  Div.  493,  38.  Section  340. 

94  N.  Y.  Suppl.  798.  39.  Oberg  v.  Berg,  90  Wash.  435,  156 

35.  Manley  v.  Abernathy,  167  N.  C.      Pac.  391. 
220,  83   S.  E.   343. 


(.'OLLLSION    AVlTH     l^KDESTRIAN.  539 

starting  of  the  machine  is  rhio  to  tlic^  iinhiwi'ul  act  of  children 
or  other  persons,  an  interesting  question  of  proximate  cause 
arises.  As  a  general  proposition,  it  is  held  that  the  unlawful 
act  of  such  a  trespasser  is  an  intervening  cause  which  the 
operator  of  the  machine  is  not  bound  to  anticipate,  and  hence 
he  is  not  liable  for  injuries  caused  thereby.'"'  Where  it  ap- 
peared that,  while  the  defendant's  automobile  was  at  a  stand- 
still in  the  street,  the  plaintiff,  after  pulling  out  another  ))oy's 
foot  which  was  stuck  ))etweeii  l)arrels  on  the  machine 
jumped  off,  and  the  car  then  backed  up  a  hill  about  five  feet 
running  over  the  plaintiff,  it  was  held  that  the  circumstances 
called  for  some  explanation  by  the  defendant.'" 

Sec.  447.  Lights. 

Independently  of  statute,  it  is  held  to  be  a  neglect  of  due 
care  for  an  automobile  not  to  be  equipped  with  a  light  suffi- 
cient for  the  driver  to  distinguish  other  travelers  and  objects 
in  the  highway  sufficiently  far  in  advance  that  he  may  avoid 
a  collision  therewith.^-  But,  in  any  event,  it  is  now  almost 
universally  required  l)y  statute  that  motor  vehicles  shall  carry 
illumination,  in  some  cases  the  statutes  in  detail  providing  the 
kind  of  equipment  in  this  respect.  A  regulation  relative  to 
lights  may  l)e  deemed  to  be  for  the  protection  of  pedestrians 
as  well  as  for  other  vehicles,  so  that  a  pedestrian  injured  by 
an  automobile  may  ground  his  action  on  the  failure  of  the 

40.  Vincent  v.  Crandall  &  Godley  Co.,  said:  "It  makes  no  difference  whether 
131  N.  Y.  App.  Div.  200,  115  N.  Y.  the  friend  was  a  trespasser  on  the  au- 
Suppl.  600;  Larzarowitz  v.  Levy,  194  tomobile,  or  whether  plaintiff  came  to 
N.  Y.  App.  Div.  400,  185  N.  Y.  Suppl.  his  assistance  or  not.  The  plaintiff 
359;  Berraan  v.  Schultz,  84  N.  Y.  had  a  right  to  be  in  the  public  street. 
Suppl.  292;  Sorrusca  v.  Hobson,  155  The  automobile  of  defendant  was  at  a 
N.  Y.  Suppl.  364;  Frashella  v.  Taylor,  .stop  and  the  unexplained  sudden  back- 
157  N.  Y.  Suppl.  881;  Rhad  v.  Du-  ing  of  the  automobile,  without  any 
quesne  Light  Co.,  255  Pa.  St.  409,  100  warning,  calls  at  least  for  some  ex- 
Atl,  262.  See  also  Oberg  v.  Berg,  90  planatiou  on  the  part  of  the  defend- 
Wash.    435,    156    Pac.    391.     Compare,  ant." 

Lee  V.  Van  Buren,  etc.,  Co..  190  App.  42.  Walden  v.  Stone  (Mo.  App.),  223 

Div.  742,  180  N.  Y.   Suppl.  295.     And  S.   W.    136;    Lannon   v.   Fond   du   Lac, 

see  section  342.  141  Wis.   57.  123  N.  W.  629,  25  L.  B. 

41.  Grudberg  v.  Ehret,  79  Mi.sc.  627,  A.  (N.  S.)  40.  And  see  sections  344- 
140  N.   Y.  Suppl.   379,   wherein    it    wa«  348. 


540 


The  Law  of  Automobiles. 


driver  to  have  the  machine  properly  equipped  with  lights.'*^ 
In  case  of  conflict  as  to  whether  the  lamps  were  lighted,  a 
question  of  fact  for  the  jury  is  presented.''*  A  statute  rela- 
tive to  the  lights  on  a  motor  vehicle  has  been  held  not  appli- 
cable to  a  "dead"  car  towed  by  another/^ 

Sec.  448.  Signal  of  approach. 

Due  care  may  require,  when  the  operator  of  a  motor  vehi- 
cle, sees  that  a  pedestrian  is  in  or  is  about  to  enter  into  his 
course,  that  he  sound  his  horn  or  give  some  warning  of  his 
approach.  If  he  fails  to  do  so,  and  a  pedestrian  in  the  exer- 
cise of  due  care  is  thereby  injured,  he  is  properly  chargeable 
with  negligence  rendering  him  liable  for  the  injuries  proxi- 
mately resulting.''^'    The  giving  of  a  signal  to  a  traffic  officer 


43.  Stewart  Taxi  Service  Co.  v.  Roy, 
127  Md.  70,  95  Atl.  1057;  Johnson  v. 
Quinn,  130  Minn.  134,  153  N.  W.  267; 
Thomas  v.  Stevenson  (Minn.),  178  N. 
W.  1021.  See  also  Buford  v.  Hope- 
well, 140  Ky.  666,  131  S.  W.  502. 

44.  Johnson  v.  Quinn,  130  Minn. 
134,  153  N.  W.  267. 

45.  Musgrave  v,  Studebaker  Bros.  Co. 
of  Utah,  48  Utah,  410,  160  Pac.  117. 

46.  California. — Blackwell  v.  Ran- 
wick,  21  Cal.  App.  31,  131  Pae.  94. 

Indiana. — J.  F.  Darmody  Co.  v.  Reed, 
111  N.  E.  317 ;  Russell  v.  Scharfe,  130 
N.  E.  437. 

Iowa. — ^Wine  v.  Jones,  183  Iowa, 
1166,  162  N.  W.  196,  168  N.  W.  318. 

Kentucky. — Buford  v.  Hopewell,  140 
Ky.  666,  131  S.  W.  502;  Weidner  v. 
Otter,  171  Ky.  167,  188  S.  W.  335; 
Collett  v.  Standard  Oil  Co.,  186  Ky. 
142,  216  S.  W.  356;  Adams  v.  Parish, 
225   S.  W.  467. 

Louisiana. — Kelly  v.  Schmidt,  142 
La.  91,  76  So.  250. 

Massachusetts. — Rasmussen  v.  Whip- 
ple, 211  Mass.  546,  98  N.  E.  592;  Tripp 
V.  Taft,  219  Mass.  81,  106  N.  E.  578; 
Buckley  v.  Sutton,  231  Mass.  504,  121 
N.  E.  527. 

Michigan. — Levyn    v.     Koppin,     183 


Mich.  232,  149  N.  W.  993;  Johnston 
V.  Cornelius,  200  Mich.  209,  166  N.  W. 
983,  L.  R.  A.  1918D  880. 

Minnesota. — Johnson    v.    Quinn,    130 
Minn.  134,  153  N.  W.   267. 

Missouri. —  Reynolds  v.  K  e  n  y  o  n 
(Mo.),  222  S.  W.  476;  Sullivan  v. 
Chauvenet  (Mo.),  222  S.  W.  759;  Gin- 
ter  V.  O'Donoghue  (Mo,  App.),  179  S. 
W.  732;  Young  v.  Bacon  (Mo.  App.), 
183  S.  W.  1079;  Dignum  v.  Weaver 
(Mo.  App.),  204  S.  W.  566;  Brooks  v. 
Harris  (Mo.  App.),  207  S.  W.  293; 
Rubick  v.  Sandler  (Mo.  App.),  219  S. 
W.  401;  Weiss  v.  Sodemann  Heat  & 
Power  Co.  (Mo.  App.),  227  S.  W.  837. 
New  Hampshire. — Hamel  v.  Peabody, 
78  N.  H.  585,  97  Atl.  220. 

New  Jersey. — Pool  v.  Brown,  89  N. 

J.  Law  314,  98  Atl.  262;   Heckman  v. 

Cohen,  90  N.  J.  L.  322,  100  Atl.  695. 
Neio  Yortc. — Cowell  v.  Saperston,  149 

App.  Div.  373,  134  N.  Y.  Suppl.  284; 

Klosayian    v.    Geiger,    188    App.    Div. 

829,  176  N.  Y.  Suppl.  585;  Bradley  v. 

Jaekel,  65  Misc.  509,  119  N.  Y.  Suppl. 

1071;   Dultz  V.   Fischowitz,   104  N.  Y. 

Suppl.   357. 

North     Carolina. — Manly     v.     Aber- 

nathy,  167  N.  Car.  220,  83  S.  E.  343. 


Collision  With  Pedestrian.  541 

may  not  be  sufficient."  The  driver  of  a  car  is  bound  to  assume 
that  pedestrians  will  be  using  street  crossings  as  he  ap- 
proaches them  and  he  must  give  them,  or  be  ready  to  give 
them,  reasonable  warning  of  his  approach.*^  And,  when  pass- 
ing a  street  car  which  is  discharging  passengers,  he  is  bound 
to  anticipate  that  passengers  and  other  persons  may  pass  be- 
hind the  car  in  his  course,  and  he  must  give  a  warning  of  his 
approach.^^  The  common  law  duty  in  respect  to  warning  other 
travelers  is  now  generally  affirmed  by  statutes  or  municipal 
regulations.^^  A  statute  requiring  motor  vehicles  to  be 
equipped  with  a  horn  or  other  signals,  impliedly  requires  that 
such  equipment  shall  be  used  for  the  warning  of  pedestrians 
and  other  travelers  with  whom  a  collision  may  be  expected." 
The  fact  that  the  horn  was  not  sounded,  however,  does  not 
conclusively  establish  the  liability  of  an  automobilist  for  in- 
juries to  a  person  in  the  street.  For  example,  if  a  boy  sud- 
denly and  unexpectedly  darts  in  front  of  an  automobile,  the 
failure  of  the  operator  to  sound  the  horn  may  not  be  suffi- 
cient proof  of  negligence  to  support  an  action  for  the  injuries 
to  the  child.52    tj^^  failure  to  sound  the  horn  is  not  negligence 

Pennsylvania.^ecola    v.    44    Cigar  49.  Johnson    v.    Johnson,    137   Minn. 

Co.,  253  Pa.  G23,  98  Atl.  775;   Kuehno  198,  163  N.  W.  160. 

V.  Brown,  257  Pa.  37,  101  Atl.  77.  50.  Rolfs  v.  Mullins,  180  Iowa,  472, 

Washington.— SegorstTom     v.     Law-  163    N.   W.   232;    Wine  v.   Jones,    183 

rente,    64    Wash,    245,    116    Pac,    876;  Iowa,  1166,  162  N.  W.  196,  168  N.  W, 

Moy  Quon  v,  M,  Furruya  Co.,  81  Wash.  318;  Creedon  v.  Galvin,  226  Mass.  140, 

526,    143    Pac.    99;    Olsen    v.    Peerless  115  N.  E.  307;  Johnston  v.  Cornelius, 

Laundry  (Wash.),  191  Pac.  756.  200  Mich.  209,  166  N.  W.  983,  L.  R.  A. 

" The  uncontradicted  fact  in  the  case  1918D    880;    Benson    v,    Larson,    133 

is   that   the   driver   of   the   automobile  Minn.   346,   158  N.  W.  426;   Aiken  v. 

gave  no  audlhle  s'gnal  or  warning  of  Metcalf,  92  Vt.  57,  102  Atl,  330.    And 

his  approach  to  tho  obscured   part  of  see  section  330. 

the  crosswalk.     From   that  fact  alono  51.  Forgy  v.  Rutledge,  167  Ky.  182, 

the    jury   might    properly    have    found  180   S.  W.   90;    Johnston  v.   Cornelius 

that   the   driver's   failure    to    sound   a  (Mich.),   166   N.   W.   983;    Vannett  v. 

warning  of  the  approach  of  his  auto-  Colo  (N.  Dak.),  170  N.  W,  663, 

mobile   to    the  crossing   was  negligent  52.  Bishard  v.  Engelbcck,  180  Iowa 

conduct."      Pool    V.   Brown,    89   N.   J.  1132,  164  N.  W.  203;  Levosque  v.  Du- 

Law  314,  98  Atl.  262.  mont,  116  Me.  25,  99  Atl.  719;  Chiap- 

47.  Walmer-Robcrts  v,  Hennessey  pone  v.  Grcnebaum,  189  App.  Div.  579, 
(Iowa),  181  N.  W.  798,  178  N,  Y.  Suppl.  854;  Winter  v.  Van 

48.  Coppock  V.  Schlatter,  193  111,  Blarcom,  258  Mo.  418,  167  S.  W.  498; 
App.  255;  Raymen  v,  Galvin  (Mo,),  Fcvrer  v,  Durbrow  (Wis.).  178  N,  W. 
229  S,  W.  747.  306, 


542  The  Law  of  Automobu.es. 

yer  se  under  all  circumstances.^  But  in  some  cases  the  viola- 
tion of  a  regulation  of  this  nature  is  thought  to  constitute 
negligence  per  se,^*  or  prima  facie  negligence.^^  Except  pos- 
sibly where  the  requirements  as  to  the  horn  are  specially  pre- 
scribed by  statute,  whether  the  equipment  of  the  machine  in 
this  respect  is  sufficient,  is  generally  a  question  for  the  jury.^^ 
The  mere  sounding  of  a  signal  of  approach  may  not  be  suffi- 
cient evidence  of  due  care,  for  the  circumstances  may  be  such 
that  due  caution  requires  the  slacking  of  the  machine  or  even 
the  stopping  of  progress."  The  fact,  however,  that  a  horn 
was  sounded  and  as  a  result  thereof  a  pedestrian  was  startled 
and  became  confused  so  that  he  sustained  an  injury,  does  not 
afford  ground  for  rendering  the  operator  of  the  machine 
liable.s^  Tjie  purpose  of  sounding  a  horn  is  to  give  a  warn- 
ing to  other  travelers  of  the  approach  of  the  vehicle ;  and,  if 
the  person  injured  has  actual  knowledge  of  the  approaching 
car,  the  failure  to  give  the  signal  will  not  generally  afford 
basis  for  a  charge  of  negligence.  Under  such  circumstances, 
the  failure  to  give  the  warning  is  said  not  to  be  a  proximate 
cause  of  injury .^^  But,  though  the  pedestrian  is  aware  of  the 
approach  of  the  machine,  if  the  driver  intends  to  depart  from 
the  customary  course  of  travel  a  warning  may  be  required.®"* 

Sec.  449.  Towing  disabled  vehicle. 

It  sometimes  happens,  when  a  disabled  automobile  is  towed 
through  the  streets  by  another  vehicle,  that  a  pedestrian  seek- 
ing to  cross  the  street  trips  over  the  connecting  rope  or  cable 

53.  Selinger  v.  Cromer   (Mo.  App.),      Pac.  932. 

208    S.   W.   871;    Texas  Motor   Co.   v.  58.  Wall  v.  Merkert,  166  App.  Div. 

Buffington    (Ark.),    203    S.    W.    1013;  608,  152  N.  Y.  Suppl.  293. 

Anderson    v.    Voetz    (Mo.    App.),    206  59.  Bruce's  Adm'r  v.  Callahan,   185 

S.  W.  584.  Ky.  1,  213  S.  W.  557;  Collet  v.  Stand- 

54.  Collett  V.  Standard  Oil  Co.,  186  ard  Oil  Co.,  186  Ky.  142,  216  S.  W. 
Ky.  142,  216  S.  W.  356.  356;  Herzig  v.  Sandberg  (Mont.),  172 

55.  Darish  v.  Scott  (Mich.),  180  N.  Pac.  132.  See  also,  Offerman  v.  Yellow 
W.   435.  Cab.    Co.     (Minn.),    175    N.    W.    537; 

56.  Coppock  V.  Schlatter,  193  HI.  Feyrer  v.  Durbrow  (Wis.),  178  N.  W. 
App    255.  306. 

57.  Kessler  v.  Washburn,  157  HI.  60.  Woodhead  v.  Wilkinson  (Cal.), 
App.  532;  Herald  v.  Smith  (Utah),  190  185  Pac.  851,  10  A.  L.  E.  291. 


Collision  With  Pedestrian.  543 

and  is  thereby  injured."  It  is  not  negligence  per  se  for  one 
vehicle  to  draw  another  in  this  manner,  and  thus  a  pedestrian 
injured  must  show  some  neglect  of  duty  on  the  part  of  those 
operating  the  machine.*'^  It  is,  of  course,  the  duty  of  one  tow- 
ing a  vehicle  to  exercise  reasonable  prudence  to  avoid  injury 
to  pedestrians  and  other  travelers  upon  the  highway .^^  But 
the  fact  that  some  other  course  might  have  involved  less  dan- 
ger to  other  travelers  is  not  necessarily  decisive."  Whether 
a  warning  of  the  situation  to  pedestrians  is  necessary  depends 
upon  the  surrounding  circumstances,  such  as  the  light  at  the 
place,  the  size  and  color  of  the  rope,  and  other  pertinent 
facts.'^'^  Under  the  New  York  statute  relative  to  the  licensing 
of  chauffeurs,  liability  is  not  imposed  merely  because  the 
driver  of  the  rear  car  was  not  licensed,  for  even  if  the  failure 
to  have  a  license  could  be  construed  as  violation  of  the  statute, 
it  was  not  a  cause  of  the  accident,  where  there  is  no  proof  of 
his  incompetency.'^  Nor  can  negligence  be  based  merely  on 
the  fact  that  a  system  of  signals  was  not  arranged  so  that  the 
driver  of  the  rear  vehicle  could  signal  the  forward  driver  for 
the  stopping  of  his  machine.^^   And,  under  the  statutes  in  some 

61.  Wolcott  V.  Renault  Selling  haps,  to  have  moved  the  cars  only  be- 
Branch,  175  App.  Div.  858,  162  N.  Y.  tween  certain  hours  after  midnight 
Suppl.  496.  and  before  daylight.     Again,   it  might 

62.  Steinberger  v.  California  Elee.  have  been  safer  to  move  them  one  at 
Grarage  Co.,  176  Cal.  386,  168  Pac.  a  time  and  by  their  own  power  to 
570;  Wolcott  v.  Renault  Selling  have  handled  only  one  at  a  time  with 
Branch,  223  N.  Y.  288,  119  N.  E.  556,  a  team,  or  to  have  moved  them  only  on 
reversing  175  N.  Y.  App.  Div.  858;  certain  streets  that  were  not  being 
Canfield  v.  New  York  Transp.  Co.,  128  greatly  used  by  pedestrians.  The  law 
N.  Y.  App.  Div.  450,  112  N.  Y.  Suppl.  does  not  prescribe  any  particular 
854 ;  Wolcott  v.  Renault  Selling  method  by  which  vehicles  may  bo 
Branch,  175  App.  Div.  858,  162  N.  Y.  moved  on  the  streets.  But  in  moving 
Suppl.   496.  them  it  imposes  the  duty  of  exercising 

63.  Steinberger    v.    California    Elec.  due  or  ordinary  care." 

Garage  Co.,  176  Cal.  386,  168  Pac.  570.  65.  Steinberger    v.    California    Elec. 

64.  Musgrave  v.  Studebaker  Bros.  Co.  Garage  Co..  176  Cal.  386,  168  Pac.  570. 
of  Utah,  48  Utah  410,  160  Pac.  117,  66.  Wolcott  v.  Renault  Spiling 
wherein  it  was  said:  "It  may  well  be  Branch,  175  App.  Div.  858.  162  N.  Y. 
conceded  that  so  far  as  pedestrians  were  Suppl.  496. 

concerned  there  may  have  been  a  safer  67.  Musgrave    v.     Studebaker    Bros, 

way  to  move  automobiles  through  the  Co.   of  Utah,  48   Utah.   410,    160   Pac. 

streets  of  the  city,  but  that  is  not  the  117. 
test.     It  might   have  been  safer,  per- 


544 


The  Law  of  Automobiles. 


jurisdictions,  the  absence  of  lights  on  the  rear  vehicle  is  not 
necessarily  negligence,  for  the  statute  may  be  construed  as 
applicable  only  to  those  vehicles  which  are  proceeding  under 
their  own  motive  power/^  But,  when  a  car  is  being  towed 
out  of  a  garage  across  the  sidewalk  in  the  night  time,  the 
driver  of  the  first  car  is  under  the  duty  of  giving  some  warn- 
ing to  persons  traveling  along  the  sidewalk  who  might  be  ex- 
pected to  pass  directly  behind  the  first  car.*^ 

In  accordance  with  the  foregoing  rules,  it  has  been  held  that 
there  can  be  no  recovery  for  the  death  of  a  pedestrian,  who, 
while  attempting  to  cross  a  city  street,  tripped  over  a  tow 
line  ten  feet  in  length,  where  it  appears  that  he  stopped  after 
a  warning  from  the  driver  of  the  first  vehicle  and  then  at- 
tempted to  pass  between  the  two  vehicles,  although  warned 
by  the  driver  of  the  second  to  look  out  for  the  rope,  and  the 
driver  of  the  second  machine  unsuccessfully  attempted  to 
avoid  striking  him  by  running  his  car  on  the  sidewalkJ**  So, 
too,  where  it  appeared  that  an  electric  hansom  was  being 


68.  Musgravc  v.  Studebaker  Bros. 
Co.  of  Utah,  48  Utah,  410,  160  Pac. 
117. 

69.  Eapetti  v.  Peugeot  Auto  Import 
Co.,  97  Misc.  610,  162  N.  Y.  Suppl. 
133,  wherein  it  was  said:  "Upon 
these  facts,  it  is  claimed  that  no 
prima  facie  case  of  negligence  was 
made  out.  The  basis  of  this  contention 
is  that  it  could  not  have  been  reason- 
ably anticipated  by  the  chauffeur  that 
the  plaintiff  would  cross  immediately 
behind  the  first  automobile  and  trip 
over  the  tow-line  under  the  circut"- 
stances  existing.  It  seems  to  me  that 
this  is  just  what  any  person  of  ordinary 
intelligence  would  have  anticipated. 
The  automobiles  were  not  going  fast 
and  it  is  a  most  common  thing  for  pe- 
destrians to  pass  in  front  of  on-coming 
automobiles  proceeding  slowly  at  cross- 
ings where  there  is  as  much  of  a  margin 
of  safety  as  twelve  feet.  Particularly 
is  this  so  where,  as  at  the  entrances  to 
garages  and  to  many  apartment  houses 
and  hotels,   automobiles   are   permitted 


to  cross  the  sidewalk.  With  the  tens 
of  thousands  of  automobiles  that  now 
swarm  the  city  streets,  it  is  second  na- 
ture for  a  pedestrian  to  proceed  on  his 
way  immediately  after  a  blockading 
automobile  has  passed,  and  he  has  a 
right  to  do  so  unless  halted  by  trafic 
rules  or  by  the  danger  of  a  swiftly  ap- 
proaching vehicle.  Otherwise  in  a 
stream  of  slowly  moving  traffic  pedes- 
trians would  never  get  across  the  streets 
ftt  all.  So  it  cannot  be  said  that  the 
chauffeur  could  not  reasonably  antici- 
pate that  the  plaintiff  and  his  com- 
panion who  were  halted  on  the  side- 
walk by  the  first  automobile,  would  not 
immediately  proceed  on  their  way  once 
it  had  passed  although  another  auto- 
mobile was  approaching  slowly  twelve 
feet  away."  See  also  Young  v.  Herr- 
man,  119  N.  Y.  App.  Div.  445,  104  N. 
Y.  Suppl.  72,  192  N.  Y.  554. 

70.  Wolcott  V.  Eenault  Selling 
Branch,  175  App.  Div.  858,  162  N.  Y. 
Suppl.   496. 


Collision  With  Pedestrian.  545 

towed  by  another  hansom  of  the  defendant  with  a  rope  six  or 
seven  feet  in  length,  with  a  driver  on  a  high  seat  on  the  rear 
of  each  machine,  and  that  they  stopped  at  a  crossing  at  the 
signal  of  a  traffic  officer;  that  a  pedestrian  attempted  to  pass 
between  the  conveyances,  when  the  driver  on  the  rear  car- 
riage called  out  a  warning  which  the  pedestrian  testified  she 
did  not  hear,  it  was  held  that  the  defendant  was  not  guilty  of 
negligence  and  not  liable  for  injuries  sustained  by  the  pedes- 
trian in  tripping  over  the  rope.'^^  When,  upon  an  automobile 
becoming  disabled  along  the  road,  a  guest  therein  procured  a 
rope  fifty  feet  long  and  connected  the  disabled  car  with  the 
car  of  another  person  who  had  offered  to  assist  them,  and 
such  guest  thereupon  entered  the  forward  car  and,  while  they 
were  driving  along  the  city  streets,  the  forward  car  turned  a 
corner  but  the  disabled  car  was  not  turned  so  that  the  connect- 
ing rope  swept  a  portion  of  the  street  and  caused  injury  to  a 
bicyclist,  it  was  held  that  the  guest  was  not  liable  for  the  in- 
juries, for  assuming  that  he  was  guilty  of  negligence  in  fasten- 
ing the  two  cars,  such  negligence  was  not  the  proximate  cause 
of  the  injury,  but  that  the  cause  of  the  injury  was  the  negli- 
gence of  the  rear  driver  in  failing  to  make  the  turn.''^  And, 
where  it  appeared  that  the  owner  of  an  automobile  sent  his 
hired  chauffeur  with  the  machine  to  haul  a  disabled  car  to  a 
garage  and  such  chauffeur  requested  the  owner's  son  to  steer 
the  rear  vehicle  while  he  drove  the  forward  car,  and  while  the 
two  cars  were  stalled  in  a  blockade  in  the  street,  the  son  gave 
a  pedestrian  permission  to  pass  between,  but  the  forward  car 
moved  ahead  about  a  foot  and  she  was  tripped  by  the  raising 
of  the  connecting  rope,  it  was  held  that  the  son  was  not  to  be 
charged  with  negligence  in  failing  to  warn  the  chauffeur  that 
the  pedestrian  was  about  to  pass  where  no  facts  were  shown 
which  could  have  led  the  son  to  anticipate  that  the  forward 
car  would  be  moved;  and  that  the  chauffeur  was  not  negli- 
gent in  moving  the  machine  where  he  was  ignorant  that  the 
movement  would  likely  cause  injury  to  any  one ;  and  that  in 

71.  Canfield    v.    New    York    Transp.  72.  Herome  v.  Hawley,  147  App.  Div. 

Co.,   128  N.  Y.  App.  Div.  450.   112  N.       475,  131  N.  Y.  Suppl.  897. 
Y,  Suppl.  854. 

35 


546  The  Law  of  Automobiles. 

any  event  the  son  would  not  be  liable  for  the  negligence  of 
the  chauffeur  as  the  relation  of  master  and  servant  did  not 
exist  between  them.''^  But  where  one  crossing  the  street 
stumbled  over  the  connecting  rope  and  was  killed  by  the  second 
car,  and  it  appeared  that  no  warning  was  given  of  the  tow 
and  there  was  nothing  in  the  condition  or  operation  of  the 
second  car  to  show  that  it  was  not  under  its  own  power,  it 
was  held  that  the  question  of  negligence  was  for  the  jury  J* 

Sec.  450.  Pleading. 

In  an  action  by  a  pedestrian  for  injuries  sustained  by 
reason  of  a  collision  with  a  motor  vehicle,  as  a  general  propo- 
sition, the  complaint  should  allege  the  respect  in  which  the 
defendant  was  negligent.  That  is  to  say,  a  complaint  alleging 
generally  that  the  plaintiff,  without  fault  and  while  exercising 
due  care,  was  injured  through  the  negligence  of  the  defendant, 
without  specifying  any  duty  owing  by  the  defendant  to  the 
plaintiff,  or  the  act  or  omission  by  the  defendant  which 
caused  the  injuries,  would  be  demurrable.''^  But,  under  the 
liberal  construction  of  pleadings  in  force  in  New  York,  it  has 
been  held  that  where  the  only  allegations  tending  to  charge 
the  defendant  with  negligence  are  that  the  plaintiff  was 
struck  and  injured  in  the  public  street  by  the  defendant's 
automobile  which  was  under  his  control  and  operated  by  him 
at  the  time,  and  that  her  injuries  were  caused  solely  by  the 
negligence  and  carelessness  of  the  defendant,  the  complaint 
is  sufficient.''^ 

73.  Titus  V.  Tangeman,  116  N.  Y.  not  thrown  but  slipped  and  fell  in  at- 
App.  Div.  487,  101  N.  Y.  Suppl.  1000.  tempting    to    avoid    the    machine,    the 

74.  Wolcott  V.  Eenault  Selling  variance  is  not  substantial.  Ainslie  v. 
Branch,  223  N.  Y.  288,  119  N.  E.  556,  Biggs,  211  HI.  App.  463. 

reversing  175  N.  Y.  App.  Div.  858.  76.  Peterson  v.   Eighimie,   175   App. 

75.  Silvia  V.  Scotten  (Del.),  114  Atl.  Div.  113,  161  N.  Y.  Suppl.  1065, 
206;  Peterson  v.  Eighimie,  175  App.  wherein  it  was  said:  "The  question 
Div.  113,  161  N.  Y.  Suppl.  1065.  Com-  depends  upon  whether  the  plaintiff  has 
pare,  Jackson  v.  Vaugh  (Ala.),  86  So.  charged  the  defendant  with  negligence 
469,  in  operating  the  automobile.    Of  course 

Variance.— Where  the  complaint  al-  a  complaint  which  merely  alleged  gen- 
leges  that  the  machine  struck  the  plain-  erally  that  the  plaintiff  without  fault 
tiff  and  threw  him  to  the  ground,  and  on  his  part  and  while  exercising  due 
the  proof  »hows  that  the  plaintiff  was  care  was  injured  through  the  negligence 


Collision  "With  Pedestrian.  547 

General  charges  of  negligence  are  deemed  limited  by  those 
charges  particularly  alleged  in  the  complaint.^  Thus,  where, 
in  an  action  to  recover  for  injuries  to  the  plaintiff  who  was 
run  over  by  the  defendant's  electric  cab  while  waiting  for  a 
street  car  to  pass,  the  only  specific  charges  of  negligence  on 
the  part  of  the  defendant  were  the  excessive  speed  of  the  cab 
and  the  failure  to  give  warning  of  its  approach,  it  is  rever- 
sible error  for  the  court  to  refuse  to  charge  in  effect  that,  un- 
less the  plaintiff  establishes  one  of  the  two  specific  charges  of 
negligence  alleged,  there  can  be  no  recovery.''^ 

A  complaint  in  a  negligence  case  alleging  that  plaintiff  was 
traveling  in  a  buggy  driven  by  her  uncle  upon  a  public  high- 
way, that  she  saw  defendant  approaching  behind  them  in  an 
automobile,  and  that  when  the  machine  was  about  300  or  400 
feet  distant  plaintiff  requested  her  uncle  to  stop  the  horse  so 
she  could  get  out,  and  while  getting  out  she  signalled  defend- 
ant to  stop  the  automobile,  which  was  then  about  200  feet 
away  and  running  slowly,  and  that  plaintiff  had  crossed  the 
highway  and  was  standing  on  the  other  side  of  the  traveled 
part,  when  defendant  negligently  ran  the  automobile  against 
her,  is  not  open  to  the  objection  that  it  leaves  an  inference  of 
contributory  negligence  on  plaintiff's  part.'^ 

Sec.  451.  Damapges. 

In  an  action  by  a  pedestrian  to  recover  damages  resulting 
from  his  being  struck  by  an  automobile,  it  is  said  that  the  ver- 
dict should  be  for  such  sum  as  will  reasonably  compensate 

of    the    defendant    without    specifying  general  charge  of  negligence  following 

any  duty  owing  by  the  defendant  to  the  relates  to  that,  and  in  effect  is  a  charge 

plaintiff  or  the  act  of  omission  or  com-  tliat    the    automobile    was    negligently 

mission  by  the  defendant  which  caused  operated    by    the    defendant    which    is 

the  injuries  would   be  demurrable,   for  sufficient." 

it  would  merely  state  a  conclusion   of  77.  Capell  v.  New  York  Transp.  Co., 

law  with   respect  to  negligence  on   thr  150   N.   Y.   App.   Div.    723,    135    N    Y 

part  of  the  defendant  without  setting  Suppl.  691. 

forth  the  act  of  the  defendant  which  it  78.  Capell  v.  New  York  Transp.  Co.. 

was  claimed  was  negligently  performed ;  150   N.   Y.   App.   Div.   723,    135  N.   Y. 

but  here  the  particular   act  is   stated,  Suppl.  691. 

and  it  consists  in  the  operation  of  the  79.  Kinmore  v.  Cresse,  53  Ind.  App. 

automobile  along  the  street,  bringing  it  603.  102  N.  E.  403. 

into    collision    with    plaintiff,    and    the 


548  The  Law  of  Automobiles. 

him  for  his  pain  and  suffering  in  the  past  and  such  as  may 
come  to  him  in  the  future  resulting  from  the  accident.^^  But 
damages  are  not  generally  permitted  for  mere  fright  un- 
attended by  any  physical  injury.^^  In  some  jurisdictions, 
punitive  damages  are  allowed  where  the  operator  of  the  motor 
vehicle  was  guilty  of  gross  negligence.^^  g^t,  in  an  action  for 
the  death  of  a  pedestrian  in  a  collision  with  an  automobile,  it 
was  held  that,  there  being  no  evidence  of  an  intent  to  inflict 
the  injury  or  of  negligence  of  such  a  high  degree  as  would  be 
deemed  equivalent  to  a  wilful  or  wanton  act,  it  being  undis- 
puted that  the  defendant  put  on  the  brakes  as  soon  as  the 
intestate  came  into  the  range  of  defendant's  vision,  an  in- 
struction that  there  could  be  no  recovery  under  a  count  alleg- 
ing wanton  and  wilful  conduct  on  the  part  of  the  defendant 
was  proper.^ 

Sec.  452.  Function  of  jury. 

In  an  action  by  a  pedestrian  for  injuries  sustained  by  a  col- 
lision with  a  motor  vehicle,  the  burden  is  on  the  plaintiff  of 
establishing  the  negligence  of  the  defendant,  and  ordinarily 
it  is  a  question  for  the  jury  to  determine  whether  he  has  suffi- 
ciently proved  the  issue.^* 

80.  Cecchi  v.  Lindsay,  1  Boyce  (Del.)  Transp.  Co.,  33  Cal.  App.  24,  164  Pac. 
185,    75    Atl.    376,    per    Hastings,    J.;       342. 

judgment  reversed  in  Lindsay  v.  Cec-  Colorado. — Louthan  v.  Peet,  66  Colo, 

chi,  3  Boyce  (Del.)   133,  80  Atl.  523.  204,  179  Pac.  135. 

81.  Bachelder  v.  Morgan,  179  Ala.  Connecticut. — Butterly  v,  Alexander 
339,  60  So.  815.     And  see  section  356.  Dallas,  Inc.,  93  Conn.  95,  105  Atl.  340. 

82..  Williams    v.    Benson,    87    Kans.  Illinois. — Rasmussen    v.    Drake,    185 

421,  124  Pac.  531;  Buford  V.  HopeweU,  111.   App.    526;    Smith   v.   Tappen,   208 

140  Ky.  666,  131  S.  W.  502.  111.  App.  433. 

83.  Gordon  v.  Stadelman,  202  111.  Iowa. — Brown  v.  Des  Moines  Steam 
App.  255.  Bottling  Works,  174  Iowa,  715,  156  N. 

84.  Arkansas. --Bon^  v.  S.  R.  Thomas  W.    829. 

Auto  Co.,  137  Ark.  217,  208  S.  W.  306 ;  Kentucky .—MhilSith.  v.  Sea,  144  Ky. 

Breashears   v.   Arnett,    222   S.   W.   28 ;  749,  139  S.  W.  930. 

Terry  Dairy  Co.  v.  Parker,  223  S.  W.  6.  Massachusetts. — Dudley     v.     Kinga- 

California. — Pemberton  v.  Army,  182  bury,  199  Mass.  258,  85  N.  E.  76;  Ras- 

Pac.  964;  Webster  v.  Motor  Parcel  De-  mussen  v.  Whipple,  211  Mass.  546,  98 

livery  Co.    (Cal.   App.)    183   Pac.   220;  N.    E.    592;    Roach   v.    Hinchcliff,    214 

Kuhns   V.    Marshall    (Cal.    App.),    186  Mass.   267,    101   N.   E.   383;   Brown  v. 

Pac.     632;     Potter     v.     Back     County  Thayer,  212  Mass.  392,  99  N.  E.  237  j 


Collision  With  Pedestrian. 


549 


And,  speaking  in  general  terms,  the  plaintiff's  contributory 


French  v,  Mooar,  226  Mass.  173,  115  N. 
E.  235;  Cowles  v.  Springfield  Gaslight 
Co.,  234  Mass.  421,  125  N.  E.  589: 
Noonan  v.  Leavitt  Co.  ]31  N.  E.  297. 

Michigan. — Bouma  v.  Dubois,  169 
Mich.  422,  335  N.  W.  322;  Czarniski 
V.  Security  Storage  &  Transfer  Co.,  204 
Mich.  276,  170  N.  W.  52;  Barger  v. 
Bissell,  204  Mich.  416,  170  N.  W.  76: 
Patterson  v.  Wagner,  204  Mich,  593, 
171  N.  W.  356;  Van  Goosen  v.  Barium. 
183  N.  W.  8. 

Mirmesota. — Smith  v.  Bruce,  131 
Minn.  51,  154  N.  W.  659;  Noltmier  v. 
Rosenberger,  131  Minn.  369,  155  N.  W. 
618;  Benson  v.  Lar?on,  133  Minn.  346, 
158  N.  W.  426;  Johnson  v.  Johnson. 
137  Minn.  198,  163  N.  W.  160;  Archer 
V.  Skahen,  137  Minn.  432,  163  N.  W. 
784;  Powers  v.  Wilson,  138  Minn.  407, 
165  N.  W.  231 ;  Hefferon  v.  Reeves,  140 
Minn.  505,  167  N.  W.  423;  Plasch  v. 
Fass,  144  Minn.  44,  174  N.  W.  438;  10 
A.  L.  R.  1446;  Allen  v.  -Johnson.  144 
Minn.  333,  175  N.  W.  545;  Bnrsaw  v. 
Plenge,  144  Minn.  459,  175  N.  W. 
1004;  Gibson  v.  Grey  Motor  Co.,  — 
Minn.  — ,  179  N.  W.  729. 

Missouri. — Hodges  v.  Chambers,  171 
Mo.  App.  563,  154  S.  W.  429;  Eisen- 
man  v.  Griffith,  181  Mo.  App,  183,  167 
S.  W.  1142;  LaDuke  v.  Dexter,  — 
Mo.  App.  — ,  202  S.  W.  254;  Brooks  v. 
Harris,  —  Mo.  App.  — ,  207  S.  W, 
293;  Rubick  v.  Sandler,  —  Mo.  App. 
— ,  219  8,  W.  401 ;  Schinogle  v,  Baugh- 
man    (Mo.  App.),  228  S.  W.  897. 

Nebraska. — Rule  v.  Claar  Transfer 
A  Storage  Co.,  102  Neb.  4,  165  N.  W. 
883. 

New  Hampshire. — Hamel  v.  Pea- 
body,  78  N.  H.  585,  97  Atl.   220. 

New  York. — Wolcott  v.  Renault  Sel- 
ling Branch,  223  N.  Y.  288,  119  N.  E. 
556;  Fitzgerald  v.  Russel.  ,155  App. 
Div.  854,  140  N.  Y.  Suppl.  519;  Haas 
V.  Newbery,  190  App.  Div.  275,  179  N. 
Y.  Suppl.   816;    Gindberg  v.    Ehret,   79 


-Misc.  R.  627,  140  N.  Y.  Suppl.  379; 
Baker  v.  Close,  137  N.  Y.  App.  Div, 
529,  121  N.  Y.  Suppl.  729;  Miller  v. 
N'ow  York  Taxicab  Co.,  120  N.  Y. 
Suppl.   899. 

Nwth  Dakota. — Vannett  v.  Cole,  170 
N,  W.  663. 

Oregon. — Ahonen  v.  Hrygzke,  90 
Greg.  451,   175  Pac.  616. 

Pennsylvania. — Miller  v.  Tiedemann. 
249  Pa.  234,  94  Atl.  8.35;  Rowand  v. 
Germantown  Trust  Co.,  248  Pa.  341, 
93  Atl,  1070;  Edelman  v,  Connell,  257 
Pa.  317,  101  Atl.  653;  Schoepp  v. 
Gerety,  263  Pa.  St.  538,  107  Atl.  317; 
Lamont  v.  Adams  Express  Co.,  264  Pa. 
17,  107  Atl.  373;  O'Brien  v.  Bieling, 
110  Atl.  89;  Reese  v.  Franco,  62  Pa. 
Super.  Ct.  128;  Bailey  v.  Borchers,  66 
Pitts  Leg.  Journ.  530;  Banks  v.  M.  L. 
Shoemaker  &  Co.,  260  Pa.  375,  103 
Atl,  734;  M'aynard  v.  Barrett,  261  Pa. 
378.  104  Atl.  612;  Petrie  v.  E,  A. 
Myers  Co.  (Pa.),  112  Atl.  240;  King 
V.   Brillhart    (Pa.),  114  Atl.  515. 

"Rhode  Island. — Gouin  v.  Ryder,  87 
Atl.  185;  Thomas  v.  Burdick.  100  Atl. 
•  398;  Doyle  v.  Holland,  100  Atl.  466. 
Texa.^. — Vespor  v,  lavender.  —  Tex. 
Civ.  — ,  149  S.  W.  377;  Merchants' 
Transfer  Co.  v.  Wilkinson,  —  Civ. 
App.  — ,  219  S.  W.  R91 

Utah. — Sorenson  v.  Bell.  51  Utah, 
262.   170  Pac.  72. 

Wn-shwf/ton. — Hillebrant  v.  Manz.  71 
Wash.  250,  128  Pac.  898:  Coughlin  v. 
Wooks.  75  Wash.  568,  13.5  Pac.  649: 
Brunrr  v.  Little.  97  Wash.  319.  166 
Pac.  1166;  Bulgere  v.  Olataka 
Yamoaka,  191  Pac,  7S6;  Almberg  v. 
Pielow,  194  Pac.  549:  Tniva  v.  Good- 
year Tire  &  Rubber  Co.,  194  Pac.  386. 
Wi.sf>onsiv. — Ouellette  v.  Superior 
Motor  <t  M.  Works.  157  Wis.  .131.  147 
N.  W.  1014. 

Error  to  dismiss  complaint.-  \Mierp. 
in  an  action  to  recover  for  p<^r«onnl  in- 
juries to  an  eleven  year  old  boy,  who. 
while  attempting  to  cross  the  Bowery 


550 


The  Law  of  Automobiles. 


negligence  is  a  question  for  the  jury.^^  Negligence  is  pecu- 
liarly a  question  for  the  jury  to  solve  when  the  evidence  is 
conflicting,  so  that  the  credibility  of  the  witnesses  is  of  para- 
mount importance.^^  And,  where  the  liability  depends  on 
whether  the  motor  vehicle  was  traveling  at  a  reasonable  rate 
of  speed,  the  question  is  one  which  is  ordinarily  within  the 
province  of  the  jury.*^ 


in  the  city  of  New  York,  was  knocked 
down  by  an  automobile  which  was  go- 
ing very  fast  and  which  did  not  stop 
within  forty  or  fifty  feet  of  the  scene 
of  the  accident,  the  evidence  raises 
questions  of  fact  both  as  to  the  negli- 
gence of  the  defendant  and  the  con- 
tributory negligence  of  the  plaintiff,  a 
judgment  dismissing  the  complaint  at 
the  close  of  the  plaintiff's  case  will  be 
reversed  and  a  new  trial  ordered.  Pen- 
nige  V.  Reynolds,  98  Misc.  (N.  Y.)  239, 
162  N.  Y.  Suppl.  966. 

85.  Section  487. 

86.  Holroyd  v.  Gray  Taxi  Co.,  39 
Cal.  App.  693,  179  Pac,  709;  Feng 
Lin  V.  Probert  (Cal.  App.),  195  Pac. 
437;  Louthan  v.  Peet,  66  Colo.  204,  179 
Pac.  135;  Crandall  v.  KJ-ause,  165  111. 
App.  15;  Osberg  v.  Cudahy  Packing' 
Co.,  198  111.  App.  551;    American  Ex- 


press Co  V.  State  of  Use  of  Denowitch, 
132  Md.  72,  103  Atl.  96:  Degens  v. 
Langridge  (Mich.),  183  N,  W.  28; 
Bailey  v.  Borchers,  66  ^  Pitts.  L^. 
Journ.  (Pa.)  530;  Thomas  v.  Burdick 
(R.  I.),  100  Atl.  398;  Coughlin  v. 
Weeks,  75  Wash.  568,  135  Pac.  649; 
Oberg  V.  Berg,  90  Wash.  435,  156  Pac. 
391. 

87.'  'Simmons  v.  Stephensi,  —  Cal. 
App.  — ,  191  Pac.  978;  Merkl  v.  Jer- 
sey City  H.  &  P.  Co.,  75  N.  J.  L.  654, 
68  Atl.  74;  Brewster  v.  Barker,  129 
N".  Y.  App.  Div.  724,  113  N.  Y.  Supijl. 
1026;  Ackerman  v.  Stacey,  157  N.  Y. 
App.  Div.  835,  143  N.  Y.  Suppl.  227; 
MeClure  v.  Wilson,  —  Wash.  — ,  186 
Pac.  302;  Kellner  v.  Cliristianaen,  169 
Wis.  390,  172  N.  W.  796;  Luethe  t, 
Schmidt— Gaertner  Co.,  170  Wis.  590, 
176  N.  W.  63. 


Contributory  Negligence  of  Pedestrians.  551 

CHAPTER  XVIII. 

CONTRIBUTORY  NEGLIGENCE  OF  PEDESTRIANS. 

Section  453.  General  duty  of  pedestrian. 

454.  As  dependent  on  surrounding  circumstances. 

455.  Place  of  crossing — in  general. 

456.  Place  of  crossing — crossing   street  at  other   than   usual  crossing. 

457.  Place  of  crossing— walking  along  highway. 

458.  Duty  to  look  for  approaching  automobiles^ — railroad    rule — to   stop, 

look  and  listen. 

459.  Duty  to  look  for  ai)i)roa('hing  automobiles^ — duty     to     look     before 

crossing  street. 

460.  Duty  to  look  for  approai-iiiny  autoiiioliilcs — Idukinj;  for  vehicles  on 

wrong  side  of  street. 

461.  Duty  to  look  for  Hj)proaching  automobiles — obstructed  view. 

462.  Duty  to  look  for  approaching  automobiles — continuing  to  look. 

463.  Duty  to  look  for  approaching  automobiles — looking  back. 

464.  Failure  to  see  approaching  machine  after  looking — in    general. 

465.  Failure    to    see    approaching    machine    after    looking—    view    ob- 

structed. 

466.  Failure  to  sec  approaching  machine  after  looking — weather    condi- 

tions. 

467.  Avoidance  of  machine  which  has  been  seen — right  to  cross  street  in 

front  of  approaching  vehicle. 

468.  Avoidance  of  machine  which  has  been  seen — continued   observation 

of  approaching  vehicle. 

469.  Avoidance    of    machine    which    ha.':*    been    seen — miscalculation    of 

danger. 

470.  Avoidance  of  machine  which  has  been  seen — statements     of     com- 

panion as  to  safety  in  crossing. 

471.  Reliance  on  proper  conduct  by  automobilist — exercise   of   due  care 

by  chauffeur. 

472.  Reliance  on  proper  conduct  by  automobilist — excessive  speed. 

473.  Reliance  on  proper  conduct  by  automobilist — obedience   to    law    of 

road. 

474.  Reliance  on  proper  conduct  by  automobilist — place  reserved  for  pe- 

destrian. 

475.  Reliance  on  proper  conduct  by  automobilist — person   jmssing  on  or 

off  street  car. 

476.  Stopping  in  street. 

477.  Watching  auto  race. 

478.  Children — in  general. 

479.  Children — application    to   rules. 

480.  Children — children  non  sui  juris. 

481.  Persons  under  dis.ability. 

482.  Workmen  in  street — in    general. 

483.  Workmen  in  street — violation  of  law  by  workman. 


552 


The  Law  of  Automobiles. 


Section  484.  Workmen  in  street — traffic  officer. 

485.  Last  chance  doctrine. 

486.  Acts  in   emergencies. 

487.  Function  of  jury. 


Sec.  453.  General  duty  of  pedestrian. 

In  an  action  by  a  pedestrian  to  recover  damages  for  an  in- 
jury from  an  automobile,  there  can  be,  as  a  general  proposi- 
tion, no  recovery  unless  the  plaintiff  was  free  from  negligence 
which  contributed  to  the  injury.^    The  pedestrian  is  under  the 


1.  Alabama. — Racine  Tire  Co.  v. 
Grady  (Ala.),  88  So.  337;  Terrill  v. 
Walker,  5  Ala.  App.  535,  59  So.  775. 

California. — Steinberger  v.  Cali- 
fornia Elec.  Garage  Co.,  176  Cal.  386, 
168  Pa«.  570;  Regan  v.  Los  Angeles  Ice 
&  Cold  Storage  Co.  (Cal.  App.),  189 
Pac.  474. 

Delaware. — Hannigan  v.  Wright,  5 
Penn.  537,  63  Atl.  234;  Brown  v.  City 
of  Wilmington,  4  Boyce  (Del.)  492,  90 
Atl.  44. 

Indiana. — CJole  Motor  Co.  v.  Lu- 
dorff,  61  Ind.  App.  119.  Ill  N.  E.  447. 

Kentucky. — Major  Taylor  Co.  v. 
Harding,  182  Ky.  236,  206  S.  W.  285. 

Michigan. — Deal  v.  Snyder,  203 
Mich.  273,  168  N.  W.  973. 

"New  Jersey. — Conrad  v.  Green,  94 
Atl.  390. 

"New  Yoi-k. — iLarner  v.  New  York 
Transp.  Co.,  149  App.  Div.  193,  133  N. 
Y.  Suppl.  743 ;  Willis  v.  Harby,  150 
N.  Y.  App.  Div.  94,  144  N.  Y.  Suppl. 
154;  Shakowitz  v.  J.  M.  Horton  Ice 
Cream  Co.,  172  N.  Y.  App.  Div.  211, 
158  N.  Y.  Suppl.  519;  Goldman  v. 
Lanigan  Bros.  Co.,  185  App.  Div.  742, 
173  N.  Y.  Supp.  777. 

Oregon. — Weygandt  v.  Raitlo,  88 
Oreg.  310,  171  Pac.  587. 

Vermont. — Aitken  v.  Metcalf,  9f?  Vt. 
57,   102  Atl.  330. 

Contributory  negligence  as  defense 
to  gross  negligence. — In  some  jurisdic- 
tions when  the  operator  of  a  motor  ve- 
hicle has  been  guilty  of  "gross"  nigli- 
gence  which  is  a  proximate  cause  of  an 


injury  to  a  pedestrian,  contributory 
negligence  of  an  ordinary  degree  on  the 
part  of  the  pedestrian  is  not  a  defense. 
Banks  v.  Braman,  188  Mass.  367  74  N. 
E.  594;  Ludke  v.  Burck,  160  Wis.  440, 
152  N.  W.  190,  L.  R.  A.  1915  D.  968. 
To  establish  such  "gross"  negligence 
on  the  part  of  the  operator  of  the  ma- 
chine, the  pedestrian  must  show  inten- 
tional conduct  on  the  part  of  the  oper- 
ator having  a  tendency  to  injure  others 
which  is  known  or  ought  to  be  known 
to  the  defendant,  accompanied  by  a 
wanton  and  reckless  disregard  of  its 
probable  harmful  consequences.  Banks 
v.  Braman,  188  Mass.  367,  74  N.  E. 
594.  But  the  mere  operation  of  the 
macliine  at  a  speed  in  excess  of  the 
legal  limit,  tliough  such  conduct  may 
be  negligence  per  se,  is  not  necessarily 
gross  negligence  or  as  a  wilful  causing 
of  the  injury.  Ludke  v.  Burck,  160 
Wis.  440,  152  N.  W,.  190,  L.  R.  A.  1915 
D.  968,  wherein  it  was  said:  "The  law 
regulates  the  conduct  of  persons  who 
are  exercising  the  common  right  of 
using  public  highways  as  travelers,  for 
the  purpose  of  compelling  greater  care 
for  the  protection  and  safety  of  all 
travelers.  The  operation  of  motor  ve- 
hicles on  streets  is  as  lawful  a  use 
thereof  as  that  of  any  other  traveler; 
and  the  object  of  the  statute  is  to  re- 
strict this  use  to  such  ways  as  will 
lessen  the  dangers  to  travelers  from 
high  speed  and  other  hazardous  prac- 
tices. Such  regulations  are  not  in- 
tended   to     abrogate     the     duties     of 


Contributory  Negligence  of  Pedestrians. 


553 


obligation  of  using  reasonable  prudence  to  avoid  automobiles 
and  other  vehicles  in  the  street.  That  is  to  say,  the  pedes- 
trian must  use  such  care  for  his  own  safety  as  a  reasonably 
prudent  man  would  exercise  under  the  same  circumstances.* 


travelers  recognized  by  the  common 
law  for  their  mutual  safety  and 
leaves  them  subject  to  its  accepted 
rules  of  ordinary  care  and  the  duties 
that  spring  from  their  relations  as 
travelers  on  a  public  highway.  In 
the  light  of  this  relation  and  the  duties 
arising  therefrom,  it  may  well  be  that 
a  person  operating  a  motor  vehicle  at 
a  speed  much  less  than  that  denounced 
by  the  statute,  on  a  street  crowded 
with  men,  women,  and  children,  and 
thereby  inflict  some  personal  injuries 
on  another,  would  be  guilty  of  wilfully 
injuring  such  persons,  while  another 
operating  such  a  vehicle  slightly  in  ex- 
cess of  the  statutory  speed  might  do  so 
under  conditions  and  circumstances  as 
to  show  that  the  care  exercised,  in  tho 
light  of  such  conditions  and  circum- 
stances, did  not  constitute  a  wanton 
and  reckless  disregard  of  the  rights  of 
another  who  suffered  an  injury  by  col- 
liding with  such  motor  vehicle.  This 
court  has  held  tliat  a  violation  of  the 
commands  of  a  statute  of  this  class, 
causing  f)ersonal  injury  to  anotlier,  is 
iiot  to  be  treated  as  a  wilful  injury,  a^ 
matter  of  law,  but  that  the  fact  of 
such  violation  is  negligence  per  se,  and 
that  the  defense  of  contributory  negli- 
gence is  not  abrogated" 

Wanton  injury. — In  some  States  it 
is  held  that  contributory  negligence  is 
no  defense  to  a  wanton  injury.  Davis 
V.  Barnes,  201  Ala.  120,  77  So  612; 
Krug  V.  Walldren  Express  &  Van  Co.. 
214  111.  App.  18,  affirmed,  126  N.  E. 
97. 

Defense  to  prosecution  for  homicide. 
— In  a  criminal  prosecution  for  homi- 
cide for  the  killing  of  a  pedestrian  by 
an  automobile  running  in  excess  of  the 
speetl    limit,   the   defondant    is    not    re- 


lieved by  any  coutributorj-  negligence 
of  the  deceased.  Lauterbach  v.  State, 
132  Tenn.  603,  179  S.  W.  130.  See  sec- 
tion  765. 

2.  United  States. — Taxi  Service  Co. 
V.  Phillips,  187  Fed.  734,  109  C.  C.  A. 
482;  Lane  v.  Sargent,  217  Fed.  237. 

Arkansas. — Millsaps  v.  Brogdon,  97 
Ark.  469,  134  S.  W.  632., 

California. — Sheldon  v.  James,  175 
Cal.  474,  166  Pac.  8,  A.  L.  R.  1493; 
Weihe  v.  Rathjen  Mercantile  Co.,  34 
Cal.  App.  302,  167  Pac.  287;  Parb  v. 
Orbison  (Cal.  App.),  184  Pac.  428; 
Owens  V.  W.  J.  Burt  Motor  Car  Co. 
(Cal.  App.),  186  Pac.  821;  Fisk  ▼. 
Poplin    (Cal.  App.),  189  Pac.  722. 

Connecticut. — ^Russell  v.  Vergason, 
ni  Atl.  62.5. 

Delaware. —  Grier  v.  Samuel,  4 
Jioyce,  106,  86  Atl.  209;  Brown  v. 
City  of  Wilmington,  4  Boyce,  492,  90 
Atl.  44. 

Indiana. — Rump  v.  Woods,  50  Ind. 
App.  347,  98  N.  E.  369;  Barker  v. 
Gruhl,  62  Ind.  App.  177,  111  N.  E.  457; 
Craft  V.  Stone  (Ind  App.),  124  N.  E. 
469. 

Iowa. — Wine  v.  Jones,  183  Iowa 
1166,  162  N.  W.  738,  168  N.  W.  313; 
Rolfs  V.  Mullins,  179  Iowa,  1223,  163 
X.  W,  783;  Livingstone  v.  Dole,  167 
Iowa,  639,  167  N.  W.  639. 

Kansas. — Johnson  v.  Kansas  City 
Home  Telephone  Co.,  87  Kan.  441,  124 
Pac.  528;  Cusick  v.  Miller,  204  Mich. 
276,  171  Pac.  599. 

Kentucky. — Baldwin's  Adm'r  v. 
Maggard,  162  Ky.  424,  172  S.  W.  674; 
Weidner  v.  Otter,  171  Ky.  167,  188  S. 
W.  335;  Major  Taylor  Co.  v.  Harding, 
182  Ky.  236,  206  S.  W.  285. 

Michigan. — Tuttle  v.  Briscoe  Mfg. 
Co..  190  Mich.  22,  155  N.  W.  724. 


554 


The  Law  of  Automobiles. 


It  has  been  said  that  on  account  of  the  increased  danger  of 
traveling  upon  the  highways,  his  duty  is  far  heavier  than 
formerly.^  In  most  cases  it  is  generally  easy  to  look  back 
after  an  accident  and  see  how  a  little  more  watchfulness  on 
the  part  of  a  pedestrian  would  have  saved  him  from  injury, 
but  this  is  not  conclusive  against  him  on  the  issue,  for  he  is 
to  be  judged  by  the  situation  as  it  appeared  or  ought  to  have 
appeared  to  him  at  the  time.^  Moreover,  one  placed  suddenly 
in  a  situation  of  great  danger  is  not  required  to  use  the  deli- 
berate judgment  of  a  man  under  no  apprehension  of  danger.^ 
Of  course,  one  may  not  suddenly  step  in  front  of  a  moving 
vehicle  in  plain  sight  and  recover  for  the  injuries  thereby  sus- 
tained.^ Outside  of  the  question  of  contributory  negligence 
in  such  a  case  which  will  preclude  the  injured  from  recovery, 
there  may  exist  a  serious  doubt  of  any  negligence  on  the  part 
of  the  driver  of  the  vehicle  which  can  be  said  to  contribute  to 


Misscniri. — McKenna  v.  Lynch 
(Mo.),  233  S.  W.  175;  Loury  v.  Smith 
(Mo.  App.),  198  S.  W.  437. 

New  Jersey. — ^Conrad  v.  Green,  94 
Atl.  390;  Pool  v.  Brown,  89  N.  J.  Law, 
314,  98  Atl.  262. 

New  York. — Brewster  v.  Barker,  129 
N.  Y.  App.  Div.  724,  113  N.  Y.  Suppl. 
1026;  Jessen  v.  J.  L.  Kesner  Co.,  159 
App.  Div.  898,  144  N.  Y.  Suppl.  407; 
Hall  V.  Dilworth,  94  Misc.  Rep.  240. 
157  N.  Y.  Suppl.  1091. 

Oregon. — ^White  v.  East  Side  Mill 
&  Lumber  Co.,  84  Oreg.  224,  161  Pac. 
969,  164  Pac.  736;  Weygandt  v.  Bartle, 
88  Oreg.  310,  171  Pac.  587 ;  Marsters  v. 
Isensee,  192  Pac.  907. 

Pennsylvania. — Lewis  v.  Wood,  247 
Pa.  St.  545,  93  Atl.  605 ;  Arnold  v.  Mc- 
Kelvey,  253  Pa.  324,  98  Atl.  559; 
Twinn  v.  Noble  (Pa.),  113  Atl.  686. 

Vermont. — Aiken  v.  Metcalf,  90  Vt. 
196,  97  Atl.  669. 

Vvrginia. — Core  v.  Wilhelm,  124  Va. 
150,  98  S.  E.  27. 

Washington. — Mickelson  v.  Fischer, 
81  Wash.  423,  142  Pac.  1160;  Steph- 
-enson    v.    Parton,    89    Wash.    653,    155 


Pac.  147;  Crowl  v.  West  Coast  Steel 
Co.,  109  Wash.  429,  186  Pac.  866. 

Wisconsin. — Zimmermann  v.  Medni- 
koff,  165  Wis.  333,  162  N.  W.  349; 
Klokow  V.  Harbrough,  166  Wis.  262, 
164  N.  W.  999. 

' '  When  a  pedestrian  is  about  to  cross 
a  street  he  must  use  the  care  of  a  pru- 
dent man,  but  the  law  does  not  under- 
take to  further  define  this  standard. 
The  law  does  not  say  how  often  he  must 
look,  or  precisely  how  far,  or  when  or 
from  where."  Aiken  v.  Metcalf,  90 
Vt.  196,  97  Atl.  669. 

3.  Russell  V.  Vergasson  (Conn.),  Ill 
Atl.   625. 

4.  Kuchler  v.  Stafford,  185  HI.  App. 
199;  Heartsell  v.  Bellow,  184  Mo. 
App.  420,  171  S.  W.  7;  Aiken  v.  Met- 
calf, 90  Vt.   196,  97  Atl.  669. 

5.  Section  486. 

6.  Wine  v.  Jones,  179  Iowa,  1223,  162 
N.  W.  196,  168  N.  W.  318;  Elmendorf 
V.  Clark,  143  Lo.  971,  79  So.  557;  Le- 
vesque  v.  Dumont,  116  Me.  25,  99  Atl. 
719;  Rasmussen  v.  Whipple,  211  Mass. 
540,  98  N.  E.  592;  Tuttle  v.  Briscoe 
Mfg.  Co.,  190  Mich.  22,  155  N.  W.  724. 


Contributory  Negligence  of  Pedestrians.  555 

the  accident.'  Under  the  common  law  rules  relative  to  con- 
tributory negligence,  the  burden  was  generally  placed  upon 
the  plaintiff  to  show,  not  only  the  negligence  of  the  defendant, 
but  also  his  own  absence  from  contributory  negligence.*  In 
many  jurisdictions,  however,  the  burden  of  proof  as  to  con- 
tributory negligence  is  now  cast  upon  the  defendant.' 

Sec.  454.  As  dependent  on  surrounding  circumstances. 

Whether  a  pedestrian  has  taken  due  care  of  his  own  safety 
depends  necessarily  upon  the  circumstances  surrounding  the 
accident.io    That  is,  the  care  to  be  taken  is  commensurate  with 


7.  Capell  V.  New  York  Transp.  Co.. 
150  N.  Y.  App.  Div.  723,  135  N.  Y. 
Suppl.  691;  Stahl  v.  Sollenberger,  246 
Pa.  St.  525,  92  Atl.  720.  And  see  sec- 
tion 416. 

8.  Cowles  V.  Springfield  Gaslight  Co., 
234  Mass.  421,  125  N.  E.  589 ;  Amley  v. 
Saginaw  Milling  Co.,  195  Mich.  189. 
161  N.  W.  832;  McMillen  v.  Shath- 
mann,  264  Pa.  13,  107  Atl.  332;  Aiken 
V.  Metcalf,  90  Vt.  196,  97  Atl.  669. 

9.  ArTcansas. — Millsaps  v.  Brogdon, 
97  Ark.   469,   134  S.  W.   632. 

Calif omia. — Randolph  v.  Hunt  (Cal. 
App.),  183  Pac.  358;  Lewis  v.  Tanner 
(Cal.    App.),    193    Pac.   287. 

J^ouisianna.. — Mequet  v.  Algier.s  Mfg. 
Co.,  147  La,  364.  84  So.  904. 

Massachusetts. — Creadon  v.  Galvin. 
226  Mass.  140,  115  N.  E.  307;  Chaplin 
V.  Brookline  Taxi  Co.,  230  Mass.  155, 
119  N.  E.  650;  Patrick  v.  Deziel,  223 
Mass.  505,  112  N.  E.  223;  Sarmento  v. 
Vance,  231  Mass.  310,  120  N.  E.  84S: 
Bums  V.  Oliver  Whyte  Co.,  231  Mass. 
519 ;  Quinlan  v.  Hugh  Nawn  Contract- 
ing Co.,  126  N.  E.  369 ;  Powers  v.  Lor- 
ing,  231  Mass.  458,  121  N.  E.  425. 

Missouri. — Raymen  v.  Galvin.  229  S. 
W.   747. 

Pleading. — When  plea  of  contribu- 
tory negligence  by  the  defendant  is  in- 
sufficient. Coffrnan  v.  Singh  CCnl. 
App.),  193  Pac.  259. 


10.  Brown  v.  City  of  Wilmington,  4 
Boyce  (Del.)  492,  90  Atl.  44;  Weidner 
V.  Otter,  171  Ky.  167  188  S.  W.  335; 
White  V.  East  Side  Mill  &-  Lumber  Co.. 
84  Oreg.  224,  161  Pac.  969.  164  Pac. 
736;  Franey  v.  Seattle  Taxicab  Co., 
80  Wash.  396,  141  Pac.  890;  Mickel- 
son  V.  Fischer,  81  Wash.  423,  142  Pac. 
1160;  Zimmerman  v.  Modnikoff,  165 
Wis.  333,  162  N.  W.  349.  "Of  course, 
what  is  ordinary  care  as  we  have  de- 
fined it  on  the  part  of  the  pedestrian 
depends  on  the  character  of  the  cross- 
ing and  the  number  and  kind  of  ve- 
hicles that  use  it,  as  well  as  other  at- 
tending circumstances.  But  all  this  is 
matter  to  be  determined  by  the  jury 
in  considering  whether  the  pedestrian 
exercised  the  care  we  have  described. 
What  is  ordinary  care  is  a  relative 
term,  depending  upon  the  facte  and 
circumstanc**  of  each  particular  case 
in  which  it  is  endeavored  to  ascertain 
whethor  ordinary  care  was  exercised. 
In  certain  states  of  case  the  exercise  of 
ordinary  care  might,  in  the  estimation 
of  the  jury,  require  the  pedestrian  to 
stop  and  look  and  listen,  or  to  stop  or 
look  or  listen  ;  while  at  other  crossings 
a  foot  traveler  might  be  in  the  exercise 
of  ordinary  care,  although  he  did  not 
tAke  any  pains  to  discover  the  ap- 
proach of  vehicles.  In  short,  he  must 
at   all   times  exercise  a  degree  of  car« 


556  The  Law  of  Automobiles. 

the  danger.^^  While  the  same  degree  of  care  is  imposed  on 
both  the  auto  driver  and  the  pedestrian,  the  amount  of  care 
may  be  different,  for  it  may  be  said  that  the  autoist  is  bound 
to  exercise  a  greater  amount  of  care.^  Prominent  among  the 
circumstances  to  be  considered  is  the  extent  of  the  traffic  at 
the  crossing  selected  by  the  pedestrian.  Conduct  which  would 
be  perfectly  reasonable  when  one  is  crossing  a  remote  high- 
way with  few  travelers,  might  be  gross  negligence  when  cross- 
ing a  main  thoroughfare  in  a  large  city."  As  was  said  in  one 
case,"  "The  look  and  listen  rule  .  .  .  and  the  constant 
vigilance  rule  .  .  .  do  not  apply  to  a  pedestrian  using  the 
public  highway.  The  law  does  not  impose  upon  him  these 
hard  and  fast  rules  of  conduct.  It  simply  requires  that  he 
shall  exercise  for  his  own  safety  the  measure  of  care  that  a 
prudent  man  would  exercise  in  the  same  circumstances.  But 
as  circumstances  vary,  so  do  the  practical  requirements  of 
the  rule  vary.  What  is  prudence  in  one  case  may  be  negli- 
gence in  another,  recklessness  in  another,  and  downright 
foolhardiness  in  still  another.  The  farmer  on  a  back  and  un- 
frequented highway  is  not  held  to  the  same  degree  of  vigilanoe 
when  he  crosses  the  road  to  his  barn  as  is  the  man  who  at- 

corresponding  with  the  condition  of  '  be  said  that  as  to  defendant  the  failure 
traffic  in  the  street  at  the  time  of  the  of  plaintiff  to  look  north  before  or 
use  under  investigation,  and  whether  after  leaving  the  sidewalk  amounted  to 
he  has  done  this  or  not  is  for  the  jury  want  of  ordinary  care."  Wine  v. 
to  say  under  the  facts  and  circum-  Jones,  183  Iowa,  1166,  163  N.  W.  196, 
stances  of  the  case,  after  being  advised  168  N.  W.  318.  "While  the  pedestrian 
by  the  court  as  to  the  measure  of  care  must  bear  in  mind  the  dangers  he  may 
required."  Weidner  v.  Otter,  171  Ky.  encounter  in  the  street,  he  is  only 
167,  188  S.  W.  335.  "What  will  bound  to  use  such  precautions  for  his 
amount  to  want  of  ordinary  care  de-  own  safety  as  the  danger  to  be  ap- 
pends, as  said,  on  the  circumstances  of  prehended  would  reasonably  suggest  to 
each  particular  case.  As  a  better  look-  a  person  of  ordinary  prudence."  Core 
out  is  likely  at  street  intersections,  it  v.  Wilhelm,  124  Va.  150,  98  S.  E.  27. 
would  seem  that  greater  care  should  be  11.  Crombie  v.  O 'Brian,  178  App. 
exercised  by  a  pedestrian  in  crossing  Div.  807  165  N.  Y.  Supp.  858. 
elsewhere;  for  it  is  elementary  that  the  12.  Weihe  v.  Rathjen  Mercantile 
care  to  be  exercised  is  necessarily  com-  Co.,  34  Cal.  App.  302,  167  Pac.  287. 
mensurate  with  the  dangers  of  the  situ-  13.  Aiken  v.  Metcalf,  90  Vt.  196,  97 
ation.     But  whether  in  going  out  into  Atl.  669. 

the  street,  as  plaintiff  did,  was   care-  14.  Aiken  v.  Metcalf,  90  Vt.  196,  97 

less,  need  not  be  determined.     'Negli-  Atl.   669. 
gence'  is  a  relative  term,  and  it  cannot 


Contributory  Negligence  of  Pedestrians.  ViWI 

tempts  to  cross  a  busy  city  street  crowded  with  traffic.  The 
circumstances  and  dangers  are  always  to  be  taken  into  ac- 
count in  determining  what  is  due  care  or  the  evidence  of  it." 

Sec.  455.  Place  of  crossing  —  in  general. 

Pedestrians  and  drivers  of  vehicles  have  equal  rights  at 
street  crossings,  and  hence  the  mere  fact  that  a  pedestrian 
attempts  to  cross  the  street  does  not  convict  him  of  negli- 
gence.^5  But  a  pedestrian  is  bound  to  exercise  care  for  his 
safety  although  the  passage  is  made  at  a  regular  street  cross- 
ing. He  is  bound  to  anticipate  that  automobiles  as  well  as 
other  vehicles  may  be  approaching  the  crossing,  and,  while 
his  right  at  the  crossing  is  equal  to  that  of  the  other  classes  of 
travelers,  yet  he  must  exercise  his  rights,  not  recklessly,  but 
with  a  degree  of  care  commensurate  with  the  existing  dan- 
gers.i^  One  is  not  necessarily  guilty  of  negligence  because  he 
attempts  to  cross  a  street  in  proximity  to  an  automobile  stand- 
ing in  the  street.  He  is  not  bound  in  all  events  to  anticipate 
that  the  car  will  go  forward  or  backward  without  warning. 
So,  where  the  plaintiff,  a  lady  about  thirty  years  of  age,  who 
was  on  her  way  home,  had  taken  her  position  at  the  usual 
stopping  place  of  the  cars  in  order  to  enter  the  car  when  it 
stopped,  and  the  car  was  approaching  and  in  close  proximity 
to  her  and  her  attention  was  directed  to  such  car  and  an  auto- 
mobile was  standing  at  rest  against  the  pavement  eight  or  ten 
feet  away,  when  the  chauffeur,  without  warning,  suddenly 
backed  it  upon  her,  it  was  held  that  she  was  not  guilty  of  con- 
tributory negligence  as  a  matter  of  law  and  a  verdict  for  her 
was  affirmed.^'^ 

Sec.  456.  Place  of  crossing  —  crossing  street  at  other  than 
usual  crossing. 

It  is  not  negligence  as  a  matter  of  law  for  a  pedestrian  to 
attempt  to  cross  a  street  between  crossings  or  at  some  point 

15.  Harker   v.    Gruhl,    62    Ind.   App.       347,  98  N.  E.   369. 

177,  111  N.  E.  457;  Ginter  v.  O'Donog-  17.  Shamp  v.  Lambert,  142  Mo.  App. 

hue   (Mo.  App.),  179  S.  W.  732.  567,    121    S.   W.   770. 

16.  See  Rump  v.  Woods,  50  Ind.  App 


558  The  Law  of  Automobiles. 

other  than  a  regular  crossing.^^    However,  if  he  elects  to  cross 
a  street  at  a  place  where  pedestrians  do  not  ordinarily  go,  he 
is  required  to  exercise  the  degree  of  prudence  and  care  M^hich 
would  be  required  of  an  ordinarily  prudent  man  crossing  the 
street  at  such  a  place.^^    The  fact  that  he  attempts  to  cross  in 
the  middle  of  a  block  instead  of  at  a  regular  crossing,  is  a  cir- 
cumstance to  be  considered  by  the  jury  in  passing  on  the  ques- 
tion of  contributory  negligence.^"    The  danger  being  greater 
at  some  distance  from  the  usual  crossing,  it  may  well  be  said 
that  the  pedestrian  is  required  to  use  greater  prudence  at  such 
place  than  if  he  were  using  the  regular  crossing.^i    where  a 
statute  provided  that,  "Any  person  crossing  a  street  at  any 
place  other  than  the  crosswalk  shall  do  so  at  his  own  risk. 
Nothing  in  this  regulation,  however,  shall  relieve  the  drivers 
of  vehicles  from  being  constantly  vigilant,  exercising  all  rea- 
sonable care  to  avoid  injuring  either  person  or  property,"  it 
was  held  that  a  person  crossing  the  street  at  a  place  other 
than  the  regular  crossing  was  barred  from  maintaining  an 
actibn  against  the  owner  of  a  vehicle,  not  himself  driving,  for 
damages  caused  by  a  collision,  but  was  not  barred  as  against 
a  driver  of  the  vehicle  whether  the  owner  thereof  or  a  servant 

18    Florida.— Goldring   v.    White.   63  19.  Wiue    v.   Jones,    183   Iowa    1166, 

Fla.    162,  58  So.  367.  162  N.  W.  176,  168  N.  W.  318;  Fox  v. 

Indiana.— Craft      v.      Stone       (Ind.  Great  Atlantic  &  P.  T.  Co.,  84  N.  J. 

App.),    124  N.   E.   469.  L.  726,  87  Atl.  339;  Arnold  v.  McKel- 

Iimois.— Berg    v.    Fisher,    182    IlL  vey    253    Pa.    St.    324,    98    Atl.    559; 

App.  449;  Vos  v.  Franke,  202  111.  App.  Vesper  v.  Lavender    (Tex.  Civ.  App.), 

^33  149   S.  W.   377.     See  also,  Mequet  v. 

Iowa.— Wine    v.    Jones.    162    N.    W.  Algiers  Mfg.  Co.,   147  La.  364,  84  So, 

196.  »0*- 

Missouri.— Gmtev      v.      O'Donoghue  20.  Ginter      v.      O'Donoghu*      (Mo. 

(Mo.  App.),  179  S.  W.   732;   Loury  v.  App.),  179  S.  W.  732. 

Smith,  (Mo.  App.),  198  S.  W.  437.  21.  Ivy  v.  Marx  (Ala.),  87  So.  813; 

New    Jersey.— Schriner    v.    Grinnell,  Loury  v.  Smith  (Mo.  App.),  198  S.  W. 

39  N.  J.  L.  37,  97  Atl.   781;   Lyons  v.  437 ;   Lyons  v.  Volz    (N.  J.),   114  Atl. 

Volz    114   Atl    318.  318;   Virgilio  v.  Walker,  254  Pa.  241, 

pLylvania.-Anderson      v.      Wood,  98  Atl.  815;  Twinn  v.  Noble  (Pa.),  113 

264  Pa.  St.  98,  107  Atl.  6.58.  Atl.    686.      "She    was    attempting    to 

Washington.-CoWms  v.   Nelson,   191  cross  the  street  at  a  place  other  than 

p^j.    gl9  rhe  regular  crossing,  and  while  she  had 

Canada.-See  White  v.  Hagler,  29  1)  a  right  to  cross  at  that  point,  having 

L   R.  (Canada)  480,  34  W.  L.  R.  1061.  elected  to  do  so  rather  than  go  to  the 


Contributory  Negligence  of  Pedestrians. 


559 


of  the  owner.22  And  under  an  ordinance  providing  that  pe- 
destrians shall  cross  only  at  crosswalks  and  giving  vehicles 
a  right  of  way  between  street  intersections,  it  has  been  held 
that  a  pedestrian  attempting  to  cross  between  street  inter- 
sections is  guilty  of  negligence  as  a  matter  of  law.^  Where 
it  appeared  that  the  defendant's  automobile  at  the  time  of  the 
accident  Avas  being  driven  recklessly  out  of  the  path  of  vehi- 
cular traffic  in  the  street,  so  that  if  the  plaintiff  had  been 
originally  negligent  in  selecting  a  point  for  crossing,  he  had, 
when  struck,  escaped  from  the  path  where  the  automobile 


regular  crossing,  she  will  be  required  to 
exercise  a  higher  degree  of  care  lor 
her  own  safety  than  if  she  was  cross- 
ing at  a  regular  crossing."  George 
Weidraan  Brewing  Co.  v.  Parmlee,  167 
Ky.  303,  180  S.  W.  350.  "While  con- 
ditions have  not,  as  yet,  arisen  in  any 
case  brought  before  us  where  we  have 
felt  called  upon  to  rule  that  it  was 
negligence  per  se  for  a  pedestrian  to 
traverse  a  public  highway  between  the 
regular  crossing  places,  nevertheless, 
when  one  does  so,  he  is  bound  to  a 
high  degree  of  care."  Virgilo  v. 
Walker,  254  Pa.  St.  241,  98  Atl.  815. 
See  also,  Anderson  v.  Wood,  264  Pa.  St. 
98,  107  Atl.  658 ;  Lamont  v.  Adams  Ex- 
press Co.,  107  Atl.  373.  "That  greater 
care  should  be  observed  by  a  pedes- 
trian in  crossing  a  street  at  other  than 
at  the  street  intersections  is  generally 
recognized  for  the  danger  usually  is 
greater.  People  ordinarily  cross  streets 
at  the  intersections,  and  drivers  of  vehi- 
cles are  on  the  lookout  for  them  there. 
As  they  do  not  usually  cross  over  be- 
tween the  intersections,  the  lookout 
quite  naturally  is  somewhat  relaxed, 
and  for  this  reason  greater  danger  is 
involved  in  passing  over  at  such  locali- 
ties and  corresponding  increase  of  care 
exacted."  Livingstone  v.  Dole,  167 
Iowa  639,  167  N.  W.  639. 
Instrtiction  as  to  care,  held   not   re 


versible  error. — The  Supreme  Court  of 
Pennsylvania  has  held  that  the  follow- 
ing instruction  relative  to  crossing  be- 
tween regular  crossings,  was  not  re- 
versible error:  "The  pedestrian  must 
use  such  care  and  caution  as  an  or- 
dinarily careful  and  prudent  man  would 
exercise  under  the  circumstances  in  the 
case,  and  more  care  and  caution  would 
be  required  of  a  pedestrian  attempting 
to  cross  a  street  where  automobiles  and 
other  vehicles  are  run,  between  cross- 
ings than  should  be  exercised  at  a 
crossing,  because  more  care  is  required 
to  be  exercised  by  an  automobile  about 
to  pass  over  a  crossing  than  between 
crossings.  Crossings  are  prepared  es- 
pecially for  pedestrians,  and  automo- 
biles must  bear  this  in  mind ;  there- 
fore, more  care  is  required  of  a  driver 
of  a  car  at  crossings  than  between 
crossings.  Nevertheless,  ordinary  care 
must  be  observed  by  drivers  and  pe- 
destrians at  all  times,  at  and  between 
crossings.  Therefore,  we  say  that  more 
care  is  required  of  pedestrians  between 
crossings  than  at  crossings;  but  the 
rule  of  ordinary  care  applies." 

22.  Schriner  v.  Qrinnell,  89  N.  J.  L. 
37,  97  Atl.   781. 

Kentucky    statute. — Ferris    v.     Mo- 
Aidle,  92  N.  J.  L.  58,  106  Atl.  460. 

23.  Crowl   v.   West   Coast   Steel   Co., 
100  Wash.   426.   186  Pac.  866. 


560  The  Law  of  Automobiles. 

should  have  been  driven,  it  was  held  that  he  was  not  guilty  of 
contributory  negligence  as  a  matter  of  law.^ 

Sec.  457.  Place  of  crossing  —  walking  along  highway. 

Pedestrians  are  not  necessarily  confined  to  the  use  of  the 
sidewalk  or  footpath  provided  for  them,  and  it  is  not  negli- 
gence per  se  for  them  to  use  the  part  generally  devoted  to 
vehicles.  In  fact  such  a  user  may  in  some  cases  be  necessary. 
In  this  as  in  other  instances  due  care  is  required  of  the  pedes- 
trian.^^ Greater  caution  may,  however,  be  required  of  one 
walking  along  a  road  than  of  one  using  a  sidewalk  where 
motor  vehicles  are  not  expected.^^  Even  in  a  city  or  village 
where  a  sidewalk  is  maintained  especially  for  the  use  of  pedes- 
trians, it  is  not  negligence  as  a  matter  of  law  for  a  pedestrian 
to  walk  along  the  road.  Thus,  in  one  case  it  was  said:  ''As 
to  the  contention  that  the  act  of  walking  upon  the  street  was 
negligent  because  a  sidewalk  had  been  provided  for  pedes- 
trians, it  is  sufficient  to  say  that  the  matters  as  to  whether  a 
sidewalk  in  fact  existed,  or  whether  its  condition,  if  one  did 
exist,  was  such  as  to  warrant  pedestrians  in  the  exercise  of 
ordinary  care  in  using  the  street,  instead  of  such  walk,  were 
matters  of  fact  which,  upon  the  conflicting  evidence  submitted, 
were  for  the  trial  court  sitting  as  a  jury  to  determine,  and, 
even  though  it  had  appeared  that  there  was  a  sidewalk  cus- 
tomarily used  by  pedestrians,  that  fact  alone  would  not  war- 
rant the  deduction  that  as  a  matter  of  law  plaintiff  was  guilty 

24.  Vos  V.  Franke,  202  111.  App.  133.  a  pedestrian  to  traverse  a  public  high- 

25.  Brown  v.  City  of  Wilmington,  4  way  between  the  regular  crossing 
Boyce  (Del.)  492,  90  Atl.  44;  O'Dowd  places,  nevertheless,  when  one  does  so, 
V.  Newnham,  13  Ga.  App.  220,  80  S.  E.  he  is  bound  to  a  high  degree  of  care, 
.S6;  McKenna  v.  Lynch  (Mo.),  233  S.  and  if  a  pedestrian  goes  further  and 
W.  175.  See  also  Pacific  Hardware  &  deliberately  selects  the  roadway  of  a 
Steel  Co.  V.  Monical,  205  Fed.  116,  123  city  street  for  the  purpose  of  walking 
C.  C.  A.  348;  Moffatt  v.  Link  (Mo.  longitudinally  thereon,  he  is  obligated 
App.),  229  S.  W.  836;  Petrie  v.  E.  A.  to  still  greater  care;  in  fact,  one  plac- 
Myers  Co.   (Pa.),  112  Atl.  240.  ing   himself    in   such   danger   must    be 

26.  "While  conditions  have  not,  as  most  vigilant  to  look  after  his  own 
yet,  arisen  in  any  case  brought  before  safety."  Virgilio  v.  Walker,  254  Pa. 
us  where  we  have  felt  called  upon  to  St.  241,  98  Atl.  815. 

rule  that  it  was  negligence  per  se  for 


CONTKIBUTORY   NEGLIGENCE   OF   PEDESTRIANS.  561 

of  contributory  negligence  in  using  the  street,  instead  of  such 
sidewalk. '  '^ 

When  conditions  are  unfavorable  for  walking  on  the  side- 
walk, as  in  case  of  mud  or  ice,  one  may  be  justified  in  walking 
along  the  road.^^  And  one  is  not  necessarily  negligent  in  push- 
ing a  hand  cart  along  a  highway.^^  And  it  cannot  be  ruled  as 
a  matter  of  law  that  the  failure  of  a  pedestrian  to  carry  a 
lantern  when  walking  upon  a  highway  after  dark,  is  negli- 
gence.^^  In  a  rural  community,  where  a  sidewalk  is  not  pro- 
vided for  foot  travelers,  there  can  be  no  ground  for  charging 
one  with  negligence  merely  because  he  was  walking  along  the 
road.^^  Even  the  duty  of  looking  for  motor  vehicles  is  less 
strict  on  a  farm  road.^^  Negligence  will  not  necessarily  be 
charged  against  the  pedestrian  because  he  does  not  walk 
nearer  the  outside  of  the  road,  especially  if  it  is  muddy  there.^ 
But  it  is  to  be  recognized  that  a  foot  traveler  along  a  highway 
should  give  way  to  an  approaching  vehicle  so  as  to  permit  a 
passage.^* 

Sec.  458.  Duty  to  look  for  approaching  automobiles  —  rail- 
road rule  —  to  stop,  look  and  listen. 

In  many  States  in  this  country,  the  rule  is  established  that  a 
person  must  stop,  look  and  listen  before  crossing  a  railroad 
track,  and  that  his  failure  to  take  such  prudence  is  negligence 
as  a  matter  of  law.^^  But  this  doctrine  does  not  apply  to  a 
pedestrian  about  to  cross  a  public  highway,  and  it  is  held  that 
a  person  who  fails  to  "stop,  look  and  listen,"  or  who  fails 
continuously  to  be  looking  when  crossing  a  street  is  not  thereby 

27.  Backwell    v.    Renwick,    21     Cal.  279,  67  So.  283;  Gardner  v.  Vance,  63 
App.    131,   131    Pac.   94.  Ind.  App.  27,  113  N.  E.  1006;  Marton 

28.  Moars    v.    McElfish    (Md.),    114  v.  Pickrell  (Wash.),  191  Pac.  1101. 
Atl.  701.     See  Booth  v.  Meagher,  224  32.  As   to   the   duty   of  lookout,   see 
Mass.  472,  113  N.  E.  367.  section   332,  et  seq. 

29.  Mauchle    v.    Panama-Pacific    In-  33.  Petrie  v.  E.  A.  Myers  Co.  (Pa.), 
ternal  Exposition  Co.,  37  Cal.  App.  715,  112  Atl.  240 

174  Pac.  400.  34.  White    v.    Metropolitan    St.    Ry. 

30.  Powers  v.  Loring,  231  Mass.  458.  Co.,  195  Mo.  App.  310,  191  S.  W.  1122. 
121    N.   E.   425.  35.  Section  568. 

31.  See   Dozier   v.   Woods,    190   Ala. 

36 


562 


The  Law  of  Automobiles. 


guilty  of  negligence  as  a  matter  of  law.^^  One  crossing  the 
track  of  a  steam  railroad  is  required  to  look  in  both  directions 
for  an  approaching  train,  but  when  crossing  a  highway,  the 
duty  of  looking  is  generally  satisfied  if  he  looks  in  the  direc- 
tion whence  motor  vehicles  obeying  the  law  of  the  road  may 
be  expected.  The  distinction  is  properly  laid  on  account  of 
the  difference  in  the  use  made  of  the  streets  by  automobiles 
and  by  steam  engines.^^ 

Sec.  459.  Duty  to  look  for  approaching  automobiles  —  duty 
to  look  before  crossing  street. 
A  pedestrian  about  to  cross  a  street  frequented  by  motor 
vehicles  is  bound  to  exercise  care  for  his  safety .^^    In  case  of 


36.  United  States.— '!<ievr  York 
Transp.  Co.  v.  Garside,  157  Fed.  521, 
85  C.  C.  A.  285 ;  Tiffany  &  Co.  v.  Dnim- 
mond,  168  Fed.  47,  93  C.  C.  A.  469; 
Taxi  Service  Co.  v.  Phillips,  187  Fed. 
734,   109  C.  C.  A.  482. 

Alabama.— BsiThouT  v,  Shebor,  177 
Ala.  304,  58  So.  276;  Baehelder  v. 
Morgan,  179  Ala.  339,  60  So.  815;  Ivy 
V.   Marx    (Ala.),  87   So.   813. 

Arkansas. — Millsaps  v.  Brogon,  97 
Ark.  469,   134  S.  W.  632. 

California. — Mann  v.  Scott,  180  Cal. 
550,   182  Pac.   281. 

Georgia. — O'Dowd  v.  Newnham,  13 
Ga.  App.  220,  80  S.  E.  36. 

Indiana.— Craft  v.  Stone  (Ind. 
App.),  124  N.  E.  469. 

Kansas. — ^Williams  v.  Benson,  87 
Kan.  421,  124  Pac.  531  ;  Cusick  v. 
Miller,  102  Kans.  663,  171  Pac.  599. 

Michigan. — Winckowski  v.  Dodge, 
183  Mich.  303,  149  N.  W.  1061;  Hill 
V.  Lappley,  199  Mich.  496,  165  N.  W. 
657. 

Missouri. — Bongner  v.  Ziegenheim, 
165  Mo.  App.  328,  147  S.  W.  182; 
Hodges  V.  Chambers,  171  Mo.  App.  563, 
154  S.  W.  429;  Carradine  v.  Ford,  195 
Mo.  App.  684,  187  S.  W.  285;  Sulli- 
van V.  Chauvenet  (Mo.  App.),  186  S. 
W.  1090;  Loury  v.  Smith  (Mo.  App.), 


198  S.  W.  437. 

New  York. — Jessen  v.  J.  L.  Kesner 
Co.,  159  App.  Div.  898,  144  N.  Y. 
Suppl.  407. 

Pennsylvania. — Lorah  v.  Rinehart, 
243  Pa.  St.  231,  89  Atl.  967;  Dugan 
V.  Lyon,  41  Pa.  Super.  Ct.  52. 

Texas. — Vesper  v.  Lavender,  149  S. 
W.  377. 

Vermont. — Aiken  v.  Metcalf,  90  Vt. 
196,  97  Atl.  669. 

Virginia. — Core  v.  Wilhelm,  124  Va. 
150,  98  S.  E.  27. 

Washington. — Mosso  v.  Stanton  Co., 
75  Wash.  220,  134  Pac.  941 ;  Hillebrant 
V.  Manz,  71  Wash.  250,  128  Pac.  892; 
Mickelson  v.  Fischer,  81  Wash.  423,  143 
Pac.  1160;  Adair  v.  McNeil,  95  Wash. 
160,   163   Pac.  393. 

Wiscon^n. — Klokow  v.  Harbaugh, 
166  Wis.  262,  164  N.  W.  999. 

Listening. — While  a  pedestrian  may 
not  be  required  to  stop  before  crossing 
a  street,  it  has  been  said  that  he  should 
listen  for  automobiles.  Lorah  v.  Rine- 
hart, 243  Pa.  St.  231,  89  Atl.  967. 

37.  Sullivan  v.  Chauvenet  (Mo. 
App.),  186  S.  W.  1090;  Loury  v. 
Smith  (Mo.  App.),  198  S.  W.  437; 
Humes  v.  Schaller,  39  R.  I.  519,  99  Atl. 
55. 

38.  Livingstone   v.    Dole,    167    Iowa, 


Contributory  Negligence  of  Pedestrians. 


503 


a  city  street  where  there  is  considerable  traffic,  reasonable 
care  may  require  that  a  person  shall  look  for  automobiles  be- 
fore starting  across  the  street.^^  And,  if  he  fails  to  look  before 
crossing  some  of  the  streets  in  populous  centers,  contributory 
negligence  as  a  matter  of  law  may  be  charged  against  him.*® 
In  the  city  of  New  York,  it  is  clearly  negligence  per  se  on  the 
part  of  a  pedestrian  to  fail  to  look  l)efore  attempting  to  cross 


639,  167  N.  W.  639 ;  Todesco  v.  Maas,  8 
Alta.  (Canada)  187,  23  D.  L.  R.  417. 
"When  a  pedestrian  is  about  to  cross 
a  street  he  must  use  the  care  of  a 
prudent  man,  but  the  law  does  not  un- 
dertake to  further  define  this  standard. 
The  law  does  not  say  how  often  he 
must  look,  or  precisely  how  far,  or 
when  or  from  where."  Aiken  v.  Met- 
calf,  90  Vt.  196,  97  Atl.  669.  ' '  No  pe- 
destrian has  a  right  to  pass  over  a 
public  thorougfare  without  regard  to 
approaching  vehicles,  nor  has  any  ve- 
hicle driver  a  right  to  appropriate  the 
public  street  without  regard  to  its  use 
by  pedestrians.  The  test  to  be  applied 
in  this  case  as  in  others  is:  What 
would  a  person  of  ordinary  prudence 
have  done  under  the  circumstances 
shown?  Would  reasonable  minds  differ 
in  answering  that  question?  Some  are 
more  cautious  than  others,  and  though 
some  would  hesitate  to  start  without 
looking  up  and  down  the  street  and 
keeping  a  continuous  outlook  for  ap- 
proaching vehicles,  others  are  content 
with  a  glance  about  and  immediately 
proceed.  We  sometimes  think  tho  lat 
ter  class  are  less  likely  to  be  injured 
than  the  former.  At  any  rate  the  law 
does  not  lay  down  precisely  what  must 
be  done  to  constitute  duo  care  or  omit- 
ted to  render  a  person  negligent.  This 
depends  on  the  facts  of  each  particu- 
lar case,  and  in  this  cause  conditions 
were  such  as  to  carry  the  issue  as  to 
whether  decedent  was  at  fault  in  any 
respect  to  the  jury."  Rolfs  v.  Mullins, 
179  Iowa  1223,  162  N.  W.  783. 


39.  Ru.s.sell  v.  Vergason  (Conn.),  Ill 
Atl.  625. 

40.  Caljifornia.— Davis  v.  Breuner 
Co.,  167  Cal.  683,  140  Pac.  586;  Mayer 
V.  Anderson  (Cal.  App.),  173  Pac.  174; 
Moss  V.  H.  R.  Boynton  (Cal.  App.), 
Ig6  Pac.  631;  Spring  v.  Tawa  (Cal. 
App.),   192  Pac.   1051. 

Iowa. — Wine  v.  Jones,  183  Iowa, 
1166,  162  N.  W.  176,  163  N.  W.  318. 

Kcntuelcy. — Melville  v.  RoUwage,  171 
Ky.   607,   188  S.  W.   638. 

Masachusetts. — See  Rasmussen  v. 
Whipple,  211  Mass.  546,  98  N.  E.  592. 

Michigan. — Fulton  v.  Mohr,  200 
Mich.  538,  166  N.  W.  851;  Deal  v. 
Snyder,  203  Mich.  273,  168  N.  W.  973. 

New  York. — Chiappone  v.  Green- 
baum,  189  App.  Div.  579,  178  N.  Y. 
Suppl.  845;  Wilkins  v.  New  York 
Transp.  Co.,  52  Misc.  167,  101  N.  Y. 
Suppl.  650;  Curro  v.  Barrett,  156  N. 
Y.  Suppl.  289.  See  also  Capell  v.  New 
York  Transp.  Co.,  150  N.  Y.  App.  Div. 
723,  135  N.  Y.  Suppl.  691;  Signet  v. 
Werner,  159  N.  Y.  Suppl.  894.  "It  ia 
lield  to  be  contributory  negligence  as 
a  matter  of  law  if  the  plaintiff  blindly 
walks  in  front  of  a  moving  vehicle 
without  looking  to  see  if  he  could  make 
a  safe  pasage  and  without  using  any 
care  to  avoid  injury."  Curro  v.  Bar- 
rett, 156  N.  Y.  Suppl.  289. 

Virginia. — Stephen  Putney  Shoe  Co. 
V.  Ornsby's  Adm'r,  105  S.  E.  563. 

Washington. — Jones  v.  Wiese,  33 
Wash.  346,  153  P.   330. 

Canada. — Todesco  v.  Maas,  23  D.  L. 


564 


The  Law  of  Automobiles. 


a  street/^    But,  as  was  said  in  one  case,*^  '*If  a  pedestrian,  in 
crossing  a  street,  exercise  such  care  as  a  person  of  ordinary 


R.   417,   8   A.   L.  R.   187,   7   W.  W.   E. 
1373. 

Siifficiency  of  look. — If  a  pedestrian 
looks  at  all,  the  sufficiency  of  his  look 
would  present  a  question  for  the  jury; 
but,  if  he  fails  to  take  any  precau- 
tion, there  is  nothing  for  the  jury  to 
consider  |ipon  this  point,  and  the  law 
decides  against  the  recovery.  Jones  v. 
Wise,  88  Wash.  356,  153  Pac.  330. 

Relative  duties  of  chauffeur  and 
foot  traveler  as  to  looking. — "It  is 
.  .  .  a  familiar  rule  in  the  law  of 
negligence  that  the  care  to  be  exer- 
cised must  correspond  with  the  capa- 
city to  injure,  and  accordingly  the  au- 
tomobilist  is  under  a  much  higher  de- 
gree of  care  to  look  out  for  the  pe- 
destrian than  the  pedestrian  is  to  look 
cut  for  the  automobilist.  The  pedest- 
rian cannot  merely  by  the  manner  in 
which  he  uses  the  street  harm  the  au- 
tomobilist.  but  the  automobilist  may 
by  his  manner  of  using  the  street  kill 
the  pedestrian;  and  so,  generally 
speaking,  the  pedestrian  is  only  re- 
quired to  look  after  his  own  safety,  and 
not  the  safety  of  others,  while  the  au- 
tomobilist must  look  out  for  the  safety 
of  the  pedestrian  rather  than  his  own. 
Weidner  v.  Otter,  171  Ky.  167,  188  S. 
W.   335. 

41.  Knapp  v.  Barrett,  216  N.  Y.  226, 
wherein  it  was  said:  "The  jury  were 
told  in  effect  that  even  if  the  plaintiff 
left  the  car  without  looking  where  it 
was  going,  and  then  walked  blindly  in 
the  path  of  the  wagon,  they  might  still 
acquit  him  of  negligence.  The  law,  we 
think,  is  otherwise.  A  wayfarer  is  not 
at  liberty  to  close  his  eyes  in  crossing 
a  city  street.  His  duty  is  to  use  his 
eyes,  and  thus  protect  himself  from 
danger  (Barker  v.  Savage,  45  N.  Y. 
191).  The  law  does  not  say  how  often 
he  must  look,  or  precisely  how  far,  or 
when  or  from  where.     If,  for  example, 


lie  looks  as  he  starts  to  cross,  and  the 
way  seems  clear,  he  is  not  bound  as  a 
matter  of  law  to  look  again.  The  law 
does  not  even  say  that  because  he  sees 
a  wagon  approaching  he  must  stop  till 
it  has  passed.  He  may  go  forward  un- 
less it  is  close  upon  him;  and  whether 
he  is  negligent  in  going  forward  will 
be  a  question  for  the  jury.  If  he  has 
used  his  eyes  and  has  miscalculated  the 
danger,  he  may  still  be  free  from  fault 
(Buhrens  v.  Dry  Dock,  E.  B.  &  B.  R. 
R.,  53  Hun,  571,  125  N.  Y.  702).  But 
it  is  a  very  different  thing  to  say  that 
he  is  not  bound  to  look  at  all.  We 
have  repeatedly  held  that  one  who 
crosses  a  city  street  without  any  exer- 
cise of  his  faculty  of  sight  is  negligent 
as  a  matter  of  law  (Barker  v.  Savage, 
supra;  Peterson  v.  Ballantine  &  Sons, 
205  N.  Y.  29,  39  L.  R.  A.  (N.  S.)  1147; 
Perez  v.  Sandrowitz,  180  N.  Y.  397,  73 
N.  E.  228;  McClain  v.  Brooklyn  City 
R.  R.,  116  N.  Y.  459,  470,  22  N.  E. 
1062;  Reed  v.  Met.  St.  Ry.,  180  N  Y. 
315,  73  N.  E.  41;  Volosko  v.  Interurban 
St.  Ry.,  190  N  Y.  206,  15  L.  R.  A.  (N. 
S.)  1117;  Zucker  v.  Whitridge,  205  N. 
Y.  50.  Ann.  Cas.  1913  D.  1250;  Mastin 
v.  City  of  New  York,  201  N.  Y.  81). 
To  escape  the  consequences  of  such 
negligence  he  must  prove  that  even  if 
he  had  looked,  the  accident  would  still 
have  happened.  He  is  not  entitled  to 
damages  where  it  appears  that  'uncon- 
scious and  unobservant  of  the  nituation 
he  walked  into  the  approaching  team.' 
(Perez  v.   Sandrowitz,  400.   supra)." 

Compare  the  earlier  decisions  by  the 
.Appellate  Division  in  this  State  of 
Townsend  v.  Brooklyn  Heights  R.  Co., 
168  App.  Div.  449;  Woodward  v.  New 
York  Railways,  164  App.  Div.  658,  149 
N.   Y.   Suppl.   1003. 

See  also  Harder  v.  Matthews,  67 
Wash.  487,  121  Pac.  983. 

42.  Weidner  v.  Otter,  171  Ky.  167, 
188  S.  W.  335. 


Contributory  Negligence  of  Pedestrians.  565 

prudence  would  use  in  looking  after  his  own  safety,  consider- 
ing the  surrounding  condition,  he  has  done  all  that  the  law 
expects  him  to  do.  There  is  no  other  reasonable  standard  by 
which  to  measure  the  care  required  of  him.  If  this  standard 
of  care  required  that  he  stop  and  look  and  listen,  then  he  must 
stop  and  look  and  listen.  If  it  required  that  he  must  look 
and  listen,  or  look  alone,  then  he  must  do  these  things."^''  To 
some  extent  the  question  necessarily  depends  on  the  amount 
of  traffic  to  be  expected  at  the  place  where  he  is  crossing.** 
The  failure  to  look  cannot  be  said  to  be  negligence  per  se 
under  all  circumstances,  and  thus  frequently  a  question  is 
presented  by  the  jury.*^  What  might  be  considered  a  reason- 
able i^recaution  when  crossing  a  highway  in  a  rural  com- 
munity, might  be  considered  as  gross  negligence  in  the  case  of 
a  pedestrian  crossing  a  crowded  thoroughfare  in  a  large  city. 
But  a  pedestrian's  failure  to  look  for  an  automobile  approach- 
ing in  a  blinding  and  temptestuous  rain  storm,  with  its  lights 
difficult  to  distinguish  from  street  lights,  has  been  held  not 
to  constitute  contributory  negligence  as  a  matter  of  law.**' 

"Where  an  aged  man  was  injured  by  an  automobile  while 
trying  to  cross  a  crowded  street,  and,  in  an  action  to  recover 
for  the  injuries  thus  sustained,  he  testified  that  he  did  not  see 
any  wagons  or  automobiles  in  front  nor  the  machine  that 
struck  him  until  after  the  accident,  and  did  not  look  for  any 
except  the  people  in  front  of  him,  and  there  was  no  evidence 
that  he  tried  to  avoid  the  various  vehicles  that  filled  the  street, 
it  was  held  that  he  failed  to  establish  his  freedom  from  con- 
tributory negligence  and  a  judgment  in  his  favor  should  be 
reversed.*'^  And,  where  a  large  automobile  was  proceeding  at 
a  moderate  rate  on  the  proper  side  of  the  street  witli  a  clear 
roadway  in  front  of  it,  when  a  boy  who  could  have  seen  the 
machine  had  he  looked,  but  who  was  interested  in  catching  a 
ball,  ran  from  the  sidewalk  immediately  in  front  of  the  ma- 

43.  See    also    Loury    v.    Smith     (Mo.  45.  Bohm    v     r.'alton.    '?.0(\    111     App. 
A  pp.),   198  S.   W.  4.37.  374. 

44.  Weidner  v.   Otter,    171    Ky.    167,  46.  Bruhl  v.  Anderson,  189  111.  App. 
■t§F   S.   W.   33.5;    Aiken  v    M.-t^alf.   00  461. 

Vt.  196,  97  Atl.  669.  47.  Wilkins    v.    New    York    Transp. 

Co.,  52  Misc.  167,  101  N.  Y.  Suppl.  650. 


566  The  Law  of  Automobiles. 

cbine,  at  a  distance  of  four  to  twelve  feet,  and  the  automobile 
was  stopped  so  that  its  wheels  skidded  and  proceeded  only 
five  feet  beyond  the  boy's  body,  it  was  held  that  the  driver's 
negligence  was  not  shown,  but  rather  contributory  negligence 
on  the  part  of  the  boy.*^    Where  a  pedestrian  started  to  cross 
the  street,  and  halted  to  let  a  street  car  pass,  and  then  stepped 
back  toward  the  sidewalk  and  was  struck  by  an  automobile,  it 
was  held  that  he  was  guilty  of  contributory  negligence,  for  it 
was  negligence  to  step  in  front  of  the  machine  if  he  looked, 
and,  if  he  didn't  look,  that  also  was  negligence."^    A  boy  has 
also  been  held  guilty  of  negligence  in  jumping  off  the  rear  of 
a  wagon,  with  his  face  towards  the  driver  and  starting  to  run 
across  the  street,  when  he  is  struck  by  an  automobile  coming 
from  behind.^    And  where  the  court  charged  the  jury,  in  an 
action  to  recover  damages  by  a  person  struck  by  an  automo- 
bile as  he  was  crossing  the  street,  that  the  plaintiff  was  bound 
to  use  due  care,  and  that  if  he  was  familiar  with  the  street  and 
its  traffic  and  knew  that  automobiles  and  other  vehicles  were 
passing  and  repassing,  and  in  alighting  from  the  trolley  car 
did  not  look  in  either  direction  but  started  across  the  street 
in  a  hurried  walk  with  his  head  down,  the  jury  would  be  war- 
ranted in  finding  and  ought  to  find  him  guilty  of  contributory 
negligence,  it  was  decided  that  this  was  sufficiently  favorable 
to  the  defendant.^^    And  where  a  pedestrian,  in  the  middle  of 
a  block  of  a  narrow  street  thirty  feet  in  width,  suddenly  and 
unexpectedly  stepped  from  behind  another  car  where  he  could 
not  be  seen  by  the  driver  of  defendant's  car,  with  his  back 
turned  towards  the  portion  of  the  highway  that  would  neces- 
sarily be  traveled  by  an  automobile  on  that  side  of  the  street, 
with  his  coat  collar  turned  up  and  his  head  down ;  and  it  ap- 
peared further  that  he  not  only  failed  to  look,  but  apparently 
was  so  engrossed  with  other  thoughts  that  he  failed  to  hear 
either  the  noise  of  the  car  or  the  shout  of  warning  from  the 

48.  Jordon  v.  Am.  Sight  Seeing  50.  Mills  v.  Powers,  216  Mass.  36, 
Coach  Co.,  129  N.  Y.  App.  Div.  313,  102  N.  E,  912;  compare  Bartley  v 
113  N.  Y.  Suppl.  786.  Marino    (Tex.    Civ.   App.).    158    S.    W. 

49.  Todeseo   v.    Maas,    23    D.    L.    V..  1156. 

(Canada)  417,  8  A.  L.  R.  187,  7  W.  W.  51.  Wolfe  v.  Ives,  83  Conn     174.   ?*> 

R,   1373.  All.  526,  19  Ann.  Cas.  752. 


Contributory  Negligence  of  Pedestrians. 


561 


companion  of  the  driver,  it  was  held  that  he  was  guilty  of 
negligence.^^ 

Sec.  460.  Duty  to  look  for  approaching  automobiles  —  looking 
for  vehicles  on  wrong  side  of  street. 
As  a  general  proposition,  it  is  not  contributory  negligence 
per  se  for  a  pedestrian  to  look  only  in  the  direction  from  which 
vehicular  traffic  may  be  expected  to  move  in  accordance  with 
the  law  of  the  road  f  and,  if  such  a  person  looks  in  one  direc- 
tion and  judging  the  highway  reasonably  safe  for  passage 
starts  across  but  is  struck  by  a  motor  vehicle  proceeding  along 
the  wrong  side  of  the  street,  his  negligence  is  not  to  be  decided 
as  a  matter  of  law,  but  should  be  left  for  the  jury.^^  One  has 
the  right,  to  some  extent,  to  assume  that  the  drivers  of  auto- 
mobiles will  obey  the  recognized  law  of  the  road  as  to  the  side 
on  which  they  will  proceed.^^    Whether  one  is  guilty  of  negli- 


52  Fulton  V.  Mohr,  200  Mich.  538. 
166  N.  W.  851. 

53.  Buckley  v.  Sutten,  231  Mass. 
604,  121  N.  E.  527;  New  York  Transp. 
Co.  V.  Garside,  157  Fed.  521,  85  C.  C. 
A.  285. 

Contrary  view.— "It  is  the  duty  of 
a  foot  passenger  to  look  both  ways  be- 
fore starting  to  cross  a  street,  particu- 
larly when,  as  in  this  instance,  the 
street  over  which  he  intends  to  pass  is 
a  busy  thoroughfare  in  the  heart  of  the 
business  district  of  a  great  city." 
Davis  V.  Breuner  Co.,  167  Cal.  683, 
140  Pac.  586. 

54.  United  (States. —  New  York 
Transp.  Co.  v.  Garsidt>,  157  Fed.  521. 
85  C.  C.  A.  285. 

California. — Lewis  v.  Tanner  (Cal. 
App.),  103  Pac.  287. 

New  YorTc. — Bradley  v.  Jacckol,  65 
Misc.  509,  119  N.  Y.  Suppl.  1071:  Hall 
V.  Dilworth,  94  Misc.  Rep.  240.  157  N. 
Y.  Suppl.  1091.  "Especially  would  it 
be  unwarranted  to  hold  that,  when  a 
person  steps  from  tho  curb  of  a  city 
street,  particularly  one  not  constitut- 
ing an  important  artory  of  traffic,  he 
must   look,    not   onlv    in    the   direction 


fiom  wiiich  vehicle.s  may  rightfully  be 
traveling  on  that  side  of  the  .street,  but 
that  he  must  look  back,  as  well,  in  or- 
der to  be  sure  that  nothing  is  ap- 
proaching from  the  rear  on  the  side 
of  the  street  prohibited  by  the  rule  of 
the  road  to  vehicles  traveling  from  that 
direction."  Bradley  v.  Jaeckel,  65 
Misc.  509.  119  N.  Y.  Suppl.  1071,  per 
Oiegcrich,  J. 

Vcnnont. — Aiken  v.  ]\Ietcalf,  90  Vt. 
106.  97  Atl.  669. 

Washington. — Nickelson  v.  Fischer, 
81  Wash.  423,  143  Pac.  1160.  "Plain- 
tilT  was  not  bound  to  anticipate  a  car 
or  other  vehicle  eoniing  south  on  the 
left-hand  side  of  the  street.  There  are 
certain  rules  or  laws  of  the  road,  the 
observance  of  which  or  reliance  upon 
become  instinctive.  The  care  of  a  pe- 
destrian, situated  as  plaintiff  was, 
would  be  to  look  to  her  right  for  cars 
or  vehicles,  relying  upon  the  fact  that 
traffic  upon  that  side  of  the  street 
would  be  from  that  direction.''  Mickel- 
son  v.  Fischer.  81  Wash.  423.  142  Pac. 
1160. 

55.   Section  473. 


568  The  Law  of  Automobiles. 

gence  in  failing  to  look  for  a  violation  of  the  law  of  the  road, 
depends  npon  whether  a  person  would  reasonably  apprehend 
danger  in  such  direction,  and  the  question  is  one  which  is  left 
to  the  jury.^"  When  one  is  passing  from  the  east  side  toward 
the  west  side  of  a  street,  after  passing  beyond  the  center  line 
of  the  road,  the  jury  may  properly  infer  that  a  reasonably 
prudent  man  would  shift  his  attention  from  cars  approaching 
from  the  south  to  those  approaching  from  the  north.^' 

Sec.  461.  Duty  to  look  for  approaching  automobiles  —  ob- 
structed view. 

The  law  does  not  require  one  to  do  the  impossible,  and  hence 
if  a  pedestrian's  view  in  a  certain  direction  is  obstructed  by  a 
street  car  or  other  barrier,  he  is  not  necessarily  guilty  of  con- 
tributory negligence  because  he  fails  to  look  in  such  direc- 
tion.58    Th^g^  where  it  appeared  that  a  street  railway  pas- 
senger alighted  from  a  car  and  passed  to  the  rear  thereof  and 
in  front  of  a  car  on  the  other  track,  and  as  she  cleared  the 
front  of  the  latter  car,  was  struck  by  an  automobile  driving 
close  to  the  car  without  giving  a  signal,  it  was  held  that  she 
was  not  guilty  of  negligence  as  a  matter  of  law  in  failing  to 
look  in  the  direction  whence  the  automobile  came,  for  the 
street  car  obstructed  any  view  in  that  direction.^^    But  after 
passing  an  obstruction,  reasonable  care  may  require  that  the 
pedestrian  look  for  danger.^^^   Thus,  where  a  boy  playing  in 
the  street  started  to  cross  and  passed  behind  a  wagon  into 
the  path  of  an  automobile  so  near  to  it  that  the  accident  could 
not  be  avoided,  it  was  held  that  he  was  negligent.^'' 

56.  Park  v.  Irbson  (Cal.  App.),  842,  161  N.  Y.  Suppl.  472;  Kaplan  v. 
184  Pae.  428;  Hall  v.  Dilworth,  94  Posner,  192  App.  Div.  59,  182  N.  Y. 
Misc.    (N.   Y.)    240,   157  N.   Y.    Suppl.       Suppl.   612. 

^Q9j  59.  Sternfield  v.   Willison,   174   App. 

57.  Aiken  v.  Metcalf,  90  Vt.  196,  97       Div.  842,  161  N.  Y.  Suppl.  472. 

^tl    669  59a.  Moss  v.   Boynton    (Cal.   App.), 

58.  Regan  v.  Los  Angeles  Ice  &  Cold       186  Pac.  631. 

Storage  Co.   {Oal.  App.).  189  Pac.  474;  60.  Levesque  v.  Dumont,  116  Me.  25, 

Sternfield   v.    Willison,    174   App.    Div.      99  Atl.  719. 


Contributory  Negligence  of  Pedestrians. 


569 


Sec.  462.  Duty  to  look  for  approaching  automobiles  —  con- 
tinuing to  look. 
It  is  very  generally  held  that  a  pedestrian  about  to  cross  a 
street  is  not  required  to  look  continuously  for  the  approach 
of  motor  vehicles.^^  If,  as  he  leaves  the  curb,  he  looks  for  the 
approach  of  machines,  he  is  not  necessarily  guilty  of  negli- 
gence in  failing  to  keep  a  continuous  outlook,  or  in  looking  a 
second  time,  but  whether  he  has  exercised  a  reasonable  degree 
of  prudence  is  a  question  for  the  jury.*^  Circumstances  may 
exist,  however,  when  one  who  fails  to  look  a  second  time  is 
guilty  of  negligence  as  a  matter  of  law.*'^    Even  if  he  sees  an 


61.  United  -Stages.— Phillips  v.  Taxi 
Service  Co.,  183  Fed.  869.  affirmed  187 
Fed.  734,  109  C.  C.  A.  483. 

California. — Blackwell  v.  Rcnwick, 
21  Cal.  App.  131,  131  Pac.  94;  Bel- 
linger V.  Hughes,  31  Cal.  App.  464,  160 
Pac.  838;  Sheldon  v.  James.  175  Cal. 
474,  166  Pae.  8,  2  A.  L.  R.  1493;  Mc- 
Mullen  V.  Davenport  (Cal.  App.).  186 
Pac.  796. 

Indiana. — Marker  v.  Oiuhl.  62  Ind. 
App.  177,  111  N.  E.  457.  "As  a  mat- 
ter of  law,  a  pedestrian  who  is  lawfully 
using  a  public  thoroughfare  need  not 
be  constantly  looking  or  listening  to 
ascertain  if  automobiles  are  approach- 
ing under  the  penalty  that  if  he  fails 
to  do  so  and  is  injured  that  his  failure 
conclusively  charges  him  with  negli- 
gence." Harker  v.  Gruhl,  62  Ind.  App. 
177,  111  N.  E.  457. 

lotoa. — Wine  v.  Jones,  183  Iowa, 
1166,  162  N.  W.  196,  168  N.  W.  318. 

Kentucky. — Weidner  v.  Otter.  171 
Ky.   167.   188  S.  W.  335. 

Michigan. — Gerhard  v.  Ford  Motor 
Co.,  155  Mich.  618,  119  N.  W.  904.  20 
L.  R.  A.  (N.  S.)  232.  "There  is  no  im- 
perative rule  of  law  requiring  a  pe- 
destrian when  lawfully  using  the  pub- 
lic ways  to  be  continuously  looking  or 
listening  to  ascertain  if  auto  cars  are 
approaching,  under  the  i>enalty  that 
upon  the  failure  so  to  do,  if  he  is  in- 
jured, his  own  negligence  must  be  con- 


clusively presumed."  Gerhard  v.  Ford 
Motor  Co..  155  Mich.  618,  119  N.  W. 
904.  20  L.  R.  A.    (N.  S.)    232  . 

Missouri. — Carradine  v.  Ford,  195 
Mo.  App.  684,  187  S  W.  285;  Ginter  v. 
O'Donoghue  (Mo.  App.).  179  S.  W. 
732:  T^ury  v.  Smith  (Mo.  App.),  198 
S.  W.  437. 

New  Yorfc.— O'Neill  v.  Everet.  189 
App.  Div.  221,  178  N.  Y.  Suppl.  506. 

Pennsylvania. — Lewis  v.  Wood,  247 
Pa.  St.  545,  93  Atl.  605. 

Virginia. — Core  v.  Wilhelm.  124  Va. 
150,  98  S.  E.  27. 

Washington. — Yanse  v.  Seattle  Taxi- 
cab  &  Transfer  Co.,  91  Wash.  415,  157 
l^ac  107;  Olsen  v.  Peerless  Ixuindry, 
101  Pac.  756.  See  also  Crowl  v.  West 
Coast  Steel  Co..  186  Pac.  866. 

62.  Taxi  Service  Co.  v.  Phillips,  187 
Fed.  734,  109  C  C.  A.  482.  affirming 
183  Fed.  869;  Harker  v.  Gruhl,  62  li.d. 
App.  177,  111  N.  E.  457;  Johnson  v. 
Brastad,  143  Minn.  332.  173  N.  W. 
668:  Ginter  v.  O'Donoghue  (Mo. 
App.).  179  S.  W.  732;  Healy  v.  Shed- 
aker,  264  Pa.  St.  512.  107  Atl.  842; 
Mackin  v.  Patterson  (Pa.),  112  Atl. 
738;  Core  v.  Wilhelm.  124  Va.  150,  98 
S.  E.  27;  Redick  v.  Peterson,  99  Wash. 
368,  169  Pac.  804;  Moore  v.  Roddie,  103 
Wash.  386,  174  Pac.  648;  Westcr\elfc 
V.  Schwabacher  (Wash.),  176  Pac.  545. 

63.  Moss  v.  Bo3mton  (Cal.  App.), 
J86  Pac.  631:   Prince  v.  Claur^n-Flana- 


570 


The  Law  of  Automobiles. 


automobile  approaching  he  is  not  under  the  duty  of  continu- 
ally watcliing  its  approach,  but  he  may  assume  that  he  has 
sufficient  time  to  cross  the  street  and  that  the  machine  will 
not  run  him  down.^^  Just  where  he  should  look  depends  upon 
shifting  conditions  and  is  a  question  of  fact  rather  than  of 
law.*^^  He  must,  of  course,  exercise  a  reasonable  degree  of 
caution,  and  be  on  his  guard  to  avoid  injury  and  should  use 
the  same  degree  of  alertness  as  a  reasonably  careful  man 
would  use.^^  If  one  seeking  a  street  car  steps  off  the  curb 
after  making  observations  concerning  the  traffic  on  the  street 
and  believing  it  to  be  safe,  passes  by  one  line  and  without 
taking  further  observations  attempts  to  reach  the  further  side 
of  the  other  line,  when  he  is  struck  by  an  automobile,  his  con- 
tributory negligence  is  a  question  for  the  jury.^^    And,  where 


gan  Brewery,  177  N.  Y.  Suppl.  168; 
Crowl  V.  West  Coast  Steel  Co.,  109 
Wash.  426,  186  Pao.  866. 

64.  Section  467. 

65.  Mackin  v,  Patterson  (Pa),  112 
Atl.  738. 

66.  Lorah  v.  Rinehart.  24.3  Pa.  St. 
231,  89  Atl.  967. 

67.  Phillips  V.  Taxi  Service  Co,  183 
Fed.  869,  affirmed  187  Fed.  734,  109 
C.  C.  A.  482;  Klokow  v.  Harbaugh, 
166  Wis.  262.  164  N.  W.  999.  "The 
point  of  the  defendant  below  was  that 
the  law  required  the  traveler  across 
the  street  to  look  to  tlie  oast  after 
passing  behind  the  standing  car  which 
had  obstructed  his  view,  and  that  in 
not  doing  it  negligence  resulted  as  a 
matter  of  law.  The  learned  judge, 
while  dealing  with  this  phase  of  tlie 
situation,  and  while  explaining  to  the 
jury  that  there  was  no  absolute  rule 
of  law,  like  that  which  applies  to  rail- 
road crossings,  a  place  of  universally 
recognized  danger,  where  common  pru- 
dence requires  that  travelers  on  the 
highway  should  use  the  precaution  of 
looking,  which  applies  itself  as  be- 
tween automobile  highway  travelers 
and  pedestrians  at  highways  or  street 
crossings,  and  therefore  that  the  ques- 


tion of  fact  was  at  large,  to  be  deter- 
mined upon  the  usual  rules  governing 
questions  of  fact,  made  the  remark  of 
which  complaint  is  made,  which,  road 
in  connection  with  what  preceded  it, 
must  be  accepted  as  meaning,  and  we 
think  on  the  whole  that  the  jury  must 
have  80  understood  it,  that  if  after 
looking  at  the  sidewalk  the  plaintiff 
below  walked  in  the  ordinary  way, 
turning  his  head  as  he  went  along  as  a 
man  naturally  does  who  goes  along  in 
an  ordinary  walk,  he  was  not  in  fault 
as  matter  of  law  simply  because  he 
did  not  stop  again  and  look  around  tbe 
side  of  the  car.  It  was  evidently  the 
purpose  of  the  learned  judge  to  say 
that  he  would  not  be  at  fault  as  a 
matter  of  law.  Indeed,  it  would  seem 
quite  clear  that  the  purpose  was  to 
state  that  there  was  no  rule  of  law 
which  operated  upon  the  situation,  be- 
cause it  was  further  explained  by  such 
expressions  as,  'if  tlie  plaintiff  while 
on  the  sidewalk  looked,  and  then 
walked  in  the  usual  manner  across  tl  e 
street,  looking  as  he  went,  and  then  in 
an  ordinary  walk  crossed  to  take  the 
car,'  he  was  not  at  fault  simply  be- 
cause he  failed  to  stop  again  and  look 
around.     We  think  it  reasonable  to  ac- 


Contributory  Negligence  of  Pedestrians.  571 

it  appeared  that  a  "jumper"  on  a  delivery  wagon,  before 
jumping  off,  looked  back  and  saw  no  automobile  approaching, 
but  was  struck  by  an  automobile  while  standing  beside  the 
wagon,  the  machine  having  a  clear  space  of  thirty  feet  within 
which  to  avoid  him  and  running  100  feet  farther  before  it  was 
stopped,  it  was  held  that  the  negligence  of  the  parties  was 
properly  submitted  to  the  jury.^ 

Sec.  463.  Duty  to  look  for  approaching  automobiles  —  look- 
ing back. 
One  traveling  along  or  crossing  a  street  is  not  necessarily 
required  to  look  back  for  the  approach  of  vehicles;  if  struck 
by  an  auto  his  negligence  presents  a  jury  question.®^  When 
one  is  walking  along  that  part  of  the  road  used  by  motor  vehi- 
cles, he  is  not  required  to  look  back  constantly  to  see  whether 
such  a  machine  is  approaching.™  And  one  crossing  a  street 
between  the  public  crossings  without  looking  back,  is  not 
necessarily  guilty  of  negligence,  whether  he  passes  directly 
or  diagonally.'^^  So,  too,  one  walking  along  with  a  street  car 
with  the  intention  of  boarding  it,  is  not  necessarily  negligent 
in  failing  to  look  back  for  approaching  automobiles.'^^  Thus, 
where  it  appeared  that  a  woman  was  driving  a  cow  and  calf 
along  a  rural  highway,  and  her  entire  attention  was  directed 
to  such  animals,  so  that  she  did  not  hear  the  automobile  horn 

cept   this,   not   as  an   instruction    u]  on  Wood.  264   Piv.  St.  98,  107   Atl.  658. 

the  question  of  care,   but  as   a  state-  70.  Rlaokwell    v.    Ran  wick,    21    Cal. 

ment   and   an  illustration   to   the   jury  App.    LSI,    131   Pac.  94;    Stone  v.  (iill 

that  the  question  of  the  plaintiff's  care  (Oal.  App.),  198  Pac.  640;  McKenna  v. 

was   not   controlled   against   him   by    a  Lynch    (Mo.),  233  S.  W.   175;   King  v. 

rule  of  law  which   would  of  itself  put  Hrillhart     (Pa.),    114    Atl.    515.      "It 

him    in     fault.      Taxi    Service    Co.    v.  <f'rtainly   was   not   thoir  duty  to   turn 

Phillips,  187  Fed.  734,  109  C.  C.  A.  482.  alM>ut  constanly   and   n'i>eatedly  to  ob- 

68.  Gerhard  v.  Ford  Motor  Co.,  15r,  serv<-  the  approacli  of  possible  vehicles 
Mich.  618.  119  N.  W.  904,  20  L.  R.  A.  from  the  rear  where  the  drivers  of  such 
(N.  S. )  232.  vehicles  could  plainly  observe  them  in 

69.  Sheldon  v.  James,  175  Cal.  474,  ti»>o  to  give  warning,  or  to  turn  out 
166  Pac.  82  A.  L.  R.  1493;  Cusick  v.  and  avoid  a  collision."  Blackwcll  v. 
Miller,  102  Kans.  663,  171  Pae.  599;  Kenwick.  21  Oal.  App.  131,  131  Pac.  94. 
Mears  v.  McElfish  (Md.).  114  Atl.  71.  Laniont  v.  Adams  Express  Co., 
701;  Creedon  v.  Galvin,  226  Mass.  140,  ^«-*  Pa.  17,  107  Atl.  373. 

115   N.   E.   307;    Loury  v.   Smith    (Mo.  72.  Warner  v.  Bertholf,  40  Cal.  App. 

App.),    198    S.    W.    437;    Anderson    v.       776,  ISl  Pac.  SOS. 


572  The  Law  of  Automobiles. 

if  it  was  blown,  and  continued  walking  along  the  road  with 
her  back  to  the  automobile  until  she  was  struck,  it  was  held 
that  there  was  no  duty  imposed  on  her  of  looking  or  listening 
for  the  approach  of  the  automobile.''^  And  where  it  appeared 
that  one  was  walking  along  a  sidewalk  across  a  private  drive- 
way which  led  into  a  building,  it  was  held  that  he  was  not 
necessarily  guilty  of  negligence  because  he  failed  to  look  back 
and  see  if  an  automobile  was  coming  through  the  driveway.''* 
But,  where  a  boy  nearly  twelve  years  old  sitting  on  the  tail- 
board of  a  moving  wagon  facing  the  rear,  turned  around,  and, 
facing  the  driver,  alighted  and  proceeded  to  cross  the  street 
in  a  diagonal  direction  forward  toward  his  left,  when  he  was 
struck  by  an  automobile  approaching  from  his  rear,  it  was 
held  that  he  was  not  in  the  exercise  of  due  care.''^  And  where 
one  in  crossing  a  street  was  struck  by  a  machine  backing  into 
him,  and  it  appeared  that  the  machine  made  an  extremely 
loud  and  raucous  noise  in  backing  which  should  have  attracted 
his  attention,  but  he  did  not  look,  the  jury  is  justified  in  find- 
ing him  guilty  of  negligence."'* 

Sec.  464.  Failure  to  see  approaching-  machine  after  looking- 
—  in  general. 
Though  it  may  be  negligence  per  se  for  a  pedestrian  to 
start  heedlessly  across  a  street  without  looking  in  either  direc- 
tion to  see  whether  vehicles  may  be  approaching,^^  yet,  if  he 
actually  looks,  his  negligence  in  failing  to  see  or  appreciate 
the  danger  from  a  motor  vehicle  on  the  street  may  be  a  ques- 
tion for  the  jury.''^    In  other  words,  the  sufficiency  of  his  con- 

73.  Dozier  v.  Woods,  190  Ala.  279,  Minn.  332,  173  N.  W.  668;  Fittin  v. 
67  So.  283.  Sumner,  176  App.  Div.  617,  163  N".  Y. 

74.  Tuttle  V.  Briscoe  Mfg.  Co.,  190  Suppl.  443.  See  also  Bruner  v.  Little, 
Mich.  22,  155  N.  W,  724.  97  Wash.  319.  166  Pac.   1166. 

75.  Mills  V.  Powers,  216  Mass.  36,  Automobile  ahead  of  street  car. — 
102  N.  E.  912,  Where    it    appeared   that   the    plaintiff 

76.  Sheldon  v.  James,  175  Oal.  474,  while  crossing  the  street  was  struck  by 
166  Pac.  8,  2  A.  L.  B.  1493.  the  defendant's  automobile,  which  was 

77.  Section  459.  proceeding  without  lights  and  at  negli- 

78.  Bohm  v.  Dalton,  206  111.  App.  gent  rate  of  speed,  and  the  plaintiff 
374;  Perkins  v.  Holser  (Mich.),  182  testified  that  he  saw  only  a  street  car 
N.    W.    49;    Johnson    v.    Brastad,    143  approaching,    and    when    on    the    track 


Contributory  Negligence  of  Pedestrians.  573 

duct  in  looking  and  failing  to  see  the  danger,  is  a  question 
within  the  province  of  the  jury.''^  If  the  accident  happens  in 
the  night  time,  the  absence  of  statutory  or  sufficient  lights  on 
the  machine,  may  amply  excuse  the  failure  to  observe  its  ap- 
proach.^" Testimony  on  the  part  of  one  injured  that  he  looked 
for  approaching  vehicles  before  attempting  to  cross  the  street, 
but  that  he  did  not  see  an  automobile  until  it  collided  with 
him  in  the  street,  is  not  inconceivable,  and  the  credibility  of 
the  witnesses  is  for  the  jury.^^  But,  if  the  collision  occurs 
almost  immediately  after  the  plaintiff  steps  from  the  curb, 
the  court  may  refuse  to  believe  that  he  looked  and  failed  to 
see  the  car,  and  may  charge  him  with  negligence  as  a  matter 
of  law.^2  Thus,  it  was  held  that  a  person  who  was  run  down 
by  an  automobile  could  not  recover  for  the  injuries  received 
where  he  testified  that  before  stepping  upon  the  roadway  he 
looked  and  did  not  see  the  vehicle,  and  he  had  an  unobstructed 
view  for  such  a  distance,  and  was  struck  within  such  a  short 
distance  after  stepping  upon  the  roadway,  that  the  testimony 
would  imply  that  the  automobile  was  going  at  an  impossible 

was  struck  by  the  automobile  which  59,  182  N".  Y.  Supp.  612;  Jones  v. 
then  had  come  ahead  of  the  car,  it  was  Wiese,  88  Wash.  356,  153  Pac.  330. 
held  that  the  failure  of  the  plaintiflT  "If  respondent  had  looked  at  all,  or 
to  observe  the  approaching  automobile  taken  the  slightest  heed  to  his  sur 
was  not  so  clearly  contributory  negli-  roundings,  the  sufficiency  of  his  look  or 
gence  as  to  become  a  question  of  law.  act  would  have  been  for  the  jury;  but, 
Fittin  V.  Sumner,  176  App.  Div.  617,  where  absolutely  no  precaution  is 
163  N.  Y".  Suppl  443.  taken,  there  is  nothing  for  the  jury  to 
Reason  for  plaintiff's  opinion  that  consider  upon  this  point,  and  the  law- 
he  looked. — It  is,  perhaps,  not  proper  decides  against  recoverj'."  Jones  v. 
for  the  plaintift'  to  testify  on  direct  ex-  Wiese,  88  Wash.  356.  153  Pac.  330. 
amination  as  to  his  reason  for  being  80.  Beleveau  v.  S.  C.  Lowe  Supply 
certaiii  that  he  stoppetl  and  looked  for  Co.,  200  IMass.  237,  86  N.  E  301. 
vehicles  before  attempting  to  cross  the  81.  Ottaway  v.  Gutman.  207  Mich, 
street,  the  subject  being  more  properly  393,  174  N.  W.  127;  Archer  v.  Skahen, 
a  subject  of  cross-examination,  but  it  137  Minn.  432,  163  N.  W.  784;  Miller 
is  not  reversible  error  to  permit  the  v.  New  York  Taxicab  Co.,  120  N.  Y. 
plaintiff  to  so  testify  on  direct  exami-  Suppl.  899;  Woods  v.  North  Carolina 
nation,  where  the  reason  was  that  an  Public  Senice  Co.,  174  N.  Car.  697,  94 
accident  had  befallen  his  son  while  S.  E  459.  1  A.  L.  R.  942. 
crossing  the  street  a  short  time  before  82  O'Reilly  v.  Davis,  136  N.  Y.  App. 
and  that  this  was  in  his  mind  when  he  Div.  386,  120  N.  Y.  Suppl.  883;  Stephen 
reached  the  crossing.  Segerstrom  v.  Putney  Shoe  Co.  v.  Orrasby's  Adm'r. 
Lawrence,  64  Wash.  245,  116  Pac.  876.  (Va.),  105  S.  E.  563. 
79.  Kaplan  v.  Posner,  192  App.  Div. 


574  The  Law  of  Automobiles. 

rate  of  speed,  as  such  testimony  showed  that  the  pedestrian 
did  not  look  with  the  care  required  by  law.^^ 

Where,  in  an  action  by  one  struck  by  an  automobile  while 
crossing  the  street,  the  defendant  relies  upon  a  plea  of  con- 
tributory negligence,  and  the  plaintiff  testified  that  before 
starting  to  cross  the  street  she  looked  and  listened  to  see  if 
there  were  any  vehicles  and  neither  saw  or  heard  anything 
that  would  prevent  her  from  crossing  over,  and  did  not  see 
the  automobile  which  struck  her  nor  hear  any  whistle,  horn 
or  unusual  noise  at  all,  an  instruction  that  each  is  presumed 
and  held  by  law  to  have  seen  the  other  if  both  had  an  un- 
obstructed view  of  the  street  for  a  sufficient  distance  and 
length  of  time  to  avoid  a  collision  by  the  exercise  of  ordinary 
care,  was  held  to  be  erroneous,  as  not  only  was  there  no  evi- 
dence to  support  it,  but  it  was  a  presumption  against  the  evi- 
dence and  the  law  does  not  presume  facts  which  are  disproved 
by  the  evidence.^ 

Sec.  465.  Failure  to  see  approaching  machine  after  looking 
—  view  obstructed. 

"When  the  view  of  a  pedestrian  about  to  cross  a  street  is 
obstructed,  it  is  easier  to  excuse  his  failure  to  see  an  approach- 
ing motor  vehicle.^  One  crossing  a  street  is  not  bound  to 
anticipate  that  behind  a  wagon  standing  in  the  street  is  an 
approaching  automobile  which  may  turn  past  the  wagon  as 
the  pedestrian  crosses  the  street.^^  Thus,  if  a  street  car  inter- 
venes so  that  one  does  not  see  an  automobile  approaching  on 
the  wrong  side  of  the  street,  he  is  not  guilty  of  contributory 
negligence  as  a  matter  of  law.^'  Where  one  alighting  from  a 
south  bound  street  car  passed  to  the  rear  of  such  car  and  in 
front  of  a  car  bound  in  the  opposite  direction,  and  as  she 

83.  O'Reilly  v.  Davis,   136  App.  Div.      St.  425.  88  Atl.  656. 

(N.  Y.)  386,  120  N.  Y.  Suppl.  883.  See  Elevated  railroad  pillars  may  con=^ti- 

also  Suga  v.  Haase    (Conn.).   110   Atl.  tute   such   an    obstruction    as   to   carry 

837.  the  case  to  the  jury.    Paplan  v.  Posner, 

84.  Hough  V.  Kobuseh  Automobile  192  App  Div.  59,  182  N.  Y.  Sup-pl.  612. 
Co.,  146  Mo.  App.  58,  123  S.  W.  83  86.  Pool  v.  Brown,  89  N.  J.  Law, 
See  also  Hillebrant  v.  Manz,  71  Wash.  314,  98  Atl.  262. 

250.  128  Pac.  892.  87.  Nickelson    v.    Fischer,    81    Wash. 

85.  See  Kurtz  v.   Tourison,  241   Pa.       423,   142   Pac.   1160. 


Contributory  Negligence  of  Pedestrians.  575 

cleared  the  front  of  such  car  was  struck  by  the  defendant's 
automobile,  which  was  driven  through  a  narrow  space  be- 
tween the  car  and  the  curb  without  sounding  a  horn,  it  was 
held  that  the  jury  was  justified  in  finding  that  she  was  free 
from  contributory  negligence.*^ 

Sec.  466.  Failure  to  see  approaching  machine  after  looking 
—  weather  conditions. 
Weather  conditions  such  as  a  blinding  snow  or  rain  storm 
may  under  some  circumstances  excuse  the  failure  of  a  pedes- 
trian to  see  a  motor  vehicle  until  too  late  to  avoid  a  collision 
therewith.^  Thus,  where  a  pedestrian,  in  crossing  a  street 
in  a  blinding  rain  storm,  looked  up  the  intersecting  street  but 
failed  to  see  a  fast  approaching  automobile,  or  to  distinguish 
its  lights  from  other  street  lights,  the  question  of  contributory 
negligence  is  properly  left  with  the  jury.^^  Under  such  cir- 
cumstances, even  his  failure  to  look  for  an  approaching  vehi- 
cle might  not  take  the  case  from  the  jury.^^  So,  too,  one  is 
not  guilty  of  contributory  negligence  as  a  matter  of  law. 
Avhen,  owing  to  the  storm  and  to  an  umbrella  he  is  carrying, 
he  fails  to  see  an  approaching  vehicle.^^  And  where,  in  an 
action  to  recover  for  personal  injuries,  it  appeared  that  the 
plaintiff,  having  assisted  friends  to  board  a  street  car,  started 
to  cross  the  street ;  that  she  looked  up  and  down  when  crossing 
the  first  and  second  car  tracks  and  saw  nothing  and  was  struck 

88.  Stemfield  v.  Willison,  174  App.  view  in  that  direction,  and  after  she 
Div.  842.  161  N.  Y.  Suppl  472,  where-  had  passed  the  cars,  and  before  she 
in  it  was  said:  "There  can  be  no  could  look,  the  auto  hit  her.  She  did 
doubt  of  the  defendant's  neglige:icc,  look  in  all  other  directions.  Of  course 
and  his  attorney,  while  not  conceding  she  was  not  compelled  to  accomplish 
negligence,  makes  but  little  of  that  the  impossible.  The  law  has  never  do- 
point  in  his  brief;  but  he  does  contend  manded  that.'" 

vigorously  that  the  plaintiff  was   pal-  89.  See  Booth  v.  Meagher,  224  Masa. 

pably     guilty     of     contributory     negli-  472.  113  N.  E.  367. 

gence.     He  argues  stoutly  that  she  did  90   Bruhl  v.  Amderson,  189  111.  App. 

not    look     south,     the    direction     from  461. 

which  the  auto  came.     But   this  argu-  91.  Bruhl  v.  Amderson.  180  III.  App. 

ment    seems    to    be    utterly    devoid    of  461. 

force.     She  could   not  lonk  south      The  92.  Elliott  v.  O'Rouke,  40  E.  I.  187, 

trolley    cars,    pnrticularly    the    north-  100  Atl.   314. 
bound   car,    completel}'    olxstructed    her 


576  The  Law  of  Automobiles. 

by  an  automobile  when  she  had  nearly  reached  the  curb,  and 
the  chauffeur  testified  that  plaintiff  ran  from  behind  the 
street  car  in  front  of  his  machine,  and  that  he  did  what  he 
could  to  avoid  her,  but  was  unable  to  do  so,  while  disinterested 
witnesses  testified  that  the  automobile  was  going  from  twenty 
to  thirty  miles  an  hour  and  made  no  effort  to  avoid  the  plain- 
tiff, who  was  walking,  and  that  the  impact  threw  her  ten  or 
fifteen  feet,  and  it  appeared  that  it  was  windy  with  a  flurry 
of  snow,  both  the  negligence  of  the  chauffeur  and  the  con- 
tributory negligence  of  the  plaintiff  were  held  to  be  for  the 
jury.^2 

Sec.  467.  Avoidance  of  machine  which  has  been  seen  —  right 
to  cross  street  in  front  of  approaching  vehicle. 

One  is  not  necessarily  guilty  of  contributory  negligence,  if, 
when  about  to  cross  a  street  frequented  by  motor  vehicles,  he 
looks  for  approaching  machines  and  sees  one,  but  believes 
that  it  is  safe  for  him  to  cross  the  street  before  the  car  passes 
over  the  .crossing.^*  If  the  pedestrians  on  some  busy  streets 
were  prohibited  from  passing  over  when  a  vehicle  was  in 
view,  their  right  to  cross  the  street  would  be  practically  abro- 
gated.^^ It  is,  of  course,  true  that  in  certain  cases  a  pedes- 
trian would  exercise  recklessness  in  attempting  to  cross  in 
front  of  an  approaching  car;  when  such  a  situation  is  pre- 
sented, the  court  can  find  him  guilty  of  negligence  as  a  matter 
of  law.^^  And,  when  one  is  starting  back  of  a  standing  auto- 
mobile, he  is  not  required  to  assume  that  the  machine  may  be 
backed  without  warning,  and  he  is  not  necessarily  guilty  of 
contributory  negligence  in  going  behind  the  car.®^    Wher<   the 

93.  Baker  v.  Close,  137  App.  Div.  Meagher,  224  Mass.  472,  113  N.  E.  367; 
(N.  Y.)  529,  121  N.  Y.  Suppl.  729,  O'Neill  v.  Everet,  189  App  Div.  221, 
holding  that  under  the  circumstances  179  N.  Y.  Suppl.  506;  Lamont  v. 
it  could  not  be  said  that  had  the  plain-  Adams  Express  Co.,  264  Pa.  17,  107 
tiff  looked  she  would  have  seen  the  au-  Atl.  373. 

tomobile,    so   as   to   be   guilty    of   con-  95.  Harker  v.    Gruhl,    62   Ind.   App. 

tributory    negligence    as    a    matter   of  177,  111  N.  E.  457. 

law.  96.  Folwell    v.    Demach    Motor    Car 

94.  Kessler    v.    Washbubm,    157    111.  Co.\  144  La.  783,  81  So.  313. 

App.    532;    Harker  v.    Gruhl,    62   Ind.  97.  Estrom  v.  Neumoegen,  126  N.  Y. 

App.    177,    111    N.    E.    457;    Booth    v.      Suppl.  660. 


Contributory  Negligence  of  Pedestrians.  577 

plaintiff,  as  he  was  about  to  alight  I'roiii  a  street  car,  saw  an 
automobile  about  twenty  feet  away  and  immediately  upon 
alighting  he  was  struck  by  the  automobile  which  was  stopped 
before  its  front  wheel  had  gone  over  him,  it  was  held  that  the 
evidence  was  insufficient  to  establish  his  freedom  from  con- 
tributory negligence.^^ 

Sec.  468.  Avoidance  of  machine  which  has  been  seen  —  con- 
tinual observation  of  approaching  vehicle. 
Not  only  may  one  cross  a  street  in  front  of  a  moving  vehicle 
without  his  negligence  being  conclusively  established,  but  it 
is  also  h^ld  that  he  need  not,  as  a  matter  of  law  constantly 
observe  the  vehicle.®^  AVTiether  one  is  warranted,  after  see 
ing  an  approaching  automobile  a  short  distance  away,  know- 
ing that  it  will  cross  his  line  of  travel,  in  not  further  watch- 
ing the  approach  thereof,  may  be  a  question  on  which  minds 
may  well  differ,  and  presents  a  problem  for  the  jury.'  Du^ 
care  may  require  that  he  look  out  for  defects  in  the  street, 
for  other  pedestrians,  for  street  cars,  and  for  other  vehicles, 
and  he  should  not  devote  all  his  faculties  to  the  observation 
of  a  particular  vehicle  which  he  saw  when  he  left  the  curb.^ 
He  may  properly  assume  that  the  approaching  automobile 
will  not  exceed  a  reasonable  rate  of  speed  and  that  care  will 
be  used  to  avoid  injury  to  persons  in  the  street.^ 

r 

98.  Vilicki  v.  New  York  Transporta-  law  to  look  again.  The  law  does  not 
tion  Co,  65  Misc.  (N.  Y.)  43,  119  N.  even  say  that,  because  he  sees  a  wagon 
Y.  Suppl.  220.  approaching   he  must    stop   till    it   haa 

99.  Bellinger  v.  Hughes,  31  Cal.  passed.  He  may  go  forward  until  it  is 
App.  464,  160  Pac.  838;  Harker  v.  close  upon  him;  and  whether  he  is 
Gruhl,  62  Ind.  App.  177,  111  N.  E.  nf^ligent  in  going  forward  will  be  a 
457;  Carradine  v.  Ford,  195  Mo.  App.  question  for  the  jury."  Knapp  v.  Bar- 
684,  187  S.  W.  285:   Curro  v.   Barrett,  rett,  216  N.  Y.  226.  110  N.  E.  428. 

156  N.  Y.  Suppl.  289.     "His  duty  is  to  1.  Bellinger  v.  Hughes,  31  Cal.  Api>. 

use  his  eyes,  and  thus  protect  himself  464.    160   Pac.   838;    O'Neill   v.   Everet. 

from    danger.     .     .     .     The    law    does  189   App.   Div.   221.    178  N.   Y.   Suppl. 

not  say  how  often  he  must  look,  or  pre-  506. 

cisely    how     far,    or     when,     or     from  2.  See    I.«wis   v.    Wood.    247    Pa.    St. 

where.     If,  for  example,  he  looks  aa  he  545,  93  Atl.  605. 

starts    to    cross,    and    the    way    seems  3.  Keasler    v.     Wa^hlnirn,     157     111. 

clear,  he  is  not  bound  as  a  matter  of  App.  532.     And  see  section  472 

37 


578  The  Law  of  Automobiles. 

Sec.  469.  Avoidance  of  machine  which  has  been  seen  —  mis- 
calculation of  danger. 
A  pedestrian  may  not  heedlessly  step  in  front  of  a  moving 
car;^  but  some  latitude  is  alloAved  to  a  pedestrian  who  mis- 
calculates the  danger  of  crossing  a  street  in  front  of  the  ma- 
chine.^ His  error  in  judgment  does  not  preclude  a  recovery 
if  the  machine  is  approaching  at  an  unlawful  rate  of  speed.'' 
Whether  he  is  guilty  of  contributory  negligence  in  assuming 
that  he  caji  cross  in  safety,  is  generally  a  question  for  the 
jury.''  Thus,  where  it  appeared  that  an  elderly  woman  in 
broad  daylight  attempted  to  cross  a  street  in  front  of  a  heavy 
motor  truck  then  fifty  feet  away,  it  was  held  that  her  negli- 
gence was  a  question  for  the  jury.^  But,  where  it  appeared 
that  a  plaintiff  and  two  other  ladies  were  crossing  a  corner 
diagonally,  when  they  saw  a  taxicab  coming  and  stopped  to 
let  it  pass,  but  the  plaintiff  becoming  nervous  lost  her  presence 
of  mind  and  broke  away  from  her  companions  and  attempted 
to  pass  ahead  of  the  machine  when  it  was  close  upon  her,  it 
was  held  that  a  verdict  for  the  defendant  was  proper.®  Where 

1 

4.  Bruce's  Adm'r  v.  Callahan,  185  street,  even  at  a  regular  crossing,  when 
Ky.  1,  213  S.  W.  557;  Rochfeld  v.  Cler-  a.  motor  truck,  going  'fast'  was  ap- 
kin,  98  Misc.  (N.  Y.)  192,  162  N.  Y.  proaching  at  a  distance  of  only  two 
Suppl.  1056;  Shott  V.  Korn,  1  Ohio  houses,  say  fifty  feet  away,  was  guilty 
App,  458,  34  Ohio  Circuit  Eep.  260;  of  contributory  negligence  as  a  matter 
Todesco  V.  Maas,  23  D.  L.  R.  (Canada)  of  fact.  But  the  question  is  whether 
417,  8  A.  L.  R.  187,  7  W.  W.  R.  1373.  the  plaintiff  was  guilty  of  contributory 

5.  Russell  V.  Vergason  (Conn.),  Ill  negligence  as  a  matter  of  law.  It  has 
Atl.  625;  Roohfeld  v.  Clerkin,  98  Misc.  been  very  pointedly  stated  by  the 
(N.  Y.)  192,  162  N.  Y.  Suppl.  1056;  Court  of  Appeals,  and  I  think  it  is 
Curro  V.  Barrett,  156  N.  Y.  Suppl.  289.  generally  understood  by  the  bar,  that 
See  also  Grerhard  v.  Ford  Motor  Co.,  in  these  street  crossing  eases  the  ques- 
155  Mich.  618,  119  N.  W.  904,  20  L.  R.  tion  of  the  pedestrian's  contributory 
A.    (N.  S.)    232.  negligence  is  generally  one  of  fact.    Of 

6.  Kessler  v.  Washburn,  157  111.  course  there  are  certain  extreme  cases 
App.  532;  Emery  v.  Miller,  231  Mass.  where  a  pedestrian  steps  directly  in 
243,  120  N.  E.  654.  front   of   a   vehicle  and    in   eflfect   runs 

7.  Section  487.  into  it,  in  which  the  court  is  justified 

8.  Rothfeld  v.  Clerkin,  98  Misc.  (N.  in  determining  the  question  of  the  pe- 
Y.)  192,  162  N.  Y.  Suppl.  1056.  where-  deatrian's  negligence  as  a  matter  of 
in  it  was  said:  "Of  course  it  might  law.  These  cases,  however,  are  rare." 
well  have  been  found  by  a  jury  that  9.  Brand  v.  Taxi  Cab  Co.,  129  La. 
the  plaintiff  in  attempting  to  cross  the  781,  56  So.  885. 


Contributory  Negligence  of  Pedestrians.  579 

a  boy,  who  was  riding  in  a  cart  proceeding  on  a  street  car 
track,  jumped  from  the  rear  end,  and,  seeing  an  approaching 
automobile,  either  walked  or  ran  into  its  side,  a  verdict  for 
the  injuries  will  be  set  aside  and  a  new  trial  granted  on  the 
ground  that  it  was  contrary  to  the  evidence,  plaintiff  having 
failed  to  sustain  the  burden  of  proof  that  his  conduct  did  not 
in  any  way  contribute  to  the  accident.^** 

Sec.  470.  Avoidance  of  machine  which  has  been  seen  —  state- 
ments of  companion  as  to  safety  in  crossing-. 

Where,  in  an  action  for  injuries  to  a  pedestrian  struck  by 
an  automobile,  there  was  evidence  that  he  and  his  companions, 
while  on  the  street,  took  precautions  against  injury,  evidence 
that  just  before  the  accident  one  of  the  companions  looked 
back,  and  stated  that  two  street  cars  were  coming,  and  that 
he  looked  back  a  second  time,  and  said  that  if  they  hurried 
they  could  catch  the  second  car,  was  admissible  as  bearing 
on  the  plaintiff's  case,  on  the  jury  finding  that  the  plaintiff 
was  justified  in  relying  on  his  companions." 

Sec.  471.  Reliance  on  proper  conduct  by  automobilist  —  exer- 
cise of  due  care  by  chauffeur. 
In  the  absence  of  anything  appearing  to  the  contrary,  a 
traveler  in  attempting  to  cross  a  street  has  a  right  to  assume 
that  others  using  the  highway  will  exercise  a  proper  degree 
of  care  to  avoid  injuring  him.^^    His  failure  to  anticipate  neg- 

10.  Smith  V.  Listman,  96  Misc.  Rep.       App.  717.  175  S.  W.  244. 

285,  160  N.  Y.  Suppl.  129.  New  Jersey.— Pool  v.   Brown,   89  N. 

11.  Beleveau    v.    S.   C.   Lowe    Supply       J.  Liaw,  314,  98  Atl.  262. 

Co..  200  Mass.  237,  86  N.  E.  301.  New    yorfc.— Buscher    v.    New    York 

12.  Connecticut. — Russell  v.  Verga-  Transportation  Co.,  106  N.  Y.  App. 
son,  111  Atl.  625.  Div.  493.  94  N.  Y.  Suppl.  798;   Caesar 

Indiana. — Cole     Motor     Co.     v.     Lu-  v.   Fifth  Ave.   Stao:e  Co,  45  Misc.  331. 

dorff,  61  Ind.  App.  119,  111  N.  E.  447:  90  N.  Y.   Suppl.   359. 

Gardner  v.  Vance,  63  Ind.  App.  27,  113  Pennsylvania. — Ivpwis   v.    Wood.    247 

N.  E.  1006.  Pa.    St.    545.    93    Atl.    605;    Oelrioh    v. 

Massachusetts. — Rogers  v.  Phillips.  Kent.  259  Pa.  407,  103  Atl.  109; 
206  Mass  308,  92  N.  E.  327,  28  L.  R.  .Vlackin  v.  Patterson  (Pa.),  112  Atl. 
A.  (N.  S.)  944;  Buonicouti  v.  Leo.  234  738.  "It  is.no  defense  for  one  who  in- 
Mass.  173.  124  N.  E.  791.  .jures  another  by  his  negligent  act  that 

Missouri. — Cool  v.  Peterson,  189  Mo.  (he    injured    party    did    not    anticipate 


580 


The  Law  of  Automobiles. 


ligence  on  the  part  of  the  driver  of  a  motor  vehicle  does  not 
render  him  negligent  as  a  matter  of  law.^^  He  may  assume 
that  the  driver  will  operate  his  car  not  faster  than  a  reason- 
able rate  of  speed,"  and  that  he  will  keep  a  lookout  for  foot 
travelers  and  have  the  machine  under  reasonable  control  when 
he  reaches  a  crossing  where  pedestrians  may  be  passing." 
When  one  is  standing  in  the  street  in  a  place  where  he  has  a 
right  to  be,  or  is  walking  along  the  highway,  he  can  properly 
assume  that  the  driver  of  a  motor  vehicle  will  not  run  him 
down,  but  will  avoid  contact  with  him.^^    And  he  may  also 


the  wrongdoer  •would  not  observe  or- 
dinary care,  the  failure  of  which  re- 
sulted in  the  accident.  The  failure  to 
anticipate  negligence  which  results  in 
injury  is  not  negligence,  and  will  not 
defeat  an  action  for  the  injury  sus- 
tained. A  party  is  not  bound  to  guard 
against  the  want  of  ordinary  care  on 
the  part  of  another;  he  has  a  right  to 
presume  that  ordinary  care  will  be  used 
to  protect  him  and  his  property  from 
injury."  Lewis  v.  Wood,  347  Pa.  St. 
545,  93  Atl.  605. 

Rhode  Island. — ^Marsh  v.  Boyden,  33 
R.  L  519,  83  Atl.  393,  40  L.  R.  A.  (N. 
S.)   583. 

U.tah. — Ferguson  v.  Reynolds,  176 
Pac.   367. 

Vermont. — Aiken  v.  Metcalf,  90  Vt. 
196,  97  Atl.  669.  "Moreover,  the  way- 
faring man  has  a  right  to  assume, 
nothing  to  the  contrary  appearing, 
that  the  automobile  driver  will  obey 
the  law.  .  .  .  And  this  means, 
when  applied  to  the  case  in  hand,  that 
the  plaintiff  had  a  right  to  assume  that 
the  defendant  or  any  other  automobile 
driver  would  not  drive  'in  a  careless  or 
negligent  manner.'  .  .  .  He  also 
had  the  right  to  assume  that  the  usual 
road  rules  would  be  observed,  and  that 
automobiles  would  not,  in  ordinary  cir- 
cumstances, take  the  left-hand  side  of 
the  roadway."  Aiken  v.  Metealf,  96 
vt.   196,  97  Atl.  669. 

Canada. — Toronto  General  Trusts 
Corp.  v.  Dunn,  20  Manitoba  (Can.)  413'. 


13.  McMullen  v.  Davenport  (Cal. 
App.),  186  Pac,  796;  Owens  v.  W.  J. 
Burt  Motor  Car  Co.  (Cal.  App.),  186 
Pac.  831;  Rolfs  v.  Mullins,  179  Iowa, 
1333,  163  N.  W.  783;  Kaminski  v. 
Fournier  (Mass.).  136  N.  E.  279; 
Papic  v.  Freund  (Mo.  App.),  181  S. 
W.  1161;  Oelrich  v.  Kent  (Pa.  St.), 
103  Atl.  109.  "A  person  lawfully  in  a 
public  highway  may  rely  upon  the  ex- 
ercise of  reasonable  care  by  drivers  of 
vehicles  to  avoid  injury,  and  the  fail- 
ure to  anticipate  the  omission  of  such 
care  does  not  render  him  negligent." 
Lewis  v.  Woo.d,  347  Pa.  St.  545,  93  Atl. 
605. 

14    Section  473. 

15.  McKenna  v.  Lynch  (Mo.),  233 
S.  W.  175;  Heckman  v.  Cohen,  90  N. 
J.  L.  323,  100  Atl.  695 ;  Jessen  v.  J.  L. 
Kesner  Co.,  159  N.  Y.  App.  Div.  898, 
144  K  Y.  Suppl.  407. 

16.  Wells  v.  Shepard.  135  Ark.  466, 
205  S.  W.  806;  Regan  v.  Los  Angeles 
Ice  &  Coal  Storage  Co.  (Cal.  App,), 
189  Pac.  474;  Gardner  v.  Vance,  63 
Ind.  App.  27,  113  K  E.  1006;  Burns  v. 
Oliver  Whyto  Co.,  331  Mass.  519,  121 
N.  E.  401:  Moffatt  v.  Link  (Mo. 
App.)  229  S.  W.  836;  Dervin  v. 
Frenier  (Vt.),  100  Atl.  760;  Franey 
v.  Seattle  Taxicab  Co.,  80  Wash.  396, 
141  Pac.  890:  Stephenson  v.  Parton, 
S9  Wash.  653,  155  Pac.  147;  Yanase 
v.  Seattle  Taxicab  &  Transfer  Co..  91 
Wash.  415.  157  Pac.  1076. 


Contributory  Negligence  of  Pedestrians.  581 

assume  that  the  driver  of  an  approaching  machine  will  give  a 
signal  of  warning  so  that  an  accident  may  be  avoided."  One 
crossing  a  street  is  under  no  legal  duty  to  anticipate  that 
there  is  an  approaching  automobile  behind  a  wagon  which  he 
sees ;  and,  even  though  such  duty  of  anticipation  could  be  im- 
posed on  the  foot  traveler,  he  is  not  required  to  assume  that 
the  automobile  may  attempt  to  pass  the  wagon  on  the  left  side 
of  the  street  at  a  place  where  persons  may  be  crossing  the 
street.^^ 

Sec.  472.  Reliance  on  proper  conduct  by  automobilist  —  ex- 
cessive speed. 
A  person  crossing  a  street  may  assume,  when  he  has  no  in- 
formation to  the  contrary,  that  the  driver  of  a  motor  vehicle 
will  not  operate  his  machine  at  a  speed  in  excess  of  statutory 
or  municipal  regulations  or  at  an  unreasonable  speed  under 
the  circumstances,  and  is  not  necessarily  guilty  of  contribu- 
tory negligence  because  he  relies  on  such  assumption."  When, 
however,  the  pedestrian  has  knowledge  that  an  automobile 
is  approaching  at  an  excessive  speed,  the  situation  is  changed. 
He  is  not  entitled  to  rely  on  an  assumption  which  he  knows 
is  contrary  to  the  actual  condition,  but  must  exercise  reason- 
able care  under  the  circumstances.^'^  Where  an  ordinance 
makes  it  unlawful  for  the  driver  of  an  automobile  to  pass  over 
a  crossing  at  a  greater  speed  than  four  miles  an  hour,  a  pedes- 
trian upon  a  crossing  is  entitled  to  the  prptection  afforded 
thereby.^^ 

17.  DtTvin  v.  Frenier,  91  Vt.  398,  N.  E.  369;  Kaminski  v.  Fournier 
100  Atl.  760;  Toronto  General  Trusts  (Mass.),  126  N.  E.  279:  Franey  v. 
Corp.  V.  Dunn,  20  Manitoba   (Canada)       Seattle  Taxicab  Co.,  80  Wash.  396.  141 

"412.  Pac.  890.     See  also  AtcKicrnan  v.  Leb- 

18.  Pool    V.    Brown,    89    N.    J.    Law.      maier,  85  Conn.  Ill,  81  Atl.  969. 

314,  98  Atl.  262.  20.  Rump    v.    Woods.    50    Ind.    App 

19.  Park    v.     Orbison     (Cal.    App.),  347,  98  N.  E.  369;  Becker  v.  West  Side 
184  Par.  428;    Cole  Motor  Co.  v.  Lu-  Dye  Works    (Wis.),  177  N.  W.  907. 
dorff,  61  Ind.  App.  119,  111  N.  E.  447;  21.  Ludwifj  v.  Dumas,   72   Wa<«h.  68. 
Rump  V    Woods.  50  Ind.  App.   347,  98  129  Pac,  903 


582  The  Law  of  Automobiles. 

Sec.  473.  Reliance    on    proper    conduct    by    automobilist — 
obedience  to  law  of  road. 

As  a  general  proposition,  a  pedestrian  is  not  required  to 
anticipate  that  other  travelers  will  violate  the  law  of  the 
road.22  The  general  rule  is  that  every  person  has  a  right  to 
presume  that  every  other  person  will  perform  his  duty  and 
obey  the  law,  and  in  the  absence  of  reasonable  ground  to 
think  otherwise  it  is  not  negligence  to  assume  that  he  is  not 
exposed  to  danger  which  comes  to  him  only  from  violation  of 
law  or  duty  h\  such  other  person.^^  Until  appearances  are  to 
the  contrary,  he  may  rely  on  the  assumption  that  vehicles  will 
travel  only  on  the  right-hand  side  of  the  road.^*  When  leav- 
ing the  curb  on  one  side  of  the  street,  generally  speaking,  he 
need  be  on  the  lookout  for  automobiles  coming  from  but  one 
direction;  and  when  he  passes  over  next  to  the  curb  on  the 
other  side  of  the  street,  he  need  look  only  in  the  opposite 
direction.^^  Evidence  that  the  vehicle  causing  the  injury  was 
proceeding  along  the  wrong  side  of  the  street  is,  therefore, 
admissible,  not  only  on  the  theory  that  it  tends  to  show  negli- 
gence on  the  part  of  the  driver,  but  also  on  the  ground  that 
it  relevantly  bears  on  the  contributory  negligence  of  the  per- 
son injured.^^  A  pedestrian  is  not  required  to  anticipate  that 
an  automobile  proceeding  along  behind  a  wagon  will  turn  to 

22.  Harris  v.  Johnson,  174  Cal.  55,  Atl.  87.  "Plaintiff  was  not  bound  to 
161  Pac.  1155.  anticipate  a  car  or  other  vehicle  com- 

23.  Harris  v.  Johnson,  174  f:al.  55,  ing  south  on  the  left-hand  side  of  the 
161  Pac.   1155.  street.     There  are  certain  rules  or  laws 

24.  Harris  v.  Johnson,  174  Cal.  55,  of  the  road,  the  observance  of  which 
161  Pac.  1155;  Park  v.  Orbison  (Cal.  or  reliance  upon  become  instinctive. 
App  ),  184  Pac.  428;  Lewis  v.  Tanner  The  care  of  a  pedestrian,  situate  as 
(Cal.  App.),  93  Pac.  287;  Trzetia-  plaintiff  was,  would  be  to  look  to  her 
towski  v.  Evening  American  Pub.  Co.,  right  for  cars  or  vehicles,  relying  upon. 
185  111.  App.  451;  Unmacht  v.  Whit-  the  fact  that  traffic  upon  that  side  of 
ney  (Minn.),  178  N".  W.  886;  Hall  v.  the  street  would  be  from  that  direc- 
Dilworth,  94  Misc.  (N.  Y.)  240,  157  tion."  Mickelson  v.  Fischer.  81  Wash. 
N.   Y.   Suppl.   1091;    Aiken   -"    Metcalf.  423,   142   Pac.    1160. 

90  Vt.   196,  97  Atl.   669;   Mickelson  v.  25.  Lewis    v.    Tanner     (Cal.    App.), 

Fischer,  81  Wash.   423.   142  Pac.  1160.  193  Pac.  287;  Holdman  v.  Witmer,  166 

See  also  Davis  v.  Breuner  Co.,  167  Cal.  Iowa,    406,    147   N.   W.   926;    Aiken   v. 

683,  140  Pac.   586;  New  York  Transp.  Metcalf,  90  Vt.   196,  97  Atl.  669. 

Co.  V.  Garside.  157  Fed.  521,  85  C.  C.  26.  Devine  v.  Ward  Baking  Co.,  188 

A.    285;    Benoit   v.   Miller    (R.   L),   67  111.  App.   588. 


Contributory  Negligence  of  Pedestrians.  o83 

the  left  to  i)ass  such  wagon  at  a  place  where  foot  travelers 
may  be  crossing  the  street,^  or  that  two  passing  machines 
will  be  close  together  in  violation  of  a  statute  requiring  vehi- 
cles passing  in  opposite  directions  to  give  as  nearly  as  pos- 
sible one-half  of  the  road.^^  A  pedestrian  is  not  entitled  to 
rely  on  obedience  by  a  motorist  to  a  traffic  signal  when  it  is 
apparent  that  the  motorist  is  not  going  to  obey  the  signal.^ 

Sec.  474.  Reliance  on  proper  conduct  by  automobilist  —  place 
reserved  for  pedestrian. 

One  who  is  standing  on  the  sidewalk  or  other  place  especi- 
ally reserved  for  the  use  of  foot  travelers,  may  properly  as- 
sume that  he  will  not  be  struck  by  a  vehicle.^*^  A  pedestrian 
on  a  sidewalk  has  a  right  to  assume  that  the  sidewalk  is  safe 
from  automobiles  crossing  it,  although  he  has  impaired  sight 
and  hearing.^^  When  one  has  reached  a  sidewalk,  he  has 
every  reason  to  suppose,  as  a  reasonably  prudent  person,  that 
he  has  secured  a  place  free  from  danger  from  contact  with 
an  automobile.^^  So,  too,  when  one  is  standing  in  a  ''safety 
zone,"  he  has  every  reason  to  believe  that  he  will  not  be 
struck  by  a  motor  vehicle,  and  he  may  rely  upon  the  apparent 
safety  of  such  a  place.^^ 

Sec.  475.  Reliance  on  proper  conduct  by  automobilist  —  per- 
son passing"  on  or  off  street  car. 

It  is  the  duty  of  the  operator  of  a  motor  vehicle,  when  pass- 
ing a  street  car,  to  anticipate  that  persons  will  be  passing  on 
and  off  the  car;  and  a  passenger  alighting  from  the  ear  or 
boarding  it  has  the  right  to  assume  that  the  operator  will 

27.  Pool  V.  Brown,  89  N:  J.  Law,  31.  Crawl.y  v.  .Jermain  218  Ml. 
314,  98  Atl.   262.  App.   51. 

28.  OflF  V.  Crump,  40  Cal.  App.  173,  32.  Brown  v.  Des  .Moines  Steam 
180  Pac.   360.  Bottling    Works,    174    Iowa.    715,    156 

29.  O'Brien    v.     Bieling     (Pa),     110  N.  W.  829. 

Atl.  89.  33.  Crombie    v.    O'Brian,  178    App. 

30.  See  Young  v.  Bacon  (Mo.  App),  Div.  807,  165  N".  Y.  Suppl.  858.  See 
183  S.  W.  1079.  See  also  Rearaes  v.  also  Church  v.  Lamed,  206  Mich.  77, 
Heymanson,    186    Wash. .  325,    186    Pac.  172  N.  W.  551. 

325. 


584 


The  Law  of  Automobiles. 


exercise  care  to  avoid  injury  to  him.^*  The  passenger  is, 
therefore,  not  generally  required  to  look  for  approaching 
motor  vehicles,  but  the  drivers  thereof  should  exercise  cau- 
tion to  avoid  striking  the  passenger.^^  One  getting  off  a 
street  car  may  direct  his  attention  toward  alighting  with 
safety  and  may  watch  his  step  rather  than  direct  his  atten- 
tion to  vehicles  along  the  street.^^  Thus,  it  is  generally  held 
that  where  a  street  railway  passenger  is  struck  by  an  auto- 
mobile Avhile  he  is  getting  on  or  off  the  car  or  while  he  is 
crossing  the  street  to  or  from  the  curb,  his  contributory  neg- 


34.  United  States. —  New  York 
Transp.  Co.  v.  Garside,  157  Fed.  521, 
85  C.  C.  A.  285. 

ArTcansas. — Minor  v.  Mapes.  102 
Ark.  351,  144  S.  W.  219. 

Connecticut. — Naylor  v.  Havilaud, 
88  Conn.  256,  91  Atl.  186. 

Illinois. — Kerchner  v.  Davis,  183  111. 
App.  600;  Horn  v.  Berg,  210  111.  App. 
238. 

Massachusetts. — Harnett  v.  Tripp, 
231  Mass.  382,  121  N.  E.  17. 

Minnesota. — Kling  v.  Thompson-Mc- 
Donald Lumber  Co.,  127  Minn.  468, 
149  N.  W.  947;  Zimmerman  v.  Med- 
nikoif,  165  Minn.  333,   162  N.  W.   349. 

Missouri. — Bongner     v.     Ziegenheim, 

165  Mo.  App.  328,  147  S.  W.  182. 
New  Jersey. — Galenter    v.    Peti.    114 

Atl.  408. 

New  York. — Brewster  v.  Barker,  129 
N.  Y.  App.  Div.  907,  113  N.  Y.  Suppl. 
1026;  Kalb  v.  Redwood,  147  N.  Y. 
App.  Div.  77,  131  N.  Y.  Suppl.  789: 
Co  well  V.  Saperston,  149  App.  Div.  373^ 
134  ISr.  Y.  Suppl.  ^84;  Caesar  v.  Fifth 
Ave.  Stage  Co..  45  Misc.  331.  90  N.  Y. 
Siippl.   359. 

Bhodc  Island. — Marsh  v.  Boyden.  '.3 
R.  I.  519,  82  Atl.  393. 

Texas. —  Ward  v.  Oathey  ((iiv. 
App.),  210  S.  W.  289. 

Washington. —  Yanase  v.  Seattle 
Taxicab  &  Transfer  Co.,  91  Wash.  415. 
157  Pae.  1076. 

Wisconsin. — Klokovv     v.      Harbaugh. 

166  Wis.  262,  164  N.  W.  999. 


'.'   Schenck,    25    Mont.    L.    Rep. 
18.       See    also    Maryland    Ice 


Moving  street  car. — There  is,  how- 
ever, no  duty  on  the  driver  of  an  au- 
tcnnobile  to  anticipate  that  persons 
may  jump  from  a  moving  street  car. 
and  saich  a  person  cannot  assume  that 
the  driver  will  have  his  car  under  such 
control  as  to  avoid  an  accident  under 
the  circumstances.  Brown  v.  Bra- 
shear,  22  Oal.  App.  135.  133  Pac.  505: 
Starr 
(Pa.) 

Cream  Co.  v.  Woodburn,  133  Md.   295. 
105  Atl.  269. 

35.  McGourty  v.  De  Maroo.  200 
Mass.  57,  85  X.  E.  891;  Liehecht  v. 
Crandall,  110  Minn.  454.  126  N.  W.  69. 

36.  '"Besides  looking  in  the  direction 
of  the  automobile,  the  plaintiff  had 
other  important  duties  to  perform  tf> 
protect  himself  from  danger.  While 
descending  the  steps  he  had  necessarily 
to  give  his  attention  to  them  and  to 
the  place  on  the  ground  on  which  ho 
was  to  alight.  An  equally  imperative 
duty  as  he  was  leaving  the  car  and 
moving  across  the  street  required  the 
]  laintifF  to  look  to  the  rear  of  the  ear 
for  approaching  automobiles  and  other 
vehicles.  Had  he  disregarded  this  duty 
f.nd  been  struck  by  a  horse-drawn  ve- 
hicle and  injured,  his  negfligence  would 
have  prevented  a  recovery."  Lewis  v. 
Wood,  247  Pa.  St.  545.  93  Atl.  605. 
And  see  Lithecht  v.  Crandall,  110 
Minn.  454,  126  N.  W.  69.  wherein  it 
was  said:  "While  it  is  true  that  he 
did  not,   as   he   stepped   from   the  car, 


Contributory  Negligence  of  Pedestrians. 


585 


ligence  is  a  question  for  thfe  jury."  The  passenger  is,  of 
course,  required  to  exercise  reasonable  care  under  the  circum- 
stances.^^ And  the  passenger  may  pass  around  the  rear  of 
the  street  car  and  attempt  to  cross  the  street  on  the  left  side 
of  the  car,  and  he  may  assume  that  automobilists  will  exercise 
reasonable  care  to  avoid  a  collision  with  him.^  His  position 
in  such  a  case  is  very  strong  when  the  automobile  which 
struck  him  was  proceeding  along  the  wrong  side  of  the  street.*** 
And,  particularly,  when  it  is  provided  by  statute  that  auto- 
mobiles shall  not  pass  a  street  car  until  it  has  started  and  the 
passengers  have  crossed  the  street,  the  passengers  have  a 
right  to  assume  that  chauffeurs  will  obey  the  statute;  and 
contributory  negligences  will  not  be  charged  against  one  in- 
jured merely  because  he  has  relied  on  obedience  to  the  stat- 
ute.^^    Even  if  a  passenger  before  alighting  sees  an  automo- 


look  in  the  direction  from  which  the 
automobile  was  approaching,  following 
the  car,  this  alone  is  not  suflieient  to 
charge  him,  as  a  matter  of  law,  with 
contributory  negligence.  His  attention 
at  the  moment  was  directed  toward 
alighting  from  the  car  in  safety,  and 
lie  was  not  required  to  anticipate  the 
iicglijTonce  of  defendant  in  driving  his 
automobile  at  a  reckless  rate  of  speed 
upon  him." 

37.  Mann  v.  Scott,  180  Cal.  550.  182 
Pac.  281;  Naylor  v.  TTaviland,  88  Conn. 
•-'56,  91  Atl.  186  Kasmussen  v.  Drake, 
J  85  111.  App.  526;  Walmer-Roberts  v. 
Hennessey  (Iowa),  181  N.  W.  798; 
Metzler  v.  Gould  (Me),  110  Atl.  686; 
HeflFeron  v.  Reeves.  140  Minn.  505,  167 
N".  W.  423;  Joyce  v.  Smith  (Pa.),  112 
Atl.  549:  Michalsky  v.  Putney,  51  Pa. 
Super.  Ct.  163. 

38.  Becker  v.  West  Side  Dye  Works 
(Wis.),  177  N.  W.  907. 

39.  Hall  V.  Dilworth,  94  Misc.  (N. 
Y.)  240.  157  N.  Y.  Suppl.  1091.  See 
also  Sternfeld  v.  Willison.  174  N.  Y. 
App.  Div.  842,  161  N.  Y.  Suppl.  472. 

Duty  to  look  for  machine  after  pass- 
ing in  front  of  street  car. — Wliere  one 
could  have  easily  seen  an  approaching 


motor  vehicle  after  passing  in  front 
of  a  standing  street  car,  but  he  failed 
to  look  for  approaching  vehicles,  it  was 
lield  that  he  was  guilty  of  negligence. 
Di  Stephano  v.  Smith  (R.  I.).  102.  Atl. 
817. 

40.  Link  v.  Skeeles,  207  111.  App.  48; 
Delohery  v.  Quinlan,  210  111.  App.  321; 
FTall  V.  Dilworth,  94  ]Misc  (N".  Y.) 
liO,  157  N.  Y.  Suppl.  1091. 

41.  Mann  v.  Scott,  180  (Cal.)  550. 
182  Pac.  281;  Zimmerman  v.  Med- 
nikofT,  165  Minn.  333,  162  N.  W.  349; 
Lewis  V.  Wood,  247  Pa.  St,  545.  93 
Atl.  605;  Frankel  v.  Norris.  252  Pa. 
14,  97  Atl.  104.  "Of  course,  if  he  saw 
the  machine  approaching  at  a  high 
rate  of  speed,  he  was  not  justified  in 
stepping  in  front  of  it,  but.  on  th«' 
other  hand,  ii  he  was  looking  in  the  op- 

^posite  direction  for  an  approaching  ve- 
hicle, as  he  was  required  to  do.  he 
could  act  on  the  assumption  that  the 
driver  of  the  automobile  would  olvy 
the  law  by  stopping  until  the  street 
car  was  again  in  motion,  and  he  wouM 
not  be  negligent  in  proceeding  across 
the  street."  I^ewis  v.  Wood,  247  Pa. 
St.  545.  93  Atl.  605. 


586  The  Law  of  Automobiles. 

bile  approaching,  he  may  assume  in  such  a  case  that  it  will 
obey  the  statute  and  stop  before  passing  the  street  car.^^ 

Where  a  street  car  conductor  testified  that  he  stepped  off 
the  front  end  of  his  car  while  it  was  standing  in  the  street 
for  the  purpose  of  going  to  the  rear  end  thereof  and  that  as 
he  stepped  off,  he  was  struck  by  an  automobile  proceeding 
about  three  feet  from  the  track  at  a  rate  of  from  three  to  five 
miles  an  hour,  although  there  was  a  clear  space  of  from 
twelve  to  fifteen  feet  between  the  track  and  the  curb,  it  was 
held  that  he  was  entitled  to  rely  on  the  presmnption  that  the 
drivers  of  vehicles  would  exercise  reasonable  care  to  avoid 
causing  injury  to  persons  in  the  street,  and  that  his  failure 
to  anticipate  the  omission  of  such  care  did  not  render  him 
negligent  as  a  matter  of  law.*^  And,  in  an  action  by  a  motor- 
man  against  the  owner  of  an  automobile  to  recover  damages 
for  personal  injuries,  the  questions  of  defendant's  negligence 
and  the  plaintiff's  contributory  negligence  were  held  to  be 
for  the  jury,  where  the  evidence  tended  to  show  that  the  plain- 
tiff alighted  from  his  car,  and  while  it  was  not  in  motion 
looked  up  and  down  the  street,  then  passed  behind  the  car  to 
cross  to  the  other  side  of  the  street  and  was  immediately 
struck  on  the  leg  by  defendant's  automobile,  which  was  being 
driven  at  a  high  rate  of  speed,  within  a  few  inches  of  the  side 

42.  Lewis  v.  Wood,  247  Pa.  St.  545,  ing  in  the  direction  in  which  hia  car 
93  All.  605.  was   to   proceed,   as   any   person  would 

43.  Caesar  v.  Fifth  Avenue  Coach  ordinarily  do  under  the  same  circum- 
Co.,  45  M'isc.  (N.  Y.)  331,  90  N.  Y.  stances,  and  so  did  not  observe  the  au- 
Suppl.  359,  whereinit  was  said:  "The  tomobile.  According  to  the  statem«nts 
question  of  the  plaintiff's  contributory  of  his  witnesses  the  automobile  was 
negligence  was  also  properly  left  to  the  then  from  twelve  to  fifteen  feet  distant 
jury.  Assuming  that  the  car  was  at  to  the  north,  and  not  brea^  of  the  car, 
a  standstill,  as  the  jury  could  very  well  with  tlie  clear  space  already  alluded, 
find  from  the  evidence,  the  operator  of  to  west  of  the  track.  He  had  a  right 
the  automobile  could  reasonably  apprc-  tc  rely  upon  the  exercise  of  reasonable 
hend  the  departure  of  persons  from  the  rare  of  drivers  of  vehicles,  to  avoid 
ear.  The  plaintiff  Avas  at  all  times  en-  causing  injury  to  persons  in  t)ie  street, 
gaged  in  the  performance  of  hi«  duty  uiid  his  failure  to  anticipate  the  omis- 
and  this  required  him  to  go  from  t'  e  sion  of  such  care  did  not  render  him 
forward   end    of    the   ear   to   the    rear.  iKgligent." 

He  chose  the  street  as  a  means,  look- 


Contributory  Negligence  of  Pedestrians.  587 

of  the  car,  and  in  a  narrow  space  between  the  car  and  the 
curb.''^ 

But  where  a  passenger  alights  from  a  street  car,  it  is  his 
duty  to  look  where  he  is  going,  and  not  to  rush  blindly  into 
danger.  Such  a  person  is  not  relieved  from  the  charge  of 
contributory  negligence  if,  without  looking,  he  takes  two 
steps  from  the  car  and  then  suddenly,  seeing  an  automobile, 
stops  and  is  run  down  and  injured.*^ 

Sec.  476.  Stopping  in  street. 

One  is  not  necessarily  guilty  of  contributory  negligence  be- 
cause he  is  standing  in  the  street  when  he  is  struck  by  a  motor 
vehicle.  When  one  is  lawfully  standing  in  the  street,  and  no 
obstacle  intervenes  between  such  person  and  the  driver  of 
an  approaching  automobile,  the  duty  is  imposed  on  the  driver 
to  avoid  a  collision  and  not  run  down  the  foot  traveler.^*'  A 
person  has  the  right  to  use  the  street  for  the  purpose  of 
boarding  a  street  car,^^  or  waiting  for  a  train  ;*^  and  his  con- 
duct in  standing  in  the  street  for  such  a  purpose,  is  not  negli- 
gence per  se.^^  While  such  a  person  cannot  be  entirely  ob- 
livious to  his  surroundings,  he  is  not  necessarily  guilty  of 
negligence  because  he  does  not  look  or  see  or  hear  the  ap- 
proaching machine.^  Nor  is  one  negligent  in  stopping  in  the 
street  to  permit  a  street  car  to  pass,  for  the  law  does  not  re- 
quire one  to  return  to  the  sidewalk  under  such  circumstances.^ 

44.  Dugan  v.  Lyon,  41  Pa.  Super  Ct.  Works,  157  Wis.  531.  147  N.  W.  1014. 
5'^*  50.  Walmer-Roberts      v.      Hennessey 

45.  Kauffman  v.  Nelson,  225  Pa.  St.  (Iowa),  181  N.  W.  798:  Arseneau  v. 
174.  73  Atl.  1105.  Sweet.   106  Minn.  257,  119  N.  W.  46. 

46.  Kathmeyer  v.  Mehl  (N.  J.).  60  Violation  of  ordinance.— ^Vliere  a 
Atl.  40;  Lewis  v.  Seattle  Taxicab  Co.,  person  was  struck  while  lie  wa>  gather- 
72  Wash  320,  130  Pac.  341;  Stephen-  ing  kindling  wood  which  had  been 
son  V.  Parton,  89  Wash.  653.  155  Pac.  dumped  near  the  curb,  it  was  held  that 
147 ;  Ouellette  v.  Superior  Motor  &  M.  he  was  barred  from  recovery  on  account 
Works.  157  Wis.  531,  147  N.  W.  1014.  of  his  violation  of  an  ordinance  re- 
And  see  section  439.  quiring    the    display    of    a    light    over 

47.  Wellington  v.  Reynolds,  177  Ind.  such  a  pile  of  wood.  Holut  v.  Coot- 
549.  97  N.  E.  155.  ware,  169  Wis.   176.   170  N.  W.  939 

48.  Fong  Lin  v.  Robert,  (C.nJ.  App.).  51.  Arnaz  v.  Forbes  (Cal.  App.  >.  197 
195  Pac.  437.  Pac.     364;     Melville    v.    Rollw.igr.     171 

49.  Ouellett<>  v.  f?uperior  Motor  4  M.  Ky.  607.  188  S.  W.  638 


588  The  Law  of  Automobiles. 

He  may,  however,  be  guilty  of  iiegiigeiiee  where  he  starts 
back  to  the  curb  and  does  not  look  for  approaching  vehicles.^^ 
So,  too,  a  pedestrian  is  not  negligent  per  se  because  he  stands 
in  the  road  conversing  with  the  driver  of  a  team,^^  or  because 
he  is  standing  beside  a  wagon  of  watermelons  mth  the  inten- 
tion of  purchasing  one.^*  And,  in  case  of  rain,  an  automo- 
bilist  may  stop  his  machine  and  get  out  to  put  up  the  top; 
and,  if  he  is  struck  by  another  machine  while  thus  working  in 
the  road,  and  it  appears  that  there  is  plenty  of  room  for  the 
latter  to  avoid  the  injury,  contributory  negligence  is  not  to 
be  charged  as  a  matter  of  law.^^  Similarly,  if  an  automo- 
bilist  or  his  guest  gets  out  of  his  machine  because  of  a  punc- 
tured tire  or  other  difficult}^,  while  standing  in  the  road  by 
the  machine,  he  is  not  required  to  anticipate  and  be  on  his 
guard  to  avoid  injury  from  another  machine.^^  When  one 
standing  in  the  street  heedlessly  steps  back  in  front  of  an 
approaching  vehicle,  he  may  be  guilty  of  negligence  as  a 
matter  of  law;^''  but,  when  a  collision  results  because  both  the 
pedestrian  and  the  operator  of  the  machine  changed  their 
course  in  several  different  ways  to  avoid  the  impending  col- 
lision, the  foot  traveler  is  not  necessarily  guilty  of  negli- 
gence.^^ Where  one  crossing  a  street  in  a  northwesterly  di- 
rection toward  an  alley  observed  an  automobile  approaching 
from  the  Avest,  and  on  reaching  the  curb  he  noticed  that  the 
automobile  was  about  to  turn  into  the  alley,  and  instead  of 

52.  Todesco    v.    Maas,    23    D.    L.    R.  54.  Wells  v.   Shepard.   135  Ark.  466, 
(Canada)  417,  8  A.  L.  E.  187,  7  W.  W.       205  S.  W.  806. 

R.  1373.  55.  Deitchler  v.   Ball,  99  Wash.  483, 

53.  Kathmeyer  v.   Mehl    (N.   J.),   60       170  Pac.  128. 

Atl.    40.    wherein    the    court   expressed  56.  Coffman    v.    Singh    (Cal.    App.), 

its   views    as    follows:      "Certainly    he  193     Pac.     259;      Hanser     v.     Youngs 

had  no  reason  to  suppose  that,  merely  (Mich.),    180    N.    W.    409;    Walder    v. 

because  he  was   standing  in  the  road-  Stone     (Mo.    App.),    223    S.    W.    136; 

way,    he   would    be    run    down    by   the  Humes   v.    Schaller.    39    R.    T.    519,    99 

Tccklessness  of  the  driver   of  an   auto-  Atl.  55. 

mobile.      He    was    lawfully    there,    and  57.  Stephenson   v.    Parton.   89   Wash, 

any    person    using    the    highway    was  653,  155  Pac.  147. 

bound   to   take   notice   of  him,   and   to  58.  Heartsell    v.     Bellows,    184     Mo. 

use   cart;   not   to   injure   him,    and   the  App.    420,    171    S.    W.    7;    Cbughlin    v. 

plaintiff  had  a   right  to  assume  that  Weeks,    75   Wash.    568,    135   Pac.    649. 

this  would  bo  done."  And  see  section  421. 


Contributory  Negligence  of  Pedestrians.  589 

continuing  his  course  in  a  northwesterly  direction  across  the 
alley  he  stepped  to  a  point  on  the  sidewalk  near  a  fence  on 
the  property  line  about  two  and  one-half  feet  east  of  the  alley 
curb,  where  he  was  struck  by  the  machine,  it  was  held  thai 
the  fact  that  he  could  have  avoided  injury  by  stepping  in  an- 
other direction  or  by  having  continued  in  his  original  course 
did  not  render  him  guilty  of  contributory  negligence/^  And 
where  one  is  sitting  in  a  chair  in  the  street  near  the  curb  and 
does  not  move  when  he  sees  an  approaching  car,  he  may  be 
charged  with  negligence.*'" 

Sec.  477.  Watching  auto  race. 

Where  a  spectator  who  was  watching  an  auto  race  on  fair 
grounds  was  injured  by  a  car  leaving  the  track  and  bursting 
through  a  wooden  guard  fence,  it  was  held  that  ho  was  not 
guilty  of  negligence  in  standing  by  the  fence  surrounding  the 
track,  where  that  was  the  only  place,  other  than  the  grand- 
stand, from  which  the  races  could  be  viewed.^^  And  one  at- 
tempting to  cross  a  race  track  on  the  grounds  may  have  his 
negligence  submitted  to  the  jury.^^ 

Sec.  478.  Children  —  in  general. 

A  motorist  should  bear  in  mind  the  lack  of  judgment  of 
children  of  immature  years  and  is  bound  to  operate  his  ma- 
chine in  accordance  therewith.^^  And,  on  the  question  of  their 
contributory  negligence,  judgment  is  not  passed  on  their  con- 
duct with  the  same  strictness  as  in  the  case  of  adults  in  the 
streets."*  Children  are  not  regarded  as  possessing  the  same 
mental  capacity  to  appreciate  the  dangers  incident  to  the  use 
of  the  public  thoroughfares  as  those  of  mature  age.  What  is 
required  of  a  child  is  that  it  shall  exercise  the  same  degree  of 
care  as  would  be  exercised  by  a  reasonably  careful  child  of 

59.  Kuchler  v.  Stafford,  185  111.  App.  63.  Section  418. 

199.  64.  Indian   Refininff  Co.   v.  Marcnim 

60.  Scott  V.  Dounson,  148  La.  — ,  86  (Ala  ),  88  So.  44.5;   Burlie  v.  Stephens 
So    821.  (Wash.),  193  Pac.  684:  Quinn  v.  Ross 

61.  Arnold  v.  State.  163  N.   Y.  App.  Motor   Car  Co..   157   Wis.   543.   147  N. 
Div.  253.   148  N.  Y.  Suppl    479.  W.  100, 

62.  Mankin  v.  Bartlcv,  266  Fed.  466. 


590 


The  Law  of  Automobiles. 


the  same  age  and  intelligence.^^  The  degree  of  care  required 
is  such  as  is  conunensurate  with  his  years  and  intelligence.^^ 
This  requirement  may,  of  course,  result  in  a  finding  that  a 
child  in  the  street  was  guilty  of  contributory  negligence  which 
contributed  to  its  injury .^^  But  generally  the  negligence  of 
the  child  is  a  question  for  the  jury.^»  Thus,  whether  a  child 
six  years  old  playing  in  the  street  is  guilty  of  contributory 
negligence  presents  a  question  within  the  province  of  the 
j^py  69    And,  it  has  been  held  that  whether  contributory  negli- 


65.  California. —  Todd  v.  Orcutt 
(Cal.  App.),  183  Pae.  963. 

Connecticut. — Kisbalaski  v.  Sulli- 
van, 108  Atl.  538;  Schrayer  v.  Bishop 
&  Lyons,  92  Conn.  677,  104  Atl.  349; 
Streetman  v.  Bussey  (Ga.  App.).  104 
S.  E.  517. 

Kansas. — Routh  v.  Weakley,  97  Kan. 
74,  154  Pac.  218. 

Kentucky. — Collet  v.  Standard  Oil 
Co.,   186  Ky.  142,  216  S.  W.  356. 

Minnesota. — Roberts  v.  Ring.  143 
Minn.  151,  173  N.  W.  437. 

New  York. — Jacobs  v.  Koehler,  S.  G. 
Co.,  208  N.  Y.  416,  102  N.  E.  519; 
Gross  V.  Foster,  134  N.  Y.  App.  Div. 
243,  118  N.  Y.  Snppl.  889. 

Oregon. — Ahonen  v. .  Hryszko,  90 
Dreg.  451,  175  Pac.  616. 

Pennsylvania. — Edelman  v.  Ck>nnell, 
257  Pa.  317,  101  Atl.  653. 

Utah. — Herald  v.  Smith,  190  Pac 
932. 

Wisconsin. — Quinn  v.  Ross  Motor 
Car  Co.,  157  Wis.  543,  147  N.  E.  100. 

66.  Miller  v.  Flash  Chemical  a>., 
230  Mass.  419.  119  N.  E.  702. 

67.  Illinois. — ^Carlin  v.  CTark,  172 
111.  App.  239. 

Maine. — ^Moran  v.  Smith .  114  Me.  55, 
95  Atl.  272. 

Massachusetts. — Mills  v.  Powers,  216 
Mass.  36,  102  N.  E.  912. 

New  York. — Paul  v.  Clark,  161  App. 
Div.  456,  145  N.  Y.  Suppl.  985 ;  Marius 
V.   Motor   Delivery   Co.,    146    App.   Div 


(J08,  131  N.  Y.  Suppl.  357. 

Rhode  Island. — Curley  v.  Baldwin,  90 
Atl.  1. 

Washington. — Daugherty  v.  Metro- 
politan Motor  Car  Co ,  85  Wash.  105, 
147  Pac.  655. 

68.  Alabama. — Reaves  v.  Maybank, 
193  Ala.  614,  69  So.  137. 

Connecticut. — Lynch  v.  Shearer,  83 
Conn.  73,  75  Atl,  88;  Duff  v.  Husted, 
111   Atl.  186. 

Illinois. — ^Krug  v.  Walldren  Expre.59 
&  Van  Co.,  214  111.  App.  18. 

Kansas. — Routh  v.  Weakley,  97  Kan. 
74,  154  Pac.  218. 

Kentucky. — Akers  v.  Fulkerson,  153 
Ky,  228,  154  S,  W.  1101. 

Massachusetts. —  Rasmussen  v. 

Whipple,  211  Mass.  546,  98  N.  E.  592; 
Patrick  v.  Deziel,  223  Mass.  505,  112 
N.  E.  223;  Cowles  v.  Springfield  Gas- 
light Co.,  234  Mass.  421,  125  N.  E. 
589. 

New  York. — Gross  v.  Foster,  134  N. 
Y.  App.  Div.  243,  118  N.  Y.  Suppl. 
889;  Bohringer  v.  Campbell,  154  N.  Y. 
App.  Div.  879,  137  N.  Y.  Suppl.  241. 

Vermont. — Dervin  v.  Frenier,  91  Vt. 
398,  100  Atl.  760. 

Washington. — Bruner  v.  Little,  97 
Wash.  319,  166  Pac,  1166. 

69.  Meserve  v.  Libby,  115  Me.  282, 
98  Atl.  754;  Thies  v.  Thomas,  77  N.  Y. 
Suppl.  276.  See  also  Barger  v.  Bissell, 
188  Mich.  366,   154  N.  W.  107. 


Contributory  Negligence  or  Pedestrians.  591 

gence  can  be  attributed  to  a  child  eleven  years  old,  is  a  jury 
question."** 

Sec.  479.  Children  —  application  of  rules. 

A  child  thirteen  years  of  age  who  runs  across  a  public 
street  without  loojiing  for  any  vehicle  which  might  be  coming 
has  been  held  to  be  guilty  of  contributory  negligence  preclud- 
ing recovery  for  injuries  received  by  being  run  down  )jy  an 
automobile,''^  as  has  also  a  child  of  eleven  who  while  playing 
in  the  street  suddenly  turned  and  darted  in  front  of  an  auto- 
mobile.'^^  So,  too,  where  a  child  nine  years  old  was  playing  in 
the  street  and  having  a  good  view  in  both  directions  started 
across  the  street  passing  from  behind  a  wagon  in  the  path 
of  an  automobile,  it  was  held  that  he  was  negligent.''^  And 
where  a  child  eight  years  of  age  left  a  place  of  safety  and 
started  to  run  across  the  street  in  front  of  an  approaching 
automobile,  which  struck  him,  it  was  held  that  he  was  guilty 
of  contributory  nfigligence  precluding  a  recovery."^  Simi- 
larly, where  a  child,  four  years  of  age,  accompanied  by  his 
sister  ran  from  her  into  the  street  where  he  was  struck  by  an 
automobile,  the  driver  was  held  not  to  be  negligent,  it  ap- 
pearing that  he  made  every  effort  to  stop  the  car  when  he 
saw  the  act  of  the  child.^^  Likewise,  where  a  boy  nearly 
twelve  years  old  sitting  on  the  tail  board  of  a  moving  wagon 
facing  the  rear  turns  around  and  facing  the  driver  alighted 
from  the  wagon  and  proceeded  to  cross  the  street  in  a  diagonal 
direction  forward  toward  his  left,  when  he  was  struck  by  an 
automobile  approaching  from  the  rear,  it  was  held  tliat  he 
was  not  in  the  exercise  of  due  care.'^^  In  another  case,  where 
there  was  a  large  crowd  gathered  around  a  patrol  wagon  in 
a  street  and  a  boy  hastening  to  the  scene  was  struck  as  he  had 

70.  Rule   V.    Claar   Transfer   &    Stor-       2"),  99  Atl.  719. 

age  Co,   102  Neb.  4,  165  N.  W.  883.  74.  >roran   v.  xSniitli.    114   Mc.   55,  95 

71.  Zoltovski    V.    Gzella,    159    Mich.      Atl.  272. 

620,    124   N.   W.   527.   26  L.   R.   A.    (N.  75.  Paul    v.    Clark,    161    N.    Y.    App. 

S  )    435.  Div.  456,   145  N.  Y.   Suppl.  985. 

72.  Hargrave  v.  Hart.  9  l)<>rii.  I.^i\v  76.  Mills  v.  Powers,  216  Mnas.  36, 
Rep.   (Canada)   521.  102  N.  E.  912. 

73.  Levesque    v.     Dumont,     1 1(>    Me. 


592  The  Law  of  Automobiles. 

stepped  about  three  or  four  feet  from  the  curb  by  an  auto- 
mobile going  in  the  same  direction  but  on  the  wrong  side  of 
the  street,  the  court  declared  that  had  the  defendant  been 
duly  observant  he  would  have  noticed  that  the  course  of  the 
boy  was  convergent  with  his  own ;  that  there  was  no  question 
of  contributory  negligence,  and  that  even  if  there  was  con- 
tributory negligence  the  defendant  would  be  responsible 
under  the  last  clear  chance  doctrine,  for  had  he  been  looking, 
as  he  was  legally  bound  to  be  doing,  he  would  have  seen  the 
boy  and  seen  that  he  was  unaware  of  the  danger  into  which 
he  was  going.'^'^ 

Where  it  appeared  from  the  evidence  that  the  automobile 
was  on  the  proper  side  of  the  street,  in  the  middle  of  the 
block,  proceeding  at  a  moderate  rate ;  that  the  boy  must  have 
seen  it  if  he  had  looked;  that  the  roadway  was  clear  in  front 
of  it;  that  the  boy,  interested  in  catching  the  ball,  suddenly 
ran  from  the  sidewalk  on  the  south  side  of  the  street,  where 
he  was  in  a  place  of  safety,  immediately  in  front  of  the  ma- 
chine at  a  distance  variously  stated  from  four  to  twelve  feet ; 
that  the  automobile  was  stopped  so  that  its  Avheels  skidded 
and  only  proceeded  five  feet  beyond  the  body  of  the  boy,  the 
court  declared  that  it  was  unable  to  find  any  negligence  on 
the  part  of  the  defendant,  but  did  find  contributory  negli- 
gence on  the  part  of  the  deceased.'* 

If  an  automobile  comes  upon  a  boy  in  such  a  way  as  to 
produce  terror,  and  his  fear  causes  an  error  of  judgment  by 
which  he  runs  in  front  of  the  automobile,  he  is  not  guilty  of 
contributory  negligence.'^  In  an  action  for  the  death  of  a 
boy  run  over  by  a  motor  car,  the  fact  that  the  accident  did 
not  happen  at  a  street  crossing,  but  at  a  point  between  blocks, 
may  be  considered  by  the  jury  on  the  issue  of  negligence.^'* 
As  bearing  upon  the  question  of  the  negligence  of  the  driver 
of  an  automobile  evidence  is  also  properly  admissible  that 

77.  Burvant  v.  Wolfe,  126  La.  787,  79.  Thies  v.  Thomas,  77  N.  Y.  Suppl. 
52  So.  1025,  29  L.  R.  A.    (N.  S.)   677.  276. 

78.  Jordan  v.  American  Sight-Seeing  80.  Thies  v.  Thomas,  77  N.  Y.  Suppl. 
Coach    Co.,   129   K   Y.   App.   Div.    313,  276. 

113  N.  Y.  Suppl.  786. 


Contributory  Negligence  of  Pedestrians.  593 

there  were  a  number  of  children  in  the  street  and  that  the 
machine  approached  them  at  a  "very  fast"  rate.^^ 

Where  the  plaintiff's  evidence  tended  to  show  that  his  in- 
testate, a  boy  eleven  years  old,  started  to  run  across  the 
street,  without  looking  in  either  direction ;  that  he  was  struck 
and  fatally  injured  by  an  automobile,  running  at  an  excessive 
speed,  on  the  wrong  side  of  the  road,  and  that  no  signal  had 
been  sounded  since  it  passed  a  point  four  hundred  feet  away, 
it  was  held  that  the  jury  were  entitled  to  determine  whether 
the  boy  exercised  such  care  as  could  be  reasonably  expected 
of  one  of  his  age,  judgment  and  experienced^  But  it  has  been 
held  improper  to  instruct  the  jury,  in  an  action  for  an  injury 
to  a  boy  seven  years  of  age,  that  it  is  a  question  for  them  to 
settle  "whether  or  not,  having  seen  the  boy  as  they  say  they 
did  seventy-five  feet  away,  it  was  not  their  duty  to  decrease 
the  speed  of  the  machine  so  as  to  have  it  under  such  reason- 
able control  as  would  enable  them  to  stop,  if  necessary,  in 
order  not  to  run  against  the  boy,  even  if  the  boy  was  acting 
in  the  most  careless  way  possible  and  running  in  front  of  the 
machine.^2  As  to  this  charge  it  was  said :  ' '  This  instruction 
eliminated  all  question  of  contributory  negligence  on  the  part 
of  the  plaintiff,  and  in  effect  charged  the  jury  that  the  ma- 
chine must  be  under  such  control  that  the  defendant  could 
immediately  stop  it  if  the  plaintiff,  by  the  most  careless  act 
possible,  heedlessly  came  in  contact  with  the  machine.  Under 
the  charge,  if  the  driver  saw  the  boy  standing  motionless  in 
the  road,  and  not  within  the  line  of  the  course  he  was  follow- 
ing looking  directly  at  him  as  he  approached,  he  would  be 
liable  for  the  injuries  caused  by  striking  plaintiff,  even  if  he 
suddenly  and  in  the  most  careless  manner  ran  in  front  of  the 
machine  as  it  came  near  him.  The  instruction  amounted  to  a 
direction  of  a  verdict  for  the  plaintiff,  because  the  evidence 
was  conclusive  that  the  defendant  did  not  have  such  control 
of  the  machine  as  to  stop  it  and  prevent  a  collision,  if  the  boy 
was  acting  in  the  most  careless  manner  possible." 

81.  Cedar  Creek  Store  Co.  v.  Stead-  83.  Verdoii  v.  Crescent  Automobile 
ham,   187  Ala.  622,  65  So.  984.  Co..  80  N.  J.  L.  199.  76  Atl    346. 

82.  Lyncl)    v.    Shearer,   83   Conn.    73,  84.   Per  Bergen,  J. 
75  Atl.  88. 

38 


594 


The  Law  or  Automobiles. 


Sec.  480.  Children  —  children  non  sui  juris. 

Children  of  very  tender  years,  such  as  in  law  are  considered 
non  sui  juris,  are  not. chargeable  with  contributory  negligence 
from  their  own  conduct  ;«5  i^^t  in  their  cases,  the  negligence  of 
parents  or  of  those  having  guardianship  is  imputed  to  them.«« 
But  the  mere  fact  that  a  six  year  old  child  was  playing  in  the 
street  is  not  per  se  negligence  on  the  part  of  its  parents,  but 
a  question  for  the  jury  is  presented.^'     Nor  are  the  parents 
of  a  school  child  guilty  of  any  negligence  in  permitting  it  to 
go   to   school   unattended.^^     Negligence   may,   however,   be 
charged  against  a  parent  permitting  a  child  of  tender  years 
to  cross  a  street  unaccompanied.^^    But,  it  is  not  necessarily 
contributory  negligence  on  the  part  of  parents  of  a  child  over 
eight  years  old  who  permit  it  to  cross  a  street  unattended.^<> 
The  question  of  negligence  in  such  cases  necessarily  depends 
upon  the  amount  of  traffic,  the  obstructions  to  the  view,  and 


85.  Alabama. — Hood  &  Wheeler  Fur- 
niture Co.  V.  Royal  (Ala.  App.),  76  So. 
965. 

Connecticut. — Duff    v.     Husted,     111 

Atl.  186. 

Illinois. — Smith  v.  Tappan,  208  111. 
App.  433. 

Indiana. — J.  F.  Darmondy  Co.  v. 
Reed,  111  N.  E.  317. 

Michigan. — Beno  v.  Kloka,  178  N. 
W.  646. 

New  York. — Jacob.s  v.  Koehlcr  S.  G. 
Co.,  208  N.  Y.  416,  102  N.  E.  519. 

Oregon. — ^Ahonen  v.  Hryszko,  90 
Oreg.  451,  175  Pac.  616. 

F?outh  Carolina. — King  v.  Holiday, 
108  S    E.   186. 

Nine  years  old. — ^It  is  a  question  for 
the  jury  to  determine  whether  a  child 
between  nine  and  ten  year.s  of  age  is 
sui  juris.  Gunsburger  v.  Kristeller, 
189  App.  Div.  82,  179  N.  Y.  Suppl    506. 

86.  Miller  v.  Flash  Chemical  Co.,  230 
Mass.  419,  119  N.  E.  702;  Sullivan  v. 
Chadwick.  127  N.  E.  632. 

87.  Thies  v.  Thomas  77  N.  Y.  Suppl. 
276.  "That  the  deceased  was  sui  juris 
is   clear,  but  that   an   infant  wherever 


he    becomes    sui    juris    is    required    to 
exercise  the  same  degree  of  caution  aa 
an  adult  is  not  the  law  of  this  State. 
.     .     .     We  think  the   rules  governing 
the   contributory   negligence  of   infants 
are  very  well   settled  by  the  decisions 
of   this    court,    though    these    rules    do 
not  obtain  in  many  other  jurisdictions. 
An  infant  may  be  of  such  tender  years 
as   to  be   incapable   of   personal   negli- 
gence.     At    such    age    the    infant    is 
termed   non   sui   juris,   but    if   not   re- 
sponsible  for    its   own   negligence,   the 
negligence  of  its  parents  or  guardians 
in  suffering  it  to  incur  danger  may  be 
imputed  to  it.     This  is  what  is  called 
the    doctrine    of    imputed    negligence." 
Jacobs  V.  Koehler  S.  G.  Co.,  208  N    Y. 
416,  102  N.  E.  519. 

88.  Tripp  V.  Taft,  219  Mass.  81,  106 
N.  E.  578. 

89  Kuehne  v.  Brown.  257  Pa.  37. 
101  Atl.  77.  Compare  Miller  v.  Flash 
Chemical  Co.,  230  Mass.  419,  119  N".  E. 
702. 

90.  Bruner  v.  Little,  97  Wa.sh.  319, 
166  Pac.  1166. 


Contributory  Negligence  of  Pedestrians.  595 

other  surrounding  circumstances,  as  well  as  the  age  and  in- 
telligence of  the  child.^^  The  question  is  generally  for  the 
j^j.y  92  ^r^en  a  child  is  too  young  to  have  any  intelligence  or 
discretion  about  taking  care  of  itself  in  a  public  street,  and 
when  it  has  carelessly  been  allowed  to  go  there  unattended, 
still  while  upon  the  street  it  may  have  done  nothing  which 
would  be  deemed  dangerous  or  lacking  in  due  care,  provided 
its  movements  had  been  directed  by  an  adult  person  of  reason- 
able and  ordinary  prudence  in  charge  of  it,  and  yet  it  may 
have  been  hurt.  Under  such  circumstances,  it  may  recover 
damages  for  the  injury .^^ 

Sec.  481.  Persons  under  disability. 

The  fact  that  a  pedestrian  is  under  some  disability  is  con- 
sidered on  the  question  whether  he  has  acted  with  the  degree 
of  care  required  by  the  law.  A  blind  person  is  entitled  to 
use  the  streets  and  is  not  guilty  of  negligence  in  so  doing,  the 
law  requiring  him,  however,  to  use  ordinary  care  under  the 
circumstances.^*  And  a  similar  situation  exists  in  the  case 
of  a  person  who  is  deaf.®^  Likewise  a  beggar  on  his  crutches 
has  the  right  to  use  the  streets,  being  required  to  exercise 
reasonable  care  under  the  circumstances  for  his  safety .^^  So 
the  fact  that  a  pedestrian  was  intoxicated  at  the  time  of  the 
injury  may  be  considered  as  bearing  both  upon  the  question 
of  whether  he  was  exercising  the  required  care  at  that  time 
and  upon  the  degree  of  care  exercised  by  the  driver  of  the 
automobile.^''     One  with   impaired   sight  and  hearing  who, 

91.  Six  years  old. — It   is  not   neces-  Sullivan  v.  Chadwick    (Mass.).   127  N. 

sarily   negligent   for  the    parents   of   a  E    632. 

child  to  permit  it  to  cross  a  street  on  94.  McLaughlin  v.  Griffin,  155   Iowa, 

an  errand,  where  the  locality  was  one  302,  135  N.  W.  1107.     See  also  HefTeron 

in    which    there   was    little   traffic    ex-  v.  Reeves  (Minn.),  167  N.  W.  423. 
cept  by  pedestrians,  and  the  child  was  95.  Furtado   v.    Bird.    26   Colo.    A  pp. 

accustomed   to   cross   the   street  on   its  153.  146  Pac.  58. 

way    to    school.      Yeager    v.    Gatelj-    &  96.  Millsai>s     v.     Brogdon,     97     Ark. 

Fitzgerald,  Inc  ,   262  Pa.  466,   106   Pa.  469,  134  S.  W.  632. 
76.  97.  GrifTcn    v.    Wood.    93    Conn.    99. 

92    Hughey    v.    Lennox     (Ark.).    219  105  Atl.  354;   Brown  v.  City  of  Wi!m 

S.    W.    323;    Arkin    v.    Page,    212    111.  ington.  4  Boyco   (Del.)   492.  90  Atl.  44 ; 

App.  282.  ITorzig  v.   Sandberg    (Mont.).   172  Pac. 

93.  Wiswell   v.   Doyle,   160   Mass.  42,  132. 
35   N.   E.    107,   39   Am.  St.   Rep.   451; 


596  The  Law  of  Automobiles. 

while  walking  along  the  sidewalk,  is  struck  by  a  machine  back 
ing  from  a  private  roadway  may  recover  although  the  driver 
sounded  his  horn.^^ 

Sec.  482.  Workmen  in  street  —  in  general. 

Laborers  whose  employment  requires  that  tliey  work  in  the 
streets  are  not  considered  in  the  same  light  as  pedestrians.^* 
The  latter  are  not  continuously  in  the  street  and  their  atten- 
tion is  devoted  to  the  safe  passage  along  the  highway,  while 
the  attention  of  street  laborers  must  be,  to  a  considerable  ex- 
tent, at  least,  devoted  to  their  tasks.  There  can  be  no  duty 
imposed  on  a  workman  to  be  constantly  on  the  lookout  for 
motor  vehicles  ;i  on  the  contrary  it  is  the  duty  of  drivers  of 
vehicles  to  observe  the  street  laborers  and  to  avoid  contact 
with  them.2  j|-  jg  ^ot  negligence  as  a  matter  of  law  for  a  work- 
man to  keep  his  eyes  on  his  work  and  to  fail  to  look  and  listen 
for  approaching  vehicles,  if  he  remains  in  one  spot.'  And  a 
laborer  may  properly  assume  that  the  automobilist  will  not 
be  guilty  of  negligence  in  running  him  down  without  warn- 
ing." Thus,  where  a  street  laborer  is  struck  by  a  machine,  he 
cannot  generally  be  found  guilty  of  contributory  negligence 
as  a  matter  of  law,  but  at  least  a  question  for  the  jury  is  pre- 
sented.^ The  rule  as  to  the  reciprocal  rights  and  duties  of 
persons  driving  vehicles  and  of  laborers  on  the  highway  has 
been  stated  as  follows:  "Persons  riding  or  driving  are 
bound  to  exercise  reasonable  care  to  see  and  avoid  injuring 
persons  who  are  at  work  in  the  streets,  as  well  as  pedestrians. 

98.  Crawley     v.     Jermain,     218     111.  Charles     M.     Monroe    Stationery     Co. 

App.  51.  (Mo.  App.),  191  S.  W.  1054. 

99    Ceco^a  v.   44  Cigar  Co.,  253  Pa.  5.  King  v.   Grien,   7    Cal.   App.   473. 

St.  623.  98  Atl.  775.  94  Pac.  777;   Carn^hi  v.  Gerlach,  208 

1.  Diibe  V.  Keogh  Storage  Co.  Ill  App.  340;  Nehring  v.  Charles  M. 
(Mass.),  128  N.  E  782;  Burger  v.  Monroe  Stationery  Co.  (Mo.  App.). 
Taxicab  Motor  Co.,  66  Wash.  676,  120  191  S.  W.  1054;  Cecola  v.  44  Cigar 
Pae.  519.  Co.,    253    Pa,    St.    623,    98    Atl.    775; 

2.  Section  422.  Burger     v.     Taxicab     Motor     Co.,     66 

3.  Nehring  v.  Charles  M.  Monroe  Wash.  676,  120  Pac.  519;  Morrison  v. 
Stationery  Co,  (Mo.  App,),  191  S.  W.  Conley  Taxicab  Co.,  94  Wash.  436,  162 
1054.  Pac    365.     See  also  Saper  v.  Baker,  91 

4    Dube      V.      Keogh      Storage      Co.      N.  J.  L.  713,  104  Atl.  26. 
(Mass.),    128   N.    E.    782;    Nehring   v. 


Contributory  Negligence  of  Pedestrians.  097 

And  the  laborer  is  not  bound  to  neglect  his  occupation,  in 
order  to  avoid  injury  from  the  want  of  ordinary  care  on  the 
part  of  drivers  of  vehicles.  But  he  cannot  recover  if  actually 
guilty  of  contributory  negligence."*^  And  one  working  on  the 
floor  of  a  way  in  a  railroad  station  stands  in  practically  the 
same  legal  situation  as  one  working  on  a  public  highway.'' 

Sec.  483.  Workmen  in  street  —  violation  of  law  by  workman. 
The  fact  that  the  plaintiff  in  an  action  for  negligence  has 
himself  violated  the  law,  is  held  to  be  immaterial  and  irrele- 
vant, unless  a  causal  connection  is  shown  between  his  illegal 
act  or  omission  and  the  subsequent  injury  for  which  he  seeks 
to  recover.  So,  where  the  plaintiff's  intestate  was  run  over 
and  killed  by  an  automobile  while  superintending  the  renewal 
of  a  telephone  underground  service  wire  at  a  manhole  in  a 
city  street  and  an  ordinance  of  the  city  required  the  use  of  a 
lighted  red  lantern  at  the  excavation,  but  none  was  in  fact 
used,  it  was  decided  that  the  violation  of  the  ordinance  would 
not  defeat  the  action  unless  such  violation  contributed  to 
cause  the  injury  and  that  it  was  for  the  jury  to  determine, 
under  proper  instructions,  whether  the  absence  of  the  lantern 
contributed  to  the  accident  or  not,  and  also  w^hether  the  de- 
cedent, in  remaining  at  the  manhole,  after  he  saw  the  ap- 
proaching automobile,  acted  as  a  reasonably  prudent  person 
would  have  acted  under  similar  circumstances.^ 

Sec.  484.  Workmen  in  street  —  traffic  officer. 

A  traffic  officer  in  the  performance  of  his  duties  is,  the  same 
as  other  persons  in  the  highways,  bound  to  exercise  reason- 
able care  for  his  safety.^  But  he  is  not  required  to  use  the 
same  degree  of  diligence  as  is  required  of  an  ordinary  pedes- 
trian passing  along  or  across  the  street.^*^     Tie  is  required 

6.  Burger  v.  Taxicab  Motor   Co.,   66  App.  IMv.   262.   151  N.  Y.  Suppl.   552: 
Wash.  676,   120  Pac.   519.  White  v.  East  Side  Mill  &  Lumber  Co  . 

7.  Papic  V.  Fmind    (Mo.  App.).   181  84   Greg.   224.   161   Pac.   969.    164   Pac. 
>;.  W.   1161.  736. 

8.  Case  v.  Clark.  83  Conn.  1S3.  76  10.  Xenofloohius  v.  Fifth  Ave.  Coaoh 
\tl.  526.                                                                   Co.,  129  App.  Div.  26.  113  X.  Y.  Snppl. 

9.  Fitzsinion-    v.    lanian,    166    N.    Y.       135;    Fitzsiinons  v.   Isnian.    166    N.   Y. 


598  The  Law  of  Automobiles. 

to  exercise  only  the  degree  of  caution  that  might  be  expected 
of  an  officer  engaged  in  such  duties."  Hence,  as  a  general 
proposition,  his  negligence  presents  a  question  for  the  jury; 
and,  if  they  acquit  him  of  neglect  of  care,  the  court  will  not 
interfere.^2  While  walking  or  standing  near  the  center  of  the 
highway,  he  is  entitled  to  assume  that,  owing  to  his  presence, 
vehicles  will  obey  the  law  of  the  road  and  keep  to  the  right.^^ 
And  he  may  assume  that  the  automobilist  will  not  wrongfully 
cut  the  corner,  and  he  is  not  required  as  a  matter  of  law  to 
be  on  the  lookout  to  avoid  the  consequences  of  such  conduct." 

Sec.  485.  Last  chance  doctrine. 

Under  the  ''last  clear  chance"  doctrine,  a  person  who  has 
been  guilty  of  negligence  is  sometimes  permitted  to  recover 
for  his  injuries,  where,  after  the  discovery  of  such  negligence, 
the  other  party  could  nevertheless  by  the  exercise  of  reason- 
able care  have  avoided  the  accident.  There  is  no  room  for 
the  doctrine  in  a  case  where  both  parties  are  equally  guilty  of 
concurring  acts  of  negligence,  and  the  negligence  of  both  con- 
tributed to  the  accident  at  the  time  of  its  occurrence.^^    The 

App.   Div.   262,   151  N.   Y.   Suppl.   552.  11.  Xenodocliius  v.  Fifth  Ave.  Coach 

See  also  Heath  v.  Seattle  Taxicab  Co.,  Co.,  129  N.  Y.  App.  Div.  26.  113  N.  Y. 

73  Wash.  177,  131  Pac.  843.     "The  in-  Suppl.   135. 

testate,  as  said,  was  a  police  officer  and  12.  Xenodochius  v.  Fifth  Ave.  Coach 

at  the  time  was  performing  his  duty  as  Co.,  129  N.  Y.  App.  Div.  26.  113  N.  Y. 

Buch.     He  was,  undoubtedly,   required.  Suppl.  135. 

in  view  of  the  performance  of  the  work  13.  Xenodochius  v.  Fifth  Ave.  Coach 

assigned  to  him,  to  use  reasonable  care  Co.,  129  N.  Y.  App.  Div.  26,  113  N.  Y. 

to  prevent  being  run  over.    He  was  not.  Suppl.  135. 

however,  obliged  to  use  the  same  degree  14.  White  v.  East  Side  Mill  &  Lum- 

of  care  that  would  he  required  of  an  ber  Co.,  84  Oreg.  224,  161  Pac.  969,  164 

ordinary    pedestrian."      Fitzsimons    v.  Pac.   736. 

Isman,  166  N.  Y.  App.  Div.  262,  151  15.  Mayer  v.  Anderson  (Cal.  App.). 
N".  Y.  Suppl.  552.  173  Pac.  174:  Stephenson  v.  Parton. 
Police  pension.— The  fact  that  a  89  Wash.  653,  155  Pac.  147.  "There 
policeman  injured  by  a  taxicab  was  is  more  or  less  confusion,  if  not  con- 
partially  reimbursed  for  his  injuries  flict,  in  the  treatment  of  this  subject 
from  a  pension  fund,  in  part  kept  up  by  the  courts  in  different  jurisdic- 
toy  dues  received  from  him,  does  not  tions;  but  this  court  is  committed  to 
inure  to  the  defendant's  benefit  so  as  to  the  doctrine  that  the  last  clear  chance 
lessen  the  amount  of  liability.  Heath  rule  cannot  be  invoked  where  the  neg- 
V.  Seattle  Taxicab  Co..  73  Wash.  177,  ligence  of  the  plaintiff  is  concurrent 
131  Pac.  843.  ^'it^  ^^^^  "f  the  defendant.     The  law 


Contributory  Negligence  of  Pedestrians. 


599 


doctrine  is  applied  only  in  cases  where  antecedent  negligence 
on  the  part  of  the  pedestrian  is  shown.^*'  The  general  rule, 
and  a  somewhat  similar  doctrine  prevailing  in  a  few  States 
and  known  as  the  "humanitarian"  rule,  is  frequently  invoked 
in  cases  of  collisions  between  street  cars  and  automobiles." 
As  between  pedestrians  and  the  drivers  of  motor  vehicles,  a 
pedestrian  who  has  been  guilty  of  negligence  in  getting  into 
a  dangerous  situation,  in  some  jurisdictions,  may  be  permitted 
to  recover  for  his  injuries  where  the  driver,  after  he  dis- 
covered or  should  have  discovered  the  situation,  could  in  the 
exercise  of  reasonable  care,  have  avoided  the  collision.^^  That 
is  to  say,  if  a  person  injured  in  crossing  a  street  failed  to 


on  that  subject,  as  recognized  in  this 
State,  is  well  stated  in  French  v. 
Grand  Trunk  Ry.  Co.,  76  Vt.  411,  58 
Atl.  722,  that  when  a  traveler  has 
reached  a  point  where  he  cannot  extri 
cate  himself  and  vigilance  on  his  part 
will  not  avert  the  injury,  his  negli- 
gence in  reaching  that  position  becomes 
the  condition  and  not  the  proximate 
cause  of  the  injury  and  will  not  pre- 
clude a  recovery,  but  that  it  is  equally 
true  that  if  a  traveler,  when  he 
reaches  the  point  of  collision,  is  in  a 
situation  to  extricate  himself  and 
avoid  injury,  his  negligence  at  that 
point  will  prevent  a  recovery,  notwitli- 
standing  the  fact  that  the  trainmen 
could  have  stopped  tlic  train  in  season 
to  have  avoided  injurying  him.  Tlie 
rule  that,  if  the  plaintiff's  negligence 
proximately  contributes  to  his  own 
injury,  he  cannot  recover  is  so  well  set- 
tled in  this  .State  that  it  needs  no  cita- 
tion of  authorities  upon  that  }X)int,  and 
therefore  the  last  clear  chance  rule  can 
never  apply  where  the  plaintiff's  negli- 
gence is  concurrent  with  and  of  the 
same  degree  as  that  of  the  defendant. 
A  charge  as  requested  by  the  plaintiff 
would  justify  the  jury  in  finding  for 
him,  though  his  negligence  may  have 
proximately  contributed  to  his  own  in- 
jury. That  the  plaintiff  cannot  recover 
when  his  negligence  is  concurrent  with 


and  of  tlu'  same  degree  as  that  of  the 
defendant  is  also  shown  in  Trow  v.  Vt. 
Central  R.  R.  Co..  24  Vt.  487.  58  Am. 
Dec.  191,  in  which  the  authorities  upon 
that  subject  are  collected  and  com- 
mented upon."  Aiken  v.  Metcalf,  02 
Vt.   57,   102  Atl.   330. 

16.  Keiper  v.  Pacific  Has  &  Elec.  Co. 
(Cal.  App.).  172  Pac.  180:  Indiana- 
polis Tr.  «fe  Terminal  Co.  v.  Lie  (Iiid. 
App.).  118  N.  F.  O.-iO. 

17.  Section  613. 

18.  Duter  v.  Sharen.  81  Mo.  App. 
612;  School  v.  Grayson,  147  Mo.  App. 
652.  127  S.  W.  415:  Wynne  v.  Wag- 
oner Undertaking  Co.  (Mo  ),  204  S. 
W.  15;  Ballman  v.  H.  A.  Luecking 
Teaming  Co.  (Mo.),  219  S.  W.  603; 
Reynolds  v.  Kenyon  (Mo.).  222  S.  W. 
476:  Rubick  v.  Sandler  (Mo.  App.). 
219  S.  W.  401 ;  Raymen  v.  Galvin 
( Mo. ) .  229  S.  W.  747 ;  Weiss  v.  Sodo- 
mann  H.  &  P.  Co.  (Mo.  App.l,  227  S. 
W.  837;  Schinogle  v.  Baughman  (Mo. 
App.),  228  S.  W.  897;  Bibb  v.  Grady 
(Mo.  App.).  231  S.  W.  1020:  Hark  v. 
Jones  (Greg.),  17^)  Pac.  272;  White 
v.  Hegler.  29  D  L.  R.  (Canada)  480, 
34  W.  L.  R.  1061.  See  also  Ginter  v. 
O'Donoghue  (Mo.  App.),  179  S.  W. 
732:  Ca-stle  v.  Wilson  (Mo.  App.).  183 
S.  W.  1106;  Ottoby  v.  Mississippi  Val- 
ley Trust  Co..  197  Mo.  App.  473,  196 
S.   W.   428. 


600  The  Law  of  Automobiles. 

exercise  ordinary  care  and  prudence  for  his  own  safety,  it  is 
nevertheless  proper  to  leave  to  the  jury  the  question  whether, 
if  the  driver  of  the  vehicle  by  which  he  was  injured  had  been 
watchful,  he  could  have  discovered  the  peril  to  which  the 
plaintiff  was  exposed  in  time  to  have  avoided  the  i^ijury." 
Thus,  it  was  said  in  one  ease,^^  "I  think  it  is  the  law  that  a 
pedestrian  crossing,  not  at  a  crossing  and  not  looking  and 
therefore  being  very  careless,  would  be  entitled  to  damages 
from  an  automobile  driver  who  with  no  obstructed  view  could 
have  seen  the  pedestrian  at  a  sufficient  distance  to  avoid  him, 
but  who  for  instance  for  no  justifiable  purpose  kept  his  eyes 
either  on  his  feet  in  the  car  or  on  a  window  at  the  side  of  the 
street  and  so  did  not  see  the  pedestrian  and  ran  over  him— 
who,  in  other  words,  did  not  keep  a  lookout  to  see  that  he  did 
not  run  into  anyone.  Also  an  automobile  driver  who  does  not 
keep  a  good  lookout  and  does  not  see  a  pedestrian  apparently 
going  to  cross  his  path  without  looking,  is  not  entitled  to  go 
on  and  leave  the  responsibility  upon  the  pedestrian.  He  must 
use  reasonable  care,  when  he  sees  the  danger,  to  avoid  him." 
But  there  is  no  opportunity  for  the  application  of  the  last 
clear  chance  rule  in  a  case  where  the  person  injured  passed 
in  front  of  the  machine  so  suddenly  that  the  collision  could 
not  be  avoided.^i  Where  a  defendant  has  charged  contribu- 
tory negligence  on  the  part  of  the  deceased,  alleging  that  he 
passed  hurriedly  from  the  sidewalk  into  the  street  near  the 

19.  Walldren   Express  &  Van   Co.  v.  or  any  other  signal,  but  keeps   on   his 

Krug,  291  111.  472,  126  N.  E.  97;  Dutea*  speed,  it  is  the  duty  of  the  automobile 

V.   Sharen,  81   Mo.  App.   612;    Witten-  to   slacken    its   speed   and   to  take   no 

herg  V.  Hyatt's  Supply  Co.  (Mo.  App.),  risks   as  to   the   pedestrian   increasing 

219   S.    W.    686.     See    also    G-ordon   v.  his   speed."     Diamond   v.   Cowles.    174 

Stadelman,  202  111.  App.  255.  Fed.  571,  98  C.  C.  A.  417. 

Instructions.— It  has  been  held  proper  20.  White  v.  Hegler,  29  D.  L.  R. 
to  instruct  the  jury  as  follows:  "The  (Canada)  480,  34  W.  L.  R.  1061. 
defendant  has  just  as  much  right  on  21.  Bishard  v.  Englebeck,  180  Iowa, 
the  highway  as  the  automobile,  and  the  1132,  164  N.  W.  203:  Wynne  v.  Wag- 
driver  of  the  automobile  must  pay  at-  oner  Undertaking  Co.  (Mo.),  204  S.  W. 
tention  to  pedestrians  who  are  on  the  15;  Goldman  v.  Lanigan  Bros.  Co.,  185 
liighway,  and  if  it  assumes  to  take  the  App.  Div.  742,  173  K  Y.  Suppl.  777 ; 
r isles  of  a  pedestrian,  who  is  crossing  Stephen  Putney  Shoe  Co.  v.  Ormsby's 
the  highway,  getting  out  of  its  course,  Adm'r  (Va.),  105  S.  E.  563;  Burlie  v. 
and  the  pedestrian  does  not  increase  Stephens  (Wash.),  193  Pac.  684. 
his  speed  after  the  blowing  of  the  horn 


Contributory  Negligence  of  Pedestrians.  601 

automobile,  and  so  near  that  it  was  impossible  to  stop  in  time 
to  avoid  injury  to  him,  and  has  introduced  evidence  to  prov(^ 
these  allegations,  it  is  held  profjer  to  peiTnit  the  plaintiff  to 
prove  the  possibility  of  stopping  the  machine  after  the  dan- 
gerous position  of  deceased  should  have  been  seen,  not  as  a 
basis  of  recovery,  but  to  overcome  the  defcnse.^^ 

In  many  jurisdictions,  however,  the  last  clear  chance  doc- 
trine is  applicable,  if  at  all,  only  when  the  defendant  had 
actual  knowledge  of  the  dangerous  situation  of  the  plaintiff, 
and  is  not  applicable  when  such  situation  is  unknown,  though 
it  might  have  been  discovered  had  the  defendant  kept  a 
reasonably  careful  outlook.^  In  such  jurisdictions  where  a 
more  limited  view  is  taken  of  the  doctrine,  the  rule  may  be 
stated  that  the  plaintiff  may  recover  for  an  injury  caused  by 
the  defendant's  negligence,  notwithstanding  the  plaintiff's 
own  negligence  exposing  him  to  the  risk  of  injury,  if  such  in- 
jury was  more  immediately  caused  by  the  defendant's  omis- 
sion, after  becoming  aware  of  the  plaintiff" 's  danger,  to  use 
ordinary  care  for  the  purpose  of  avoiding  injury  to  him.'^ 
Thus,  where  the  driver  of  an  automobile  sees  a  person  stand- 
ing in  the  highway  and  blows  the  horn  at  a  distance  of  two 
or  three  hundred  yards,  but  makes  no  further  effort  to  avoid 
him,  a  recovery  may  be  had.^ 

If  a  plaintiff  relies  upon  the  fact  that  he  was  not  guilty  of 
contributory  negligence,  but  that  the  injury  was  caused  by 

22.  Scholl  V.  Grayson,  147  Mo.  App.  a  situatiou  from  which  the  exercise 
652.  127  S.  W.  415.  of    reasonable    care    on    his    own    part 

23.  "It  is  true  that  the  instructions  thereafter  would  not  extricate  him. 
are  faulty  in  that  they  fail  to  mark  The  appellant,  hoAvever,  is  in  no  posi- 
the  distinction  between  the  application  tion  to  complain  of  tliis  defect."  Moy 
of  that  rule  where  the  driver  of  the  an-  Quon  v.  M.  Furuya  Co..  SI  Wash.  526. 
tomobile    actually   saw   the   respondent  14.3  Pac.  99. 

in  time  to  avoid  the  injury  and  where  24.  Hess  v.   Keniinoror.  65  Pa.  Super 

the  driver,   by  the  exercise  of   reason-  Ct.    247;    [Tndorhill    v.    St4n-enson,    100 

able  care,  might  have  seen  and  appre-  Wash.    129,    170    Pac.    3.')4.      See    also 

ciated  the  respondent's  danger  in  time  Russell  v.  Vergason    (Conn.K  111   Atl. 

to  avoid  the  injury.     In  the  first  situa-  G25:    Williams    v.    Lonibanl.    87    Greg, 

tion,   the   respondent's   negligence,   con-  245,    170    Pae.    316;     Clark    v.    Jones 

tinning    to    the    time    of    the    injury.  (Greg.),      179     Pac.     272;      I»cke     v. 

would   be   immaterial.     In   tho   second.  Greene,   100   Wash.   397,   171   Pac.   245. 

the  rule  of  last  clear  chance  would  n<ii  25.  Stephen.-son    v.    Parton.    89    Wash, 

apply,    unless    the    resiwndent's    negli-  653,  155  Pa'-.   147. 
gence  had  spent  itself  or  culminated  in 


602  The  Law  of  Automobiles. 

the  negligence  of  the  defendant,  it  is  held  that  he  is  not  en- 
titled to  an  instruction  on  the  last  chance  or  humanitarian 
doctrine.  By  invoking  such  doctrine,  plaintiff  confesses  that 
he  was  guilty  of  negligence  and  therefore  is  not  entitled  to 
instructions  authorizing  a  A^erdict  in  his  favor  on  the  finding 
by  the  jury,  that  he  was  not  chargeable  with  his  contributory 
negligence,  provided  the  defendant  could  have  prevented  the 
accident.^^ 

Sec.  486.  Acts  in  emergencies. 

Where,  by  reason  of  the  negligence  or  unlawful  act  of  the 
operator  of  a  motor  vehicle,  a  pedestrian  is  suddenly  placed 
in  a  position  of  peril,  he  is  not  expected  to  act  with  coolness 
and  judgment,  and  his  conduct  is  not  scrutinized  with  the 
strictness  which  might  prevail  under  other  circumstances.^'' 
The  fact  that  he  might  easily  have  avoided  a  collision  with 
the  automobile  had  he  exercised  better  judgment  in  the  emer- 
gency, will  not  necessarily  charge  him  with  contributory  neg- 
ligence.^^   His  contributory  negligence  will  generally  present 

26.  Hough  V.  Kobuscli  Automobile  City  of  Indianapolis  v.  Pell,  62  Ind. 
Co.,   146   Mo.    App.    58,    123    S.    W.    83.       App.   191,   111  N.  E.   22. 

See  also  Moran  v.   Smith,  114  Me,   55,  28.  California. — Blackwell      v.      Ren- 

95  Atl.  272;   Laughlin  v.  Seattle  Taxi-  wick,   21   Cal.   App.   131,   131   Pac.   94; 

cab  &  Tr.  Co.,  84  Wash.  342,  146  Pac.  Potter  v.  Back  County  Transp.  Co.,  33 

847;    Mosso  v.  Stanton   C-o.,   75   Wash.  Cal.  App.  24,  164  Pac.  342;   Randolph 

220.  134  Pac.  941.  v-  Hunt    (Cal.  App.),  183  Pac.  358. 

27.  Blackwell  v.  Renwick,  21  Gal.  Colorado. — Louthan  v.  Peet,  66  Colo. 
App.     131,     131     Pac.    94;     Kesaler    v.  204,  179  Pac.  135. 

Washburn,   157   111.  App.   532;    Rose  v,  Illinois. — Kessler   v.    Washburn.    157 

Clark,  21  Man.    (Canada)    635.     "It  is  111.  App.  532;  Kuchler  v.  Staflford,  185 

too  well  settled  to  be  argued  that  when  111.   App.    199.      "It   is   clear  ifrom   the 

a    person    is    confronted    with    sudden  evidence  that  appellee  was  called  upon 

peril,   occasioned   by   tlie   negligence   of  to  act  instantly,  when,  as  he  says,  the 

another,  he  is  not  required  to  exercise  flasli  of  the  light  from  the  automobile 

that  degree  of  care  which  a  person   is  was     in    his    eyes.       Having    suddenly 

obliged  to  exercise  under  other  circura  found   himself   in   a   place  of   peril,   he 

stances,    but    is   only    required    to    act  could  not  be  expected  to  act  with  the 

with   the  degree   of  care  whicli   an  or-  deliberate  judgment  of  a  man  under  no 

dinarily    prudent    person    would     have  apprehension    of    danger.      Persons    in 

exercised    under    like   conditions.      But  positions  of  great  peril  are  not  required 

as    to    whether    appellee    in    this    case  to   exercise   all   the   presence   of   mind 

acted    with   such    care   was   a  question  and  care  of  a  prudent  and  careful  man ; 

which    should   have   been   submitted   to  the  law  makes  allowance  for  them  and 

the    jury    under    proper    instructions."  leaves  the  circumstances  of  their  con- 


Contributory  Negligence  of  Pedestrians. 


G03 


a  question  lor  the  jury.^  He  is  not  necessarily  guilty  of 
negligence  l)ecau8e  he  acts  contrary  to  the  expectations  of  the 
operator  of  the  machine.^'*  Thus,  where  a  pedestrian  is  sud- 
denly confronted  with  an  automobile  rushing  upon  him,  the 
fact  that  he  steps  first  forward  and  then  backward,  so  that 
as  a  result  of  his  uncertain  actions,  the  driver  turns  first  one 
way  and  then  another,  until  a  collision  is  inevitable,  the  con- 
tributory negligence  of  the  pedestrian  is  generally  a  question 
for  the  jury.^^  This  situation  is,  however,  to  be  carefully  dis- 
tinguished from  a  case  where  the  driver  of  the  automobile 
was  proceeding  along  the  highway  in  a  prudent  manner,  and 
a  pedestrian  without  reasonable  cause  becomes  confused  as 
to  which  way  he  shall  pass  and  ''zig-zags"  back  and  forth 
into  a  position  of  danger.^^    In  this  class  of  cases,  the  placing 


duct  to   tiie  jury."     Kessler    v.   VVasli 
burn,  157   111.  App.  532. 

Indiana. — Cole  Motor  Oo.  v.  Ludorff. 
61   Ind.  App.  119,   111  N.  E.  447. 

loioa. — Little  v.  Maxwell,  183  Iow;i, 
164,   166  N.   W.  760 

Massachusetts. — Neafsey  v.  Szemeta. 
126  N.  E.  368. 

Missouri. — Frankel  v.  Hudson,  27  J 
Mo.  495,  196  S.  W.  1121;  Hodges  v 
Chambers,  171  Mo.  App.  563,  154  S. 
W.  429;  Heartsell  v.  Billows,  184  Mo. 
App.  420,  171  S.  W.  7. 

New  Jersey. — Wescoat  v.  Decker,  h.t 
N.  J.  L.  716,  90  Atl.  290. 

Pennsylvania. — Kerk  v.  Peters.  261 
Pa.  279,   104  Atl.   549. 

Texas. — Ward  v.  Cathey  (Civ. 
App.),   210  S.  W.  289. 

Wisconsin. — Parker  \.  Kindenniaiui, 
161   Wis.    101.   151  K   W.  787. 

29.  Blaekwell  v.  Renwick,  21  Cal. 
App.  131,  131  Pac.  94;  Indianapolis 
V.  Poll,  62  Ind.  App.  191,  111  N.  E. 
22;  Frankel  v.  Hudst)n,  271  Mo.  495, 
196  S  W.  1121;  We.scoat  v.  Decker,  85 
N.  J.  L.  716,  90  Atl.  290;  Coughlin  v. 
Weeks.  75  Wash.  568.  135  Pac.  649; 
Lindstrom  v.  Seattle  Ta.\icab  Oo. 
(Wash.),  199  Pac.  289:  Parker  v. 
Kindenmann.   161   Wis.   101,   151  N.   W. 


30.  Kuchler  v.  Stafford,  185  III. 
App.   199. 

31.  McKiernan  v.  Lehmaier.  85 
Conn.  Ill,  81  Atl.  969;  Heartsell  v. 
Billows,  184  Mo.  App.  420,  171  S. 
W.  7;  Wescoat  v.  Decker,  85  X.  J.  L. 
716.  90  Atl.  290;  Coughlin  v.  Weeka, 
75   Wash.   568,   135  Pac.   649. 

32  \'irgilio  v.  Walker,  254  Pa.  St. 
241,  98  Atl.  815.  "So  far  as  the  tes- 
timony indicates,  this  is  a  case  where, 
in  vimv  of  the  surrounding  conditions, 
the  automobile  was  going  at  a  reason- 
able speed,  under  proj>er  control,  and 
where  the  man  in  cliarge  apjwrently 
gave  such  warnings  as  the  circum- 
stances required.  The  latter  may  have 
misjudged  the  probable  movements  of 
the  pedestri.in  while  he  was  "zigzag- 
ging' in  front  of  the  automobile,  and 
this  may,  in  the  end,  have  been  the 
'•ause  of  the  collision;  but  tiiere  is 
nothing  in  the  story  told  by  any  of  tho 
witnesses  which  would  justify  an  in 
ference  that  the  driver  wantonly  niu 
into  Mr.  Virgilio,  or  that  he  m^li- 
gently  omittetl  to  do  those  things 
which  an  ordinarily  careful  person 
similarly  situattxl  would  have  done. 
In  short,  the  unfortunate  man  who 
was  .struck  appears  to  have  jumped 
around   in   front  of  the  car,  and,  while 


()04  The  Law  of  Automobiles. 

of  the  blame  for  the  accident  is  peculiarly  within  the  province 
of  the  jury.^^  And  where  one  is  leading  a  domestic  animal 
along  the  highway  and  it  becomes  frightened  by  the  approach 
of  an  automobile,  his  negligence  in  holding  onto  the  rope  while 
being  dragged  in  front  of  the  machine  may  be  presented  to 
the  jury.^* 

Where  the  plaintiff  and  two  other  ladies  were  crossing  a 
street  diagonally,  when  they  saw  a  taxicab  coming  half  a  block 
away  and  stopped  to  let  it  pass;  and,  while  the  plaintiff's  two 
companions  remained  stationary,  the  plaintiff  becoming  ner- 
vous lost  her  presence  of  mind  arid  broke  away  from  her  com- 
panions and  attempted  to  pass  ahead  of  the  machine  when  it 
was  close  upon  her,  it  was  held  that  a  verdict  of  the  jury  in 
favor  of  the  defendant  would  be  affirmed.^^  And,  where  a  man 
fiftj^^nine  years  of  age  started  to  cross  a  street,  and,  after 
reaching  a  space  between  two  surface  railway  tracks,  he  heard 
the  sound  of  the  horn  on  the  defendant's  automobile,  and, 
apparently  excited  thereby,  took  one  or  two  steps  back  in 
front  of  the  automobile  and  was  hit,  the  machine  being  run  at 
a  speed  of  between  eleven  and  twelve  miles  an  hour,  with 
lamps  lighted,  and  no  other  vehicles  obstructing  the  street,  it 
was  held  that  a  verdict  that  the  decedent  was  free  from  con- 
tributory negligence  and  that  the  accident  was  caused  solely 
by  the  negligence  of  the  driver,  was  against  the  weight  of  the 
evidence.^*^ 

A  third  person  who  attempts  to  catch  a  runaway  motor 
vehicle  for  the  purpose  of  changing  its  course,  where  persons ' 
lives  are  endangered,  and  who  is  injured  in  so  doing,  is  not 
thereby  guilty  of  negligence  as  a  matter  of  law  so  as  to  pre- 
clude a  recovery  for  injuries  thus  sustained.^'' 

both    the   chauffeur    and    he    were   en-  Div.  696,  183  N.  Y.  Suppl.  482. 

deavoring     to     avoid     the     threatened  35.  Brand  v.  Taxa  Cab  Co.,  129  La. 

danger,    'zigzagged'   or   'jockeyed'   him-  781,  56  So.  885. 

self    into    the    collision."      Virgilio    v.  36.  Wall  v.  Merkert,  166  N.  Y.  App. 

Walker,   254   Pa.  St.   241,  98  Atl.   815.  Div.  608,  152  K  Y.   Suppl.  293. 

33.  McKiernan      v.      Lehmaier,      85  37.  American   Express  Co.   t.   Terry, 
Conn.  Ill,  81  Atl.  969.  126  Md.   254,  94  Atl.   1026. 

34.  Boos   V.    Field,    192   N.    Y.   App. 


Contributory  Negligence  of  Pedestrians. 


605 


Sec.  487.  Function  of  jury. 

As  a  general  proposition,  in  an  action  by  a  pedestrian  for 
injuries  sustained  in  a  collision  with  a  motor  vehicle,  the  neg- 
ligence of  the  defendant,'^  and  the  contributory  negligence  of 
the  plaintiff  present  questions  within  the  province  of  the 
jury.^^     Particularly,  is  the  contributory  negligence  of  the 


38.  Section  452. 

39.  United  States. —  New  York 
Tranap.  Co.  v.  Garside,  157  Fed.  521, 
85  C.  C.  A.  285. 

Arkansas. — Breashears  v.  Arnett, 
222  S.  VV.  28;  Terry  Dairy  Co.  v.  Par- 
ker, 223  S.  W.  6. 

Alabama. — Adler  v.  Martin.  179 
Ala.  97,  59  So.  597;  Bachelder  v.  Mor- 
gan,  179  Ala.   339,   GO  So    815. 

California. — Blackvvell  v.  KeiTwick. 
21  Cal.  App.  131.  131  Pac.  94;  Potter 
V.  Back  County  Transp.  Co.,  33  Cal. 
App.  24,  164  Pac.  342;  Weihe  v.  Rath- 
jeii  Mercantile  Co.,  34  Cal.  App.  302, 
167  Pac.  287;  Off  v.  Crump.  40  Cal. 
App.  173,  180  Pac.  360:  Randolph  v. 
Hunt  (Cal.  App.),  183  Pac.  358; 
Webster  v.  Motor  Parcel  Delivery  Co. 
(Cal.  App.).  183  Pac.  220;  Baldarachi 
V,  Leach  (Cal.  App.),  186  Pac.  1060: 
Gross  V.  Burnside  (Cal),  199  Pac. 
780.  "Contributory  negligence  is  a 
question  of  law  only  when  the  evidence 
is  of  such  a  character  that  it  will  sup- 
port no  other  legitimate  inference  than 
that  in  the  one  case  the  plaintiff  was 
guilty  of  contributory  negligence.  .  . 
When  the  evidence  is  such  that  the 
court  is  impelled  to  say  that  it  is  not 
in  conflict  on  the  facts,  and  that  from 
those  facts  reasonable  men  can  draw 
but  one  inference,  and  that  an  infer- 
ence pointing  unerringly  to  the  negli- 
gence of  the  plaintiff  contributing  to 
his  own  injury,  then,  and  only  then, 
does  the  law  step  in  and  forbid  plain- 
tiff a  recovery.  .  .  .  Even  where 
the  facts  are  undisputed,  if  reasonable 
minds  might  draw  different  conclu- 
sions upon  the  question  of  negligence, 
the    question    is    one    of    fact    for    the 


jury."  Moss  v.  Boynton  (Cal.  App.), 
186  Pac.  631. 

Colorado. — Loutban  v.  Peet,  66  Colo. 
204,   179  Pac.  135. 

Illinois. — Crandall  v.  Krause,  165 
111.  App.  15;  Rasmusscn  v.  Drake,  185 
111.  App.  526;  Bohm  v.  Dalton.  206  111. 
App.  374;  Heclan  v.  Guggenheim,  210 
111.  App.  1 ;  Brautigan  v.  Union  Over- 
all Laundry  &  Supply  Co.,  211  111. 
App.  354. 

Indiana. — Rump  v.  Woods,  50  Ind. 
App.  347,  98  N.  E.  369. 

loioa. — 'Brown  v.  Des  Moines  Steam 
Px>ttling  Works,  174  Iowa,  715,  156  N. 
VV.  829;  Rolfs  v.  Mullins,  179  Iowa, 
1223,  162  N.  W.  783;  Gilbert  v.  Van- 
derwall,  181  Iowa.  685,  165  N.  W.  165. 

Kansas. — Johnson  v.  Kansas  City 
Home  Telep.  Co.,  87  Kaus.  441,  124  Pac. 
528. 

Maryland. — ^American  Express  Co.  v. 
State  of  Use  of  Denowitch,  132  Md. 
72,  103  Atl.  96. 

Massachusetts. — Dudley  v.  Kings- 
bury, 199  Mass.  258.  85  N.  E.  76;  Rog- 
ers V.  Phillips,  206  Mass.  308,  92  N.  E. 
327,  28  L.  R.  A.  (N.  S.)  944;  Creedon 
V.  Oalvin,  226  Mass.  140,  115  N.  E. 
307;  French  v.  Mooar,  226  Mass.  173. 
115  N.  E.  235;  Chaplin  v.  Broklinc 
Taxi  Oo.,  230  Mass.  155,  119  N.  E. 
650;  Miller  v.  Flash  Chemical  Co.,  230 
Mass.  419,  119  N.  E.  702;  Emery  v. 
Miller,  231  Mass.  243.  120  N.  E.  654; 
Sarmente  v.  Vance.  231  Mass.  310,  120 
N.  E.  848;  Inangelo  v.  Petterson.  128 
N.  E.  713. 

Michigan. — Sehoek  v.  Cooling.  175 
Mich.  313,  141  N.  E.  675;  Bouma  v. 
Dubois,  169  Mich.  422,  135  N.  W.  322: 
Tutle    V.    Briscoe   Mfg.  Co..    190  Mich 


606 


The  Law  of  Automobiles. 


plaintiff  a  jury  question  when  he  is  a  child  of  immature  age.'**' 
A  verdict  of  the  jury  in  favor  of  the  person  injured  will  not 
ordinarily  be  set  aside,  if  there  was  evidence  upon  which  they 


22.  155  N.  W.  724;  Czarniski  v.  Secur- 
ity Storage  &  Transfer  Co.,  204  Mich. 
276,  170  N.  W.  52;  Patterson  v.  Wag- 
ner, 204  Mich.  593,  171  N.  W.  356; 
Darish  v.  Scott,  212  Mich.  139,  180  N. 
W.  43^;  Perkins  v.  Holser,  182  N.  W. 
49;  Degens  v.  Langredge,  183  N. 
W.  28. 

Minnesota. — ^Smith  v.  Bruce,  131 
Minn.  51,  154  N.  W.  659;  Johnson  v. 
Johnson.  137  Minn.  198,  lf)3  N.  W. 
160;  Archer  v.  Skahen,  137  Minn.  432, 
163  N  W.  784;  Powers  v.  Wilson,  138 
Minn.  407,  165  N.  W.  231;  Hefteron 
V.  Reeves,  140  Minn.  505,  167  N.  W. 
423;  Johnson  v.  Brastad,  143  Minn. 
332,  173  N.  W.  668;  Plasch  v.  Fass, 
144  Minn.  44,  174  N.  W.  438;  10  A. 
L.  R  1446;  Oflferman  v.  Yellow  Cai» 
Co.,  144  Minn.  478,  175  N.  W.  537;  Al- 
len V.  Johnson,  144  Minn.  333,  175  N. 
W.  545;  Unmacht  v.  Whitney,  178  N. 
W.  886;  Gibson  v.  Grey  Motor  Co., 
179  N.  W.  729. 

Missouri. — Frankel  v.  Hudson,  271 
Mo.  495,  196  S.  W.  1121;  Raymen  v. 
Galvin  (Mo.),  229  S.  W.  747;  M'c- 
Kenna  v.  Lynch  (Mo.),  233  S.  W. 
175;  Hodges  v.  Chambers,  171  Mo. 
App.  563.  154  S.  W.  429;  Ginter  v. 
O'DoTioghue,  —  Mo.  App.  — ,  179  S. 
W.  732;  Sullivan  v.  Chauvenet,  —  Mo. 
App.  — ,  186  S.  W.  1090;  LaDuke  v. 
Dexter.  —  Mo.  App.  — ,  202  S.  W.  254 ; 
Breaks  V.  Harris,  —  Mo.  App.  — ,  207 
S.  W.  293;  Schinogle  v.  Baughman 
(Mo    App.),  228  S.  W.  897. 

Nrbraska. — Rule  v.  Claar  Transfer 
&  Storage  Co.,  102  Neb.  4.  165  N.  W. 
883. 

New  Jersey. — Turner  v.  Hall,  74  N. 
J.  I^w,  214,  64  Atl.  1060;  Pool  v. 
Brown.  89  N  J.  Law.  314,  98  Atl.  262; 
Galen ter  v.  Peti.  114  Atl.  408. 

New  York. — Wolcott  v.  Renault  Sell- 
ing Branch,  223  N.  Y.  288,   119  N.  E. 


556;  Cowell  v.  Saperston,  149  App. 
Div.  373,  134  N.  Y.  Suppl.  284;  Fitz- 
gerald V.  Russell,  155  App.  Div.  854, 
140  N.  Y.  Suppl.  519;  O'Neil  v.  Kopke, 
170  N.  Y.  App.  Div.  601,  156  N.  Y. 
Suppl.  664;  Lorenzo  v.  Manhattan 
Steam  Bakery,  178  App.  Div.  706,  165 
N".  Y.  Suppl.  847 ;  Haas  v.  Newbery, 
190  App.  Div.  275,  179  N.  Y.  Suppl. 
816;  Perlmutter  v.  Byrne,  193  App. 
Div.  769,  184  N.  Y.  Suppl.  580;  Roth- 
feld  V.  Clerkin,  98  Misc.  192,  162  N. 
Y.  Suppl.   1056. 

North  Dakota. — Vannett  v.  Cole, 
170  N.  W.  663. 

Pennsylvania. — Kurtz  v.  Tourison, 
241  Pa.  St.  425,  88  Atl.  656;  Walleigh 
v.  Bean,  248  Pa.  St.  339,  93  Atl.  1069; 
Miller  v.  Tiedemann,  249  Pa.  234,  94 
Atl.  835;  Oelrich  v.  Kent,  259  Pa.  407, 
103  Atl.  109;  Banks  v.  M.  L.  Shoe- 
maker &  Co.,  260  Pa.  375.  103  Atl. 
734;  Kerk  v.  Peters,  261  Pa.  279,  104 
Atl.  549;  O'Brien  v.  Bieling,  110  Atl. 
89;  Michalsky  v.  Putney,  51  Pa. 
Super.  Ct.  163;  King  v.  Brillharfc 
(Pa.),  114  Atl.  515. 

Rhode  Island. — Thomas  v.  Burdick, 
100  Atl.  398. 

South  Dakota. — Heidner  v.  Germ- 
schied,  41  S.  Dak.  430,  171  N.  W.  208. 

Texas. — Burnett  v.  Anderson,  — 
Giv.  App.  — ,  207  S.  W.  540;  Mer- 
chants' Transfer  Co.  v.  Wilkin.son,  — 
Civ.  App.  — ,  219  S.  W.  891. 

Utah. — Sorenson  v.  Bell,  51  Utah, 
262,  170  Pac.  72. 

Virginia. — Core  v.  Wilhelm,  124  Va. 
150,  98  S.  E.  27. 

Washington. — Lewis  v.  Seattle  Taxi- 
cab  Co.,  72  Wash.  320,  130  Pac.  341; 
Chase  v.  Seattle  Taxi  cab  Co.,  78  Wash. 
537,  139  Pac.  499;  Mickelson  v.  Fisher, 
81  Wash.  423,  142  Pac.  1160;  Mco"e 
v.  Roddie.  103  Wash.  386,  174  Pac. 
648;  McClure  v.  Wilson,  186  Pac.  302; 


Contributory  Negligbnce  of  Pedestrians. 


607 


might  reasonably  have  rendered  their  decision.*^  Negligence 
as  a  matter  of  law  may  be  found,  however,  when  a  pedestrian 
seems  to  have  heedlessly  walked  in  front  of  an  approaching 
aiitomobile.^2  As  was  said  in  one  case,"  "It  has  been  very 
pointedly  stated  by  the  Court  of  Appeals,  and  I  think  it  is 
generally  understood  by  the  bar,  that  in  these  street  crossing 
cases  the  question  of  the  pedestrian's  contributory  negligence 
is  generally  one  of  fact.  Of  course  there  are  certain  extreme 
cases  where  a  pedestrian  steps  directly  in  front  of  a  vehicle 
and  in  effect  runs  into  it,  in  which  the  court  is  justified  in 
determining  the  question  of  the  pedestrian's  negligence  as  a 
matter  of  law.    These  cases,  however,  are  rare." 


Olsen  V.  Peerless  Ijaundry,  — ,  191 
Pac.  756;  Elraberg  v.  Pielow,  194  Pae. 
549. 

West  Virfiinia. — Deputy  v.  Kimmell. 
73  W.  Va.  r)9r>,  80  S.  E.  919. 

Wiscovsin. — Ouellette  v.  Superior 
Motor  &  M.  Works,  157  Wis.  531,  147 
N  W.  1014;  Klokow  v.  Harbaugh,  166 
Wis.  262,  164  Wis.  999;  Kellner  v. 
Christianson,  169  Wis.  390.  172  N.  W. 
796;  Luethe  v.  Schmidt-Gaertner  Co, 
170  Wis.   590,   176  N.  W.  63. 

40.  Alabama. — Reaves  v.  Maybank, 
193  Ala.  614,  69  So.  137. 

Connecticut. — Lynch  v.  Shearer,  83 
Conn.  73,  75  Atl.  88;  Dessureault  v. 
Masselly,  92   Conn.   690,   104  Atl.   347. 

Kentucky. — Ackers  v.  Fulkersor,  153 


Ky.  228,  154  S.   W.    1101.  • 

Massachusetts. — Rasmussen  v.  Whip- 
ple, 211  Mass.  546,  98  N.  E.  592. 

Missouri. — Sullivan  v.  Chauvenet 
(Mo.),  222  S.  W.  7.59;  LaDuke  v.  Dex- 
ter  (Mo.  App.).  202  S.  W.  254. 

New  York. — Pennige  v.  Reynolds,  98 
Misc.  239,  162  N.  Y.  Suppl.  966. 

Pennsylvania. — Greenbaum  v.  Costa, 
113  Atl.  79. 

41.  McKiernan  v.  Lehmaier,  85 
Conn.  111.  81  Atl.  969;  Marsters  v. 
loeusee   (Oreg.),  192  Pac.  907. 

42.  Moss  V.  H.  R.  Boynton  (Cal. 
App.),  186  Pac.  631;  Shott  v.  Korn.  1 
Ohio  App.   458,  34  Ohio  Cir.  Rep.  260. 

43.  Rothfeld  v.  Clerkin,  98  Misc.  (N. 
Y.)    192,   162  N.  Y.   Suppl.   1056. 


608  The  Law  of  Automobiles. 


CHAPTER  XIX. 

MISCELLANEOUS      TRAVELERS— CYCLISTS,     RIDERS,     ANIMALS     IN 

HIGHWAY. 

Section  488.  Relative  rights  of  cyclists  and  automobilists. 

489.  Horseback  travelers — duty   of   machine   operators. 

490.  Horseback  travelers — contributory  negligence  of  rider. 

491.  Use  of  highway  for  domestic  animals. 

492.  Violation  of  law  of  road — in  general. 

493.  Violation  of  law  of  road — meeting  and  passing  cyclist. 

494.  Violation  of  law  of  road— overtaking  and  passing  cyclist. 

495.  Violation  of  law  of  road — cyclist  overtaking  automobilist. 

496.  Violation  of  law  of  road — meeting   cyclist    after    overtaking   other 

vehicle. 

497.  Violation  of  law  of  road — street  intersection. 

498.  Violation  of  law  of  road — turning  corners. 

499.  Violation  of  law  of  road — turning  or  backing  in  street. 

500.  Lookout. 

501.  Speed  and  control  of  auto. 

502.  Warning  of  approach. 

503.  Contributory  negligence  of  cyclist — in  general. 

504.  Contributory  negligence  of  cyclist — statutory  requirement  as  to  de- 

gree of  care. 

505.  Contributory  negligence  of  cyclist — proximate  cause. 

506.  Contributory  negligence  of  cyclist — looking     for     approaching     ve- 

hicles. 

507.  Contributory  negligence  of  cyclist — care   in   looking. 

508.  Contributory  negligence  of  cyclist — crossing   in   front   of   observed 

auto. 

509.  Contributory  negligence  of  cyclist — speed  of  cyclist. 

510.  Contributory  negligence  of  cyclist — warning  of  approach. 

512.  Contributory  negligence  of  cyclist — reliance  on  observance  of  law  of 

automobilist. 

513.  Contributory  negligence  of  cyclist — last  clear  chance  doctrine. 

514.  Contributory  negligence  of  cyclist — ^acts  in  emergencies. 

515.  Negligence  of  guest  of  cyclist. 

516.  Function  of  jury. 

Sec.  488.  Relative  rights  of  cyclists  and  automobilists. 

A  bicycle  or  niotorcycle  is  recognized  as  a  legitimate  method 
of  travel  on  the  highways,  the  right  to  the  use  of  snch  method, 
however,  being  subject  to  a  reasonable  regard  for  the  rights 
of  other  travelers.^    One  may  use  a  bicycle  for  travel  on  the 

1.  Richards   v.    Palace   Laundry   Co.      low,  136  Wis.  46,  116  N.  W.  844. 
(Utah),  186  Pac.  439:  Weber  v.  Swal- 


Miscellaneous  Travelers. 


609 


highways  for  pleasure  or  recreation.^  When  using  the  same 
street  or  crossing  as  an  automobile,  each  party  is  bound,  in 
view  of  the  place  and  circumstances,  to  exercise  reasonable 
care  to  avoid  injury  to  the  other.^  The  operator  of  the  auto- 
mobile does  not  insure  against  a  collision  with  a  cyclist,  and 
is  liable  for  damages  to  the  latter  only  in  case  negligence  is 
shown.*  Neglect  of  due  care  in  the  operation  of  an  automo- 
bile may  be  found,  not  only  in  a  violation  of  the  law  of  the 
road,^  or  the  excessive  speed  of  its  operation,^  but  also  through 
inattention,  incompetency,  or  a  mistake  in  judgment  of  the 
driver.^  Statutory  or  municipal  regulations  may  change  the 
relative  rights  of  travelers  in  a  highway.  For  example,  a 
municipal  ordinance  which  gives  the  engines  and  apparatus 
of  the  fire  department  a  right  of  way  over  other  conveyances, 
is  valid.^  And  this  is  so,  though  statutes  prescribe  that 
owners  of  motor  vehicles  shall  have  the  same  rights  in  the 
public  streets  as  other  users  of  the  highways  for  such  a  stat- 
ute is  not  construed  so  as  to  interfere  with  the  police  power 


2.  Cooper  v.  Scannell  (Mass.),  130 
N.  E.  494. 

3.  Eadwick  v.  Goldstein,  90  Conn. 
701,  98  Atl.  583;  Schrayer  v.  Bishop  & 
Lyons,  92  Conn.  677,  104  Atl.  349; 
Lemmon  v.  Broadwater  (Del.),  108 
Atl.  273;  Frieker  v.  Philadelphia  Rapid 
Transit  Co.,  63  Pa.  Super.  Ct.  381; 
Heath  v.  Cook  (R.  I.),  68  Atl.  427; 
Weber  v.  Swallow,  136  Wis.  46,  116 
N.  W.  84^;  Rex  v.  Wilson,  32  Canada 
C.  C.  102,  50  D.  L.  R.  117. 

4.  Radwick  v.  Goldstein,  90  Conn. 
701,  98  Atl.  583;  Lemmon  v.  Board- 
water,  30  Del.  (7  Boyce)  472,  108  Atl. 
273;  Larsh  v.  Strasser,  183  Iowa,  1360, 
168  N.  W.  142;  Nordley  v.  Sorlie,  35 
N.  Dak.  395,  160  N.  W.  70;  Parker  v. 
Cartier   (R.  L),  105  Atl.  393. 

Instructions  to  jury. — In  an  action 
by  a  bicyclist  to  recover  damages  for 
personal  injuries  sustained  in  a  colli- 
sion with  defendant's  motor  truck, 
where  the  evidence  is  conflicting  as  to 

39 


the  negligence  of  the  defendant  and  the 
contributory  negligence  of  the  plaintiff, 
and  the  court  correctly  instructs  the 
jury  as  to  the  riglits  of  the  parties  if 
they  find  one  or  the  other  or  both 
guilty  of  negligence,  the  court  cannot 
be  cliarged  with  error  in  failing  to  say 
that  tliere  could  be  no  recovery  if 
neither  party  was  in  fault,  if  it  appears 
that  no  request  was  made  to  so  cliarge, 
and  the  court  did  say  that  if  the  plain- 
tiff got  "into  the  position  where  the 
accident  was  practically  unavoidable 
by  anybody,"  he  could  not  recover. 
Wolf  V.  Schmidt  &  Sons  Brewing  Co., 
236   Pa.  St.  240,   84  Atl.   778. 

5.  Chapter  XIV. 

6.  Section  303,  ct  seq. 

7.  Frieker  v.  Philadelphia  Rapid 
Transit  Co.,  63  Pa.  Super.  Ct.  381. 

8.  Sutter  v.  Milwnukee  Board  of 
Fire  Underwriters,  164  Wis.  532.  166 
N.  W.  57. 


610 


The  Law  of  Automobiles. 


of  municipalities  to  make   regulations   for  the  use   of  lln' 
streets.^ 


Sec.  489.  Horseback  travelers  —  duty  of  machine  operators. 
The  driver  of  a  motor  vehicle  must  exercise  reasonable  care 
to  avoid  causing  an  injury  to  a  person  riding  on  a  horse  or 
pony  or  other  animal  of  burden."  The  owner  of  an  automo- 
bile has  the  same  rights  on  the  highways  as  those  riding  on 
horseback,  but  must  operate  the  machine  with  due  regard  for 
the  rights  of  others;  and  the  speed  of  the  machine,  its  size, 
appearance,  manner  of  movement,  the  danger  of  operating 
it  upon  the  highway,  and  the  other  surrounding  circumstances, 
will  be  taken  into  consideration  in  determining  the  care  re- 
quired of  such  owner."  If  he  needlessly  or  recklessly  runs 
his  machine  into  the  horse  of  a  rider  and  thereby  injures  the 
horse  or  the  rider,  he  is  liable  for  the  injury.^^  When  over- 
taking a  person  on  horseback  who  apparently  does  not  hear 
the  approach  of  the  car,  the  operator  cannot  proceed  regard- 
less of  the  fact  that  the  rider  does  not  turn  out,  but  the  speed 
of  the  machine  should  be  slackened."  If  reasonably  neces- 
sary, the  automobile  should  be  brought  to  a  stop.^*  The  par- 
ties have  equal  rights  to  the  use  of  the  highway,  and  the  horse- 
man is  not  required  to  surrender  more  than  half  of  the  beaten 
track  in  order  that  the  automobilist  may  pass.^^    If,  when  an 


56    Okla.    476, 


56    Okla     476, 


9.  Sutter  v.  Milwaukee  Board  of 
Fire  Underwriters,  164  Wis.  532,  166 
N.  W.  57. 

10.  Traeger  v.  Wasson,  163  111.  App. 
572;  White  v.  Rukes,  56  Okla.  476,  155 
Pac.  1184. 

11.  White    V.    Rukos, 
155  Pac.  1184. 

12.  White    V.    Rukes, 
155  Pac.  1184. 

13.  Furtado    v. 
153,  146  Pac.   58. 

14.  Furtado   v. 
153,  146  Pac.  58. 

15.  Traeger  v.  Wasson,  163  111.  App. 
572.  wherein  it  was  said:  "Under  the 
common  law  and  under  the  statute  all 
parties   using   the   public   highway   for 


Bird. 


26    Cal.    App. 
Bird,    26    Cal.    App. 


legitimate  and  lawful  purposes  have 
equal  rights  therein.  Had  plaintiff 
and  defendant  been  going  in  opposite 
directions  and  it  became  necessary  for 
them  to  pass  in  the  public  highway, 
the  law  created  no  greater  obligation 
upon  the  part  of  the  plaintiff  to  leave 
the  traveled  roadway  for  the  purpose 
of  permitting  defendant  to  pass  than 
it  did  upon  the  part  of  the  defendant 
to  leave  the  traveled  roadway  for  the 
purpose  of  pei-mitting  plaintiff  to  pass. 
WTiile  it  may  be  known  as  a  matter  of 
general  knowledge  that  out  of  curtesy 
a  man  traveling  upon  horseback  usually 
leaves  the  beaten  track  for  the  use  of 
a  vehicle  for  the  reason  that  it  may  be 
easier   for  the  horse  without  a  vehicle 


Miscellaneous  Travelers. 


611 


automobile  is  passing  a  nmle  ridden  along  the  highway,  it 
suddenly  backs  directly  against  the  machine,  which  is  well 
equipped  with  brakes  and  under  perfect  control  at  the  time, 
but  the  operator  of  which  is  unable  to  avoid  injury,  the  owner 
of  the  mule  is  not  entitled  to  recover  damages.^''  Warning 
must  generally  be  given  of  the  approach  of  the  machine,  but 
negligence  cannot  be  charged  in  this  respect  where  the  rider 
.has  actual  knowledge  of  the  approach  of  the  machine;  for,  in 
such  a  case,  the  neglect  to  sound  the  signal  cannot  be  deemed 
the  proximate  cause  of  the  injury.^'^ 

Of  course,  the  ownei-  of  the  automobile  which  collides  with 
a  horse  may  recover  for  damages  to  the  machine,  if  he  shows 
negligence  of  the  rider  and  freedom  from  contributing  negli- 
gence on  the  part  of  the  driver  of  the  car.  Where,  in  an  ac- 
tion to  recover  for  damages  to  an  automobile,  it  appeared 
that  the  plaintiff  while  driving  his  car  along  the  left-hand 
side  of  a  country  road,  saw  a  horseman  coming  rapidly  toward 
him  who  was  also  on  the  wrong  side  of  the  road  and  turned 


attached  to  travel  upon  that  portion  of 
the  highway  which  is  not  included  in 
the  beaten  track,  the  statute  does  not 
require  that  a  person  travelinn^  upon 
horseback  so  do.  Under  the  rule  that 
persons'  rights  U]>on  the  public  liigh 
way  are  equal,  plaintiff  Lad  the  right 
to  continue  to  use  at  least  one-half  of 
the  beaten  track  and  the  record  dis- 
closes that  he  did  no  more  than  this, 
that  he  surrendered  the  right  side  of 
the  beaten  track  for  the  use  of  the  de- 
fendant, and  that  was  all  that  he  was 
required  to  do.  The  fact  that  tlie  par 
tics  were  going  in  the  same  direction 
instead  of  in  opposite  directions  im 
posed  no  greater  obligation  upon  the 
plaintiff  to  leave  the  beaten  track,  and 
the  plaintiff  was  not  guilty  of  con- 
tributory negligence  by  traveling  on 
the  left  side  of  the  beaten  track  as  tlie 
I'ecord  discloses  that  he  did.  Tf  the  de- 
fendant desired  to  pass  the  plaintiff 
upon  the  public  highway,  going  in  the 
same   direction,    he   cannot    insist    that 


any  greater  burden  should  be  cast  upon 
tfie  plaintiff  to  permit  him  to  pass  than 

the  defendant  sliall  be  reipiired  to  as- 
sume for  himself.  It  i>  insisted,  how- 
ever, by  defendant  thnt  he  did  attempt 
to  turn  his  automobile  from  the  beaten 
track  but  that  on  account  of  the  rough 
condition  of  the  public  highway  at  that 
point  he  was  unable  to  do  so,  and  the 
car  swerved  back  into  the  public  high- 
way.    Conceding  that  such  condition  is 

iiiwM  by  the  record,  it  then  became  the 
'liity  of  the  defendant  to  so  manage 
and  control  his  automobile  that  he 
would  not  run  into  and  against  the 
horse  of  tlie  plaintiff.  We  are  satisfied 
that  the  jury  were  fully  warranted  in 
finding  the  defendant  guilty  of  the 
negligence  charged  in  the  plaintiff's 
declaration." 

16.  r.aldwin    v.    Siuitherman.    171    X. 
C.  772,  88  S.  E.  854. 

17.  Priebe   v.   Crandall    (Mo.    App), 
187  S.  W.  605.     And  see  section  329. 


612  The  Law  of  Automobiles. 

his  car  so  as  to  go  to  the  right,  and  in  so  doing  swung  across 
the  path  of  the  horseman,  who  ran  into  him,  it  was  held  that 
the  negligence  of  the  horseman  was  established,  but  that  a 
judgment  entered  on  a  verdict  in  defendant's  favor  would 
not  be  reversed,  for  there  was  sufficient  evidence  of  contribu- 
tory negligence  on  the  part  of  the  plaintiff  to  sustain  the 
verdict.^^ 

Sec.  490.  Horseback  travelers  —  contributory  negligence  of 
rider. 

As  is  the  case  with  all  classes  of  travelers  on  the  public 
highways,  a  horseback  rider  is  bound  to  exercise  reasonable 
care  for  his  safety.  If  he  sustains  a  collision  with  an  automo- 
bile, as  a  general  proposition,  he  cannot  recover  damages  for 
his  injuries  unless  he  was  free  from  negligence  contributing 
to  the  accident.  A  horseback  rider,  when  approaching  an 
intersecting  street,  must  exercise  reasonable  caution  to  avoid 
injury  from  a  motor  vehicle  proceeding  along  such  street, 
but  the  rule  that  one  about  to  cross  a  railroad  track  must  stop, 

18.  Tompkins    v.    Barnes,    145    App.  horse,  and  the  situation  thus  presented 

Div.  637,  130  N.  Y.  Suppl.  320,  where-  the  question  for  the  jury  whetlier  this 

in  it  was  said:      "On  the  question  of  was  exercising  that  reasonable  degree 

contributory    negligence,    however,    the  of  care  which  the  law  demands  as  a 

plaintiff    is    silent,   and    as    absence  of  condition   of   recovery.      The   jury    has 

contributory   negligence    is   as   much   a  found  that  the  plaintiff  is  not  entitled 

part  of  the  cause  of  action  as  the  negli-  to  recover,  and  it  may  well  be  that,  in 

gence  of  the  defendant,  we  are  unable  to  considering  the  evidence,  they  reached 

acquiesce   in   the   proposition   that   the  the    conclusion    that    the    plaintiff,    al- 

judgment  should  be  reversed.     The  evi-  though   generally     speaking    he   is    en- 

dence  clearly   shows  that  the  plaintiff  titled  to  be  upon  the  right-hand  side  of 

'  was  on  the  westerly  side  of  the  high-  the  highway,   was  not  called  upon,   in 

way,  upon  his  left  hand,  when  the  de-  the  exercise  of  reasonable  care,  to  get 

fendant  came  into  view,  the  latter  upon  to  the  right-hand  side  of  the  road  in 

the   easterly    side   of   the   highway,   on  the  face  of  this  horse,  which  according 

his  left  hand  as  he  approached.    There  to    the    testimony,    was    being    ridden 

was    no    presumption    that    the    horse  recklessly    along    the    highway.      The 

would  change  his  course,  and  the  plain-  plaintiff,   after    seeing   the   horse,    left 

tiff  was  not  in  danger  to  remain  on  his  a    place    of    safety    and    ran    into    the 

left  hand  side  of  the  street  as  he  was  course  of  the  horse,  and  it  was  for  the 

going.       Instead     of     keeping     to     his  jury    to    determine    whether    this    was 

course,  he  testified  that  he  crossed  over  prudent  or  not  under   all   of  the   cir- 

to    his    right-hand    side    of    the   street,  cumstances." 

directly   in  the   path  of   the   oncoming 


Miscellaneous  Travelers.  613 

look,  and  listen,  does  not  apply  to  a  traveler  thus  coming  out 
of  an  intersecting-  street  into  a  highway  upon  which  autonio 
biles  are  customarily  run.^^  When  proceeding  along  the  pub- 
lic highway,  a  horseback  rider  is  not  necessarily  guilty  of 
contributory  negligence  because  he  does  not  surrender  the  en- 
tire beaten  track  to  the  use  of  a  motor  vehicle  approaching 
from  the  rear.^"  Nor  is  a  rider  necessarily  guilty  of  contril)u- 
tory  negligence  because  he  is  driving  or  leading  an  unbroken 
horse  along  the  highway  by  means  of  a  rope  or  lariat.^^ 
Whether  the  rider  has  exercised  the  care  of  an  ordinarily 
prudent  man  under  the  circumstances,  is  a  question  which  is 
generally  to  be  left  to  the  jury.^^ 

Sec.  491.  Use  of  highway  for  domestic  animals. 

In  some  jurisdiction^  a  dog  running  unattended  along  or 
across  a  public  highway  is  regarded  more  in  the  light  of  a 
trespasser  than  as  a  lawful  traveler  along  the  highway.^ 
When  regarded  in  this  light,  the  duty  of  the  driver  of  a  motor 
vehicle  is  to  refrain  from  intentional  or  wanton  injury  to  the 
animal,  and  he  is  not  liable  merely  for  negligence.  But,  as- 
suming a  duty  to  exercise  reasonable  care  to  avoid  injury  to 
a  dog  in  the  street,  there  can  be  no  liability  imposed  by  the 
courts  merely  upon  proof  of  the  death  of  a  dog  by  an  auto- 
mobile, leaving  the  manner  of  its  death  a  matter  of  specula- 
tion.^*   The  driver  of  a  motor  vehicle  traveling  at  a  moderate 

19.  Studer  v.  Plumlee.  130  Tenn.  driving  him  aloiigr  with  no  means  of 
517,  172  S.  W.  305.  control  or  cheek.     Under  these  eircum- 

20.  Traeger  v.  Wasson,  163  111.  App.  stances  it  cannot  be  claimed  that  the 
572.  question   was  not  properly  left  to  the 

21.  Townsend  v.  Butterfield,  168  Oal.  jury." 

564,  143  Pac.  760,  wherein  it  was  said:  22.  Studer  v.  Plumlee.  130  Tenn. 
"Highways  are  made  and  maintained  517,  172  S.  .W.  305. 
for  the  free  passage  of  persons,  and  of  23.  Unlicensed  dog. — Under  the  law 
their  horses  and  cattle  when  properly  of  Massachusetts,  an  unlicensed  dog  is 
controlled.  Tliere  was  no  evidence  that  not  a  trespasser  or  outlaw  upon  the 
the  method  of  controlling  the  unbroken  public  highway,  and  an  automobilist 
horse  by  means  of  a  rope  or  lariat  is  liable  for  the  negligent  killing  of 
fastened  to  his  neck,  while  taking  him  the  animal.  Lacker  v.  Straups.  226 
along  the  highway,  was  an  improper  Mass.  579,  116  N.  E.  236. 
or  careless  method.  The  use  of  a  rope  24.  Wallace  v.  Waterhousc.  S6  Conn, 
for  that  purpose  would  seem  to  be  a  546,  86  Atl.  10;  Flowerec  v.  Thorn- 
proper    precaution    and    preferable    to  berry    (Mo.    App.),'  183    S.    W.    350: 


614  The  Law  of  Automobiles. 

rate  of  speed  may  properly  assume  that  a  dog  running  by  the 
side  or  in  front  of  the  vehicle  will  exercise  the  ordinary  in- 
stincts of  such  animals  and  keep  out  of  danger.^^  Reliance  on 
such  assumption  can  continue,  however,  only  until  it  appears 
that  the  animal  may  not  avoid  collision  with  the  machine; 
when  it  appears  that  the  dog  is  threatened  with  injury,  it  is 
the  duty  of  the  chauffeur  to  exercise  reasonable  care  to  avoid 
the  danger. 

Even  in  the  case  of  a  horse  which  may  lawfully  be  upon  the 
highway,  it  is  necessary  for  its  owner  to  prove  negligence  in 
case  the  horse  is  injured  or  killed  by  an  automobile.  But,  it 
has  been  held,  where  a  person  tied  his  horse  to  a  hitching  post 
at  the  curb  of  the  street  and  a  few  minutes  later  discovered 
that  the  animal  had  been  injured  by  the  defendant's  automo- 
bile, that  the  doctrine  of  res  ipsa  loquitor  placed  the  burden 
on  the  defendant  of  explaining  that  the  accident  did  not  occur 
from  want  of  care  on  his  part.^^ 

One  may  use  the  highways  for  the  purpose  of  leading  or 
driving  horses  or  stock.  Such  use  of  the  highway  is  lawful 
and  an  automobilist  is  required  to  exercise  reasonable  care 
to  avoid  a  collision  mth  such  animals.^'^    As  in  other  cases, 

O'Hara  v.   Gould,  84  N.  J.  L.  583,  87  cause  of  it."     Wallace  v.  Waterhouse, 

Atl.    117.      "It  would  be  «asy  to   sur  86  Conn.  546,  86  Atl.  10.     "It  appears 

mise   a  variety  of  things  entering,   as  that  during  the  day-time  the  accident 

acts  of  causation,  into  the  injury  of  the  took  place.     A  dark-colored  auto  driven 

dog,  which  might  have  occurred  in  ad-  H  ^^^  defendant  passed  in  the  street. 

dition    to    these    determinable    factors  The  witness  saw  the  dog  in  the  road, 

and  consistent  with  them.     Such  addi-  ^^'^  *^^*  ^^  "^^^  run  over  by  the  auto. 

tional   factors   in   the  situation   might  ^^^^^  ^^^  "^t  slow  up,  but  was  going 

point  to  a  lack  of  care  on  the  part  of  ^*  ^  moderate  rate  of  speed.     The  wit- 

the    driver    of    the    automobile.      They  "^^^  afterwards  saw  the  dog  lying  in 

easily  might,  on  the  other  hand,  dem-  ^^^  '•°^'^-      ^^   ^^'^   ^«   *^«  ^^   ^^^^^- 

.     ^     ^,    ^  ,              .        ,         , ,  both  auto  and  dog  were  lawfully  in  the 

onstrate  that  he  AA-as  free  from  blame.  ,       .      mi          .               . ,             , 

,.,,,,,                               ., ,      ,  street.      J.here   is  no   evidence  of   cave- 

and  that  the  dog  was  responsible  for  ,        ,  .  .          ^,               <•     .  .i    .  ■. 

°                  ^  less  driving.     The  mere  fact  that  it  ran 

his  own  death.     No  light  was  thrown  -,        .        .  ,        ^  •     .    i.       v 

°  over  a  dog  is  not  suincient  to  charge 

upon    these    matters    of    possible    con-  ,.                     ,    ,                ..                , 

^                                             ^  negligence,  much  less  can  it  support  a 

trolling  importance,  and  the  jury  was  ^^^.^  j^^  ^  ^j^f^i  j„.^^  »     q,jj^^^  ^, 

left  to  conjecture  as  to  what  occurred  (l^ould    84  N"   J    L    583    87    \tl    117 

and  what  the  real  proximate  cause  of  25.  FloAveree     v.     Thornberry      (Mo. 

the  killing  of  the  animal  was.     The  im-  A^p.),  183  S.  W.  359. 

proper    speed    of   the    automobile   may  26.  Whitwell     v.     Wolf,     127     Minn. 

have  ooncurred   in   point  of  time  with  529    J49  x.  W.  299. 

the    dog-s    injury    without    being    the  27.  Maddox  v.   Jones    (Ala.).   89   So. 


Miscellaneous  Travelers. 


615 


lie  does  not  insure  against  injury.^  So,  too,  the  one  having 
charge  of  the  animal  must  exercise  reasonable  care  to  avoid 
a  collision  with  the  motor  vehicle.^  The  questions  of  negli- 
gence and  contributory  negligence  are  generally  for  the  jury.^- 
One  who  is  driving  cattle  upon  a  traveled  highway  must  use 
reasonable  care  to  keep  the  cattle  upon  the  right  side  of  the 
highway;  and  if  they  get  upon  the  wrong  side  of  the  road,  <jr 


38;  Jforen  v.  Duevillez,  212  J II,  App. 
208;  Arrin^n  v.  Horner,  88  Kans. 
817,  129  Pac.  1159;  Pullman  v.  Moore 
(Mo.  App.),  218  S.  W.  938;  Goodrich 
V.  Matthews  (N.  Car.),  98  R.  E.  .529; 
Hanson  v.  Hulet  (N".  Dak.),  175  N.  W. 
205;  Car\'el  v.  Kusel  (Tex.  Civ.  App.). 
205  S.  W.  941.  See  also  Duprat  v. 
Chesmore    (Vt.),   110   Atl.   305. 

"Highest  care." — ^The  Missouri  stat- 
ute requiring  automobi  lists  to  use 
"highest  degi-ee  of  care"  applies  to  a 
horse  ranging  on  a  public  higli\vay. 
Pulhun  V.  Moore  (Mo.  App.).  218  S. 
VV.  938. 

Variance. — In  an  action  for  damages 
for  the  killing  of  plaintiff's  cow,  occa- 
sioned by  being  struck  by  defendant's 
automobile  while  being  led  along  the 
highway  by  plaintiff's  wagon,  wherein 
the  complaint  alleged  that  defendant, 
not  regarding  his  duty,  negligently  ran 
and  operated  the  automobile  at  a  high 
and  dangerous  rate  of  speed  and  ran 
it  against  the  cow,  evidence  for  plain- 
tiff, tending  to  show,  not  only  that 
the  car  was  operated  at  a  high  rate 
of  s-peed,  but  that  defendant  did  not 
turn  out  as  he  passed  plaintiff's  wagon, 
but  passed  it  in  the  traveled  track  and 
in  close  proximity  to  the  wagon  and 
cow,  was  admissible.  Saylor  v.  Motor 
Inn,  136  Minn.   466.   162  N".  W.  71. 

28.  Arrington  v.  Homer.  88  Kans. 
817,  129  Pao.  1159;  Tucker  v.  Carter 
/Mo.   App.),  211   S.  W.   138. 

Unavoidable  injury  to  hog. — If  a  hog 
suddenly  darts  into  tlie  road  under  a 
passing  automobile,  the  motorist  is  not 
liable.  Hester  v.  Hall  (Ala.  App.),  81 
So.  361. 


29.  Andiows  v.  U'liigliL-rty  (<onn.), 
112  Atl.  700;  Moren  v.  Duevillez,  212 
111.  App.  208:  Arrington  v.  Horner.  88 
Kans.   817,    129   Pac.    1159. 

Proximate  cause. — Even  though  the 
owner  of  a  horse  is  guilty  of  contribu- 
tory negligence  in  allowing  it  to  be 
upon  the  streets,  he  is  not  precluded 
from  a  recovery,  unless  his  negligence 
proximately  contributes  to  the  injury. 
Haynes  v.  Kay,  111  S.  Car.  107,  96  S. 
E.  623. 

30.  Maddox  v.  .lones  (Ala.),  89  So 
38;  Goodrich  v.  Matthews,  177  N.  Car. 
198,  98  S.  E.  529;  Hanson  v.  Hulet 
(N.  Dak.),  175  N.   W.   205. 

Leading  horse  behind  buggy.— In  an 
action  against  an  owner  of  an  auto- 
mobile for  the  killing  of  a  horse,  it  ap- 
peared that  at  the  time  of  the  acci- 
dent plaintiff  was  driving  a  bugg>'  in  a 
city  street  leading  the  horse  that  was 
killed  behind  a  buggy.  He  found  him- 
self in  the  rear  of  two  coal  wagons 
which  were  keeping  to  the  right,  so 
that  he  wus  compelled  to  turn  to  the 
left.  After  passing  one  wagon  and  be- 
ing still  opposite  to  the  second,  he  saw 
an  automobile  approaching  at  a  rapid 
rate,  with  one  wheel  in  the  c^r  track. 
Finding  that  he  had  not  room  between 
the  automobile  and  the  coal  wagon,  he 
turned  further  to  the  left  until  he  came 
within  two  feet  of  the  curb.  The  au- 
tomobile passed  the  buggy,  then  in- 
clined to  the  right  and  struck  the 
horse.  Held,  that  the  case  was  for  the 
jury,  and  that  a  verdict  and  judgment 
for  plaintiff  should  be  sustained. 
Everett  v  •^tiirires.  46  Pa.  Super  (>. 
612. 


616  The  Law  of  Automobiliss. 

the  driver  suffers  them  to  travel  upon  this  side,  he  is  bound 
to  use  more  care  and  keep  a  better  lookout  for  approaching 
vehicles  than  would  be  required  of  him  if  the  cattle  were 
upon  the  right  side,  either  by  notice,  or  other  means,  in  order 
to  avoid  collision  between  the  cattle  and  the  approaching 
vehicle.  Only  such  care  under  the  circumstances  would  be 
reasonable  care.^^  But,  under  statutes  prohibiting  the  run- 
ning loose  of  stock  and  animals  on  the  public  highways,  the 
owner  of  a  mule  may  be  precluded  as  a  matter  of  law,  from 
recovering  damages  for  an  injury  to  the  animal.^^ 

If,  by  reason  of  the  negligence  of  the  owner  of  the  horse, 
it  causes  injury  to  an  automobile  or  to  an  occupant  thereof, 
the  owner  of  the  animal  may  be  liable  for  the  damages.^ 
Thus,  if  the  owner  of  a  horse  leaves  the  same  unattended  and 
untied  in  a  city  street,  thereby  violating  an  ordinance  of  the 
city,  and  it  runs  away  and  runs  into  the  plaintiff's  automo- 
bile, the  violation  of  the  ordinance  may  be  considered  negli- 
gence per  se,  and  the  owner  of  the  machine  may  recover  for 
injuries  proximately  resulting  from  the  violation.^*  And  the 
owner  of  an  automobile  may  be  allowed  to  recover  for  in- 
juries thereto  occasioned  by  a  collision  with  a  dog.^^ 

Sec.  492.  Violation  of  law  of  road  —  in  general. 

As  a  general  proposition,  a  cyclist  is  subject  to  the  law  of 
the  road.^^    In  case  a  collision  occurs  between  an  automobile 

31.  Andrews  v.  Dougherty  (Conn.),  v.  Condon.  14  Ala.  App.  332.  70  So. 
112  Atl.  700.  208. 

32.  Dillon  v.  Stewart  (Tex.  Civ.  34.  Hill  v.  Condon,  14  Ala.  App.  332, 
App),  180  S.  W.  648.  70  So.  208. 

33.  Marshall  v.  Suburban  Dairy  Co.  35.  Tasker  v.  Arey,  114  Me.  551.  96 
(N.  J.),  114  Atl.  750;  Stevens  v.  Sas-  Atl.  737.  But  see  Melicker  v.  Sedlacek 
katoon  Taxicab  Co.,  45  D.  L.  R.  (Iowa),  179  N.  W.  197,  where  the  ac- 
( Canada)    763.  tion   failed   because   viciousness  of   the 

Insurance   on  automobile. — ^The  fact  do^  was  not  shown, 

that  the  owner  of  an  automobile  car-  Sow  in  road. — See  Higgins  v.  Searle. 

ries  insurance  thereon  as  against  acci-  100  L.  T.    (Eng. )    280. 

dent  and  has  collected  such   insurance  Sheep.— Owner  of  sheep  in  highway 

moneys,  is  not  admissible  for  tlie  pur-  not   liable   for   injury   to   automobilist. 

pose  of  reducing  the  damages  recover-  Heath's   Garage   v.    Hodges    (1916),    2 

able   for  the   defendant's  n^ligence   in  K.  B.    (Eng.)    370. 

permitting  the  horse  to  run  away.   Hill  36.  Clarke  v.  Woop,  159  N.  Y.  App. 


Miscellaneous  Travelers.  617 

and  a  bicycle  or  motorcycle,  and  the  automobile  is  found  to 
have  violated  the  law  of  the  road  in  beini^  on  the  wrong  side 
of  the  highway,  a  presumption  arises  that  the  chauffeur  was 
guilty  of  negligence.^"'  That  is,  a  prima  facie  case  of  negli- 
gence is  presented  upon  proof  that  the  automobile  was  on  the 
wrong  side  of  the  highway  at  the  time  of  the  collision.^  So, 
too,  contributory  negligence  may  be  charged  against  the 
cyclist  when  he  is  the  one  who  is  traveling  on  the  wrong  side 
of  the  street  or  highway.^^  The  use  of  the  wrong  side  of  the 
highway  may  be  excused  by  the  exigencies  of  the  occasion, 
so  as  to  carry  the  question  of  negligence  to  the  jury,  as,  for 
example,  when  it  is  necessary  to  make  a  diversion  from  the 
usual  course  in  order  to  avoid  an  obstruction  or  an  injury  to 
another.^"  So,  too,  one  may  be  justified  in  using  the  wrong 
side  of  the  highway  when  such  course  is  necessary  to  avoid 
injury  to  the  plaintiff  or  to  some  other  traveler."  Moreover, 
it  is  necessary  that  the  injuries  be  such  as  proximately  result 
from  the  violation  of  the  law  of  the  road,*^  but,  in  accidents 
of  this  character  when  one  turns  to  the  wrong  side  of  the 
highway  and  there  strikes  a  cyclist,  whether  the  injuries  are 
the  proximate  cause  is  easily  a  question  for  the  jury.*^ 

Sec.  493.  Violation  of  law  of  road  —  meeting  and  passing 
cyclist. 

In  this  country,  the  law  of  the  road  requires  that  the  driver 
of  an  automobile  shall  turn  to  the  right  upon  meeting  another 
traveler.**    If,  at  the  time  of  a  collision  with  a  bicycle  or 

Div.  437,  144  N.  Y.  iSuppl.   595.     And  39.  Section  510. 

see  section  245.  40.  Potter  v.   Glassell,   146  La.   687. 

37.  Slaughter  v.  Goldberg,  Bowen  &  83  So.  898 ;  Clarke  v.  Woop,  159  N".  Y. 
Co.,  26  Cal.  App.  318,  147  Pae.  90;  App.  Dir.  437,  144  N.  Y.  Suppl.  595. 
Cooke  V.  Jerome,  172  N.  Car.  626,  90  41.  Clarke  v.  Woop,  159  N.  Y.  App. 
S.  E.  767;  Johnson  v.  Heitman,  88  Div.  437,  144  N.  Y.  Suppl.  595;  Cooke 
Wash.  595,  153  Pac.  331;  Hartley  v.  v.  Jerome,  172  N.  Car.  626,  90  S.  E. 
Lasater,  96  Wash.  407,   165   Pac.   106.  767. 

See  also  Grulich  v.  Paine,  231   N.  Y.  42.  Weaver  v.  Carter,   28   Cal.    App. 

311;  Walleigh  v.  Bean,  248  Pa.  St.  339,  241,  152  Pac.  323. 

93  Atl.  1069.     And  see  section  267.  43.  Baillargeon  v.  Neyers  (Cal.).  182 

38.  Clarke  v.  Woop,  159  N.  Y.  App.  Pac.  37. 

Div.  437,  144  N.  Y.  Suppl.  595;  Casey  44.  Section  249. 

V.  Boyer  (Pa.),  113  Atl.  364. 


618  The  Law  of  Automobiles. 

motorcycle  the  automobile  is  on  the  wrong  side  of  the  street, 
a  prima  facie  case  of  negligence  is  presented."^    Particularly 
is  this  so,  when  the  approaching  cyclist  is  in  plain  view  of  the 
operator  of  the  motor  vehicle.*^    In  some  States  a  violation 
of  a  statute  regulating  the  law  of  the  road  is  considered  neg- 
ligence 2jer  se.^'^    And,  when  both  travelers  are  proceeding  on 
their  respective  sides  of  the  street  or  highway,  but  the  driver 
of  the  automobile  suddenly  crosses  the  road  a  short  distance 
in  front  of  the  cyclist,  ordinarily  a  fair  question  of  negligence 
is  presented  for  the  consideration  of  the  jury."^    Where  the 
complaint  alleges  that  the  defendant's  automobile  suddenly 
crossed  the  street  without  warning  and  struck  the  plaintiff,  a 
specific  allegation  of  negligence  is  not  necessary,  for  the  act 
of  the  defendant  in  such  a  case  necessarily  gives  rise  to  ar. 
inference  of  negligence.'*^    But,  where  a  bicyclist  continues  to 
ride  on  the  wrong  side  of  the  road  along  which  a  motor  car 
is  approaching  in  full  view  from  the  opposite  direction,  and 
maintains  that  position  until  the  motorist  in  order  to  avoid 
a  collision  turns  to  the  left,  and  the  bicyclist  is  killed  owing 
to  the  fact  that  he  turns  to  the  right  at  the  same  time,  the 
motorist  is  not  liable.^^    And  it  has  been  held  that  the  driver 
of  an  automobile,  as  a  matter  of  law,  is  not  negligent  in  travel- 
ing along  the  traveled  roadbed  of  the  highway,  for  one  can 
not  be  said  to  be  on  the  ''wrong"  side  of  the  highway  when 
he  is  following  the  usual  course  of  travelers.^^ 

45.  Slaughter  v.  Goldberg,  Bowen  &  47.  Lemmon  v.  Broadwater,  30  Del. 
Co.,  26  Cal.  App.  318,  147  Pac.  90;  (7  Boyce)  472,  108  Atl.  273.  And  see 
Schnabel  v.  Kafer,  39  S.  Dak.  70,  162      sections  267,  297. 

N.  W.  935;  Figueroa  v.  Madero   (Tex.  48.  Parmenter  v.  McDougall,  172  Cal. 

Civ.  App.),   201   8.  W.   271;   Harris  v.  306,    156    Pac.    460;    Brandenberg    v. 

Parks  (Utah),  196  Pac.  1002;  Peterson  Klehr,   197  111.  App.  459. 

V.  Pallis,  103  Wash.  180,  173  Pac.  1021.  49.  Herrick  v.  Oakland  Motor  Co.,  29 

And  see  section  267.                      •  Cal.  App.  414,  155  Pac.  1006. 

46.  Slaughter  v.  Goldberg,  Bowen   &  50.'  Clarke  v.  Woop,   159  N.  Y.  App. 
Co.,    26   Cal.   App.    318,    147   Pac.    90;  Div.  437,  144  N.  Y.  Suppl.  595. 
Konig  V.  Lyon    (Cal.   App.),   192  Pac.  51.  ISTordley  v.  Sorlie,  35  N.  Dak.  395. 
875;  Morken  v.  St.  Pierre  (Minn.),  179  160  N.  W.  70. 

N.  W.  681. 


Miscellaneous  Travelers.'  619 

Sec.  494.  Violation  of  law  of  road  —  overtaking  and  passing 
cyclist. 

When  the  driver  of  an  autoinoljile  overtakes  and  desires  to 
pass  a  bicycle  or  motorcycle  proceeding  in  the  same  direction, 
the  law  of  the  road  in  this  country  requires  that  he  shall  pass 
to  the  left  side  of  the  cyclist.^^  The  requirement  that  the  rear 
vehicle  shall  pass  to  the  left  is  now  generally  affirmed  by 
statutory  enactment.^^  If,  without  a  sufficient  legal  excuse,  he 
attempts  to  pass  on  the  wrong  side,  he  may  be  charged  with 
such  damages  as  proximately  result  from  his  wrongful  use 
of  the  highway.^^  The  cyclist  should  turn  to  the  right  so  as 
to  afford  the  faster  vehicle  a  reasonable  opportunity  to  turn 
to  the  left.  If,  however,  the  cyclist,  instead  of  turning  as  re- 
quired by  the  law  of  the  road,  swerves  toward  the  left,  the 
motorist  may  be  justified  in  attempting  to  pass  on  the  right 
side.^  In  case  of  a  conflict  as  to  whether  the  rider  of  a  bicycle 
turned  in  the  wrong  direction,  a  question  within  the  province 
of  the  jury  is  presented.^^  Reasonable  care  may  forbid  the 
automobilist  from  attempting  the  passage  near  an  intersect- 
ing street  where  the  cyclist  might  turn  toward  the  left;  in 
case  he  turns  toward  the  left  at  the  same  time  that  the  driver 
of  the  auto  attempts  the  passage,  the  negligence  of  the  respec- 
tive parties  is  generally  a  question  for  the  jury.^^ 

Sec.  495.  Violation  of  law  of  road  —  cyclist  overtaking  auto- 
mobilist. 

In  ease  a  cyclist  wishes  to  pass  a  motor  vehicle,  the  legnl 
situation  is  the  same  as  when  a  motorist  seeks  to  pass  a  cyclist. 
The  faster  cyclist  should  turn  toward  the  left  in  making  the 
passage,  the  autoist  concurrently  turning  toward  the  right.^'' 

52.  Section  252.  241,    152   Pac.    323;    Cooke   v.   Jerome. 

53.  Statute    requiring    forward    ve-       IT'S  N.  Car.  626,  90  S.  E.  767. 

hide    to    turn    to    right.— A    statutory  55.  Cook  v.  Jeromo.  172  N.  Car.  (l^r.. 

enactment   requiring   that  the   forward  90  S.  E.  767. 

vehicle    shall    turn    to    the    right,    im-  56.  Cook  v.  Jerome,  172  N.  Car.  62r>. 

plieflly  requires  and  permits  the  over-  90  S.  E.  767. 

taking  one   to   pass   on  the   left   side.  57.  Hartley    v.    Lasater,    96    Wa-oh. 

Paschel  v.  Hunter,  88  N.  J.  Law,  445,  407,   165  Pac.   106. 

97  Atl.  40.  58.  Borg    v.    Larson.    60    Ind.    .A.pp. 

54.  Weaver  v.   Carter,   28  Cal.   App.  514,  111  N.  E.  201. 


620  The  Law  of  Automobiles. 

In  turning  back  toward  the  center  of  the  highway,  the  cyclist 
should  exercise  due  care  to  the  end  that  the  movement  is  made 
far  enough  from  the  automobile  that  a  collision  will  not  ensue. 
In  case  the  cyclist  slips  or  from  some  other  cause  is  in  a  dan- 
gerous situation  after  the  passage,  the  driver  of  the  automo- 
bile should  exercise  reasonable  care  to  avoid  injury  to  the 
cyclist.''^ 

Sec.  496.  Violation  of  law  of  road  —  meeting  cyclist  after 
overtaking  other  vehicle. 

The  general  rule  of  the  road  requires  that  a  motorist,  when 
overtaking  a  slower  conveyance,  shall  turn  to  the  left.*^*^  The 
law  of  the  road,  however,  does  not  give  the  driver  of  the  ma- 
chine a  license  to  pass  the  slower  vehicle  under  all  circum- 
stances. He  can  do  so  only  when  reasonable  prudence  per- 
mits the  passing.^^  If  he  attempts  to  pass  the  vehicle  at  the 
same  time  that  a  cyclist  is  attempting  to  pass  from  the  op- 
posite direction,  he  may  be  liable  for  injuries  sustained  by 
the  latter.^2  The  driver  of  the  automobile  is  required  to  exer- 
cise such  care  as  the  circumstances  demand.^^  Reasonable  care 
may  require  that  the  speed  of  the  machine  be  much  lessened 
and  that  it  be  brought  under  control  so  that  travelers  from  the 

59.  Winslow  v.  New  England  Co-op.  rear,  in  passing,  towards  another  vehi- 
Soc,  225  Mass.  576,  114  N.  E.  748.  cle  that  may  be  approaching  in  an  op- 

60.  Section  252.  posite  direction.     The  approach  of  the 

61.  "A  person  attempting  to  pass  a  vehicle  in  the  opposite  direction  is 
vehicle  ahead  of  him  and  going  in  the  simply  one  of  the  circumstances  which 
same  direction  must  exercise  proper  must  be  considered  by  the  rear  man 
care  in  so  doing.  If  a  vehicle  is  ap-  when  he  attempts  to  pass.  It  is 
preaching  from  the  opposite  direction  simply  one  of  the  things  which  demands 
at  the  moment  when  he  desires  to  pass  the  exercise  of  care  upon  his  part  under 
the  vehicle  in  front,  and  the  highway  all  circumstances,  and  in  some  circum- 
is  not  wide  enough  to  safely  accommo-  stances  he  would  be  required  to  refrain 
date  all  three  teams  abreast,  then  it  from  attempting  to  pass  until  the  ap- 
^!F0uld  be  the  duty  of  the  person  in  proaehing  vehicle  had  gone  by. "  Ribaa 
charge  of  the  rear  vehicle,  in  the  exer-  v.  Revere  Rubber  Co.,  37  R,  I.  189,  91 
cise  of  proper  care  under  the  circum-  Atl.  58. 

stances,  to  wait  until  the  vehicle  com-  62.  Wiley  v.  Young,  178  Cal.  681,  174 

ing  in  the  opposite  direction  had  passed  Pac.  316 ;  Ribas  v.  Revere  Rubber  Co., 

by  before  he  attempted   to   turn   out.  37  R.  I.  189,  91  Atl.  58. 

It  is  not  necessary  to  involve  the  ques-  63.  Ribas  v.   Revere  Rubber  Co.,   37 

tion  as  to  the  duty  of  the  vehicle  in  the  R.  I.  189,  91  Atl.  58. 


Miscellaneous  Travelers.  621 

opposite  direction  may  be  more  easily  avoided.''^  In  such  a 
situation,  the  cyclist  would  be  traveling  along  what  to  him  is 
the  right  side  of  the  highway,  and  he  is  not  charged  with 
knowledge  that  an  automobile  will  swerve  past  a  vehicle  to 
his  side  of  the  road. 

Sec.  497.  Violation  of  law  of  road  —  street  intersection. 

In  the  absence  of  statutory  or  municipal  regulation  chang- 
ing the  rights  of  the  parties,  a  cyclist  and  the  driver  of  a 
motor  vehicle  have  equal  rights  at  the  intersection  of  street 
crossings.  Each  is  bound  to  exercise  reasonable  precaution 
to  avoid  a  collision;  but,  if  one  is  at  the  intersection  decidedly 
in  advance  of  the  other,  he  is  generally  allowed  the  right  of 
Avay,  and  he  has  a  right  to  assume  that  the  other  will  respect 
his  prior  right."^  The  ordinary  rights  of  the  parties  may  be 
changed  by  municipal  ordinance.  Thus,  in  behalf  of  the 
crowded  traffic  on  some  of  the  busy  thoroughfares,  ordinances 
sometimes  prescribe  that  vehicles  along  such  a  thoroughfare 
shall  have  a  right  of  way  over  those  on  cross  streets.^''  So, 
too,  traffic  laws  in  some  States  give  a  right  of  way  to  a  traveler 
approaching  an  intersecting  street  from  the  right."  At  a 
street  crossing  each  traveler  is  expected  to  keep  on  the  right 
side  of  the  highway  along  which  he  is  tT'aveling;  and,  where 
the  duty  is  imposed  by  statute  or  municipal  ordinance,  its  vio- 
lation in  a  few  jurisdictions  is  negligence  per  .<?e.^^ 

Sec.  498.  Violation  of  law  of  road  —  turning-  corners. 

AVhen  the  driver  of  an  automobile  seeks  to  turn  a  corner,  he 
^  is  bound  to  exercise  reasonable  care  to  avoid  injury  to  trav- 

64.  Higgles  V.  Priest,  163  Wis.  199,  67.  Nolan  v.  Davis  (N.  J.),  112  Atl. 
157  N.  W.  755.  188 ;  Saari  v.  Wells  Fargo  Exp.  Co.,  100 

65.  Wh'telaw  v.  McGillard,  179  Cal.  Wash.  415,  186  Pac.  898:  Glatz  v. 
349.  176  Pac.  679.  Kroeger  Bros.  Co.,   168  Wis.   635.  170 

66.  Ewwig  V.  Lumber  Operating  &  N.  W.  934.  See  also  Ward  v.  GiMp.n 
Mfg.  Co.,  183  N.  Y.  App.  Div.  198,  170  (Cal.  App.),  186  Pac.  612. 

N.   Y.   Suppl.   192;    Bullis   v.   Ball,   98  68.  Johnson    v.    Heitman.    88    Wash. 

Wash.    342.    167    Pac.    942.      Sec    also  595,  153  Pac.  331.     See  also  Ziiccone  v. 

Wobcr  V.  Becson,  197  Mich.  607,  164  Main  Fish  Co.  (Wash.),  177  Pac.  314. 
N.  W.  255.     And  see  section  262. 


622  The  Law  of  Automobiles. 

elers  along  each  of  the  intersecting  streets  as  well  as  to  pedes- 
trians on  the  crosswalks.^^  A  turn  toward  the  right  is  not 
accompanied  with  the  dangers  that  are  incident  to  a  turn  to 
the  left,  for  the  reason  that  the  autoist  is  not  intersecting  the 
course  of  traffic  to  the  same  extent.  When  turning  to  the  left, 
it  is  generally  a  matter  of  statutory  or  municipal  regulation 
that  the  autoist  shall  keep  to  the  right  of  the  center  of  the 
intersecting  streets  f^  and,  if  he  fails  to  obey  the  regulation 
and  injury  is  thereby  occasioned  to  a  cyclist,  negligence  of  the 
auto  driver  may  be  found.'^  In  making  such  a  turn  at  a  much 
frequented  corner  in  a  city,  the  machine  should  be  under  con- 
trol and  its  speed  reduced  to  the  extent  reasonably  necessary .'^ 
Negligence  may  be  found  if  the  auto  driver  turns  without 
warning  and  collides  with  a  cyclist  proceeding  parallel  to  the 
machine.'^ 

Sec.  499.  Violation  of  law  of  road  — turning  or  backing  in 
street. 
The  turning  of  an  automobile  in  a  public  highway  is  a 
proper  use  thereof  f*  but  the  driver  is  required  to  use  all  rea- 
sonable precautions  to  avoid  injuries  to  cyclists  and  other 
travelers.  Where  an  automobile  and  a  motorcycle  are  pro- 
ceeding in  the  same  direction,  and  the  motorcycle  runs  into 
the  auto  because  the  latter  attempts  to  turn  around  in  the 

69.  See  sections  258-259.  Minnesota. — Elvidge    v.     Stronge    & 

70.  Section  259.  Warner  Co.,  181  N.  W.  346;   Molin  v. 

71.  ^^flfeamff..— Karpeles  v.   City  Ice      Wark,  113  Minn.   190,   129  N.  W.  383. 


Delivery  Co.,  198  Ala.  449,  73  So.  643 
California. — Cook  v.  Miller,  175  Cal 
497,  166  Pac.  316;  Opitz  v.  Schenck, 
174  Pac.  40 ;  Perez  v,  Hartman,  39  Cal 
App.  601,  179  Pac.  706;  Martinelli  v 
Bond  (Cal.  App.),  183  Pac.  463;  Aus 
tin   V.   Newton    (Cal.   App.),    189   Pac 


Missouri. — Heryford  v.  Spitcanfsky 
(Mo.  App.),  200  S.  W.  123. 

New  YorTc. — Berckhemer  v.  Empire 
Carrying  Corp.,  172  N.  Y.  App.  Div. 
866,  158  N.  Y.  Suppl.  856. 

Washington. — Molitor  v.  Blackwell 
Motor  Co.,  191  Pac.  1103. 


471.  Wisconsin. — Foster  v.  Bauer,  180  N. 

Indiana. — Reitz     v.     Hodgkina,     185  W.  817. 

Ind.  163,  112  N.  E.  386.  72.  Berckhemer   v.   Empire   Carrying 

Kansas. — Cross    v.    Rosencranz,    195  Corp.,    172   N.   Y.   App.   Div.    866,    158 

Pac.  857.  N.  Y.  Suppl.  856.    And  see  section  501. 

Michigan. — Reed  v.  Martin,  160  Mich.  73.  Geiger  v.  Garrett  (Pa.),  113  Atl. 

353,  125  N.  W.  61 ;  Holden  v.  Hadley,  195. 

180  Mich.  568,  147  N.  W.  482.  74.  See  section  263. 


Miscellaneous  Travelers.  623 

street  without  warning  the  cyclist,  thereby  obstructing  the 
course  of  the  motorcycle,  the  driver  of  the  auto  may  properly 
be  found  guilty  of  negligence.''^  In  such  a  case,  evidence  of 
the  occupants  of  the  automobile  that  before  starting  to  turn 
the  car  they  looked  around  and  saw  no  other  vehicle  in  the 
vicinity  is  of  no  weight,  when  it  is  undisputed  that  the  cyclist 
was  in  plain  view,  for  it  is  negligence  not  to  see  what  is  clearly 
visible.''^  Negligence  may  also  be  charged  against  the  operator 
where  he  backs  his  machine  in  the  street  without  warning  and 
thereby  causes  an  injury  to  a  cyclist.  And  especially  is  this 
so,  when  it  is  provided  by  statute  that  no  vehicle  shall  back 
or  make  a  turn  in  any  street  if  by  so  doing  it  interferes  with 
other  vehicles,  but  shall  go  around  a  block  or  to  a  street  suffi- 
ciently wide  to  turn  in  without  backing."" 

Sec.  500.  Lookout. 

Keasonable  care  requires  that  the  driver  of  a  motor  vehicle 
shall  exercise  a  reasonable  lookout  so  that  he  may  see  other 
travelers  and  avoid  an  injury  to  them.'^^  The  driver  of  the 
vehicle  cannot  necessarily  escape  liability  on  a  plea  that  he 

75.  Koenig  v.  Semran,   197  111.  App.  hand  side  of  the  traveled  way  of  that 

624.  street.     But  that  law  docs  not  compel 

Instruction    to    jury. — In    an    action  a  man  always  to  be  on  the  right  side, 

where  it  appeared   that   a  cyclist   was  He  can  use  any  part  of  the  street  so 

struck  by  an  automobile  while  the  ma-  long  as  he  is  not  interfering  with  the 

chine  was  turning  around  so  as  to  go  rights  of  other  people,  and  the  fact  this 

back  in  the  opposite  direction,  the  fol-  happened  on  the  right-hand  side  of  the 

lowing  charge  to  the  jury  was  held  to  street  is  only  another  piece  of  evidence 

be  proper:     "You  are  to  take  all  the  to  be  considered  by  you.     You  are  to 

evidence,  all  the  circumstances,  and  de-  consider     whether     Peterson     was     en- 

termine  whether  he  was  doing  anything  deavoring,  in  making  a  turn,  to  get  on 

he    ought   not   to   have   done,    that    an  the  right-hand  side  near  the  hydrant, 

ordinarily  reasonable  and  prudent  man  where  under   certain   circumstances   he 

would  not  have  done  under  all  the  cir-  properly  belonged."    Johnson  v.  Shaw, 

cumstances.     He  had  a  right  to  make  204  Mass.  165,  90  N.  E.  518. 

that  turn.     He  had  a  right  to  use  any  76.  Koenig  v.  Semran,  197  111.  App. 

part  of  the  street  that  he  was  coming  624. 

into,  subject  only  to  the  rights  of  other  77.  Pyers  v.   Tiers,  87   N.  J.  L.   520, 

people  who    might   be   there.      If    two  99  Atl.  130. 

vehicles  meet  in  a  street,  it  is  the  duty  78.  Sections  332-336.  Martin  v.  Lilly. 

of  each  one  of  them,  as  seasonably  as  188  Ind.  139,  121  N.  E.  443. 
they  can,  to  get  each  on  his  own  right- 


(524  The  Law  of  Automobiles. 

did  not  see  another  traveler,  for  it  is  his  duty  to  keep  a  reason- 
ably careful  lookout,  and  he  is  charged  with  knowledge  of 
what  he  should  have  seen  with  such  a  lookout.''^  In  case  of  a 
collision  with  a  bicycle  or  motorcycle,  if  he  is  not  exercising 
reasonable  care  in  looking  for  other  travelers,  he  may  be  li- 
able for  injuries  sustained  by  the  cyclist.^o  Thus,  negligence 
of  the  automobilist  is  properly  found  on  evidence  tending  to 
show  that  he  came  up  behind  the  cyclist  and  ran  into  him,  for, 
in  such  a  case,  the  automobilist  is  in  a  better  position  to  avoid 
danger,  and  where  the  one  in  front  is  exercising  reasonable 
care,  a  collision  prima  facie  indicates  negligence  on  the  part 
of  the  driver  of  the  motor  vehicle.^^  If  the  accident  happened 
after  dark,  the  driver  of  the  machine  would  be  deemed  guilty 
of  negligence  in  not  having  his  car  under  such  control  that  he 
could  stop  within  the  scope  of  his  lights.^^ 

Sec.  501.  Speed  and  control  of  auto. 

The  driver  of  a  motor  vehicle  is  at  all  times  required  to 
have  the  machine  under  reasonable  control.^^  When  traveling 
at  night,  the  driver  of  an  automobile  should  have  his  machine 
under  such  control  that  he  will  not  run  down  cyclists  travel- 
ing in  the  same  direction.^*  Reasonable  control  implies  that 
the  machine  shall  not  be  run  at  more  than  a  reasonable  rate 
of  speed.^^    What  is  a  reasonable  rate  of  speed  depends  on 

79.  Kennedy  v.  Webster,  137  Minn.  85.  California.— Weaver  v.  Carter,  28 
335,   163   N.  W.   519.  Cal.  App.  241,  152  Pac.  323. 

80.  Rogers  v.  Phillips,  217  Mass.  52,  Connecticut. — Irwin  v.  Judge,  81 
104  N.  E.  466;  Porter  v.  Nesmith  Conn.  492,  71  Atl.  572;  Radwick  v. 
(Miss  ),  87  So.  5.  Goldstein,  90  Conn.  701,  98  Atl.  583. 

81.  Heath  v.  Cook  (R.  I.),  68  Atl.  Michigan.— Tlolden  v.  Hadley,  180 
427.     See  also  Barker  v.  Savas,  52  Utah  Mich.  568,  147  N.  W.  482. 

262,  172  Pac.  672.  Minnesota.— MoVm     v.      Wark,      113 

82.  Harnau  v.  Haight,  189  Mich.  600,       Minn.  190,  129  N.  W.  383. 

155  N.  W.  563.     See  sections  326,  344.  New    York. — Beickhemer    v.    Emp're 

83.  Irwin  v.  Judge,  81  Conn.  492,  71  Carrying  Corp.,  172  N.  Y.  App.  Div. 
Atl.    572;    Radwick    v.    Goldstein,    90      866,  158  N.  Y.  Suppl.  856. 

Conn.    701,    98    Atl.    583;    Harnau    v.  Pennstjlvania.—Walle'gh.  v.Bean,  2A8 

Haight,  189  Mich.  600.  155  N.  W.  563;  Pa.  St.  339,  93  Atl.  1069. 

Molin  V.  Wark,  113  Minn.  190,  129  N.  Washington. — Hartley  v.  Lasater,  96 

W.  383.    And  see  section  326.  Wash.  407,  165  Pac.   106. 

84.  Harnau  v.  Haight,  189  Mich.  600,  Canada.— Wales  v.  Harper  (Mani- 
155  N,  W.  563.  toba),  17  West.  L.  R.  623. 


• 


Miscellaneous  Travelers.  625 

the  surrounding  circumstances,  such  as  the  character  of  the 
machine  and  its  equipment,  the  density  and  nature  of  the 
traffic,  the  ol)structions  along  the  road.  The  question  is  gen- 
erally one  for  the  jury.^^  Statutes  or  municipal  ordinances 
may  preclude  an  inquiry  as  to  whether  a  particular  speed  is 
reasonable  by  arbitrarily  fixing  the  maximum  speed  which 
motor  vehicles  may  run  under  given  circumstances.  Such 
regulations  are  to  be  obeyed,  and  their  violation  generally 
affords  ample  ground  for  charging  the  violator  with  respon- 
sibility for  all  damages  proximately  resulting  therefrom.^^ 
But  the  jury  may  properly  find  that  a  speed,  although  not  in 
excess  of  a  specific  limitation,  is  unreasonable  under  the  cir- 
cumstances.^^ The  circumstances  may  be  such  that  the  driver 
of  a  motor  vehicle  should  stop  his  car  to  avoid  a  collision  with 
a  cyclist.  But  one  need  not  necessarily  stop  his  car  when  he 
sees  a  person  on  a  bicycle  approaching  in  plain  view  for  some 
distance,  though  such  bicyclist  is  on  the  wrong  side  of  the 
road,  for  he  may  assume,  in  the  absence  of  anything  appear- 
ing to  the  contrary,  that  the  bicycle  will  be  turned  to  the 
proper  side  of  the  road  and  the  collision  thus  avoided.^^  The 
negligence  of  the  driver  of  a  motor  vehicle,  however,  may  be 
found  by  the  jury,  though  he  is  not  driving  at  an  excessive 
speed,  as  through  incompetency,  inattention,  or  a  mistake  in 
judgment. 

86.  Merkl  v.  Jersey  City  H.  &  P.'  St.  Minn.  190,  129  N.  W.  383 ;  R'ser  v. 
Ry.,  75  N.  J.  Law,  654,  68  Atl.  74;  Smith,  136  Minn.  417,  163  N.  W.  520. 
Brewster  v.  Barker,  129  N.  Y.  App.  South  DaJcof a. —Cameron  v.  Miller. 
Div.  724,  113  N.  Y.  Suppl.  1026;  Acker-  180  K  W.  71. 

man  v.   Stacey,   157   N.  Y.   App.  Div.  Teza^.—Flores  v.  Garcia  (Civ.  App.), 

835,  143  N.  Y.  Suppl.  227;  Fricker  v.  226  S.  W.  743. 

Philadelphia  Rapid  Transit  Co.,  63  Pa.  Washington.— Anderson    v.    Kinnear, 

Super.  Ct.  381;  Cheney  v.  Buck  (Utah),  80  Wash.  638.  141  Pac.  1151;  Barth  v. 

189  Pac.  81.  Harris,  95  Wash.  166.  163  Pac.  401. 

87.  California. — Weaver  v.  Carter,  28  Wisconsin. — Higgles  v.  Priest,  163 
Cal.  App.  241,  152  Pac.  323.  Wis.  199,  157  N.  W.  755. 

/owa.— VHaterick    v.    Hamilton,    179  88.  Opitz  v.  Sehenck  (Cal.),  174  Pac. 

Iowa,  607,   161  N.  W.   684.     See  also  40.     And  see  section  324. 

Larsh  v.  Strasser,  183  Iowa,   1360,  168  89.  Clarke  v.  Woop,  159  N.  Y.  App. 

N.  W.  142.  Div.  437,  144  N.  Y.  Suppl.  595. 

Minnesota. — Molin     v.     Wark,      113 

40 


626  The  Law  of  Automobiles. 

Sec.  502.  Warning  of  approach. 

The  burden  of  reasonable  care  which  is  imposed  upon  the 
driver  of  a  motor  vehicle  when  using  the  public  highways,®** 
requires,  as  a  general  proposition,  that  warning  of  its  ap- 
proach be  given  to  other  travelers  who  apparently  are  oblivi- 
ous thereto.®^  The  burden  of  the  operator  of  a  machine  in 
this  respect  is  now  generally  affirmed  by  statutory  enactment. 
If  the  required  warning  is  not  given,  the  driver  of  the  car 
may  be  liable  to  a  cyclist  who  is  unaware  of  its  approach  and 
who  is  injured  by  a  collision  therewith.®^  But  the  fact  that 
the  horn  has  been  removed  from  the  auto  and  the  driver 
opens  the  cut-out  to  give  warning,  does  not  necessarily  show 
negligence,  though  the  use  of  cut-outs  was  forbidden  by  ordi- 
nance at  the  place  of  the  accident.®^  The  duty  of  giving  a 
warning  of  approach  to  an  intersecting  street  may  also  be 
imposed  on  the  rider  of  a  motorcycle,  so  that  if  neither  the 
autoist  nor  the  cyclist  gives  the  warning  and  a  collision 
thereby  results,  the  driver  of  the  automobile  may  not  be 
liable.9* 

Sec.  503.  Contributory  negligence  of  cyclist  —  in  general. 

In  case  of  a  collision  between  an  automobile  and  a  bicycle 
or  motorcycle,  as  a  general  rule,  the  cyclist  cannot  recover 
from  the  driver  of  the  auto  unless  it  appears  that  he  was  in 
the  exercise  of  reasonable  care  at  the  time  of  the  collision.®^ 

90.  Section  277.  on  rehearing,  181  Pac.   171. 

91.  Section  329.  California. — Konig    v.     Lyon     (Cal. 

92.  See    Christie     v.     McCall     (Cal.      App.),  192  Pae.  875. 

App.),  177  Pac.  507;   Rogers  v.  Phil-  Michigan. — Gibbs     v.     Dayton,     166 

lips,    217    Mass.    52,    104    N.    E.    466;  Mich.  263,  131  N.  W.  544. 

Wales  V.  Harper  (Manitoba),  17  West.  Missouri. — Heryford    v.    Spitcanfsky 

L.   E.    623.      See   also   Barton   v.   Van  (Mo.  App.),  200  S.  W.  123;  Boyer  v. 

Gesen,  91  Wash.  94,  157  Pac.  215.  Oldham    (Mo.   App.),   209   S.   W.   617; 

93.  Linneball  v.  Levy  Dairy  Co.,  173  Meredith  v.  Claycomb  (Mo.  App.),  216 
App.  Div.  861,  160  N.  Y.  Suppl.  114.  S.  W.  794. 

94.  Larsh  v.  Strasser,  183  Iowa.  1360,  New  York. — Miner  v.  Rembt,  178  N. 
168  N.  W.  142.  Y.   App.    Div.    173,    164   N.    Y.    Suppl. 

95.  Alalama.—Hwej   v.    Dykes,    203       173,  164  N.  Y.  Suppl.  945. 

Ala.  231,  82  So.  481.  Washington.— C\ark    v.    Wilson,    108 

Arizona. — Young  v.  Campbell,  20  Wash.  127.  183  Pac.  3  03;  Tyrell  v. 
Ariz.  71,  177  Pac.  19,  appeal  dismissed      Leege,  100  Wash.  129,  178  Pac,  467. 


Miscellaneous  Travelers. 


627 


In  some  jurisdictions,  however,  the  effect  of  contributory  neg- 
ligence is  limited  in  cases  where  it  is  shown  that  the  defendant 
has  been  guilty  of  "gross"  negligence.    But  the  courts  in  at 
least  one  jurisdiction  have  refused  to  apply  this  doctrine  to 
a  case  of  injuries  caused  by  the  violation  of  a  speed  limit 
statute  by  an  automobile.^^    Mere  negligence  is  not  generally 
a  bar  to  wilful  misconduct  on  the  part  of  the  automobilist; 
but  wilful  conduct  of  the  cyclist  will  defeat  the  action  although 
the  conduct  of  the  automobilist  was  likewise  wilful."    Even 
children,  when  riding  a  bicycle  along  the  public  streets,  are 
required  to  exercise  the  degree  of  care  reasonably  to  be  ex- 
pected from  children  of  the  same  age  and  intelligence.^^    The 
contributory  negligence  of  a  cyclist  is  ordinarily  a  question 
for  the  jury.^^    The  fact  that,  in  a  collision  between  an  auto- 
mobile and  a  motorcycle,  the  motorcycle  ran  into  the  side  of 


Wisconsin. — Foster  v.  Bauer,  180  N. 
W.  817. 

96.  Higgles  v.  Priest.  163  Wis.  199, 
157  N.  W.  755. 

97.  Spillers  v.  Griffin,  109  S.  Car. 
78,  95  S.  E.  133.  See  also  McVoy  v. 
Chassin   (Ala.  App.),  88  So.  29. 

98.  Schrayer  v.  Bishop  &  Lynes,  92 
Conn.  677,  104  Atl.  349;  Black  v. 
Parke,  Davis  &  Co.  (Mich.),  178  N.  W. 
700;  Nev\Tnann  v.  Hudson  County  Co., 
155  N.  Y.  App.  Div.  271,  139  N.  Y. 
Suppl.  1028;  Kriens  v.  McMillan  (S. 
D.),  173  N.  W.  731;  Barton  v.  Van 
Gesen,  91  Wash.  94,  157  Pac.  215.  ' '  An 
infant  may  be  guilty  of  negligence, 
and,  if  it  proximately  contributes  to  its 
injury,  it  bars  a  recovery  of  the  infant 
in  the  same  manner  and  to  the  same 
extent  that  contributory  negligence  of 
an  adult  bars  an  action  by  the  latter; 
but  the  difficulty  arises  in  determining 
when,  and  under  what  circumstances,  is 
an  infant  guilty  of  contributory  negli- 
gence. That  which  will  be  contribu- 
tory negligence  on  the  part  of  an  adult 
may  be  proper  care  on  the  part  of  an 
infant.     That  which  will  be  negligence 


on  the  part  of  one  infant  may  be  proper 
care  on  the  part  of  another,  depending 
upon  the   age,   discretion,   intelligence, 
experience,  etc.,  of  the  infant.    A  child 
of  tender  years  has  capacity  to  exer- 
cise  only   such   care   and   self-restraint 
as    belong    to    childhood.      Reasonable 
men   are  presumed   to  know  this,   and 
must    govern    themselves    accordingly. 
The  caution  and  care  required  of  others 
toward  the  infant  are  measured  by  the 
age,    the   maturity,    the    capacity,   and 
the  intelligence  of  the  child.     Birming-  , 
ham  &  A.  R.  Co.  v.  Matison,  166  Ala. 
608,   609,   52   South.   49.      A   child   too 
3'^oung  to  exercise  any  care  or  discre- 
tion  is  clearly  as  incapable  of  negli- 
gence as  it  is  of  crime  or  sin,  and  is 
therefore   not   answerable   to   the   doc- 
trine of  contributory  negligence.    There 
are  ages  so  young    (usually  under   7i 
that  there  is  a  conclusive  presumption 
of  law,  and  hence  evidence  is  not  ad- 
missible  to   refute   the   presumption." 
Jones  V.   Strickland.  201  Ala.   138.   77 
So.  562. 

99.  Section  516. 


(J28  The  Law  of  Automobiles. 

the  automobile  does  not  establish  the  contributory  negligence 
of  the  cyclist.^ 

Sec.  504.  Contributory  negUgence  of  cyclist  —  statutory  re- 
quirement as  to  degree  of  care. 
A  statutory  enactment  requiring  one  operating  a  motor 
vehicle  on  the  public  highways  to  use  the  "highest"  degree 
of  care  to  prevent  injury  to  other  travelers  does  not  apply  to 
one  driving  a  motorcycle  who  brings  an  action  for  injuries 
received  in  a  collision  with  an  automobile.  While  such  a 
statute  might  apply  in  an  action  against  the  cyclist  for  in- 
juries received  by  another,  when  he  himself  is  bringing  the 
action,  the  criterion  of  his  contributory  negligence  is  whether 
he  exercised  ordinary  care.^ 

Sec.  505.  Contributory    negligence    of    cyclist  —  proximate 
cause. 
Contributory  negligence  or  wrongful  conduct  on  the  part 
of  a  cyclist  is  a  defense  to  his  action  for  injuries  from  an  auto- 
mobile only  when  such  negligence  is  one  of  the  proximate 

1.  Zuceone  v.  Main  Fish  Co.  (Wash.),  not  arise.  All  that  we  hold  here  is 
177  Pac.  314;  Glatz  v.  Kroeger  Bros.  that  in  the  eircumstances  of  this  case 
Co.,  168  Wis.  635,  170  N.  W.  934.  the  degree  of  care  resting  upon  plain- 
•  2.  Hopkins  v.  Sweeney  Automobile  tiff  at  the  time  he  was  struck  was  ordi- 
School  Co.  (Mo.  App.),  196  S.  W.  772,  nary  care,  while  the  care  resting  upon 
wherein  it  was  said:  "The  statute,  defendant  not  to  run  into  him  as  he 
be'ng  in  derogation  of  the  common  law,  was  passing  over  the  intersection  was 
is  to  be  strictly  construed.  It  was  the  care  required  by  the  statute.  If 
'  passed  because  motor  vehicles  are  a  plaintiff  is  to  be  held  in  this  case  to 
dangerous  instrumentality,  and  their  the  exercise  of  the  statutory  degree  of 
operation  is  known  to  be  a  source  of  care,  then,  if  the  driver  of  an  automn- 
danger  to  others,  and  the  care  required  bile  drove  into  a  hole  in  the  street  and 
by  the  statute  was  to  minimize  that  was  injured,  he  could  not  recover  there- 
danger.  There  may  be  circumstances  for  unless  he  was  exercising  the  highest 
in  which  the  driver  of  a  motor  vehicle  degree  of  care  of  a  very  careful  pei- 
might  be  injured  in  the  course  of  the  son,  while  if  he  were  driving  a  buggy, 
operation  of  his  own  machine,  where  or  any  other  conveyance  except  a  motor 
he  could  be  properly  held  to  be  without  vehicle,  he  would  be  held  to  only  ordi- 
remedy  on  that  ground  that  the  statu-  nary  care.  And  at  the  same  time  the 
tory  degree  of  care  rested  upon  him  at  fact  that  in  the  one  case  he  was  operat- 
that  particular  time,  and  that  his  ing  a  motor  vehicle,  and  in  the  other 
failure  to  exercise  that  degree  of  care  he  was  not  would  have  nothing  to  do 
was  partly  responsible  for  hia  injury.  in  a  causative  way,  with  his  injury." 
We  do  not  say  that  such  a  case  could 


Miscellaneous  Travelers.  629 

causes  of  the  injury,  but  not  when  the  conduct  was  not  a 
proximate  cause  of  the  injury.^  Thus,  as  a  general  proposi- 
tion, the  failure  of  the  owner  of  a  niotorcycle  with  reference 
to  the  proper  registration  and  licensing  of  the  machine,  \sdll 
not  defeat  his  action  for  injuries."  Whether  the  negligence 
or  wrongful  conduct  of  the  cyclist  is  a  contributing  cause  of 
the  injury,  may  be  a  jury  question.^ 

Sec.  506.  Contributory  neg-ligence  of  cyclist  —  looking  for 
approaching  vehicles. 
One  riding  a  niotorcycle  and  obeying  the  law  of  the  road, 
cannot,  as  a  matter  of  law  be  said  to  be  guilty  of  contributory 
negligence,  because,  at  the  time  of  his  collision  with  an  auto- 
mobile, he  is  looking  down  at  his  machine.*^  And  a  cyclist 
entering  upon  an  intersecting  street  is  not  required,  as  a 
matter  of  law,  to  look  back  to  see  whether  he  will  be  over- 
taken  by  an  automobile  on  such  intersecting  street."'  Nor  is 
one  necessarily  required  to  look  for  vehicles  which  may  be 
approaching  on  the  wrong  side  of  the  highway.^  But,  when 
a  rider  on  a  bicycle  or  motorcycle  approaches  an  intersecting 
street  along  which  automobiles  and  other  vehicles,  as  well  as 
pedestrians,  may  be  expected  to  travel,  the  cyclist,  in  an  exer- 
cise of  due  regard  for  his  own  safety,  should  at  least  look  for 
vehicles.^    Even  a  child  is  expected  to  use  some  care  in  look- 

3.  Cross  V.  Eosencranz  (Kang.),  195  N.  Y.  208;  Weber  v.  Swallow,  136  Wis. 
Pac.  857 ;  Elvidge  v.  Stronge  &  Warner  46,  116  N.  W.  844.  See  also  Parker  v. 
Co.   (Minn.),  181  N.  W.  346.  Cartier   (R.  L),  105  Atl.  393. 

4.  Marquis  v.  Messier,  39  R.  I.  563,  Where  a  delivery  boy  riding  a  bi- 
99  Atl.  527.  See  also  Polmatier  v.  New-  cycle  was  struck  by  an  automobile 
bury,  231  Mass.  307,  120  N.  E.  850.  which  he  attempted  to  cross  in  front  of 
And  see  section  126.  on  a  paved  street  sixty-seven  feet  wide 

5.  Weber  v.  Beeson,  197  Mich.  607,  it  was  held  that  he  was  guilty  of  ncgli 
164  N.  W.  255.  gence  where  it  appeared  that  he  was 

6.  Allan  v.  Pearson,  89  Conn.  401,  94  experienced  in  the  use  of  the  bicycle 
Atl.  277.  ^"d  in   riding  about  the   streets;   that 

7.  Hopkins  v.  Sweeney  Automobile  he  had  only  the  automobile  and  another 
School  Co.  (Mo.  App.),  196  S.  W.  772.  bicycle  to    avoid   and    that   if   ho  had 

8.  Dier  v.  Voorhees,  200  Mich.  510,  looked  ho  must  have  seen  the  oncoming 
167  N.  W.  26;  Ferraeo  v.  Cooper,  176  automobile  a  few  rods  away.  And  it 
N.  Y.  Suppl.  67.  was  declared  that  if  he  did   not  look 

9.  Livingston  v.  Barney,  62  Colo.  he  did  not  exercise  common  prudence. 
528,  163  Pac.  863;  McCarragher  v.  Gibbs  v.  Dayton.  166  Mich.  263,  131 
Proal,    114    N.   Y.   App.  Div.    470,    100       N.  W.  544. 


630 


The  Law  of  Automobiles. 


ingfor  other  vehicles,  though  the  care  required  depends  upon 
the  age  and  intelligence  of  the  child.^°  Where  one  riding  a 
bicycle  westward  on  the  north  side  of  a  street  collided  at  the 
intersection  of  a  cross  street  with  an  automobile  which  had 
just  crossed  from  the  south  side  of  the  street,  behind  an  east- 
bound  car,  for  the  purpose  of  going  north  on  the  cross  street, 
it  was  held  that  the  plaintiff  was  guilty  of  negligence,  either 
in  failing  to  keep  a  proper  lookout  or  in  riding  so  near  the 
street  car  and  at  such  speed  as  to  render  the  collision  in- 
evitable.^^ 


Sec.  507.  Contributory  negligence  of  cyclist  —  care  in  looking. 

When  looking  for  automobiles,  the  cyclist  must  use  reason- 
able care,  for  he  will  be  charged  with  knowledge  of  such  vehi- 
cles as  in  the  exercise  of  reasonable  care  he  should  have  seen.^^ 
If  his  view  is  obstructed  until  he  reaches  the  street,  his  speed 
should  be  reduced  to  a  reasonable  rate  under  the  circum- 
stances, and,  as  soon  as  he  emerges  beyond  the  obstructions, 


10.  Newmann  v.  Hudson  County  Co., 
155  N.  Y.  App.  Div.  271,  139  N.  Y. 
Suppl.  1028;  Barton  v.  Van  Gesen,  91 
Wash.  94,  157  Pac.  215. 

11.  Weber  v.  Swallow,  136  Wis.  46, 
116  N.  W.  844,  wherein  it  was  said: 
"We  are  led  to  the  conclusion  that  if 
plaintiff  was  riding  near  the  curb  he 
was  guilty  of  a  want  of  ordinary  care 
in  not  observing  defendant  and  avoid- 
ing running  into  the  automobile  and 
that  such  negligence  contributed  to  pro- 
duce the  collision.  If,  on  the  other 
hand,  plaintiff  rode  so  near  the  street 
ear  that  he  was  unable  to  see  defendant 
in  time  to  avoid  colliding  with  his  au- 
tomobile after  it  emerged  from  behind 
the  passing  car,  then  he  was  guilty  of 
culpable  negligence,  because  he  was 
bound  to  anticipate  that  the  street 
crossing  might  be  used  by  travelers 
either  on  foot  or  in  vehicles,  whose 
safety  he  necessarily  imperiled  by  thus 
using  the  road.  Such  a  situation  de- 
manded of  him  a  high  degree  of  care 


and  watchfulness  for  the  safety  of 
others  by  reason  of  the  great  liability 
of  colliding  with  and  injuring  them. 
Such  conduct  by  plaintiff  was  immi- 
nently dangerous  to  others,  and  there- 
fore was  under  the  circumstances  a 
want  of  that  care  that  ordinarily  care- 
ful persons  exercise  under  the  same  or 
similar  circumstances.  From  the  physi- 
cal facts  surrounding  the  collision  it 
appears  that  whichever  way  plaintiff 
used  the  street  just  before  and  at  the 
time  of  the  collision  proves  him  negli- 
gent either  in  failing  to  keep  a  proper 
lookout  and  thus  avoiding  a  collision 
with  the  defendant,  or  in  using  the 
street  near  a  passing  street  car  in  a 
manner  and  at  a  rate  of  speed  as  made 
it  inevitable  that  he  would  collide  with 
travelers  emerging  from  behind  street 
cars  and  attempting  to  pass  over  cross- 
ing streets." 

12.  McCarragher  v.  Proal,  114  N.  Y. 
App.  Div.   470,   100  X.  Y.   Suppl.   208. 


Miscellaneous  Travelers.  '  631 

he  should  exercise  his  faculty  of  visioii.^^  Where  it  appeared 
that  the  plaintiff  rode  upon  a  bicycle  down  a  steep  farm  drive- 
way upon  a  State  highway  which  he  intended  to  cross,  and 
was  there  struck  by  the  defendant's  automobile,  which  was 
driven  at  a  negligent  rate  of  speed,  and  near  the  entrance  to 
the  highway  the  view  from  the  driveway  was  obscured,  but 
at  a  point  on  the  driveway  about  100  feet  from  the  road  there 
was  a  view  of  the  highway  for  308  feet,  and  the  plaintiff  testi- 
fied that  he  looked  when  at  this  point  and  did  not  see  the  auto- 
mobile, and  had  two  milk  pails  suspended  on  the  handle  of 
his  bicycle,  and  knew  that  the  road  was  much  used  by  auto- 
mobiles, and  several  of  the  plaintiff's  witnesses  testified  that 
the  automobile  sounded  two  warning  signals,  but  the  plaintiff 
denied  having  heard  them,  it  was  held  that  a  finding  that 
plaintiff  was  free  from  contributory  negligence  was  against 
the  weight  of  evidence." 

Sec.  508.  Contributory   negligence   of   cyclist  —  crossing   in 
front  of  observed  auto. 

"When  a  cyclist  uses  due  care  in  looking  for  approaching 
vehicles,  and  actually  sees  one,  he  is  not  necessarily  guilty  of 
contributory  negligence  because  he  does  not  stop  and  give  the 
right  of  way  to  the  motorist.  If  both  the  cyclist  and  the 
motorist  are  approaching  a  street  intersection  along  different 
streets,  the  cyclist  may,  perhaps,  be  justified  in  thinking  that 
he  can  cross  before  the  automobile  will  reach  the  crossing.^^ 
Even  though  the  automobilist  is  given  the  right  of  way  at  the 
crossing,  if  the  machine  is  some  distance  from  the  crossing 
when  the  cyclist  enters  the  intersection,  the  latter  may  justify 
his  conduct  in  attempting  the  crossing.^*  Wliether  he  is 
justified  in  proceeding,  is  generally  a  question  for  the  jury.^" 
Unless  the  appearances  indicate  to  the  contrary,  he  may  as- 
sume that  the  automobilist  will  not  violate  speed  limits  and 

13.  McCarragher  v.  Proal,  114  N.  Y.       Pa.  St.  330.  93  Atl.  1060. 

App.  Div.   470,   100  IST.   Y.  Suppl.   208.  16.  Weber  v.  Beeson.  107  Mich.  f,07. 

14.  Simpson  v.  Whitman,   147  N.  Y.       164  N.  W.  255. 

App.  Div.   642.   132   N.   Y.   Suppl.    SOI.  17.  Wallpiffh    v.    BcriTi.    24S    Pa.    St. 

15.  Weber  v.  Beeson,  197  Mich.  607,      339,  93  Atl.  1069. 
164  K  W.  255;  Wallp'-rli  v.  Boan.  248 


632  '  The  Law  of  Automobiles. 

will  obey  the  law  of  the  road.^^  When  he  is  proceeding  along 
the  road,  he  may  also  assume  that  the  driver  of  an  automo- 
bile coming  from  the  rear  will  not  run  him  down."  And, 
where  a  person  is  riding  a  bicycle  on  the  right  side  of  the  road 
in  the  day  time  and  an  automobile  is  behind  him  going  in  the 
same  direction,  it  is  held  not  to  be  negligent  as  a  matter  of 
law  for  the  bicyclist  to  attempt  to  cross  the  road,  where  the 
automobile  is  so  far  behind  that  it  might  reasonably  be  ex- 
pected that  the  person  operating  it  would  see  him.^o  But  one 
riding  a  bicycle  from  a  private  driveway  to  the  street  may  be 
negligent  as  a  matter  of  law  where  he  fails  to  give  any  warn- 
ing of  his  approach  and  runs  directly  into  the  path  of  an 
approaching  motor  vehicle.^^ 

Sec.  509.  Contributory  neg-ligence  of  cyclist — speed  of 
cyclist. 
In  the  case  of  a  collision  between  a  motor  vehicle  and  a 
motorcycle  or  bicycle,  the  cyclist  will  be  deemed  guilty  of  con- 
tributory negligence  if  his  speed  at  the  time  of  the  collision 
was  unreasonable  and  such  speed  was  one  of  the  proximate 
causes  of  the  aeeident.^^  And,  if  the  speed  of  the  cyclist 
was  such  as  to  exceed  the  statutory  or  municipal  limitation, 
the  general  rule  is  that  negligence  as  a  matter  of  law  may  be 
adjudged.^^  But  in  some  jurisdictions  the  violation  of  a  speed 
ordinance  is  not  negligence,  but  is  merely  evidence  of  negli- 

18.  Section  512.  driver  of   an   automobile   for  damages 

19.  Harnau  v.  Haight,  189  Mich.  600,  sustained  in  a  collision,  there  is  evi- 
155  N.  W.  563.  dence  that  the  plaintiff  was  traveling 

20.  Rogers  v.  Phillips,  206  Mass.  308,  at  a  rate  in  excess  of  six  miles  an  hour 
92  N.  E.  327,  28  L.  R.  A.  (N.  S.)  944.  at   the  time   of   the   collision,   the   de- 

21.  Hunter  v.  Mountfort,  117  Me.  fendant  at  the  close  of  the  evidence  will 
.555,  102  Atl.  975.  be  permitted  to   amend   his   answer  so 

22.  Young  V.  Campbell,  20  Ariz.  71,  as  to  set  up  a  city  ordinance  which 
177  Pac.  19,  appeal  dismissed  on  re-  prohibited  the  riding  of  bicycles  at  the 
hearing,  181  Pac.  171;  Cook  v.  Miller,  point  faster  than  six  miles  an  hour. 
175  Cal.  497,  166  Pac.  316 ;  Dice  v.  Barton  v.  Van  Gesen,  91  Wash.  94,  157 
Johnson  (Iowa),  175  N.  W.  38;  Weber  Pac.   215. 

V.   Swallow,    136   Wis.   46,    116   N.   W.  23.  Dowdell  v.  Beasley   (Ala.  App.), 

844,  82  So.  40:  Foster  v.  Bauer  (Wis.),  180 

Amendment    of   answer. — Where,    in  N.  W.  817.     See  also  section  321. 
an    action    by   a   bicyclist   against   the 


Miscellaneous  Travelers.  633 

gence ;  and,  in  such  a  case,  it  will  remain  a  question  for  the 
jury  whether  the  violation  of  the  speed  regulation  will  con- 
stitute negligence.-*    A  rate  of  speed  helow  that  prescribed 
by  statute  or  ordinance  may,  however,  be  unreasonable  under 
some  circumstances,  and  may  afford  basis  for  a  charge  of 
negligence.^     Speed  regulations   are   sometimes  enacted   in 
such  form  as  to  except  from  their  operation  the  vehicles  of 
police  officers  in  pursuit  of  offenders;  but  nevertheless  such 
an  officer  may  be  guilty  of  contributory  negligence  if  he  runs 
a  motorcycle  faster  than  a  reasonable  rate  of  speed.^'^     A 
traffic  ordinance  giving  a  motorcycle  policeman  the  right  of 
way  at  street  crossings  does  not  absolve  him  from  exercising 
due  care.2^    When  the  cyclist  is  approaching  a  street  inter- 
section over  which  vehicles  on  the  cross  street  have  prior 
rights  at  the  crossing,  it  is  the  duty  of  the  cyclist  to  slacken 
his  speed  so  that  he  may  accord  to  vehicles  on  the  intersect- 
ing street  the  rights  of  priority  to  which  they  are  entitled.^^ 
Where  a  statute  forbids  a  speed  in  going  over  a  street  cross- 
ing at  a  rate  in  excess  of  four  miles  an  hour  when  any  person 
was  upon  the  crossing,  it  was  held  that  a  cyclist  was  not  neces- 
sarily guilty  of  contributory  negligence  in  passing  the  cross- 
ing at  a  speed  of  from  twelve  to  fifteen  miles  an  hour  when 
there  was  no  person  on  the  crossing.^ 

Sec.  510.  Contributory  negligence  of  cyclist  —  violation  of 
law  of  road. 

A  cyclist  is  generally  subject  to  the  recognized  law  of  the 
road.3*  A  violation  of  such  law  is  considered  at  least  prima 
facie  evidence  of  negligence  f-  and  hence,  in  case  of  a  collision 
of  a  motorcycle  or  bicycle  with  an  automobile,  the  conduct  of 

24.  Powell  V.  Alitz    (Iowa),   183  N.       183  Pac.  103. 

W.   236 ;   Weber  v.  Beeson,  197   Mich.  28.  Bullis  v.  Ball.  98  Wash.  342.  167 

607,  164  N.  W.  255.     And  see  section  Pac.  942. 

320.  29.  Earth   v.   Harrip,   9^   Wash.    Ifi6, 

25.  Cook  V.  Miller,  175  Cal.  497,  166  163  Par.  401. 

Pac.  316.     And  see  section  324.  30.  Dice  v.  Johnson   (Iowa).  175  X. 

26.  Miner  v.  Eembt,  178  App.  Div.  W.  38;  Clarke  v.  Woop.  159  N.  Y.  App. 
173,  164  N.  Y.  Ruppl.  173,  164  N.  Y.  Div.  437,  144  N.  Y.  Suppl.  595.  Ar\(\ 
Siippl.   945.  see  sections  245.  492. 

27.  Clark  v.  Wilson,  108  Wash.   127,  31.  Section  267. 


634  The  Law  of  Automobiles. 

the  cyclist  in  operating  his  machine  in  violation  of  the  recog- 
nized rule  of  the  road  may  bar  a  recovery  for  his  injuries.^^ 
To  have  this  effect,  however,  the  violation  of  the  law  of  the 
road  by  the  cyclist,  must  be  one  of  the  proximate  causes  of 
the  collision.^^ 

Sec.  511.  Contributory   negligence   of   cyclist  —  warning   of 
approBKih. 

Statutory  provisions  generally  require  that  motor  vehicles 
shall  be  equipped  with  a  horn  or  other  device  for  giving  a 
warning  of  the  approach  of  the  machine,  and  that  such  equip- 
ment shall  be  used  for  warning  other  travelers.^*  Regulations 
of  this  character  may  apply  to  motorcycles.  "WHien  a  motor- 
cycle and  an  automobile  are  approaching  at  right  angles 
toward  a  street  intersection,  and  a  regulation  of  this  nature 
applies  to  the  motorcycle  as  well  as  to  the  automobile,  and 
neither  sounds  the  required  signal,  the  cyclist  may  be  blam- 
able  for  the  accident  to  the  same  extent  as  the  automobilist, 
and  hence  will  be  denied  recovery  against  the  latter.^^ 

Sec.  512.  Contributory  negligence  of  cyclist  —  reliance  on 
observance  of  law  by  automobilist. 
Until  a  traveler  on  a  street  or  highway  has  some  knowledge 
indicating  the  situation  to  be  otherwise,  he  is  entitled  to  as- 
sume that  other  travelers  will  obey  the  law  of  the  road  and 
will  violate  no  regulations  pertaining  to  its  use.^^  A  cyclist 
is  not  necessarily  guilty  of  negligence  because  he  sustains  a 

32.  Lemmon  v.  Broadwater,  30  Del.  App.),    301     S.    W.    972;    Wright    v. 

(7  Boyce)    472,  108  Atl.  273;   Borg  v.  Mitchell,    252    Pa.    325,    97    Atl.    478; 

Larson,   60  Ind.  App.    514,   111   N.   E.  Richards  v.  Palace  Laundry  Co.  (Utah), 

201;   Dice  v.  Johnson    (Iowa),   175  N.  18&    Pa.     439;     Walmsley    v.    Pickrell 

W.    38;    Nolan   v.   Davis    (N.   J.),    112  (Wash.),  186  Pac.  847. 

Atl.   188;   Clarke  v.   Woop,   159  N.   Y.  33.  Harnau  v.  Haight,  189  Mich.  600, 

App.  Div.  437,  144  N.  Y.  Suppl.  595;  155  N.  W.  563;  Baker  v.  Fogg  &  Hires 

Ewwig   V.   Lumber   Operating   &    Mfg.  Co.   (N.  J.),  112  Atl.  406. 

Co.,  183  N.  Y.  App.  Div.  198,  170  N.  Y.  34.  Section  330. 

Suppl.   192;   Pressor  v.  Dougherty,  239  35.  Corning   v.    Maynard,    179   Iowa, 

Pa.    St.    312,    S6    Atl.    854.      See    also  1065,  162  N.  W.  564 ;  Lansh  v.  Strasser, 

Brandenberg   v.    Klehr,    197    111.    App.  183  Iowa,  1360,   168  X.  W.  142. 

459;     Edwards     v.     Yarbrough      (Mo.  36.  Section  352. 


Miscellaneous  Travelers.  635 

collision  on  account  of  his  reliance  of  such  assumption,"  or 
because  he  does  not  anticipate  a  violation.^^  Thus,  if  one  rid- 
ing on  a  motorcycle  sees  an  automol)ile  approaching  on  the 
wrong  side  of  the  highway,  he  need  not  stop,  but  may  proceed 
a  reasonable  distance  in  reliance  that  the  operator  of  the  auto- 
mobile will  turn  to  the  proper  side  of  the  highway.^^  But, 
while  he  has  a  right  to  assume  that  statutes  and  ordinances 
will  be  observed,  this  does  not  relieve  him  from  the  duty  of 
exercising  care  and  caution  for  his  own  safety,  and  when  he 
observes  that  the  law  is  being  violated,  he  is  not  justified  in 
proceeding  and  asserting  his  rights."*' 

Sec.  513.  Contributory    neg-ligence    of    cyclist  — last    clear 
chance  doctrine. 

In  some  jurisdictions  the  ''last  clear  chance"  doctrine  pre- 
vails to  the  effect  that  one  who  by  his  negligence  has  placed 
himself  in  a  dangerous  situation  may  nevertheless  not  be 
barred  from  a  recovery  for  his  injuries,  if  the  other  party 
saw,  or  by  the  exercise  of  reasonable  care,  could  have  seen 
the  situation  in  time  to  have  avoided  the  injury  and  negli- 
gently failed  to  do  so.*^    In  many  jurisdictions,  however,  the 

37.  Lemmon  v.  Broadwater,  30  Del.  179  N.  W.  237;  Her^-ford  v.  Spitcanf- 
(7  Boyce)  472,  108  Atl.  273;  Reitz  v.  sky  (Mo.  App.),  200  S.  W.  123;  Al- 
Hodgkins,  185  Ind.  163,  112  N.  E.  386;  bright  v.  Joplin  Oil  Co.  (Mo.  App.). 
Horyford  v.  Spitcanfsky  (Mo.  App.).  229  S.  W.  829;  Richards  v.  Palace 
200  S.  W.  123;  Baker  v.  Fogg  &  Hires  Laundry  Co.  (Utah),  186  Pac.  439. 
Co.  (N.  J.),  112  Atl.  406;  Pinder  v.  "Humanitarian"  rule  in  Missouri.— 
Wickstrom,  80  Oreg.  118,  156  Pac.  583;  "As  we  conceive  the  humanitarian  rule, 
Cameron  v.  Miller  (S.  Dak.),  180  N.  it  is  to  be  applied  in  favor  of  one  who 
W.  71;  Richards  v.  Palace  Laundry  has  gotten  into  a  place  of  danger,  not 
Co.   (Utah),  186  Pac.  439.  purposely    or    wantonly,    but    through 

38.  Black  v.  Parke,  Davis  &  Co.  ignorance,  unwittingly,  or  negligently, 
(Mich.),  178  N.  W.  700;  Dunkel  v.  and  being  there  is  either  ignorant,  un- 
Smith    168  Wis.  257,  169  N.  W.  567.  conscious,   or   oblivious  to  the  danger 

39.  Konig  v.  Lyon  (Cal.  App.),  192  he  is  in,  or  for  some  physical  reason, 
Pac.  875  •  Pinder  v.  Wickstrom.  80  or  want  of  time,  is  apparently  not 
Grog.  118,  156  Pac.  583.  going  to  get  out  of  the  danger.     When 

40.  McCarragher  v.  Proal.  114  N.  Y.  this  attitude  of  a  person  becomes  ap- 
App.  Div.  470,  100  N.  Y.  Sup]>l.  208.  parent  to  one  using  an  instrumentality 

41.  See  Ward  v.  Meadows  (Ala.),  88  that  will  injure  him  unless  some  action 
So.  427;  Rooney  v.  Levison  (Conn.),  is  taken  by  the  one  controlling  same  to 
111  Atl.  794;  Kelley  v.  Keller  (Mich.),  avert  it,  and  the  attitude  of  the  one  in 


636 


The  Law  of  Automobiles. 


"last  chance"  rule  applies  oiily  where  the  defendant  actually 
saw  the  dangerous  situation  and  not  where  reasonable  care 
on  his  part  would  have  enabled  him  to  have  seen  it.^^  In  any 
event,  if  the  cyclist  suddenly  places  himself  in  the  dangerous 
position,  as  when  he  suddenly  swerves  in  front  of  the  motor 
vehicle,  there  is  generally  no  room  for  application  of  the  last 
clear  chance  doctrine/^  That  is  to  say,  when  the  contributory 
negligence  of  the  cyclist  is  concurrent  with  the  negligence  of 
the  driver  of  the  vehicle,  the  cyclist  cannot  recover.** 


Sec.  514.  Contributory  negligence  of  cyclist  —  acts  in  emer- 
gencies. 

When  one  riding  on  a  bicycle  or  motorcycle  is  suddenly 
placed  in  danger  of  an  imminent  collision  with  an  automobile 
driven  negligently,  he  is  not  expected  to  use  the  coolness  with 


danger  is  apparent  for  a  sufficient 
length  of  time  for  the  ordinarily  rea- 
sonable person,  using  ordinary  vigi- 
lance, to  have  discovered  it,  and  the 
user  of  such  instrumentality  has  at  his 
hands  the  means,  by  the  exercise  of 
ordinary  use  of  same,  to  avoid  an  in- 
jury, it  becomes  his  duty  to  so  manage 
his  instrumentality  as  not  to  cause  in- 
jury, and  a  failure  so  to  do  constitutes 
negligence  and  liability  under  the  hu- 
manitarian rule.  The  very  basis  of  the 
rule  is  that  the  plaintiff  is  in  a  posi- 
tion of  danger  from  which  there  is  an 
inability  on  his  part  to  escape,  and 
that  inability  may  result  from  a  physi- 
cal cause,  as  of  a  foot  being  caught, 
which  renders  him  unable  to  escape,  or 
from  a  mental  state,  as  of  being  un- 
conscious or  oblivious  to  his  danger, 
and  for  that  reason,  while  his  physical 
state  is  unimpaired,  he  is  deprived  of 
the  mentality  to  realize  his  danger  and 
escape  it.  It  therefore  becomes  most 
essential,  then,  in  order  that  there  may 
be  a  recovery  under  the  humanitarian 
rule,  that  a  finding  be  made  that  to  an 
ordinary  person  the  injured  party  was 
apparently  oblivious  to  the  danger,  in 


cases  where  the  evidence  presented  the 
question  that  the  injured  party  was 
oblivious  and  unconscious  of  his  dan- 
ger, or  on  the  other  hand  there  must 
be  a  finding  that  the  injured  party  ap- 
parently could  not  extricate  himself, 
although  conscious  of  his  danger."  Al- 
bright V.  Joplin  Oil  Co.  (Mo.  App.), 
229  S.  W.  829. 

South  Carolina. — ^The  "last  clear 
chance"  doctrine  cannot  be  invoked  in 
South  Carolina.  Spillers  v.  Griffin,  109 
S.  Car.  78,  95  S.  E.  133. 

42.  Maris  v.  Lawrence  Ry.  &  Light 
Co.,  98  Kans.  205,  158  Pac.  6;  Twit- 
chell  V.  Thompson,  78  Oreg.  285,  153 
Pdc.  45;  Alamo  Iron  Works  v.  Prado 
(Tex.  Civ.  App.),  220  S.  W.  282;  BuUis 
V.  Ball,  98  Wash.  342,  167  Pac.  942. 
See  also  Radwick  v.  Goldstein,  90  Conn. 
701,  98  Atl.  583;  Goodman  v.  Bauer, 
60  Ind.  App.  671,  111  N.  E.  315. 

43.  Nelson  v.  Hedin,  184  Iowa,  657, 
169  N.  W.  37 ;  Kalinowski  v.  Veermann 
(Mo.  App.),  211  S.  W.  723;  Hartley 
V.  Lasater,  96  Wash.  407,  165  Pac.  106. 

44.  Rooney  v.  Levinson  (Conn.),  Ill 
Atl.  794;  Bullis  v.  Ball,  98  Wash.  342, 
167  Pac.  942. 


Miscellaneous  Travelers. 


637 


which  he  would  act  under  normal  circumstances/^  His  lack  of 
judgment  and  failure  to  use  the  best  means  to  avoid  the  acci- 
dent, do  not  necessarily  render  him  guilty  of  contributory 
negligence  as  a  matter  of  law.*^  A  question  for  the  jury  is 
presented."  The  fact  that  in  the  emergency  he  violates  the 
law  of  the  road  by  running  on  the  wrong  side  thereof,  does 
not  conclusively  establish  his  negligence.^^  The  best  means 
of  avoiding  the  accident  might  be  the  stopping  of  his  bicycle 
as  soon  as  possible,  but  he  is  not  charged  with  negligence 
per  se  because  he  attempts  to  avoid  the  collision  in  some  other 
manner.''^  And,  if  the  cyclist,  in  order  to  avoid  the  impending 
collision,  runs  his  machine  into  the  curb  and  is  thereby  in- 
jured, the  injuries  received  may  be  deemed  the  proximate 
result  of  the  negligence  of  the  automobilist.^"    In  many  juris- 


45.  "Men  who  act  in  emergencies  are 
not  to  be  held  to  that  strict  account- 
ability that  the  law  demands  of  those 
who  act  deliberately.  Nor  are  they  to 
be  penalized  because  they  did  not  do 
what,  in  the  light  of  subsequent  events, 
or  in  theory,  would  have  avoided  the 
accident.  Tlie  instinct  of  self-preser- 
vation and  the  instinct  to  refrain  from 
harming  others  are  always  present  in 
emergent  situations  aflfecting  personal 
security.  These  impulses  prompt  that 
which  is  done,  and  what  is  done  is 
usually  that  which  should  have  been 
done,  or  all  that  could  have  been  done. 
Hence  the  law  will  excuse  an  act  which, 
if  done  deliberately  or  after  a  lapse 
of  time  sufficient  for  reflection,  would 
make  the  actor  answerable  as  for  a 
willful  tort."  Hartley  v.  Lasater,  96 
Wash.   407,   165   Pac.    106. 

46.  Lebsack  v.  Moore,  65  Colo.  315, 
177  Pac.  137;  Walterick  v.  Hamilton, 
197  Iowa,  607,  161  N.  W.  684;  Pyers 
V.  Tiers,  89  N.  J.  L.  520,  99  Atl.  130; 
Wright  V.  Mitchell,  252  Pa.  325,  97 
Atl.  478 ;  Sheffield  v.  Union  Oil  Co.,  82 
Wash.  386,  144  Pac.  529;  Hartley  v. 
Lasater,  96  Wash.  407,  165  Pac.  106. 
See  also  Beickhemer  v.  Empire  Carry- 


ing   Corp.,    172   N.    Y.    App.    Div.    866, 
158  N.  Y.  Suppl.  856. 

47.  Cheney  v.  Buck  (Utah),  189  Pac. 
81;  Harris  v.  Parks  (Utah),  196  Pac. 
1002;  Sheffield  v.  Union  Oil  Co.,  82 
Wash.  386,  144  Pac.   529. 

48.  Potter  v.  Glassell,  146  La.  687, 
83  So.  898;  Sheffield  v.  Union  Oil  Co., 
82  Wash.  386,  144  Pac.  529. 

49.  Pyers  v.  Tiers,  89  N.  J.  L.  520, 
99  Atl.  130. 

50.  Wright  v.  Mitchell,  252  Pa.  325, 
07  Atl.  478,  wherein  it  was  said :  "If 
at  the  time  of  the  accident,  the  plain- 
tiff was  exercising  proper  care  in  pass- 
ing along  the  highway,  and  the  defend- 
ant negligently  managed  his  machine 
so  as  suddenly  to  imperil  the  safety  of 
the  plaintiff,  the  latter  would  not  be 
guilty  of  negligence  if,  while  exercis- 
ing the  caution  of  a  prudent  man,  his 
bicycle  struck  the  curb  when  he  was 
attempting  to  escape  the  peril.  In  that 
case  the  proximate  cause  of  the  acci- 
dent would  not  be  the  act  of  the  plain- 
tiff in  riding  his  bicycle  against  the 
curb,  but  the  negligence  of  the  defend- 
ant which  endangered  the  plaintiff's 
safety.  If  the  plaintiff  would  have 
been  struck  and  injured  by  the  defend- 


638 


The  Law  of  Automobiles. 


dictions,  this  general  doctrine  is  limited  to  cases  where  the 
injured  person  is  placed  in  peril  through  the  negligence  of 
the  defendant  and  without  negligence  on  his  part." 

Sec.  515.  Negligence  of  guest  of  cyclist. 

Though  a  contrary  rule  prevails  in  a  few  jurisdictions,  the 
rule  generally  adopted  in  this  country  is  that  the  negligence 
of  the  driver  of  an  automobile  is  not  imputed  to  a  mere  guest 
riding  therein.^^  Qne  riding  as  a  guest  on  the  rear  or  side  of 
a  motorcycle  is  to  be  considered  similarly .^^  But,  though  the 
negligence  of  the  driver  is  not  imputed  to  the  passenger,  the 
latter  nevertheless  must  exercise  reasonable  care  for  his  own 
safety.^''  As  in  other  cases  of  negligence  and  contributory 
negligence,  whether  reasonable  care  has  been  employed  is 
generally  a  question  for  the  jury.^^    Negligence  will  not  neces- 


ant's  machine  had  he  not  deflected 
from  the  straight  course  along  the 
highway  as  a  means  of  escaping  from 
impending  danger,  he  would  not  neces- 
sarily be  guilty  of  negligence  if,  in  at- 
tempting to  escape  the  danger,  he  did 
not  exercise  the  care  or  judgment  re- 
quired of  him  if  it  had  been  his  volun- 
tary action.  All  that  was  required  of 
him  to  protect  himself  from  the  anti- 
cipated danger  was  to  use  the  care  of 
an  ordinarily  prudent  man,  under  all 
the  circumstances,  and,  if  he  did  so.  he 
could  not  be  charged  with  negligence. 
When  a  person  has  been  put  in  sudden 
peril  by  the  negligent  act  of  another, 
and,  in  an  instinctive  effort  to  escape 
from  that  peril,  falls  upon  another 
peril,  it  is  immaterial  whether  under 
different  circumstances  he  might  and 
ought  to  have  seen  and  avoided  the 
latter  danger." 

51.  Newmann  v.  Hudson  County  Co., 
155  N.  Y.  App.  Div.  271,  139  N.  Y. 
Suppl.  1028,  wherein  it  was  said:  "If 
the  child,  in  the  exercise  of  due  care, 
had  found  herself  in  a  position  of  dan- 
ger caused  by  the  negligence  of  the  de- 
fendant,   and   became    frightened   sud- 


denly, then,  of  course,  she  was  not 
chargeable  with  the  exercise  of  what 
in  a  moment  of  calmness  would  be  ordi- 
nary care,  and  she  should  .not  be  charge- 
able with  blame  in  turning  the  bicycle 
to  the  south  and  running  in  front  of 
the  oncoming  motor  truck  in  order  to 
avoid  it,  but  such  rule  applies  only  to 
a  case  where  the  person  injured  was 
put  in  a  position  of  danger  through 
the  negligence  of  the  defendant,  and 
without  any  negligence  on  his  or  her 
part,  and  the  court  should  have  so 
stated. ' '  See  also  Corning  v.  Maynard, 
179  Iowa,  1065,   162  N.  W.  564. 

52.  Section  679. 

53.  Karpeles  v.  City  Ice  Delivery  Co., 
198  Ala.  449,  73  So.  642;  Parmenter 
V.  McDougall,  172  Cal.  306.  156  Pae. 
460;  Wiley  v.  Young,  178  Cal.  681,  174 
Pac.  316;  Sanders  v.  Taber,  79  Oreg. 
522,   155  Pac.   1194. 

54.  Parmenter  v.  McDougall,  172  Cal. 
306,  156  Pac.  460;  Bell  v.  Jacobs,  261 
Pa.  204,  104  Atl.  587. 

55.  Pai-raenter  v.  McDougall,  172  Cal. 
306,  156  Pac.  460;  Simpson  v.  Schiff 
(Kans.),   197  Pac.   857. 


Miscellaneous  Travelers. 


639 


sarily  be  charged  against  the  guest  merely  because  he  has 
reason  to  believe  that  the  cyclist  was  usually  careless;  but 
such  fact  is  merely  one  of  the  circumstances  to  be  considered 
by  the  jury  in  determining  whether  the  guest  has  exercised 
proper  care.^*'  But,  though  the  negligence  of  the  cyclist  will 
not  be  imputed  to  the  guest,  there  may  remain  the  question 
whether  the  negligence  of  the  automobilist  was  a  proximate 
cause  of  the  accident,  or  whether  the  negligence  of  the  cyclist 
was  the  sole  cause  of  the  accident;  in  the  latter  event,  the 
automobilist  is  not  liable  for  the  injury  to  the  guest." 

Sec.  516.  Function  of  jury. 

As  in  other  cases  of  negligence,  when  a  cyclist  is  bringing 
an  action  for  injuries  received  from  a  collision  with  a  motor 
vehicle,  the  negligence  of  the  defendant  and  the  contributory 
negligence  of  the  plaintiff  are  generally  questions  for  the 
jury.^^    As  has  been  said,^^  ''It  is  well  established  that  if  the 


56.  Wiley  v.  Young  (Cal.),  174  Pac. 
316. 

57.  Karpeles  v.  City  Ice  Delivery  Co.. 
198  Ala.  449,  73  So.  642;  Hagenah  v. 
Bidwell  (Cal.  App.),  189  Pac.  799: 
Lemmon  v.  Broadwater,  30  Del.  (7 
Boyce)    472,   108  Atl.   273. 

58.  Arizona. — Benton  v.  Regeser,  20 
Ariz.  273,   179   Pac.   966. 

California. — Townsend  v.  Keith,  34 
Cal.  App.  564,  168  Pac.  402 ;  Whitelaw 
V.  McGillard,  179  Cal.  App.  349,  176 
Pac.  679;  Christy  v.  McCall  (Cal. 
App.),  177  Pac.  507;  Guderitz  v.  Boad- 
way  Bros.,  39  Cal.  App.  48,  177  Pac. 
859;  Baillargeon  v.  Neyers,  180  Cal. 
504,  182  Pac.  37;  Brimberry  v.  Dud- 
field  Lumber  Co.,  191  Pac.  894;  Konig 
V.  Lyon  (Cal.  App.),  192  Pac.  875. 

Illinois.— noAg.es  v.  Coey,  205  111. 
App.  417;  Thomas  v.  Howatt,  210  J\\. 
App.   380. 

Indiana.. — Fame  Laundry  Co.  v. 
Henry  (Ind.  App.),  131  N.  E.  411; 
Nordyke  &  Marmon  Co.  v.  Smith  (Ind. 
.Vpp.),  131    N.  E.   414. 

Iowa. — Nelson    v.    Hedin,    184    Iowa, 


657,  169  N.  W.  37;  Dice  v.  Johnson. 
175  N.  W.  38;  Powell  v.  Alitz,  182  N. 
W.  236. 

Kansas. — Keil  v.  Evans,  99  Kans. 
273,  161  Pac.  639;  Simpson  v.  SchifF 
(Kans.),  197  Pac.  857. 

Massachusetts. — Hallett  v.  Crowell. 
232  M^s.  244,  122  N.  E.  264. 

Michigan. — Vezina  v.  Shermer,  165 
N.  W.  697;  Dier  v.  Voorhees,  200  Mich. 
510,  167  N.  W.  26;  Rotter  v.  Detroit 
United  Ry.,  171  N.  W.  514;  Ward  v. 
De Young,  177  N.  W.  213;  Black  v. 
Parke,  Davis  &  Co.,  178  N.  W.  700; 
Kelley  v.  Keller,  179  N.  W.  237. 

Minnesota. — Riser  v.  Smith,  136 
Minn.  417,  162  N.  W.  520;  Kelly  v. 
McKcon,  139  Minn.  285,  166  N.  W. 
329;  Williams  v.  Larson.  140  Minn. 
468. 

Mississippi. — Porter  v.  Nesmith,  87 
So.    5. 

Missouri. — Roy  v.  North  Kansas  City 
Development  Co.  (Vo.  App.),  209  S. 
W.  990;  Meredith  v.  Claycomb  (Mo. 
App.),  216  S.  W.   794. 


540  The  Law  of  Automobiles. 

evidence  in  a  personal  injury  action  for  negligence  is  con- 
flicting, or,  if  not,  if  the  inferences  to  be  drawn  therefrom 
are  doubtful  and  uncertain,  then  the  questions  of  negligence 
are  for  a  jury."    Where  there  is  a  conflict  in  the  evidence  as 
to  whether  a  collision  between  the  plaintiff's  bicycle  and  the 
defendant's  automobile  was  caused  by  the  defendant  sud- 
denly turning  to  the  left-hand  side  of  the  street  and  thereby 
striking  the  plaintiff,  who  was  coming  from  the  opposite  di- 
rection, or  by  the  sudden  veering  of  the  plaintiff's  bicycle,  a 
question  arises  for  the  jury.'''^    Whether  the  acts  of  negligence 
alleged  were  the  proximate  cause  of  the  damages  resulting 
from  a  collision  of  the  plaintiff's  motorcycle  with  the  defend- 
ant's automobile,  is  a  jury  question.^'i    i^  an  action  for  negli- 
gent injuries  claimed  to  have  resulted  from  the  collision  of  a 
motorcycle  and  an  automobile,  the  owner  of  which  is  shown 
by  undisputed  evidence  to  have  failed  in  complying  with  the 
statute  requiring  the  driver  of  a  motor  vehicle  to  keep  to  the 
right  of  street  intersections  in  turning  corners,  while  the 
bicyclist  was  claimed  to  have  been  negligent,  under  disputed 
testimony,  in  failing  to  avoid  the  accident,  the  question  of 
negligence  and  of  contributory  negligence  were  held  to  be  for 
the  jury.^'^ 

Nexo   Hampshire.— Whitnej   v.   Carr,  App.),  217  S.  W.  440. 

106  Atl.  37.  Utah.— Cheney  v.  Buck,  189  Pac.  81. 

New  Jersey. — Siegeler  v.   Nevweiler,  Washington.— Clark    v.    Wilson,    108 

91  N.  J.  L.   273,   103  Atl.   349 ;   Des-  Wash.  127,  183  Pac.  103 ;  Walmsley  v. 

mond  V.  Basch  &  Greenfield,  108  Atl.  Pickrell,  186  Pac.  847. 

362.  Wisconsin. — Slack  v.  Joyce,  163  Wis. 

New  Yorfc.— Linneball  v.  Levy  Dairy  567,  158  N.  W.  310 ;  Dunkel  v.  Snaith, 

Co.,  173  N.  Y.  App.  Div.  861,  160  N.  Y.  168  Wis.  257,  169  N.  W.  567. 

Suppl.  114.  59.  Priedrich    v.    Boulton,    164    Wis. 

North    Carolina.— Cooke    v.    Jerome,  526,  159  N.  W.  803. 

172  N.  Car.  626,  90  S.  E.  767.  60.  Harris  v.  Pew,  185  Mo.  App.  275, 

Fennsylvania.—\Ya\]eigh  v.  Bean,  248  170  S.  W.  344. 

Pa.  St.  339,  93  Atl,  1069 ;  Pickering  v.  61.  F,  J.  Cooledge  &  Sons  v.  John- 

Snyder,  113  Atl.  375.  son-Gewinner  Co.,  17  Ga.  App.  733,  88 

South    Dalcota.— Cameron    v.    Miller,  S.  E.  409 ;  Weber  v.  Beeson,  197  Mich. 

180  N.  W.  71.  607,  164  N.  W.  255. 

Texas.— A\amo  Iron  Works  v.  Prado  62.  Reed  v.  Martin,   160  Mich.   253, 

(Civ.  App.),  220  S.  W.  282;  Templeton  125  N.  W,  61. 
V.  Northern  Texas  Traction  Co.    (Civ. 


Frightening  Horses.  641 

CHAPTER  XX. 

FRIGHTENING  HORSES. 

Section  517.  In  general. 

518.  Degree  of  care  to  avoid  frightening  horses. 

519.  Auto  driver  not  an  insurer. 

520.  Notice  that  horses  take  fright. 

521.  Proximate  cause. 

522.  Horse   not   on  highway. 

523.  Automobile  left  unattended  by  side  of  highway. 

524.  Noise — usual  noise. 

525.  Noise — unusual  noise. 

52G.  Noise — failure  to   sound  horn. 

527.  Emission  of  smoke  or  vapor. 

528.  Speed. 

529.  Operating  auto  in  proximity  to  horse. 

530.  Stopping — independently  of  statute. 

531.  Stopping — discretion  as  to  stopping. 

532.  Stopping — overtaking  and  passing  frightened  horse. 

533.  Stopping — stopping  engine. 

534.  Stopping — statutory  duty  to  stop  on  fright  of  horse. 

535.  Stopping — stopping  in  front  of  horse  after  passing. 

536.  Statute  requiring  stopping  on  signal — in   general. 

537.  Statute  requiring  stopping  on  signal — discretion    as    to    stopping. 

538.  Statute  requiring  stopping  on  signal — effect     of     failure    to    give 

signal. 

539.  Statute  requiring  stopping  on  signal — signal  by  passenger. 

540.  Negligence  after  stop. 

541.  Lights  on  machine. 

542.  Contributory  negligence — general  duty  of  driver  of  carriage  to  ex- 

ercise reasonable  care. 

543.  Contributor}'  negligence— leaving  horse  unattended. 

544.  Contributory  negligence — nature  of  horse. 

545.  Contributory  negligence — driving  frightened  horse  past  automobile. 

546.  Joint  wrong-doers. 

547.  Pleading. 

548.  Punitive  damages. 
349.  Questions  for  jury. 

Sec.  517.  In  general. 

Owners  of  animal-drawn  and  motor  vehicles  have  eqnal 
rights  in  the  streets  and  highways,  subject  to  the  exercise  of 
reasonable  care  by  each  with  respect  to  the  rights  of  the  other.^ 

1.  Arkansas. — Russ  v.  Strickland,  130  Ark.  406,  197  S.  W.  709. 

41 


642 


The  Law  of  Automobiles. 


Therefore  the  fact,  standing  alone,  that  a  horse  becomes 
frightened  by  the  operation  of  an  automobile  in  a  street  does 
not  render  the  motorist  liable  for  an  injury  thus  incurred.^ 
And,  though  the  owner  of  an  animal  may  be  aware  of  its 
tendency  to  become  frightened  at  the  approach  of  an  automo- 
bile, he  is  not  guilty  of  negligence  in  driving  it  along  a  street 
or  highway.^  In  all  cases  the  principle  controls  that  reason- 
able care  is  required  of  all  users  of  the  public  thoroughfares. 
It  is  the  duty  of  the  driver  of  an  automobile  in  every  case 
where  he  sees  an  animal  is  liable  to,  or  is  becoming,  frightened 
by  the  operation  of  the  car  to  exercise  such  care  as  a  reason- 
ably prudent  man  would  under  the  same  circumstances  ;^  and, 
if  it  appears  that  from  his  failure  to  exercise  such  care  injury 
has  resulted,  he  will  be  liable  therefor.^ 


Delaware. — Walls  v.  Windsor,  5 
Boyce's  (28  Del.)   265,  92  Atl.  989. 

Indiana.- — Brinkman  v.  Pacholke,  41 
Ind.  App.  662,  84  N.  E.  762;  East  v. 
Amburn,  47  Ind.  App.  530,  94  N.  E. 
895.  "Counsel  insists  that  one  operat- 
ing an  automobile  has  the  same  rights 
to  the  use  of  the  streets  as  one  operat- 
ing any  other  kind  of  vehicle.  So  he 
has;  and  he  is  also  charged  with  the 
same  degree  of  care  and  caution,  and 
the  same  regard  for  the  rights  of  others 
in  the  use  of  the  streets.  We  desire 
to  make  no  distinction  in  favor  of  or 
against  the  operator  of  an  automobile, 
but  it  is  his  duty,  the  same  as  the 
driver  of  any  other  vehicle,  to  use  care 
proportionate  to  the  dangers  to  which 
the  vehicle  in  which  he  travels  exposes 
other  travelers  of  the  highway."  East 
V.  Amburn,  47  Ind.  App.  530,  94  N.  E. 
895 

Missouri. — Hall  v.  Compton,  130  Mo. 
App.   675,  108   S.  W.  1122. 

Montana. — "The  drivers  of  horse- 
drawn  vehicles  have  the  same  right  to 
use  the  public  streets  as  street  cars  or 
automobiles  —  neither  more  nor  less ; 
none  of  them  may  go  blithely  along  in- 
different to  the  danger  of  others,  but 
each  must  be  operated  so  as  to  prevent 


doing  avoidable  injury  to  others,  stop- 
ping if  and  when  necessary  to  that 
end."  Anderson  v.  Missoula  St.  Ry. 
Co.,  54  Mont.  83,  167  Pac.  841. 

Nehraslca. — Tyler  v.  Hoover,  92  Neb. 
221,  138  N.  W.  128. 

New  YorTc. — Knight  v.  Lanier,  69  N. 
Y.  App.  Div.  454,  74  N.  Y.  Suppl.  999. 

Tennessee. — Coca  Cola  Bottling  Works 
V.  Brown,  139  Tenn.  640,  202  S.  W. 
926.     And  see  section  49. 

2.  Hall  V.  Compton,  130  Mo.  App. 
675;  108  S.  W.  1122;  Tyler  v.  Hoover, 
92  Neb.  221,  138  N.  W.  128.  See  also 
Walls  V.  Windsor,  5  Boyce's  (28  Del.) 
265,  92  Atl.  989.     And  see  section  519. 

3.  Butler  v.  Cabe,  116  Ark.  26,  171 
S.  W.  1190. 

4.  Arl'onsas. — Russ  v.  Strickland,  130 
Ark.    406,   197   S.   W.   709. 

Illinois. — Traeger  v,  Wasson,  163  111. 
App.  572. 

Iowa. — Pekarek  v.  Myers,  159  Iowa, 
206,  140  N.  W.  409. 

Minnesota. — Nelson  v.  Holland,  127 
Minn.  188,  149  N.  W.  194. 

NeirasJca. — Tyler  v.  Hoover,  92  Neb. 
221,  138  N.  W.  128. 

Texas. — Blackwell  v.  McGrew  (Civ. 
App.),  141  S.  W.  1058. 

5.  Illinois. — Fitzsimmons  v.   Snyder, 


Frightening  Horses.  643 

Sec.  518.  Degree  of  care  to  avoid  frightening  horses. 

It  is  a  fundamental  rule  that  the  operator  of  a  motor  vehicle 
is  bound  to  exercise  reasonable  care  to  prevent  injury  to  othei- 
travelers  in  the  highway.^  This  general  rule  includes,  not 
only  the  duty  to  avoid  actual  collisions  with  other  conveyances, 
but  also  the  obligation  of  using  reasonable  care  to  operate 
the  machine  in  such  a  way  that  horses  and  other  animals  will 
not  be  frightened  thereby.  One  driving  a  horse  may  rely  on 
the  exercise  of  reasonable  care  by  the  operator  of  an  automo- 
bile approaching  from  the  rear,  and  in  using  a  street  fre- 
quented by  automobiles  he  assumes  only  the  risk  of  their 
operation  in  a  reasonably  careful  manner."^  It  is  a  rule  of 
the  common  law  that,  although  one  may  travel  with  a  con- 
veyance which  is  likely  to  frighten  horses,  yet,  while  doing  so, 
he  must  exercise  reasonable  care  to  avoid  injury  to  others 
lawfully  using  the  highway.^  The  fact  that  motor  vehicles 
are  novel  and  unusual  in  appearance  and  for  that  reason  are 
likely  to  frighten  horses,  is  no  reason  for  prohibiting  the  use 
of  such  machines.^  It  is,  however,  the  duty  of  one  operating 
a  motor  car  to  take  all  reasonable  precautions  against 
frightening  horses  or  other  domestic  animals  on  the  high- 
way.^"   But,  if  the  driver  of  an  automobile  proceeds  wnth  due 

181  111.  App.  70;  Freeze  v.  Harris,  162  Div.  121,  92  ^;.  Y.  Supp.  2d3.     See  also 

111.  App.  118.  Upton  V.   Windham,   75   Conn.   288,   53 

lowo.— Staley   v.    Forest,    157   Iowa,  Atl.  660. 

188,  138  N.  W.  441.  9.  Indiana  Springs  Co.  v.  Brown,  165 

Maine.— BlRckden    v.    Blaisdell.     113  Ind.    465,    74    N.   E.    615,    1    L.    R.   A. 

Me.  567,  93  Atl.  540.  (N.  S.)  238,  6  Ann.  Cas.  656.     .Vnd  see 

Minnesota. — Nelson   v.    Holland,    127  sections  47,  48. 

Minn.  188,  149  N.  W.  194.  10.    Arkansas. — Kuss     v.     Strickland, 

iVeferoi-fco.— Schueppe  v.  Uhl,  97  Neh.  130  Ark.  406,  197  S.  W.  709. 

328,  149  N.  W.  789.  /«tnot*.— Traeger  v.  "Wasson,  163  HI. 

Smith  Daliota. — Van   Horn   v.   Simp-  App.  572. 

son,  35  S.  D.  640,  153  N.  W.  883.  Indiana. — Indiana     Springs     Co.     v. 

Texas. — Carsey    v.    Hawkins,    163    S.  Brown,  165  Ind.  465,  74  N.  E.  tilS,   1 

W.  586,  165  S.  W.  64.  L.  R.  A.  (N.  S.)  238,  6  Ann.  Cas.  656; 

6.  Section  277.  Brinkman    v.    Pacholko,    41    Ind.    App. 

7.  Delfs  V.  Dunsliec,    143   Iowa,   381.  062,  84  N.  E.  762;  East  v.  Arabnrn,  47 
122  N.  W.  236.  Ind.  App.  530,  94  N.  E.  895. 

8.  Harris  v.  Hicks  (Ark.),  221  S.  W.  7o7r(T.— Strand    v.    Grinnell    Automo- 
472;  Murphy  v.  Wait.  102  N.  Y.  App.  )>ile  Garage  Co.,  136  Iowa,  68,   113  N. 


G44 


The  Law  of  Automobiles. 


care  and  with  a  proper  regard  to  the  rights  of  other  travelers 
having  equal  rights  in  the  street,  he  is  not  liable  for  injuries 
occasioned  by  the  frightening  of  a  horse.^^  The  degree  of 
care  to  be  exercised  by  the  driver  of  the  automobile  depends 
upon  the  circumstances  of  each  particular  case,  such  as  the 
disposition  of  the  horse,  the  natural  surroundings,  and  the 
size  and  appearance  of  the  auto.^^  In  many  States  statutes 
have  been  passed  prescribing  the  degree  of  care  to  be  exer- 


W.  488;  Delfg  v.  Dunshee,  143  Iowa, 
381,  122  N.  W.  236;  Pekarek  v.  Myers, 
159  Iowa,  206,  140  N.  W.  409. 

Kentucky. — Shinkle  v.  McCullough, 
116  Ky.  960,  77  S.  W.  196. 

Minnesota. — Nelson  v.  Holland,  127 
Minn.  188,  149  N.  W.  194. 

Mississippi. — Burcliam  v.  Robinson, 
113  Miss.  527,  74  So.  417. 

Missouri. — Hall  v.  Compton,  130  Mo. 
App,  675,  108  S.  W.  1122;  Graham  v. 
Sly,  177  Mo.  App.  348,  164  S.  W.  136. 

NebrasJca. — Tyler  v.  Hoover,  92  Nob. 
221,  138  N.  W.  128. 

New  YorJc. — Knight  v.  Lanier,  69  N. 
Y.  App.  Div.  454,  74  N.  Y.  Suppl.  999. 

South  Dakota. — Van  Horn  v.  Simp- 
son, 35  S.  Dak.  640,  153  N.  W.  883. 

Tennessee. — Coco  Cola  Bottling  Works 
V.  Brown,  139  Tenn.  640,  202  S.  W. 
926. 

Texas. — Blackwell  v.  McGrew  (Civ. 
App.),  141  S.  W.  1058. 

High  degree  of  care. — Statutory  pro- 
visions in  some  states  may  require  that 
the  driver  of  an  automobile  exercise 
the  "highest"  degree  of  care  when 
traveling  along  a  public  highway.  Hufft 
V.  Dougherty,  184  Mo.  App,  374,  171 
S.  W.  17.  Such  a  provision  is  consti- 
tutional. Hays  V.  Hogan,  273  Mo.  1, 
200  S.  W.  286,  L.  R.  A.  19180  715, 
Ann.  Cas.  1918E  1127.  And  see  section 
281. 

"  Every  reasonable  precaution." — 
Statutes  1903,  c.  463,  §  7  of  Massachu- 
setts required  that  the  driver  of  one 
' '  approaching ' '  any  vehicle  drawn  by  a 


horse  or  horses,  shoitld  operate,  manage 
and  control  such  automobile  in  such 
manner  as  to  exercise  every  reasonable 
precaution  to  prevent  the  frightening 
of  such  horse  or  horses  and  to  insure 
the  safety  and  protection  of  any  per- 
son riding  or  driving  the  same.  Under 
this  statute  it  was  held  that  an  auto- 
mobile overtaking  a  horse-drawn  vehi- 
cle from  behind,  was  "approaching" 
within  the  meaning  of  the  statute. 
Gifford  V.  Jennings,  190  Mass.  54,  76 
N.  E.  233. 

11.  Hall  V.  Compton,  130  Mo.  App. 
675,  108  S.  W.  1122. 

12.  Giles  V.  Voiles,  144  Ga.  853,  88 
S.  E.  207;  Indiana  Springs  Co.  v. 
Brown,  165  Ind.  465,  74  N.  E.  615,  1 
L.  R.  A.  (N.  S.)  238,  6  Ann.  Cas.  656; 
Delfs  V.  Dunshee,  143  Iowa,  381,  122 
N.  W.  236. 

Loading  of  machine. — In  Pease  t. 
Cochran  (S.  D.),  173  N.  W.  158,  5  A. 
L.  R.  936,  where  negligence  was  charged 
in  the  unusual  appearance  of  the  load 
on  the  machine,  the  court  said:  "In 
order  to  constitute  actionable  negli- 
gence on  this  branch  of  the  case,  there 
must  have  been  something  about  the 
appearance  of  the  car  or  the  manner 
in  which  it  was  loaded  that  would  sug- 
gest to  an  ordinarily  prudent  man  that 
it  would  terrify  or  frighten  an  ordi- 
nary horse,  i.  e.,  a  horse  that  had  be- 
come accustomed  to  automobiles  on  the 
road.  There  are  horses  that  would 
take  fright  at  any  automobile,  regard- 
leas  of  whether  it  was  loaded  at  all; 


Frightening  Horses.  (54') 

cised  by  automobilists  and  in  some  cases  the  course  of  con- 
duct to  be  pursued  by  them.^^  Such  a  statute  may  be  held  to 
apply,  not  only  in  the  case  of  animals  in  harness,  but  also 
where  animals  are  being  conducted  or  driven  along  a  highway 
by  a  drover." 

Sec.  519.  Auto  driver  not  an  insurer. 

While  the  driver  of  an  automobile  is  required  to  use  reason- 
able care  to  avoid  frightening  horses,  he  does  not  insure  that 
horses  will  not  become  frightened  at  the  approach  of  his  car 
or  that  he  will  answer  for  the  injuries  occasioned  by  their 
fright.^^  As  was  said  in  one  case,^"  ''The  frightening  of  a 
horse  driven  or  ridden  along  a  public  highway  caused  by  en- 
countering a  vehicle  or  pedestrian  does  not,  of  itself,  raise 
any  inference  of  negligence  on  the  part  of  the  pedestrian  or 
the  driver  of  the  vehicle.  The  law  contemplates  that  all  sorts 
of  people  and  all  kinds  of  conveyances  may  use  the  highway 
with  equal  right  and,  as  long  as  the  driver  of  a  lawful  vehicle 
observes  the  laws  of  the  road  and  proceeds  with  the  degree 
of  care  to  be  expected  of  an  ordinarily  careful  and  prudent 
person  in  such  situation,  he  cannot  be  held  liable  for  an  in- 
jury caused  by  the  fright  of  the  animal  at  his  appearance  or 
at  that  of  his  conveyance."     One  injured  by  the  fright  of 

but  people  are  not  required  to  refrain  Pac.    1135;    Arrington    v.    Horney,    88 

from   using   automobiles   on   the   high-  Kan.    817,    129    Pac.    1159;    Cra.ton   v. 

way  to  avoid  frightening  such  horses,  Huntzinger,  163  Mo.  App.  718,  147  S. 

and  a  person  taking  such  horse  on  the  W.  512;  Curry  v.  Fleer,  157  N.  C  16, 

highway  would  do  so  at  his  own  peril.  72  S.  E.  626. 

On   the   other   hand,    there   are   horses  Sufficiency    of    indictment    <>r    inior- 

that  would  not  take  fright  at  an  auto-  mation   under   a   statute.     See   Holland 

mobile,    no    matter    how    it   might    be  v.  State.  11  Ga.  App.  769.  76  S.  E.  104; 

loaded   or  what  its  appearance   might  Coryell  v.  State.  92  Neb.   482.  138  N. 

be.     But  this  fact  would  not  justify  a  W.  572. 

person  in   going  upon  a  highway  with  14.  Fitzsimmons    v.    Snyder,    81     111. 

an  automobile  so  loaded,  or  having  such  App.  70. 

an  appearance,   that  it   would  be  cal-  15.  Giles  v.  Voiles.  144  Ga.  853,  88 

culated  to  frighten  or  terrify  an  ordi-  S.  E.  207;   Hall  v.  Compton,   130  Mo. 

nary  horse."  App.  675.  108  S.  W.  1122. 

13.  See  the  following  cases:      Walls  16.  Hall  v.   Compton,   130  Mo.   App. 

V.  Windsor  (Del.  Super.),  92  Atl.  989;  675,  108  S.  W.  1122. 
Ell.sworth  V.  Jarvis,  92  Kan.   895.   141 


64.6 


The  Law  of  x\utomobiles. 


horses  necessarily  assumes  the  burden  of  showing  the  negli- 
gence of  the  driver  of  the  automobile."  Thus,  it  is  error  for 
the  presiding  justice  to  charge  broadly  that :  ' '  The  degree  of 
diligence  which  nmst  be  exercised  in  a  particular  exigency  is 
such  as  is  necessary  to  prevent  injuring  others. "^^  "Auto- 
mobiles are  constantly  driven  along  streets  pasl  horses  with- 
out frightening  them,  and  if  the  appearance  and  movement 
of  a  particular  automobile  and  the  noise  incident  to  its  opera- 
tion are  in  no  way  unusual,  it  is  not  per  se  a  wrongful  act  to 
operate  it  in  x>roximity  to  a  horse,  so  long  as  the  horse  ex- 
hibits no  fright.  "^^  Thus,  where  the  automobile  was  of  ordi- 
nary appearance  and  no  unusual  noise  was  produced  and  it 
was  operated  at  a  low  rate  of  speed  and  there  was  no  evi- 
dence to  show  that  the  operator  of  the  machine  had  any  rea- 
son to  suppose  that  a  team  of  horses  was  likely  to  become 


17.  Delowore. — ^^Yalls  v.  Windsor,  92 
Atl.  989. 

Georgia. — Giles  v.  Voilea,  144  Ga. 
853,  88  S.  E.  207. 

Iowa. — Gearliart  v.  Stouder,  161 
Iowa,  644,  143  N.  W.  499;  Ciesswell 
V.  Wainwright,  154  Iowa,  167,  134  N. 
W.  594 ;  Gipe  v.  L;^Tich,  155  Iowa,  627, 
136  N.  W.  714. 

Kentucl'.y. — Slielton  v.  Hunter,  162 
Ky.  531,  172  S.  W.  950. 

Mame. — Carter  v.  Potter,  110  Me. 
545,  86  Atl.  671. 

Missouri. — Hall  v.  Compton,  130  Mo. 
App.  675,  108  S.  W.  1122;  Sapp  v. 
Hunter,  134  Mo.  App.  685,  115  S.  W. 
463;  Fields  v.  Sevier,  184  Mo.  App. 
685,  171  S.  W.  610. 

New  York. — Barnett  v.  Anheuser- 
Busch  Agency,  134  N.  Y.  Suppl.  734. 

Tennsylvania. — Silberman  v.  Huy- 
ette,  22  Montg.  Co.  L.  Eep.  39. 

Texas. — Kiley  v.  Fisher  (Civ.  App.), 
146  S.  W.  581. 

TJtdh. — Fowkes  v.  J.  I.  Case  Thresh- 
ing Mach.  Co..  46  Utah,  53,  151  Pac. 
53. 

Washmgton. — Yttregarl  v.  Young,  77 
Wash.  523,  137  Pac.  1043. 


Statute  of  limitations. — Action  for 
injuries  alleged  to  be  due  to  frighten- 
ing of  horses  by  an  automobile,  held 
to  be  barred  by  the  statute  of  limita- 
tions of  Connecticut.  Sharkey  v.  Skil- 
ton,  83  Conn.  503,  77  Atl.  950. 

18.  Giles  V.  Voiles,  144  Ga.  853,  88 
S.  E.  207,  wherein  it  was  said:  "In 
stating  the  degree  of  diligence  that  the 
defendant  was  required  to  observe,  the 
court  informed  the  jury  that  he  was 
bound  to  a  degi-ee  of  diligence  which 
would  prevent  injury  to  the  defendant. 
This,  in  effect,  imposed  upon  the  de- 
fendant the  duty  of  observing  the  dili- 
gence required  of  an  insurer,  and  eli- 
minated all  such  questions  as  accident, 
contributory  negligence,  and  the  duty 
of  the  plaintiff  to  exercise  ordinary 
care  to  avoid  the  consequences  of  the 
defendant's  negligence.  It  was  the 
equivalent  of  instructing  the  jury  that 
it  was  the  duty  of  the  defendant  to 
avoid  injury  to  the  plaintiff's  property 
at  all  events." 

19.  O'Donnell  v.  O'Neil,  130  Mo. 
App.  360,  109  S.  W.  815;  Pease  v. 
Cochran  (S.  D.),  173  N.  W.  158,  5  A. 
L.  R.  936. 


Frightening  Horses.  647 

frightened  and  after  the  horses  had  become  frightened  noth- 
ing could  have  been  done  by  him  to  avoid  the  accident,  as  it 
happened  instantly  and  the  horses  in  a  few  seconds  were  free 
from  the  vehicle  and  dashing  along  the  street,  it  was  held 
that  he  was  in  the  exercise  of  reasonable  care  and  not  liable 
to  one  injured  by  the  runaway  team,^''  And  where,  in  an  ac- 
tion for  damages  occasioned  by  the  frightening  of  plaintiff's 
team  by  the  operation  of  defendant's  automobile,  it  appeared 
that  the  team  pulled  back  and  escaped  immediately  on  the 
stopping  of  the  automobile,  and  it  did  not  appear  that,  had 
the  defendant  arrested  the  sparker  as  soon  as  he  saw  or 
might  have  seen  that  the  team  was  frightened,  it  would  have 
been  in  time  to  have  obviated  their  escape,  or  that  he  could 
have  done  anything  to  have  stopped  their  fright  after  he 
might  have  discovered  it,  he  was  not  guilty  of  negligence  war- 
ranting a  recovery.^ 

Sec.  520.  Notice  that  horses  take  fright. 

The  operator  of  an  automobile  propelled  by  a  gasoline 
engine  is  charged  with  notice  of  the  fact  that  horses  may  be 
frightened  thereby,  and  is  bound  to  exercise  reasonable  care 
to  handle  his  machine  in  such  a  manner  as  to  avoid  frighten- 
ing horses  lawfully  on  the  highway.^^ 

20.  Simmons     v.     Lewis,     146     Iowa,       ToO,  4  L.  R.   A.    (N.   S.)    1130,  8  Ann. 
316,  125  N.  W.  194.  Gas.    1087;    Gaskins    v.    Hancock.    156 

21.  House  V.  Cramer,  134  Iowa,  374,       N.  C.   56,  72  S.  E.  80. 

112  N,  W.  3,  13  Ann.  Cas.  461,  10  L.  Excuse  for  failure  to  observe  fright 

R.  A.   (N.  S.)   655.  ened  horses. — It  is  no  justification  for 

22.  House  v.  Cramer,  134  Iowa,  374,  tlie  failure  uf  the  driver  of  an  auto- 
112  N.  W.  3,  13  Ann.  Cas.  461,  10  L.  mobile  to  look  ahead  and  observe  the 
R.  A.  (N.  S.)  655;  Hall  v.  Compton.  fright  of  horses  drawing  an  approach- 
130  Mo.  App.  675,  108  S.  W.  1123.  It  ing  carriage  that  it  is  necessary  for 
is  incumbent  upon  a  person  driving  an  him  to  keep  his  eyes  and  attention 
automobile  along  a  highway  to  take  no-  fixed  on  the  track  of  the  road  to  enable 
tice  that  motor  cars  are,  as  yet,  usually  him  to  guide  the  machine  by  the  car- 
strange  objects  to  horses,  and  are  likely  riage  safely  and  to  avoid  chuck  holes 
t(i  startle  the  animals  when  driven  up  and  other  obstacles.  Mclntyre  v.  Orner. 
in  front  of  them  at  a  rapid  rate.  Me-  166  Ind.  57.  76  N.  E.  750,  4  L.  R.  A. 
Intyre  v.  Orner,  166  Ind.  57.  76  N.  E.  TN.  S.')   1130.  3  Ann.  Cas.  10S7. 


648  The  Law  of  Automobiles. 

Sec.  521.  Proximate  cause. 

Assuming  the  negligence  of  the  operator  of  a  motor  vehicle, 
he  is  liable  only  for  such  injuries  as  proximately  result  from 
such  negligence.  Before  one  injured  by  the  fright  of  a  horse 
can  recover  from  the  driver  of  an  automobile  for  such  in- 
juries, he  must  show  that  the  negligence  of  the  auto  driver 
was  a  proximate  cause  of  the  fright  of  the  horse  and  that  his 
injuries  result  from  such  fright.^^  When  a  horse  is  frightened 
by  the  negligent  operation  of  a  motor  vehicle,  the  results  of 
the  fright  such  as  a  physical  injury  thereby  inflicted  on  the 
driver  or  a  damage  to  property  from  the  horse  running  away, 
are  natural  results  which  may  be  expected  from  the  negligence 
of  the  operator  of  the  machine.  For  example,  if  an  automo- 
bile chauffeur  negligently  frightens  a  horse,  and  as  a  result 
of  such  fright  the  horse  kicks  its  driver,  the  personal  injuries 
thus  sustained  by  the  driver  may  be  deemed  the  proximate 
result  of  the  negligence.^*  But,  it  has  been  held,  that,  where 
the  fright  of  the  horse  caused  it  to  rupture  a  blood  vessel  in 
its  heart  resulting  in  death,  in  the  absence  of  any  physical 

23.  Henderson  v.  Northam,  176  Cal.  the  third  party,  was  the  legal  cause  of 

493,  168  Pac.  1044 ;  Lee  v.  City  of  Bur-  the  injury  to  the  horse,  and  whether  or 

lington,  113  Iowa,  356,  85  S.  W.  618;  not  the  defendant  was  negligent,  were 

Herdman  v.  Zwart,  167  Iowa,  500,  149  issues  for  a  jury.     Nixon  v.  Williams 

N.  W.  631;  Coughlin  v.  Mark,  173  Ky.  (Ga.  App.),  103  S.  E.  880. 

728,  191  S.  W.  503.     See  also  Martin  Instruction    to    jury. — ^In    an    action 

V.  Garlock,  82  Kans.  266,  108  Pac.  92.  based   on    the   frightening   of    a  horse 

Act    of   person   in    carriage. — Where  by  an  automobile,  in  the  absence  of  a 

the  plaintiff  was  driving  a   horse   at-  request  for  a  more  definite  instruction, 

tached  to  a  buggy  along  a  public  high-  a  charge  to  the  jury  that  a  recovery 

way,  and  the  horse  became  frightened  could  be  had  if  the  injury  was  caused 

by  the  operation  of  an  approaching  au-  by   the    negligence    of    the    defendant, 

tomobile  of  the  defendant,  and  fell  into  without  contributory  negligence  on  the 

a  ditch  and  was  injured,  the  act  of  a  part   of  the  plaintiff,   is  not   renderecT 

third    person    in    the    buggy   with    the  materially  erroneous  by  the  omission  to 

plaintiff  in  grabbing  the  lines  and  at-  state  that  the  negligence  complained  of 

tempting    to     control    the    frightened  must   have   been   the   proximate    cause 

horse,  which  pulled  the  horse  into  the  and  that  the  injury  must  have  been  one 

ditch,  where  he  was  injured,  was  not  reasonably  to  have  been  anticipated  as 

necessarily  the  legal  cause  of  the  in-  a  result  thereof.    Martin  v.  Garlock,  82 

jury.    Whether  the  operation  of  the  de-  Kans.  266,  108  Pac.  92. 

fondant's  automobile  in  frightening  the  24.  Gifford    v.    Jennings,    190    Mass. 

horse,  or  the  grabbing  of  the  lines  by  54,  76  N.  E.  233. 


Frightening  Horses.  ^^ 

injury  to  it,  there  was  no  liability  ior  the  horse.^^    Though  a 
different  rule  may  obtain  in  a  few  jurisdictions,  it  is  generally 
held  that  the  failure  to  have  an  automobile  properly  licensed 
and  registered  as  required  by  statute  is  not  the  proximate 
cause  of  an  injury  occasioned  by  the  machine.     Thus,  when 
such  an  automobile  frightens  a  horse,   ground  of  liability 
other  than  the  mere  violation  of  the  statute  must  be  sho^\^l.2•^ 
So,  too,  the  fact  that  the  automobilist  violates  the  statute  with 
reference  to  stopping  after  the  accident  and  giving  his  name 
to  one  injured  is  not  to  be  considered  on  the  question  of  negli- 
gence in  causing  the  accident.^^    To  a  reasonable  extent  the 
municipality  charged  with  the  maintenance  of  a  highway  is 
bound  to  anticipate  that  horses  wnll  become  frightened  on  the 
highway  and  must  use  reasonable  care  to  avoid  injuries  from 
such  fright.     Thus,  when  a  horse  becomes  frightened  at  an 
automobile  and  shys  and  an  injury  results  because  the  muni- 
cipality has  failed  properly  to  guard  or  fender  the  road,  the 
injury  may  be  said  to  be  the  proximate  result  of  the  negli- 
gence of  the  municipality  and  it  will  be  liable  for  the  in- 
juries.^^ 

25.  Lee  v.   City  of   Burlington,    113  possessefl   of   the  most   vivid  imagina- 

lowa,   356,   85   N.  W.   618,   wherein  it  tion,  one  could  hardly  anticipate  such 

was   said:      "If   there  had   been    any  results   as   are    said    to   have    followed 

physical  injury  to  the  horse  due  to  de-  from  the  fright  of  the  horse.     It  was 

fendant's  negligence  and   resulting  in  such  an  unusual  occurrence  that  the  law 

death,  there  would  undoubtedly  be  lia-  will  not  consider  it  the  proximate  re- 

bility.     But  where  death  results  from  suit  of  the  alleged  negligence." 

fright  alone  the  defendant  is  not  liable  26.  Black  v.  Moree,  135  Tenn.  73.  185 

in   damages,  since  such  a  result  is  so  S.  W.  683;  Mumme  v.  Sutherland  (Tex. 

unusual    and    extraordinary    that    one  Civ.  App.),   198   S.  W.   395.     And  see 

ought  not  to   be  held  liable  therefor.  section  126. 

As  a  general  rule,  no  recovery  may  be  27.  Henderson  v.  Northam.   176  Cal. 

had  for  injuries  resulting  from  fright  493,  168  Pac.  1044. 

caused  by   the  negligence   of   another,  28.  Livingston  &  Co.  v.  Philley,  155 

where  no  immediate  personal  injury  is  Ky.   224.    159   S.   W.   665;   Maynard  v. 

received.     This  is  the  settled  rule  as  to  Westfield,    87    Vt.    532.    90    Atl.    504; 

human  beings.     .     .     .     and  we  see  no  Davis  v.  Township  of  Usbome,  28  D. 

reason  why  the  same  rule  should  not  be  L.  R.   (Canada)    397,  36  O.  L.  R.  148, 

applied  to  animals   (see  also  Mahoney  9  O.  W   N.  484.     And  see  section  701. 
V.  Dankwart,  108  Iowa,  321).   Although 


650  The  Law  of  Automobiles. 

Sec.  522.  Horse  not  on  highway. 

Statutory  provisions  relative  to  the  use  of  highways  by 
motor  vehicles  are  designed,  as  a  general  proposition,  solely 
for  the  protection  of  other  travelers  along  the  way.  Thus, 
the  fact  that  the  operator  of  a  motorcycle  violated  a  speed 
statute  and  thereby  frightened  a  team  working  in  a  field  ad- 
joining the  highway,  affords  no  cause  of  action  for  ensuing 
injuries.^  But,  where,  upon  the  approach  of  an  automobile, 
the  driver  of  a  horse  leads  it  off  the  highway  on  private  lands 
in  order  to  avoid  its  fright,  it  seems  that  the  same  rules  apply 
to  the  conduct  of  the  driver  of  the  machine,  as  would  apply  if 
the  horse  had  remained  on  the  public  highway.^** 

Sec.  523.  Automobile  left  unattended  by  side  of  highway. 

Where  a  horse  has  become  frightened  at  an  automobile 
which  has  been  left  standing  by  the  side  of  the  highway, 
whether  the  operator  thereof  has  exercised  due  care  depends 
upon  the  surrounding  circumstances,  such  as  the  appearance 
of  the  automobile,  the  time  it  has  been  left  unattended,  and 
the  necessity  for  its  remaining  at  such  place.  If  a  motor 
vehicle  is  left  at  the  side  of  the  road  because  of  a  breakdown, 
its  operator  is  not  guilty  of  negligence,  unless  he  has  unrea- 
sonably delayed  its  repair  or  removal.^^  But  where  a  bright 
red  automobile  with  brass  trimmings  was  left  standing  by  the 
side  of  the  road  for  a  long  time,  and  the  jury  found  that  the 
use  of  the  highway  was  not  reasonable  but  rather  was  an  un- 
authorized obstruction  thereof,  it  was  held  that  the  finding 
would  not  be  disturbed  upon  appeal.^^ 

Sec.  524.  Noise  —  usual  noise. 

An  automobile,  being  a  legitimate  vehicle  for  travel  upon 
the  public  highways,  may  be  operated  though  noises  result 
therefrom.^^     The  right  to  operate  an  automobile  upon  the 

29.  Walker    v.    Faelber,    102    Kans.       N.  Car.  233,  62  S.  E.  1088. 

646,  171  Pac.  605.  32.  M'clntyre  v.  Cbote.  19  Ont.  L.  R. 

30.  Harroun  v.  Benton,  197  111.  App.  (Canada)  9.  See  also  Harris  v. 
138.  Mobbs,  L.  R.  3  Exch.  Div.    (Eng.)    268. 

31.  Davis  &  Sons  v.  Thornburg.  149  33.  Section  49. 


Frightening  Horses.  65] 

public  highways  necessarily  carries  the  right  to  make  the 
usual  noises  incident  to  such  operation.^*  It  may  not,  of  it- 
self, be  negligence  to  permit  the  engine  of  an  automobile  to 
run  while  the  machine  is  temporarily  standing  still  on  the 
highway,  and  when  it  is  not  shown  that  the  driver  knew  or 
should  have  known  that  the  machine  was  frightening  a  horse, 
in  time  to  have  avoided  the  accident,  the  court  may  properly 
refuse  to  submit  the  auto  driver's  negligence  in  this  respect.^ 
But  the  situation  may  be  such  that  even  the  usual  noises  of 
operation  should  be  abated  in  order  to  avoid  frightening  a 
horse,  and  their  continuance  may  be  a  ground  of  negligence.'^ 
Thus,  where  a  motorist,  in  compliance  with  a  signal  from  the 
driver  of  a  mule,  ran  his  machine  into  a  cut-out  in  the  bank 
on  the  side  of  the  road,  and  stopi>ed  the  forward  motion  of 
the  machine,  but  the  motor,  however,  was  permitted  to  run, 
and,  according  to  the  testimony  given  in  an  action  by  the  party 
driving  the  mule,  gave  forth  considerable  noise  and  caused  the 
whole  machine  to  vibrate.  The  plaintiff  continued  his  ap- 
proach; the  mule  becoming  more  or  less  frightened  as  he 
neared  the  machine,  and  when  he  was  almost  opposite  it,  he 
became  uncontrollable,  and  ran  over  to  the  extreme  right  of 
the  road,  where  he  struck  a  telephone  pole,  throwing  the  plain- 
tiff from  the  wagon.  The  question  of  the  negligence  of  the 
defendant  was  permitted  to  go  to  the  jury  and  tlie  jury  found 
negligence  and  awarded  damages  to  the  plaintiff;  and  it  was 
held  that  it  is  a  fact  of  which  courts  Avill  take  judicial  notice 
that  automobiles  on  highways,  especially  when  they  are  in- 
frequent, have  a  tendency  to  frighten  animals ;  and  the  duty, 
therefore,  devolves  upon  the  drivers  of  such  machines  to  exer- 
cise due  care  to  prevent  accidents.  The  amount  of  necessary 
care  varies  with  the  various  circumstances,  and  acts  Avhich  in 
a  given  case  might  be  negligence  in  another  might  be  due 
care,  and  therefore  it  is  almost  absolutely  necessary  that  what 

34.  CApe    V.    Lynch.    155    Towa.    627.  35.  Pipe    v.    Lynch,    1.j5    L.wa.    627. 

136    N.    W.    714;    Coca    Cola    Bottlinj?  1.^6  NT.  W.  714. 

Works  V.    Brown.    139   Tenn.   640,    202  36.  EllsAvorth    v.    Jarvi.«.    92    Kan.v 

S.  W.  926;  Brown  V.  Thome,  61  Wash.  895,    141    Pac.    1135:    Carscy   v.   Haw- 

18.    Ill    Pac.    1047.      Sep   also  Day    v.  kins    (Tex.).    163    S.    W.    ."iSfi.    165    S 

TTelly.   50  Mont.   306.   146  Pac.  930.  W.   64. 


652  The  Law  of  Automobiles. 

action  amounts  to  due  care  must  be  a  question  of  fact.^^  And, 
while  the  noise  of  a  machine  may  not,  of  itself,  afford  a  basis 
for  the  recovery  of  damages  for  injuries,  yet  the  running  of 
the  car  at  a  high  speed  so  that  a  traveler's  horse  is  thereby 
frightened  may  be  such  negligence  as  will  sustain  a  verdict.^^ 

Sec.  525.  Noise  —  unusual  noise. 

It  cannot,  as  a  matter  of  law,  be  said  that  the  operation  of 
an  automobile  in  a  manner  to  make  a  loud  noise,  creating  dust 
and  smoke,  constitutes  negligence.^^  But  the  jury  may  charge 
negligence  against  the  operator  of  a  motor  vehicle  approach- 
ing a  horse,  if  the  machine  makes  an  unusual  or  unnecessary 
noise,  and  he  may  be  responsible  for  injuries  accruing  from 
the  fright  of  the  horse.^*^  Thus,  where  a  horse  became  restless 
upon  the  approach  of  an  automobile  and  the  operator  of  the 
machine,  not  only  failed  to  stop,  but  tooted  his  horn  as  he 
came  in  proximity  to  the  horse,  it  was  held  that  he  might 
properly  be  charged  with  negligence.'*^  And,  it  has  been  held 
that  there  was  sufficient  evidence  of  negligence  in  the  driving 
of  an  automobile,  whereby  a  team  was  frightened  and  ran 
away,  to  require  the  case  to  be  submitted  to  the  jury,  where 
it  appeared  that  the  automobile  was  run  at  a  speed  of  twenty 
or  twenty-five  miles  an  hour,  on  a  street  where  there  were 
many  teams  and  where  the  city  ordinances  prohibited  a  speed 
in  excess  of  ten  miles  an  hour,  that  the  driver  passed  within 
fifteen  feet  of  the  team  and  blew  his  whistle  when  directly 
opposite  and  did  not  notice  the  horses  before  they  started  to 

37.  Rochester  v.   Bull.   78   S.   C.  249,       Queb.  S.  C.    (Canada)    190. 

58  S.  E.  766.     See  also  Sapp  v.  Hunter,  Evidence. — In    an     action     for    dam- 

134    Mo.    App.    685,    115    S.    W.    463;  ages  caused  by  the  alleged  frightening 

Fletched  v.  Dixon,  107  Md.  420.  68  Atl.  of  a   horse   hj    an    automobile,    it   has 

875.  been   held   that    a   witness    acquainted 

38.  Shinkle  v.  McClillough,  116  Ky.  with  the  defendant's  automobile  may 
960,  77  S.  V^  196.  See  also  Mason  v.  testify  that  it  was  exceedingly  noisy 
West,  61  N.  Y.  App.  Div.  160,  70  N.  Y.  and  was  the  loudest  machine  he  had 
Suppl.  478.     And  see  section  525.  ever  heard      Fletcher  v.  Dixon.  113  Md. 

39.  Henderson  v.  Northam.   176  Cal.  101,  77  Atl.  326. 

493.  168  Pac.  1044.  41.  Messer  v.   Bruening,   32  N.   Dak. 

40.  Coughlin  v.  Mark,   173  Ky.   728,       515,   156  N".  W.  241. 
191   S.   W.   503;   Lubier  v.  Mohaud,  38 


Frightening  Horses.  653 

run.''^  So,  too,  where  the  driver  of  a  motorcycle  overtook  the 
driver  of  a  restive  horse  and  sounded  his  whistle,  making  an 
unusual  noise,  it  was  held  that  he  was  liable  for  injuries  sus- 
tained by  the  driver  of  the  horse  as  a  result  of  the  horse  be- 
coming frightened  and  overturning  the  buggy  in  the  ditch.'*'^ 
But  one  may  be  justified  in  sounding  his  horn  when  passing  a 
horse,  when  the  signal  is  given  in  good  faith  for  the  purpose 
of  a  warning  to  another  traveler  some  distance  in  advance.^* 
Where  the  plaintiff's  witnesses  testified  that  the  automobile, 
when  along  side  of  a  team  of  horses,  started  ''chugging,"  and 
frightened  them  into  a  runaway,  resulting  in  the  death  of  one 
of  the  horses,  it  was  held  that  such  evidence  was  sufficient 
evidence  of  negligence  to  take  the  case  to  the  jury.''^  Simi- 
larly, negligence  may  be  inferred  from  the  circumstances  that 
a  team  became  frightened  at  the  flapping  of  the  curtains  on  an 
auto  van.''^  But,  where  the  operator  of  an  automobile  stopped 
it  in  the  street  near  a  blacksmith  shop,  and  expected  to  start 
it  shortly,  it  was  held  that  he  was  not  negligent  in  allowing 
explosions  from  his  engine  to  continue,  unless  he  saw  horses 
were  being  frightened  thereby,  or  in  the  exercise  of  ordinary 
care  should  have  noticed  the  fright,  and  by  the  exercise  of 
reasonable  diligence  could  have  stopped  the  noise  in  time  to 
have  avoided  the  runaway.''^  In  other  words,  the  operator  of 
the  machine  need  not  necessarily  stop  the  motor:  whether  he 
is  negligent  in  continuing  the  running  of  the  engine  will  de- 
pend upon  the  circumstances  involved  in  each  particular 
case."*^  It  might  not  be  negligence  to  leave  the  engine  running 
while  the  operator  leaves  the  machine  for  a  short  time,  but 
gross  negligence  may  be  charged  against  one  who  leaves  the 
machine  so  running  for  a  considerable  period.'*^    ^Vhere  the 

42.  Grant    v.    Armstrong.    55    Wash.  47.  House  v.  Cramer,  134  Iowa,  374, 
365.  104  Pac.  632.                                              112  N.  W.  3.  10  L.  R.  A.    (N.  S.)   655. 

43.  Hutson  v.  Flatt,  194  111.  App   29.       13  Ann.  Cas.  461. 

44.  Conrad  v.  Shuford   (N.  C),  94  S.  48.  Affcld  v.  Murphy.  137  Minn.  331, 
E-  424.                                                                   163   N.   W.   530;    Sapp  v.   Huntrr.   134 

45.  Kirlin     v.     Chittenden,     176     III.      Mo.  App.  685,  115  S.  W.  463. 

App.  550.  49.  Coco     Cola     Pottlin?    Works    v. 

46   La    Brash    v.    Wall.    134    Minn.       Brown.  139  Tenn.  640,  202  S.  W.  926. 
130.    1,58  N.  W.   723. 


g54  The  Law  of  Automobiles. 

chauffeur  commenced  to  crank  his  machine  for  the  purpose  of 
starting  in  close   proximity   to   harnessed  horses   standing 
quietly  in  charge  of  a  driver,  without  giving  any  previous 
warning,  and  continued  to  do  so  after  the  horses  exhibit  symp- 
toms of  fright,  and  thereby  caused  them  to  run  away,  it  was 
held  that  he  was  held  guilty  of  actionable  negligence,  for  it 
was  his  duty  when  he  began  to  "crank  up"  to  keep  a  watchful 
eye  on  the  horses  standing  so  close  by  and  that  when  he  saw 
that  they  manifested  symptoms  of  fright,  to  stop  at  once, 
until  they  could  be  removed.^*^     Statutes  which  require  the 
driver  of  the  machine  to  stop  when  signaled  by  the  driver  of 
a  horse,  do  not  require  that  the  engine  of  the  machine  be 
stopped ;  whether  it  should  be  stopped  mil  depend  on  the  cir- 
cumstances of  each  particular  case.^^     But  a  statute  which 
under  some  circumstances  requires  the  stopping  of  the  engine 
on  "meeting"  a  team ^  driven  by  a  woman  does  not  apply 
when  the  driver  of  the  machine  turns  into  a  by-road  to  avoid 
the  "meeting"  and  there   stops  the  machine,  but  not  the 
motor.^^ 

Sec,  526.  Noise  —  failure  to  sound  horn. 

It  is,  perhaps  an  anomoly  in  one  case  to  charge  the  driver 
of  a  motor  vehicle  with  negligence  in  sounding  his  horn  when 
approaching  a  horse-driven  vehicle,  and  in  another  case  to 
impute  negligence  to  him  if  he  fails  to  give  a  warning  of  his 
approach  and  his   sudden  appearance  frightens  the  horse. 

50.  Tudor  v.  Bowen,  152  N.  C.  441,  favorable  opportunity  he  turned  aside 
67  S.  E.  1015,  30  L.  E.  A.  (N.  S.)  804,  and  avoided  a  meeting.  There  was 
21  Ann.  Caa.  646.  surely   no   fault   unless  the   failure  to 

51.  Mahoney  v.  Maxfield.  102  Minn.  stop  the  motor  was  a  fault.  The  auto 
377,  113  N.  W.  904.  14  L.  R.  A.  (N.  was  then  a  considerable  distance  from 
S. )    251,  12  Ann.  Cas.  289.  the   team,   and    it   was   not   reasonably 

52.  Affeld  v.  Murphy,  137  Minn.  331,  to  be  anticipated  that  any  harm  would 
163  N.  W.  530,  wherein  the  court  said:  come.  We  hold  that  the  statute  was 
"A  majority  of  the  court  are  of  the  without  application*  in  the  situation 
opinion  that  the  statute  mentioned  does  disclosed,  that  a  failure  to  stop  the 
not  apply,  and  that  there  is  no  basis  motor  did  not  involve  liability  because 
for  a  charge  of  negligence  apart  from  of  the  statute,  and  that  independently 
it.  The  driver  did  not  meet  the  team.  of  the  statute  there  was  no  basis  for 
He  turned  into  the  side  road  to  avoid  a  finding  of  negligence." 

a    meeting.      He   was   cautious.      At   a 


Frightening  Horses.  ^^^ 

Whether  he  should  sound  a  signal,  and  when  it  should  be 
done,  depends  upon  what  course  of  action  is  reasonable  care 
under  the  circumstances.    Where  one  in  control  of  an  auto- 
mobile on  a  public  street  came  up  behind  a  wagon  drawn  by  a 
horse  not  given  to  shying,  kicking  or  running  and  not  afraid 
of  automobiles,  and  without  sounding  his  horn  came  within 
ten  feet  of  the  nearer  hind  wheel  of  the  wagon  and  tried  to 
pass  where  there  was  not  sufficient  room,  it  was  held  that  he 
could  be  found  negligent  in  not  sounding  his  horn  as  required 
by  the  statute.^^    Where  an  operator  of  an  automobile  saw, 
or  by  ordinary  care  could  have  seen,  a  horse  and  vehicle  on  a 
highway  ahead  of  him,  and  he  was  required  by  statute  to  give 
warning  of  his  approach,  and  to  use  every  reasonable  pre- 
caution to  insure  the  safety  of  the  occupants  of  the^  vehicle, 
and  there  was  evidence  that  he  did  not  give  any  warning,  that 
he  drove  the  machine  at  a  high  rate  of  speed,  and  that  he  did 
nothing  toward  respecting  the  safety  of  the  persons  in  the 
vehicle,  except  to  swerve  the  machine  to  the  right  to  pass  it, 
it  was  held  that  such  evidence  was  prima  facie  proof  of  negli- 
gence, authorizing  a  recovery  for  injuries  received  by  the  per- 
sons in  the  vehicle  in  consequence  thereof." 

Sec.  527.  Emission  of  smoke  or  vapor. 

Actionable  negligence  may  be  based  on  the  fact  that,  when 
an  automobile  is  in  proximity  to  a  horse,  a  cloud  of  steam  or 
smoke  suddenly  ensues  from  the  machine,  the  horse  thereby 
becomes  frightened  and  causing  injuries  either  to  persons  or 
to  property .^^  To  approach  close  to  a  horse-drawn  vehicle 
and  then  suddenly  to  project  a  cloud  of  smoke  or  vapor  in  the 
face  of  the  horse,  could  not  w^ell  be  expected  to  produce  any 
result  other  than  the  fright  of  the  horse.^''    Thus,  where,  in 

53.  GifiFord    v.    Jennings,    190    Mass.  as  in  other  respects,  is  novel  and  there- 

54,  76  N.  E.  233,  wherein  it  was  said:  fore   may  be   dangerous,   and   that  the 

"The    jury    might    find    that    a    horn  defendant   should   have  known  this." 

should    be    sounded    on    overtaking    a  54.  National    Casket    Co.    v.    Powar. 

horse  not  only  to  warn  the   driver   of  137  Ky.  156,  125  9.  W.  279. 

the   horse   to   keep  to   his   sido   of   the  55.  Graham    v.    Sly,    177    Mo.    App. 

road,  but  also  to  give  timely  warning  348.  164  S.  W.  136. 

of  the  approach  of  this  machine  which,  56.  Graham    v.    Sly.    177    Mo.    App. 

in  the  kind  of  noise  made  by  it,  as  well  348,  164  S.  W.  136. 


656  The  Law  of  Automobiles. 

an  action  against  the  driver  of  an  automobile  to  recover  for 
personal  injuries,  it  appeared  that  the  plaintiff,  driving  in  a 
buggy  with  his  wife  and  small  child,  approached,  at  a  point 
in  a  narrow  road,  an  automobile  driven  by  defendant;  that 
plaintiff  threw  the  lines  to  his  wife,  descended  to  the  ground, 
and  without  looking  at,  or  speaking  to  the  defendant,  went  to 
the  head  of  his  horse,  which  had  become  restless  and  that  the 
defendant  started  to  proceed,  when  immediately  a  volume  of 
vapor  as  large  as  a  hat  was  spurted  from  a  tube  in  the  rear 
axle,  under  and  against  the  horse,  accompanied  by  a  hissing 
sound  and  strong  odor  of  gasoline  and  that  the  horse  became 
unmanageable,  overturning  the  buggy  and  injuring  the  wife 
and  it  further  appeared  that  the  horse  was  eighteen  years  old 
and  prior  to  the  accident  trustworthy,  it  was  decided  that  the 
case  was  for  the  jury." 

Sec.  528.  Speed. 

The  requirement  that  an  autoist  shall  use  reasonable  care 
in  the  operation  of  his  machine  is  frequently  violated  by  run- 
ning at  an  excessive  speed,^^  and  especially  is  this  so  when 
the  limit  prescribed  by  statute  or  municipal  ordinance  is  vio- 
lated. If  the  fright  of  a  horse  and  consequent  injuries  are 
the  proximate  result  of  the  excessive  speed  of  a  motor  vehicle, 
the  driver  thereof  may  be  liable.^** '  Independently  of  statute, 

57.  Reed    v.    Snyder,    38    Pa.    Super.  remaining    stationary    for    but    a    mo- 

Ct.   421,   wherein   it   was  said:      "The  ment." 

defendants  must  necessarily  have  seen  58.  Section  305. 

the  nervous  horse,  the  man  at  its  head,  59.  Georgia. — Strickland      v.     What- 

the    mother    and    child    in    the    buggy,  ley,  142. Ga.  802,  83  S.  E.  856. 

and   must   certainly   have   known   that  Illinois. — Hutson    v.    Flatt,    194    111. 

when  the  machine  over  which  they  had  App.   29. 

full  control  would  be  started  by  their  Indiana. — Carter     v.    Caldwe'l.      183 

direction,   the   vapor  .would   be   ejected  Ind,  434,  109  K  E.  355;   Brirkman  v. 

in  the  direction  of  the  horse,   that  a  Pacholke,  41  Ind.  App.   662,  '84  N.  E. 

noise  would   be   produced,  with   an   ac-  762;  East  v.  Amburn,  47  Ind.  App.  530, 

companying  odor  of  gasoline.     A   jury  94  N.  E.  895. 

would  be  warranted  in  concluding  that  Iowa. — Delfs   v.   Dunshee,    143   Iowa, 

they  had  full  control  of  their  machine,  381,  122  N.  W.  236;  Lenxke  v.  Ady,  159 

and  should  have  known  the  hazard  fol-  N.  W.  1011. 

lowing  their  progress,  which  could  have  Kentucky. — East  Tenn.  Telep.  Co.  t 

been  relieved  of  all  possible  danger  by  Cook.   155  Ky.  649,  160  S.  W.   166. 


Frightening  Horses.  657 

no  person  should  operate  a  motor  vehicle  on  the  public  high- 
ways at  a  rate  of  speed  greater  than  is  reasonable  and  proper 
in  view  of  the  time  and  place,  and  having  regard  to  the  trathc 
and  condition  and  use  of  the  highway .'^'^ 

Sec.  529.  Operating  auto  in  proximity  to  horse. 

Negligence  may  sometimes  be  charged  against  the  driver 
of  an  automobile  on  account  of  the  proximity  with  which  he 
drives  his  machine  to  a  horse.^^  Thus,  if  in  passmg  a  horse 
from  the  rear,  the  automobile  is  guided  back  into  the  center 
of  the  road  sooner  than  due  caution  would  require  and  thereby 
it  comes  close  to  the  horse's  head,  the  jury  may  be  justified  m 
imputing  negligence  to  the  chauffeur.^^  And,  when  meeting 
a  horse,  if  the  driver  of  an  automobile  delays  his  turn  to  the 
right,  so  that  apparently  the  machine  is  coming  head-on  to 
the  horse,  negligence  may  be  found.^^  Neglect  of  due  care  is 
especially  clear  in  such  a  case,  when  the  automobile  is  violat- 
ing the  law  of  the  road  in  proceeding  along  the  wrong  side 
thereof,^''  or  is  appropriating  to  itself  more  than  its  share  of 
the  road.^^    The  attempt  of  the  automobilist  to  pass  on  the  left 

Instruction  to  jury.-The  trial  court  than  six  miles  per  hour.     Strickland  v. 

may   properly   instruct  the   jury   as  to  Whatley,  142  Ga^802.  83  S.  E.  856 

the    consideration    to   be   given    to   the  60.  Hams   v.   ^icks    (Ark  )     221   S. 

fact  of  speed,  if  found  to  be  less  than  W.  472;  Wade  v.  Brebts,  161  Ky.  607 

the  statutory   rate,  where  the  instrue-  171    S.   W.   188.     And   see   section   305. 

tion   further   outlines   the   duty   of  the  61.  Zelezny  v.  Birk  Bros.  Brew.  Co.. 

automobilist  to  use  proper  care,  under  211  111.  App.  282;  Zellner  v^McTague, 

the  circumstances,  in  passing  plaintiff's  170  Iowa,  534.  153  N.  Y^/^.'.f  f  .Z' 

buggy.     Brirkman  v.  Pacbolke.  41  Ind.  Compton,  130  Mo.  App.  675.  108  S.  ^\. 

App     662     84   N.   E.    762.      Where  the  1122. 

plaintiff  'testified    that    at    the    pla^e  62.  Delfs  v.  Dunshee,  143  Iowa.  381. 

whore       the     defendant's      automobile  122  N.  W.  236. 

passed  his  buggy,  frightened  his  mule  63.  East   v.    Amburn.    47    Ind.    App. 

and   caused   it  to  jump   from  the  road  530,  94  N.   E.  895;    ^taley  v.   Forr  st 

and   to  throw  the   occupants   from  the  157  Iowa,  188;   138  N.  W.  44    ;  Holbs 

buggv,  there  was  a  fill  three  feet  high.  v.  Preston,  115  Me^  553    98  Atr  75. 

it  was  not  error  to  charge  the  portion  64.  Hannan    v.    St.    Clair,    44    Co.o. 

of    the    statute    which    declared    that  134.  96  Pac.  822;   Bureham  v.  Rob.n- 

"upon      approaching      a     .     .     •     high  son.   113  Miss.   527.  74  So.  417. 

embankment."  the  person  operating  an  65.  Hall   v.   Compton,    130  Mo.  App. 

automobile  shall  have  it  under  control  075,  108  S.  W.  1122. 

and  operate  it  at  a  speed  not  greater 
42 


658  The  Law  of  Automobiles. 

side  contrary  to  the  law  of  the  road,  is  not  conclusively  negli- 
gence, but  places  a  burden  on  the  driver  of  the  machine  to 
show  why  he  diverted  from  the  rule  of  the  road.^*^  If  the 
narrowness  of  a  road,  the  frightened  appearance  of  a  horse, 
and  the  size  of  the  space  for  passage,  are  apparent  to  the 
driver  of  an  automobile  and  he  takes  his  chance  of  passing 
safely  and  miscalculates  the  space,  he  will  not  be  in  a  position 
to  complain  of  a  verdict  against  him,  where  he  can  pass  safely 
by  waiting  a  few  minutes  until  reaching  a  wider  space  in  the 

road.^^ 

Evidence  tending  to  show  that  upon  a  traveled  track  twenty- 
two  feet  wide,  with  a  ditch  on  each  side,  the  plaintiff  had 
driven  his  single  horse  as  far  as  he  could  to  the  right  and  had 
stopped  as  the  defendant  approached  with  his  automobile; 
that  defendant  could  have  kept  wholly  to  the  right  of  the 
center  of  the  road,  but  instead  of  doing  so  he  turned  his 
machine  to  the  left  and  passed  so  close  to  plaintiff's  buggy 
that  there  was  but  from  one  to  two  feet  between  the  wheel 
track  of  the  buggy  and  that  of  the  car ;  that  water  and  slush 
were  splashed  toward  the  horse  as  the  car  passed;  and  that 
the  horse,  though  not  ordinarily  afraid  of  automobiles,  sud- 
denly lurched  and  overturned  the  buggy,  has  held  sufficient 
to  sustain  a  verdict  to  the  effect  that  the  defendant  was  negli- 
gent and  that  this  negligence  proximately  caused  the  injury.^^ 

Sec.  530.  Stopping  —  independently  of  statute. 

If  the  driver  of  an  automobile  knows,  or,  by  the  exercise  of 
reasonable  care  should  know,  that  further  progress  with  his 
machine  will  render  a  horse  unmanageable,  it  is  his  duty  to 
stop  the  machine  and  take  such  steps  as  may  seem  necessary 
for  the  safety  of  the  horse-drawn  vehicle.^^    The  presumption 

66.  Herdman    v.    Zwart,     167    Iowa.      Ala.  333,  70  So.  271. 

500;   149  N.  W.  631.     And  see  sections  Illinois. — Stout    v.    Taylor,    168    111. 

270-274.  App.  410. 

67.  Gurney  v.  Piel,  105  Me.  501,  74  Indiana. — Mclntyre  v.  Orner.  166 
Atl.  1131.  Ind.  57,  76  N.  E.  750,  4  L.  R.  A.   (N. 

68.  Pfeiffer  v.  Radke,  142  Wis.  512.  S  )  1130,  8  Ann.  Cas.  1087;  Brink- 
125  N.  W.  934.  man  v.  Pacholke,  41  Ind.  App.  662,  84 

69.  Alabama.— Roa,ch  v.  Wright,  195  N".  E.  762. 


Frightening  Horses.  659 

is  that  the  machine  is  always  under  the  control  of  the  operator, 
and  it  is  his  duty  to  stop  it,  if  he  knows  or  in  the  exercise  of 
reasonable  prudence  should  know  that  it  is  exciting  a  horse 
so  that  there  is  danger  in  continuing  the  forward  motion  of 
the  car.'^"  The  duty  of  stopping  is  now,  as  a  general  proposi- 
tion, expressly  required  by  statute.''^  But,  independently  of 
any  statute  on  the  subject,  the  driver  of  a  motor  vehicle 
should  stop  when  he  sees  that  he  is  frightening  a  horse  by 
proceeding.'^^  And  this  is  true  after,  as  well  as  before,  statu- 
tory enactments  have  provided  for  stopping  on  signals  or 
under  other  circumstances.''^ 

As  a  general  rule  it  may  be  stated  that  if  the  operator  of  an 
automobile  knows,  or  by  the  exercise  of  ordinary  care  may 
know,  that  the  movement  or  noise  of  his  machine  will  render 
an  animal  unmanageable,  he  must  use  all  the  care  and  caution 
which  a  prudent  and  careful  driver  should  exercise  under  the 
same  circumstances.  He  has  the  right  to  assume,  and  to  act 
upon  the  assumption,  that  every  person  whom  he  meets  will 
also  exercise  ordinary  care  and  caution  according  to  the  cir- 
cumstances and  will  not  negligently  or  recklessly  expose  him- 
self to  danger,  but  rather  make  an  attempt  to  avoid  it.  But 
when  an  operator  has  had  time  to  realize,  or  by  the  exercise 
of  a  proper  lookout  should  have  realized,  that  a  person  whom 
he  meets  is  in  a  perilous  position,  or  in  a  position  of  dis- 
advantage, and  therefore  seemingly  unable  to  avoid  the  coming 
automobile,  he  must  exercise  increased  exertion  to  avoid  a 

loiva. — Raber    v.    Hinds,    133    Iowa,  71.  See  following  sections. 

312,  110  N.  W.  597;  Walkup  v.  Beebe,  72.  Christy  v.  Elliott.  216  111.  31,  1 

139  Iowa.  395,  116  N.  W.  321.  L.  R.  A.    (N.   S.)    215,  74  N.  E.   1035, 

Kentucky. — Shinkle    v.    MeCullough,  108  Am.  St.  Rep.  196,  3  Ann.  Cas.  487; 

116  Ky.  960.  77  S.  W.  196.  Strand  v.  Griniiell  Automobile  Garage 

Mississippi. —   Burcham     v.      Robin-  Co.,    136    Iowa.    68,    113    N.    W.    488: 

son,  113  Miss.  527,  74  So.  417.  Walkup   v.   Beebe,   139   Iowa.   395,    116 

Missouri. — Fields  v.  Sevier,   184  Mo.  N.    W.    321;    Nelson    v.    Holland.    127 

App.  685,  171   S.  W.  610.  Minn.    188,    149   N.   W.    194:    Pease  v 

Washington. — Brown    v.    Thorne,    61  Cochran    (S.  Dak.),  173   N.   W.   158.   5 

Wash.  18,  111  Pac.  1047.  A.  L.   R.  936. 

Canada. — Campbell  v.  Pugsley,  7  D.  73.  Strand    v.    Grinnell    Automobile 

L.  R.  177.  Garage  Co.,   136   Iowa.  68,   113   N.  W. 

70.  Brown   v.   Thorne.   61   Wash.    18,  488;  Nelson  v.  Holland.  127  Minn.  188, 

ni  Pae.  1047.  149  N.  W.  194. 


660  The  Law  of  Automobiles. 

collision,  or  what  is  equivalent,  the  fright  of  a  horse  induced 
by  an  automobile.''* 

Where  the  plaintiff  testified  that,  while  driving  .an  ordi- 
narily gentle  horse  on  a  city  street,  the  horse  became  fright- 
ened at  the  defendant's  automobile  when  it  was  within  one 
hundred  and  thirty-nine  feet  of  her,  and  as  the  automobile 
approached  the  horse  became  more  frightened,  and,  turning 
quickly,  threw  plaintiff  to  the  street  close  to  the  sidewalk; 
that  the  automobile  was  then  eighty  feet  away,  coming  toward 
her,  and  ran  over  her  without  any  attempt  being  made  to  stop 
it,  and  the  defendant  testified  that  he  was  driving  at  the  rate 
of  five  or  six  miles  an  hour,  and  first  discovered  the  horse's 
fright  when  he  was  twenty  feet  away;  that  the  horse  turned 
quickly  to  the  side  of  the  street  on  which  the  defendant  was 
driving  when  the  defendant  turned  the  machine  in  on  the 
pavement  to  avoid  a  collision ;  that  he  was  obliged  to  leave  the 
pavement  on  account  of  a  house  built  close  thereto  and  when 
he  returned  to  the  street  there  was  room  between  the  sidewalk 
and  planitiff's  buggy  for  him  to  pass,  but  as  he  was  doing 
so,  the  plaintiff  jumped  out  and  fell  immediately  in  front  of 
the  machine,  so  close  that  he  could  not  stop,  and  to  avoid 
running  the  wheels  over  her  he  turned  the  machine  and  the 
body  of  the  car  passed  over  her,  it  was  held  that  under  either 
version  of  the  affair  the  jury  were  authorized  to  find  defend- 
ant negligent  in  failing  to  stop  when  he  discovered,  or  should 
have  discovered  by  ordinary  care,  the  fright  of  the  plaintiff's 
horse.^^ 

Ssc.  531.  Stopping"  —  discretion  as  to  stopping. 

The  general  rule  as  to  stopping  stated  in  the  preceding 
section  is  not  an  inflexible  one.  In  some  cases  the  proper 
degree  of  care  as  to  the  operator  might  require  the  machine 
to  be  stopped  upon  the  first  evidence  of  danger;  in  others  it 
might  be  necessary  to  slow  down  the  speed;  and  yet  again, 

74.  Sparkler     v.     Markley,     HP     Pa.  Yoder,  -SO  Kan.  25,  101  Pae.  468. 
Sun-r.  Ct.  351.  357,  pel'  Orlady,  J.  75.  Webb  v.  Moore,  136  Ky.  708,  125 

Must  use  reasonable  piecaut'on  com-  S.  W.  152. 
mensurate  with   danger.     McDonald  v. 


Frightening  Horses.  661 

it  might  be  more  prudent  to  proceed  at  a  high  rate  of  speed, 
or  not  lessen  the  speed  at  which  the  machine  is  running.    Each 
case   presents    different    conditions    and    situations.     ^Vhat 
would  be  ordinary  care  in  one  case  might  be  negligence  in 
another.    But,  whatever  the  condition  or  situation,  the  driver 
of  the  automobile  must  at  all  times  and  in  all  places,  observe 
ordinary  care  to  avoid  injury  to  persons  or  travelers  on  the 
highway.''*'    So  in  a  case  in  South  Carolina  the  court  declared 
that  it  is  not  prepared  to  adopt  as  a  correct  statement  of  the 
common  law  that  the  driver  of  an  automobile  must  stop  if  it 
can  be  discovered  by  ordinary  foresight  that  an  animal  has 
become  frightened,  for  there  might  be  circumstances  when  the 
most  prudent  thing  to  do,  upon  discovery  that  a  horse  is 
frightened,  would  be  to  get  by  with  the  automobile  as  quickly 
as  possible  so  as  to  remove  the  cause  of  fright.     The  true 
rule  was  said  to  be  that  the  driver  must  exercise  the  care 
which  ordinary  prudence  requires  under  the  circumstances.'^^ 
And,  in  another  case,  it  was  said  that  it  is  reasonable  to 
presume  that  in  some  cases  the  fright  of  a  horse  will  be 
increased  by  stopping  an  automobile  just  opposite  to  him, 
rather  than  by  passing  on  by  and  if  the  driver  of  a  machine 
passes  on  he  is  not  responsible  for  the  damages  inflicted  by 
the  horse,  where  the  emergency  in  which  he  was  placed  was 
occasioned  by  an  imprudent  act  of  the  plaintiff.''^     So,  too, 
the  owner  of  an  automobile  who  was  running  his  machine  in 
a  careful  manner,  at  a  slow  rate  of  speed,  along  a  city  street 
crowded  with  travelers  and  vehicles,  and  keeping  a  lookout 
to  avoid  accidents,  was  held  not  liable  for  an  injury  inflicted 
by  a  horse  taking  fright  thereat,  when  he  was  not  aware  of 
any  danger  from  said  fright  until  his  machine  had  reached  a 
point  opposite  to  or  had  passed  the  horse's  head,  and  then 
deemed  it  less  dangerous  to  pass  on  than  to  stop,  and  when 
the  horse  was  in  charge  of  three  able-bodied  men,  and  there 

76.  Fleming    v.   Gates,    123  Ark.   28,  77.  Gue  v.  Wilson.  87  S.   C.  144,  69 

182  S.  W.  509;  Harris  v.  Hicks  (Ark.),  S.  E.  99. 

221  S.  W.  472;  Webb  v.  Moore,  136  Ky.  78    Baiigher  v.  Harman,  110  Va.  316, 

708,   125  S.  W.   152.      And    see  section  66  S.  E.  86. 
277. 


662  The  Law  of  Automobiles. 

was  nothing  in  its  behavior  to  lead  him  to  suppose  that  it 
would  become  unmanageable.'^ 

But  statutory  enactments  have  abrogated  in  most  jurisdic- 
tions any  discretion  in  the  matter  of  stopping.  Under  stat- 
utes requiring  the  driver  of  an  automobile  to  stop  his  car 
when  he  sees  that  a  horse  is  frightened  or  when  he  receives  a 
signal  from^the  driver,  the  chauffeur  has  no  discretion  as  to 
the  means  he  shall  take  to  avoid  frightening  a  horse.  It  is 
his  duty  to  stop  his  machine.^ 

Sec.  532.  Stopping  —  overtaking    and    passing    frightened 
horse. 

When  an  automobile  is  approaching  a  horse-driven  vehicle 
from  the  rear,  the  chauffeur  is  not  necessarily  guilty  of  negli- 
gence in  attempting  to  pass.  It  is  his  duty  to  exercise  reason- 
able care  to  avoid  injury  to  the  travelers  in  the  wagon,  and 
what  is  reasonable  care  will  depend  on  the  circumstances.  A 
statute  requiring  an  automobilist  to  stop  when  passing  a 
frightened  horse,  is  not  generally  applicable  in  the  case  of  a 
motor  vehicle  overtaking  and  attempting  to  pass.^^  Where 
the  evidence  tended  to  show  that  the  machine  approached  the 
plaintiff's  wagon  from  the  rear,  and  was  within  a  few  feet 
from  the  horse  and  turned  in  front  of  it  a  short  distance 
ahead,  it  was  held  that  the  negligence  of  the  driver  of  the 
auto  was  for  the  jury.^^  And  if  there  is  an  opportunity  to 
turn  the  horse  into  a  side  road  a  short  distance  ahead,  the 
driver  of  the  machine  may  be  charged  with  negligence  in 
attempting  to  pass  the  animal  and  in  not  waiting  until  its 
driver  had  an  opportunity  to  turn  out.^ 

Sec.  533.  Stopping  —  stopping  engine. 

Though  it  may  be  the  duty  of  the  operator  of  a  motor 
vehicle  to  stop  the  machine  on  the  approach  of  an  excited 
horse,  it  is  not  always  necessary  for  him  to  stop  the  running 

79.  Baugher  v.  Harman.  110  Va.  316,  81.  Section  534. 

66  S.  E.  86.  82    Delfs  v.  Dunshee,  143  Iowa.  381, 

80.  Stout    V.    Taylor,    168    111.    App.       122  N.  W.  236. 

410;  Searcy  v.  Golden,  172  Ky.  42,  188  83.  Brinkman    v.    Pacholke,    41    Ind. 

S.  W.   1098.  App.  662,  84  N.  E.  762. 


Frightening  Horses. 


663 


of  the  engine.  Due  caution  may  require  that  the  engine  be 
stopped  in  some  cases,  but  under  other  circumstances  the  con- 
tinuance of  the  running  of  the  engine  may  be  consistent  with 
an  exercise  of  reasonable  caution.  This  proposition  may  be 
better  considered  under  the  duty  of  the  operator  to  avoid 
noises  which  ^^dll  frighten  timid  horses,  and  is  therefore  dis- 
cussed under  another  section.^^ 

Sec.  534.  Stopping  — statutory   duty  to   stop   on  fright   of 
horse. 

In  many  jurisdictions  statutes  have  been  enacted  which 
impose  a  duty  on  the  drivers  of  automobiles  to  stop  when  it 
is  apparent  that  a  horse  is  being  frightened  by  the  operation 
of  the  machine.«5  Under  such  statutes  the  driver  of  the  auto- 
mobile has  no  discretion  as  to  stopping;  it  is  his  duty  to  stop 
though  he  might  in  good  faith  believe  that  the  danger  could 
be  more  easily  averted  by  rapidly  continuing  his  progress.^^' 
Indeed,  the  violation  of  the  statute  may  be  deemed  negligence 


111. 


Horner.     88 


172 


84.  Section  525. 

85.  Arkansas. — Russ  v.  Strickland, 
130  Ark.  406,  197  S.  W.  709. 

Delatca/re.—W aWs,  v.  Windsor  (Del. 
Super.),  92  Atl.  989. 

Illinois. — Smith    v.    Heish,    161 
App.  83. 

Xansas.— Arrington     v, 
Kan.  817,  129  Pac.  1150. 

Kentwky.— Searcy     v.    Golden, 
Ky.  42,  188  S.  W.  1098. 

New  York. — Union  Transfer  &  Stor- 
age Co.  V.  Westcott  Express  Co.,  79 
Misc.  408,  140  N.  Y.  Suppl.  98. 

North  Carolina. — Curry  v.  Fleer. 
157  N.  C.  16,  72  S.  E.  626. 

Utah. — Beggs  v.  Clayton.  40  l^tah. 
389,  121  Pac.  7. 

Canada.— ^JAihier  v.  Nichaud,  38  Que. 
S.  C.  190;  Stewart  v.  Steele,  6  D.  L. 
R.  1. 

86.  Fleming  v.  Gates.  132  Ark.  28. 
182  S.  W.  509:  Russ  V.  Strickland 
(Ark.),  197  S.  W.  709;  Searcy  v. 
Golden,   172  Ky.  42.    188   S.   W.    1098. 


"The  driver  of  a  car  cannot  determine 
for  himself  whether  it  is  as  safe  or 
safer  to  proceed  tlian  it  is  to  stop. 
The  law  lias  decreed  that  he  must  stop 
his  ear,  and  he  is  under  the  duty  to 
do  so,  altliough,  in  his  opinion,  some 
other  course  may  be  safer.  His  failure 
to  stop  the  car  under  these  circum- 
stance is  tlierefore  nt^ligence,  and 
renders  him  liable  for  any  injury  of 
which  it  is  the  proximate  cause,  pro- 
vided the  party  injured  is  not  himself 
guilty  of  negligence  contributing  to  his 
injurj\"  Euss  v.  Strickland  (Ark.). 
197  S.  W.  709. 

Question  for  jury. — ^Where  the  stat- 
ute requires  the  driver  of  an  automo- 
bile to  stop  when  a  horsp  is  frightened 
at  the  approach  of  the  machine,  and  it 
is  conceded  that  the  driver  did  not 
stop,  the  court  cannot  submit  to  the 
jury  the  question  whether  it  was  neces- 
sary for  him  to  stop.  Searcy  v.  Golden. 
172  Kv.  42    188  S.  W.  1098. 


664  The  Law  of  Automobiles. 

per  se^    A  statutory  requirement  that  the  operator  of  an 
automobile  shall  stop  when  it  appears  that  his  machine  is 
frightening  a  horse,  may  be  construed  to  mean  that  he  shall 
stop  whenever,  in  the  exercise  of  due  care,  it  should  appear  to 
him  that  his  machine  was  having  that  effect.««    In  other  words, 
a  chauffeur  cannot  negligently  fail  to  observe  that  a  horse  is 
frightened  or  about  to  become  frightened.    The  statute  may 
require  the  automobilist  to  stop  when  there  is  indication  of 
fright,^^  and  may  apply  to  a  horse  which  has  actually  become 
frightened  as  w^ell  as  to  one  which  is  about  to  be  frightened.®"^ 
It  is  held,  however,  that  a  statute  requiring  the  driver  of  a 
motor  vehicle  to  stop  until  a  horse  about  to  be  frightened  by 
the  machine  has  passed,  does  not  apply  when  the  machine 
approaches  the  horse  from  the  rear,  but  in  such  case  the  duty 
of  the  chauffeur  is  governed  by  the  general  rule  to  exercise 
reasonable  care  to  avoid  injury  to  other  travelers  on  the  high- 
way.®^   A  construction  of  the  statute  which  would  require  the 
automobile  to  stop  until  the  horse-drawn  vehicle  had  passed, 
would  impede  the  use  of  the  road  almost  to  the  extent  of 
denying  to  the  automobilist  the  right  to  travel  the  road. 

87.  Beggs  V.  Clayton,  40  Utah,  389,  -llie  purpose  of  that  statute  was  to 
121  Pac   7.  require  drivers  of  automobiles  to  come 

88.  Ru33  V.  Strickland  (Ark.),  197  to  a  full  stop  when  they  observe  that 
S.  W.  709 ;  Ward  v.  Meredith,  220  111.  an  approaching  horse,  ridden  or  driven 
66  77  N.  E.  118;  Stout  v.  Taylor.  168  by  another  traveler,  is  about  to  become 
111.  App.  410.  ifrightened.      The    statute    imposes    an 

"Just  when  a  horse  is  about  to  absolute  duty  on  the  driver  of  the  au- 
become  frightened  and  just  when  he  tomobile  to  stop,  and  liability  for  dam- 
is  actually  frightened  is  very  difficult  ages  arises  from  a  violation  of  that 
to  determine,  and  we  think  the  plain  statute.  We  think,  however,  that  the 
meaning  of  the  statute  is  to  require  statute  was  not  intended  to  impose  the 
persons  using  such  vehicles  as  automo-  absolute  duty  upon  the  driver  of  an 
biles,  calculated  to  frighten  horses,  to  automobile  to  stop  his  machine  because 
stop  the  same  whenever  a  horse  shows  a  team  in  front,  going  in  the  same  di- 
indication  of  fright  upon  their  ap-  rection,  appears  to  be  frightened,  but 
proach."  Ward  v.  Meredith,  220  111.  under  those  circumstances  it  is  left  to 
66    77  N.  E.  118.  a  t"al  jury  to  say  whether  under  all 

89.  Ward  v.  Meredith,  220  111.  66,  77  the  circumstances  of  the  case  the  driver 
N.  E.  118.  of  the  automobile  has  been  guilty  of 

90.  Ward  v.  Meredith,  122  111.  App.  negligence.  .  .  .  Doubtless  the  leg- 
159,  affirmed  220  111.  66,  77  N.  E.  118.  islature     took    into    consideration     the 

91.  Fleming  v.  Gates,  122  Ark  28,  hardship  of  requiring  the  driver  of  an 
182   S.   W.   509,  wherein   it  was   said:  automobile  to   stop  his  car  merely  be- 


Frightening  Horses.  665 

Sec.  535.  Stopping-  —  stopping  in  front  of  horse  after  passing. 

When  an  automobile  has  overtaken  and  passed  a  horse- 
dra^vii  vehicle,  thereby  exciting  the  animal,  the  stopping  of 
the  motor  vehicle  in  front  of  the  horse  may  add  to  the  fright 
of  the  horse  so  that  injuries  will  result.  The  operator  of  the 
machine  may  be  charged  with  negligence  under  such  circum- 
stances.®^ 

Where  the  evidence  justified  a  finding,  that  after  the  de- 
fendant had  passed  the 'plaintiff,  who  had  gained  a  partial 
control  of  his  frightened  horse,  and  upon  hearing  its  approach, 
stopped  his  car  a  short  distance  ahead  of  the  horse,  thus 
adding  to  its  fright,  it  was  decided  that  the  court  was  justified 
in  calling  the  attention  of  the  jury  to  this  evidence  and  direct- 
ing them  to  determine  whether  defendant  was  negligent  in 
thus  stopping  the  car,  without  specially  defining  in  that  con- 
nection the  care  required  of  defendant,  the  court  having  in 
other  instructions  correctly  defined  negligence.®^ 

Sec.  536.  Statute  requiring  stopping  on  signal  —  in  general. 

In  many  States,  statutes  have  been  enacted  to  the  effect 
that  the  operator  of  a  motor  vehicle  shall  stop  his  machine 
upon  the  signal  of  the  driver  of  an  animal-drawn  vehicle.®* 
The  constitutionality  of  such  a  law  is  hardly  open  to  ques- 

cause  a  team  in  front  of  him  appears  makers  evidently  intended  to  omit  any 

to  be  frightened.     The  automobile,  of  definite    requirement    applicable    to    a 

course,     travels     faster    than     vehicles  state  of  facts  such  as  is  shown  in  this 

drawn   by   horses,   and    if   this  statute  case,  so  that  the  question  of  negligence 

applied,  it  would  prevent  the  driver  of  or    due    care    could    rest   upon    settled 

an  automobile  from  passing  the  slower  principles   on  that   subject.     This  case 

vehicle.     On  the  other  hand,  it  is  per-  should  have  been  submitted  to  the  jury 

fectly  reasonable  to  require  the  driver  on  the  question  whctlier  appellant  ex- 

of   a   machine,    when    meeting  another  ercised  ordinary  care  to  avoid  frighten 

traveler  driving  a  team,   to   stop  and  ing   the   team,   without  giving  to  the 

let    the    team    pass.      The    legislature  jury  the  statute  which  imposed  the  ab- 

doubtless  had  this  distinction   in  mind  solute  duty  of  stopping  until  the  team 

in    failing   to    put   into    the    statute   a  got  out  of  the  way." 

positive   requirement   tliat  aji   automo-  92.  Delfs  v.  Dunshee,  143  Iowa,  381. 

bile  overtaking  another  kind  of  vehicle  122  N.  W.  236. 

should    stop,    for    such    a    requirement  93.  Delfs  v.  Dunshee,  143  Iowa.  381. 

would  impede  travel  almost  to  the  ex-  122  N.  W.  230. 

tent  of  denying  the  driver  of  an  auto-  94.  Arkansas. — Battle     v.      Guthroy, 

mobile  the  use  of  the  road.     The  law-  137  Ark.  228.  208  S.  W.  289. 


QQQ  The  Law  of  Automobiles. 

tion.^^    The  fact  that  the  driver  does  not  see  the  signal  will 
not  necessarily  excuse  him.^^^    Such  a  statute  does  not  gen- 
erally require  that  the  running  of  the  motor  be  stopped,  but 
the  obligation  of  the  automobilist  in  respect  to  the  noise  so 
made  is  governed  by  the  particular  circumstances  and  his  gen- 
eral obligation  to  use  reasonalile  care  in  the  operation  of  his 
machine.^6    Negligence  in  failing  to  stop  an  automobile,  upon 
signal  by  the  driver  of  a  horse,  that  it  has  taken  fright,  is  held 
to  be  sufficient  to  sustain  a  verdict  for  the  plaintiff,  even 
though  other  grounds  of  negligence  are  not  sustained.^^    And 
it  has  been  said  that,  if  the  jury  were  satisfied  that  a  signal 
to  stop  given  by  a  person  driving  horses  was  seen  by  a  person 
driving  an  automobile,  and  that,  without  slacking  speed,  the 
latter  unnecessarily  kept  on,  passing  within  two  feet  of  the 
horses  and  causing  them  to  become  unmanageable  and  run 
away,  when  the  width  of  the  roadway  was  sufficiently  ample 
to  have  enabled  him  to  go  by  at  a  distance  of  twenty  feet, 
which  might  have  prevented  the  accident,  they  would  have 
been  warranted  in  finding  that  the  automobile  was  carelessly 
operated  in  violation  of  a  statute,  requiring  the  driver  of  an 
automobile  to  exercise  every  reasonable  precaution  when  pass- 
ing teams  to  avoid  frightening  the  horses.^^    Thus,  in  a  typical 
case,  the  plaintiff,  who  was  about  seventy  years  of  age,  testi- 
fied that  while  driving  on  a  dark  evening,  he  met  the  defend- 
ant coming  from  the  opposite  direction  on  a  public  road  in  an 
automobile;  that  the  defendant  had  no  lights  on  his  auto- 

/otco,.— Horak   v.   Dougherty,    114  N.  25  N.  D.  599,  142  N.  W.  158,  48  L.  R. 

W.   883;   Walkup  v.   Beebe,   139   Iowa,  A.   (N.  S.)   945. 

395,  116  N.  W.  321.  Virginia. — Cohen  v.  Meader,  119  Va. 

Kansas.— Sterner   v.   Issitt,   89   Kan.  429,  89  S.  E.  876. 

357.  131  Pae.  551.  95.  Hays  v.   Hogan,   273  Mb.   1,   200 

Mtw/wesota.— Schaar  v.  Comtforth,  128  S.  W.  286,  L.  R.  A.  1918  C.  715,  Ann. 

Minn.  460,  151  N.  W.  275.  Oas.  1918  E.  1127. 

Missouri.— State  v.  Wilson,   188  Mo.  95a.  King  v.  Hyndman,  7  Canada  C. 

App.    342,    174    S.    W.    163;    Hays    V.  C.  469. 

Hogan.  273   Mo.   1,  200  S.   W.   285,  L.  96.  Mahoney  v.   Maxfield,   102  Minn. 

R.  A.   1918  C.  715,  Ann.   Gas.   1918  E.  377,   113  N.  W.  904.   14  L.  R.   A.    (N. 

1127.  S.)    251,  12  Ann.  Cas.  289. 

New  York.— Union  Transfer  &  Stor-  97.  Brown  v.    Thorne,  61    Wa*h.    18, 

age  Co.    V.    Westcott    Express    Cb.,    79  111  Pac.  1047. 

Misc.  408,  140  N.  Y.  Suppl.  98.  98.  Trombley  v.   Stevens-Dnryea  Co., 

North  Dakota.— Messer  v.  Bruening,  206  Mass.  516,  92  N.  W.  764. 


Frightening  Horses.  667 

mobile,  and  that  he,  the  plaintiff,  was  unable  to  notice  its 
approach  until  it  was  almost  on  him :  that  he  was  driving  a 
perfectly  tractable  and  gentle  horse  on  the  proper  side  of  the 
road;  and  when  the  automobile  was  about  twenty-five  steps 
away  he  recognized  it,  and  rising  in  his  buggy,  held  up  his 
hand  as  a  signal  to  the  driver  of  the  car  to  stop,  and  called 
out:     ''Hold  on,  wait,  stranger,  until  I  get  out  and  hold  my 
horse."    The  machine  was  either  slowed  down  or  stopped  in 
obedience  to  this  signal,  and  then  the  plaintiff  attempted  to 
get  out  of  his  buggy,  in  order  to  go  to  the  head  of  his  horse: 
and  when  in  this  situation  the  machine  was  suddenly  staited 
and  approached  the  buggy  with  considerable  noise,  which 
caused  the  horse  to  shy  and  run  against  the  fence,  so  that  the 
plaintiff  was  thrown  out  over  the  wheel  and  quite  seriously 
injured.    This  testimony  was  contradicted  by  the  defendant 
and  other  persons  who  were  in  the  automobile.     Under  the 
facts  the  case  was  held  to  be  one  for  the  jury,  and  it  was 
decided  that  a  verdict  and  judgment  for  plaintiff  should  be 
sustained.^* 

Sec.  537.  Statute  requiring  stopping  on  signal  —  discretion 
as  to  stopping. 

In  most  jurisdictions,  the  statute  as  to  stopping  on  signal 
does  not  give  the  operator  of  the  machine  any  discretion  as  to 
whether  or  not  he  should  stop.  He  cannot  speculate  as  to 
whether  the  horse  is  gentle  or  wild,  or  whether  it  will  become 
frightened  or  not,  but  he  must,  if  signaled,  stop  his  machine.^ 
The  statute  is  peremptory  and  it  is  his  duty  to  stop  though 
he  might  be  of  the  opinion  that  there  would  be  less  risk  oi 
injury  in  proceeding.  Under  such  a  statute,  the  violation  of 
the  statute  is  considered  negligence,  and  the  chauffeur  is 
generally  liable  for  all  damages  that  proximately  result  from 
his  wrongful  act.  But,  under  a  statute  requiring  that  the 
operator  of  an  automobile  on  a  signal  of  distress  by  a  person 
driving  horses  shall  cause  the  automobile  to  stop  all  motor 
power  and  remain  stationary,  unless  a  movement  forward 

99.  Spanglor     v.     Markley.     39     Pa.  1.  Cohen  v.  Meader.  119  Va.  429.  89 

Super.  Ct.  351.'  ^-  ^-  876. 


668  The  Law  of  Automobiles. 

shall  be  deemed  necessary  to  avoid  accident  or  injury,  it  is 
for  the  operator  to  determine  whether  a  forward  movement 
is  necessary,  and  his  determination  is  controlling  unless  he 
acts  unreasonably  or  in  bad  faith.^ 

Sec.  538.  Statute  requiring  stopping  on  signal  — effect  of 
failure  to  give  signal. 
The  failure  of  the  driver  of  a  horse  to  give  a  signal  to  an 
approaching  automobile  operator,  does  not  necessarily  permit 
the  latter  to  proceed.  The  driver  of  the  machine  is  bound  to 
exercise  reasonable  care  to  avoid  injury  to  other  travelers, 
and  if  due  care  requires  the  stopping  of  the  automobile,  negli- 
gence may  be  charged  against  him.^  In  other  words,  the 
enactment  of  the  statute  does  not  abrogate  the  duty  of  stopping 
which  existed  theretofore.  And  the  failure  of  the  driver  of 
the  horse  to  give  the  signal  prescribed  by  statute,  does  not 
necessarily  impute  contributory  negligence  to  him.* 

Sec.  539.  Statute  requiring  stopping  on  signal  —  signal  by 
passenger. 

Whether  a  signal  given  by  a  passenger  in  a  horse-drawn 
vehicle  is  effective  to  call  the  statute  into  operation  so  as  to 
place  an  imperative  duty  on  the  operator  of  a  motor  vehicle 
to  stop,  will,  of  course,  depend  on  the  construction  of  the 
particular  statute.  In  at  least  one  jurisdiction,  the  view  has 
been  taken  that  the  statutory  signal  may  be  given  by  a  pas- 
senger.^   The  contrary  view  is  also  sustained  by  the  courts  of 

2.  McCummins  v.  State,  132  Wis.  refusing  to  bring  his  car  to  a  stop, 
236,  112  N.  W.  25.  upon  being  signaled  to  do  so,  in  com- 

3.  Walkup  V.  Beebe,  139  Iowa,  395,  plianee  with  the  statutes  of  that  State 
116  N.  W.  321;  Nelson  v.  Holland,  127  which  provide  a  penalty  for  the  driver 
Minn.  188,  149  N.  W.  194.  And  see  of  an  automobile  who  fails  to  stop  upon 
section  530.  request    by    signal    from    any    person 

4.  Strand  v.  Automobile  Garage  Co.,  "riding,  leading,  or  driving  a  horse." 
136  Iowa,  68.  113  N.  W.  488.  As  to  In  this  case  the  signal,  which  was 
contributory  negligence,  see  sections  ignored  by  the  motorist,  came  from  a 
542-545.  carriage    containing    two    persons    and 

5.  Motorist  must  stop  on  signal  was  given  by  the  occupant  who  was  not 
from  any  occupant  .of  carriage  unde*  driving,  the  driver  being  engrossed  in 
Indiana  statute. — A  prosecution  was  his  efforts  to  restrain,  the  frightened 
lodged  against  an  Indiana  motorist  for  horse.     The  motorist  sought  to  escape 


Frightening  Horses. 


669 


at  least  one  jurisdiction.^  But,  though  there  does  not  exist  a 
statutory  duty  to  stop  on  the  signal  of  a  mere  occupant  of  the 
carriage,  nevertheless  the  duty  of  exercising  reasonable  care 
which  is  placed  on  the  operator  of  a  motor  vehicle  under  all 
circumstances,  may  be  violated  if  he  disregards  a  signal  ot 
distress  from  such  a  person.  That  is  to  say,  the  jury  under 
some  circumstances  may  be  authorized  to  find  the  automobilist 
guilty  of  negligence  if  he  fails  to  stop  on  receiving  a  signal 
from  a  passenger  in  the  carriage.^ 

Sec.  540.  Negligence  after  stop. 

Though  an  automobilist  has  brought  his  machine  to  a  stop 
to  avoid  frightening  a  horse,  he  has  not  necessarily  fulfilled 
his  entire  duty  to  travelers  in  the  carriage.  He  must  continue 
to  exercise  reasonable  care  to  avoid  injury  to  them.  Thus,  if 
he  starts  the  engine  while  the  horse  is  being  driven  past  his 
machine,  and  the  horse  thereby  becomes  frightened  and  causes 
injury,  the  jury  may  find  the  operator  of  the  machine  guilty 
of  negligence.8    And,  even  when  the  driver  of  the  automobile 

liability  on  the  ground  that  the  signal  would  be  unreasonable,  if  not  absurd, 

did   not   come  from   the  person   "driv-  and  that  the  signal  to  stop,  in  order  to 

in.."  the  horse,  as  required  by  the  stat-  be  legally  effective  need  not  be  given 

ute   but  was  given  by  some  one  in  the  by   the   person  holding   the    lines    but 

carriage  who  was  not  actually  engaged  may  be  given  by  any  occupant  of  the 

in  driving.     In  other  words,  he  asked  vehicle.      State    v.    Goodwin.    169    Ind. 

the    court    to    construe   the    statute    to  265,  82  N.  E.  459. 

mean  that  it  was  not  his  duty  to  stop  6.  Messer   v.    Bruening    25    N    Dak. 

unless  signaled  to  do  so  by  the  person  599,  142  N.  W.  158,  48  L.  R.  A.   (N. 

handling  the  reins.     As  is  usual  in  a  S.)    945;    Messer   v.    Bruening,    32   N. 

case    where   a   precise    definition    of    a  Dak.  515,  156  N.  W.  241. 

word  is  required,  recourse  was  had  to  7.  Messer   v.   Bruening,   32   N.   Dak. 

the  dictionaries,  where  driving  is  found  515,  156  N.  W.  241. 

to  mean  "to  ride  in  a  vehicle  dra^vn  by  8.  Fischer    v.    McGrath,    112    Mmn. 

horses,   or  other  animals,  or  to   direct  456,  128  N.  W.  579.     -If,  as  the  jury 

or  control  the  animals  that  draw  it."  has    found,   the    defendant   w^s    aware 

While  criminal  statutes,  as  a  rule,  are  that  the  machine  in  his  possession  and 

to  be  strictly  construed,  courts  refuse  control   had   so   far  excited  tho  plain- 

on  one  hand,"to  hold  persons  not  clearly  tiff's  horse  as  to  render  him  dangerous 

brought  within  the  scope  of  the  statute  and  unmanageable,  and  if  having  stop- 

and,   on  the  other  hand,   to   discharge  ped  at  the  urgent  solicitation  of  tbe  oc- 

those  not  clearly  within  its  scope.     It  cupants  of  the  surrey  m  order    o  af- 

was  held  that,  to  attach  to  the  statute  ford  them  an  opportumty  to  al.ght,  he. 

the  construction  claimed  by  the  defense  before   they   could   do   so,   started    the 


670  The  Law  of  Automobiles. 

on  meeting  a  horse  gets  out  of  his  machine  to  assist  in  getting 
the  horse  past,  if  he  is  guilty  of  negligence  in  handling  the 
horse,  he  may  be  liable  for  injuries  sustained  by  the  occupant 
of  the  wagon.^  In  one  case  it  appeared  that  the  plaintiff  and 
his  sister  were  riding  in  an  open  wagon  drawn  by  one  horse, 
and,  discovering  the  canopy  top  of  an  approaching  automobile 
in  which  the  defendant  and  a  companion  were  traveling,  the 
sister  gave  the  statutory  signal  b}^  raising  the  hand  for  the 
automobile  to  stop.  The  defendant  disregarded  the  signal  to 
stop  and  ran  the  automobile  out  of  the  highway  two  or  three 
rods  into  a  dooryard.  The  plaintiff  was  thereby  induced  to 
believe  that  he  could  drive  along  in  safety,  but  the  automobile 
unexpectedly  turned  and  reappeared  in  the  highway  directly  in 
front  of  the  plaintiff,  frightening  his  horse,  and  causing 
several  personal  injuries  to  the  plaintiff.  The  verdict  was  for 
the  plaintiff,  who  was  awarded  $225  damages.  If  the  defend- 
ant had  regarded  the  plaintiff's  signal  and  promptly  stopped 
his  machine,  the  plaintiff  would  have  had  an  opportunity  to 
drive  into  the  dooryard  himself,  as  he  intended  to  do.  If  the 
defendant  had  kept  his  car  stationary  for  a  few  seconds  in  the 
dooryard,  the  plaintiff  could  have  driven  along  the  highway 
safely.  The  defendant  did  neither  of  these  things ;  but,  having 
induced  the  plaintiff  to  believe  that  the  car  would  remain 
bej'Ond  the  area  of  danger,  he  suddenly  reappeared  with  it  in 
front  of  the  plaintiff,  partly  in  the  highway.  His  explanation 
of  this  management  of  his  car  was  that  the  team  was  so  far 
up  the  road  that  it  had  passed  out  of  his  view.  This  must  be 
deemed  thoughtless  inattention  on  his  part,  and  **  thoughtless 
inattention"  has  been  declared  b}"  the  Supreme  Judicial  Court 
of  Maine  to  be  the  "essence  of  negligence."  The  court  held 
that  the  defendant's  thoughtless  inattention  under  the  cir- 
cumstances was  a  failure  of  duty  on  his  part  toward  the  plain- 
tiff, and  the  proximate  cause  of  the  injury,  and  that  the 

nmchine  again  and  so  caused  the  horse  nary  care.'-     Knight  v.  Laniere,  69  N. 

to  run  away,  a  question   of  fact   was  Y.  App.  Div.  454,  74  N.  Y.  Suppl.  999. 

clearly     presented     for     determination  9.  Pekarck  v.  Myers,   159  Iowa,  206, 

whether,   under   all  the   circumstances,  140  N.  W.  409. 
his  conduct  was  characterized  bv  ordi- 


Frightening  Horses.  671 

verdict  in  favor  of  the  plaintiff  was  warranted  by  the  evi- 
dence.^" 

Sec.  541.  Lights  on  machine. 

The  violation  of  a  statute  requiring  the  maintenance  of 
lights  on  motor  vehicles  during  certain  hours  may  form  the 
basis  for  a  charge  of  negligence.^  If  such  a  violation  results 
in  the  frightening  of  a  horse,  in  the  absence  of  contributory 
negligence,  tlie  automobilist  is  liable  for  damages  which  na- 
turally follow  from  the  fright.^^  Such  a  statute,  however, 
generally  applies  only  to  public  highways,  not  to  private 
roads.^^ 

Sec.  542.  Contributory  negligence  —  general  duty  of  driver  of 
carriage  to  exercise  reasonable  care. 

The  general  duty  of  exercising  reasonable  care,  which  is  im- 
posed upon  all  classed  of  travelers,  requires  that  one  driving 
a  horse  along  a  public  highway  shall  use  a  reasonable  degree 
of  caution  to  avoid  injury  to  himself  or  vehicle.  And,  in  case 
a  horse  is  frightened  by  an  automobile,  if  the  driver  is  guilty 
of  contributory  negligence  which  is  one  of  the  proximate 
causes  of  its  fright,  as  a  general  rule,  there  can  be  no  recovery 
for  damages  ensuing  to  the  owner  or  driver  of  the  carriage." 

10.  Towle  V.  Morse,  103  Me.  250,  68  North  Dalcota. — Messer  v.  Bruening, 
Atl.    1044,    citing    Tasker   v.    Farming;-  32  N.  Dak.  515,  156  N.  W.  241. 
dale,  85  Me.  523,  27  Atl.  464.  Texas.— C-Arsey     v.     Hawkins     (Civ. 

11.  Sections  344-348.  App.),  165  S.  W.  64. 

12.  Stewart  v.  Smith  (Ala.  App.),  78  Instructions    to    jury. — An    instruc- 
So.  724.  tion  to  the  effect  that,  if  the  plaintiff 

13.  Stewart   v.   Smith,   16   Ala.   App.  was  driving  along  the  road  and  "usinc 
461,  78  So.  724.  due  care   for  his  own  safety,"  is  not 

14.  Illinois. — Donovan     v,     Lambert,  had  for  failing  to  define  the  meaning 
139  111.  App.  532.  of  "due   care,"   where   o^her   instruc- 

lotva. — Gipe  v.  Ljiich,  155  Iowa,  627,  tions  were  given  defining  negligence  and 

136   N.  W.   714;   Drier  v.   McDermott.  (Contributory   negligence,   and   the   care 

157  Iowa,  726,  141  N.  W.  315.  required  of  the  plaintiff.     Brinkman  v. 

Kansas. — Arrington     v.     Horner,     88  Pacholke,  41   Ind.   App.  662,  84  N.  E. 

Kans.  817.  129  Pac.  1159.  762. 

Maine. — Hobbs  v.   Preston.    11.5   Me.  Failure    to    jump. — In    an    action    to 

.')53,  98  Atl.  757.  recover   damages   for  personal   injuries 

New    Hampshire. — Nadeau    v.    Saw-  su.itained    by    the    plaintiff    in    conse- 

yer,  73  N.  H.  70,  59  Atl.  369.  quence  of  the  frightening  of  hia  horses 


672  The  Law  of  Automobiles. 

The  right  of  a  passenger  in  the  carriage  to  recover  for  his  in- 
juries which  are  in  part  caused  by  the  negligence  of  the  driver, 
depends  on  whether  the  negligence  of  the  driver  is  to  be  im- 
puted to  the  passenger.^^ 

The  driver  of  a  carriage  is  required  to  exercise  such  care 
as  an  ordinarily  prudent  person  would  under  the  circum- 
stances.^® The  driver  of  a  well  broken  horse  may  rely  on  the 
exercise  of  ordinary  care  by  those  approaching  from  the  rear ; 
for  in  using  a  street  frequented  by  automobiles,  he  assumes 
only  the  risk  incident  to  their  operation  in  a  reasonably  care- 
ful manner."  But  he  may  be  guilty  of  negligence  and  be 
barred  from  recovering  for  his  injuries,  if  a  violation  by  him 
of  the  law  of  the  road  contributed  to  the  accident.^^  So,  too, 
one  driving  a  horse  or  mule  while  intoxicated  may  be  guilty 
of  contributory  negligence  as  matter  of  law.^^  He  is  not,  how- 
ever, necessarily  guilty  of  contributory  negligence  because 
the  seat  was  crowded  with  several  passengers."**  Nor  is  he 
guilty  of  negligence  as  a  matter  of  law  because  he  failed  to 
give  the  statutory  signal  for  the  stopping  of  the  automobile, 
and  the  driver  of  the  machine  therefore  continued  his  course.^' 

by  the  defendant's  automobile,  an  alle-  not  under  the  custom  of  unloading 
gation  in  the  declaration  that  at  an  pjravel,"  it  was  held  that  the  answer 
earlier  hour  on  the  same  day  of  the  ac-  was  open  to  some  remark  as  being  am- 
cident  the  defendant's  automobile  had  biguous  and  that  the  question  should 
passed  the  plaintiff's  carriage  and  be  answered  plainly  and  without  any 
greatly  frightened  his  horses,  does  not  attempt  at  or  room  for  evasion.  Mar- 
justify  the  court  in  presuming  that  it  shall  v.  Gowans,  20  Ont.  W.  R.  37,  3 
was  contributory  negligence  for  the  Ont.  W.  N.  69. 
plaintiff  to  fail  to  jump  out  of  his  car-  15.  See  sections  679-687. 
riage  upon  the  second  approach  of  the  16.  Donovan  v.  Lambert,  139  111. 
automobile.      Mclntyre    v.    Orner,    166  App.  532. 

Ind.    57,    76    N.   E.    750,    8   Ann.    Cas.  17.  Delfs  v.  Dunshee,  143  Iowa,  381, 

1087,  4  L.  R.  A.  (N.  S.)   1130.  122    N.    W.    236;    Coco   Cola   Bottling 

Finding    as    to    contributory    negli-  Works   v.   Brown,   139    Tenn.   640,  202 

gence  ambiguous. — Where  deceased  was  S.  W.  926. 

unloading   gravel   and   it  was   claimed  18.  Donovan    v.    Lambert.     139     111. 

that,  owing  to  the  negligent  operation  App.  532. 

of  a  motor,  the  horses  used  in  hauling  19.  Stewart  v.   Smith,   16   Ala.   App. 

the  gravel  became  frightened  and  ran  461,  78  So.  724. 

away  and  the  jury  were  asked,  "Could  20.  Shaffer    v.    Coleman,    35    Super, 

deceased  by  the  exercise  of  reasonable  Ct.  386. 

care  and  diligence  have  avoided  the  ac-  21.  Strand    v.    Grinnell     Automobile 

cident,  and  the  answer  was  given,  "No,  Garage  Co.,   136  Iowa,   68,  113  N.  W. 


Frightening  Horses.  673 

Sec.  543.  Contributory    negligence  —  leaving     horse     unat- 
tended. 

One  who  leaves  a  horse  unattended  and  unfastened  in  the 
public  streets,  speaking  in  general  terms,  takes  the  risk  of 
what  it  may  do.  A  presumption  of  negligence  arises  from 
such  conduct  and  the  driver  is  called  upon  to  explain.^^  The 
strength  of  the  presumption  depends  largely  on  the  surround- 
ing circumstances.  If  the  horse  is  young,  skittish,  nervous, 
or  unused  to  the  lights  and  sounds  of  a  city  street,  the  pre- 
sumption would  be  strong;  while,  if  he  is  old,  staid  and  accus- 
tomed to  city  life,  it  might  be  slight.  But  even  a  staid  and 
veteran  horse  may  be  liable  to  a  sudden  fright.  It  is  a  matter 
for  the  jury."  The  unexplained  presence  on  a  public  high- 
way of  a  team  of  runaway  horses,  harnessed  to  a  wagon,  un- 
attended by  the  owner  or  other  person,  raises  a  presumption 
of  negligent  management  on  the  part  of  the  owner;  and  if 
they  collide  with  another  vehicle  on  the  street  because  they 
are  not  under  proper  control,  the  owner  will  be  liable  for  dam- 
ages resulting  therefrom.^*  But,  on  the  other  hand,  no  infer- 
ence of  negligence  arises  from  the  mere  fact  that  a  gentle 
horse  was  left  untied  in  a  public  street,  free  from  the  presence 
of  anything  that  might  disturb  him,  when  the  driver  was 
within  a  few  feet  of  the  wagon,  and  it  appears  that  the  driver 
had  been  accustomed  to  use  the  horse  in  that  way  for  many 
years  without  an  accident.^' 

488 ;   Cusick  v.   Kinney,   164   Mich.   35,  away,  knovs-n  to  its  owner,  if  it  was  left 

128  N.  W.   1089.  in   the   street  unhitched   under  circum- 

22.  Henry  v.  Klopfer,  147  Pa.  St.  stances  which  made  it  negligence  to  do 
178,  23  Atl.  337.  See  also  Wade  v.  so.  Haywood  v.  Hamm,  77  Conn.  158, 
Brents,  161  Ky.  607,  171  S.  W.  188.  58  Atl.  695.     A  person  in  charge  of  a 

23.  Stevenson  v.  United  States  Ex-  horse  on  a  public  highway  is  bound  to 
press  Company,  221  Pa.  St.  59,  70  Atl.  take  care  that  it  will  do  no  injury  in 
275.  consequence   of   being   frightened,   and 

24.  Kokoll  V.  Brohm  &  Buhl  Lumber  if  he  leaves  it,  must  see  that  it  is 
Co.,  77  N.  J.  Law,  169,  71  Atl.  120.  securely   fastened.     City   of  Denver  v. 

Injury  by  horse.— One   may   recover  Utzler,  38  Colo.  300,  88  Pac.  143,  8  L. 

for  injury  caused  by  a  runaway  horse  R.  A.  (N.  S.)  77. 

•which  has  beeil  left  unhitched,  without  25.  Bellns  v.  Kcllner,  67  N.  J.  L.  255. 

proof  that  it  had   a  habit   of  running  51  Atl.  700,  57  L.  R.  A.  627 

43 


674  The  Law  of  Automobiles. 

Sec.  544.  Contributory  negligence  —  nature  of  horse. 

Thoiigli  the  disposition  of  a  horse  may  not  be  such  as  can 
be  characterized  as  ''gentle,"  its  owner  is  nevertheless  en- 
titled to  drive  it  along  the  highway,  exercising,  however,  such 
degree  of  caution  as  would  be  exercised  by  an  ordinarily  pru- 
dent man  in  driving  an  animal  of  similar  nature.-'^    Of  course, 
it  is  possible  that  a  horse  be  of  such  a  wild  or  vicious  nature 
that  one  knowing  its  propensities  would  be  charged  with  con- 
tributory negligence  if  he  drove  the  animal  along  a  highway 
used  by  motor  vehicles.^^    The  question  depends  on  the  degree 
of  the  viciousness  and  its  actions  when  confronted  by  an  auto- 
mobile.   The  contention  that  it  is  contributory  negligence  on 
the  part  of  the  owner  of  a  horse  of  ordinarily  gentle  and 
tractable  habits  to  use  him  on  the  highway,  simply  because 
the  animal  occasionally  becomes  frightened  at  an  automobile, 
cannot  be  sustained.^^    As  bearing  on  the  questions  of  negli- 
gence and  contributory  negligence,  evidence   should  be  re- 
ceived as  to  the  character  of  a  horse  alleged  to  have  been 
frightened  by  a  motor  vehicle.    Thus,  it  may  be  shown  that 
the  horse  in  question  would  become  frightened  and  unmanage- 
able at  the  sight  of  an  automobile  and  would  turn  and  run 
whether  or  not  the  machine  made  a  noise,  for  such  a  circum- 
stance is  proper  to  be  considered  by  the  jury,  together  with 
the  other  facts,  in  order  to  arrive  at  the  cause  of  the  runaway 
and  to  determine  whether  the  driver  thereof  was  guilty  of 

26.  Spangler  v.  Markley,  39  Pa.  bile  in  motion  can,  with  reasonable 
Super.  Ct.  351;  Cohen  v.  M'eader.  119  safety  to  the  rider,  be  taken  by  the  car 
Va.  429,  89  S.  E.  876;  Eoss  v.  Rose,  109  if  the  conditions  of  the  statute  are  com- 
Wash.  273,  186  Pac.   892.  plied  with.     The  plaintiff's  horse   had 

27.  '*There  may  be  exceptional  cases  been  struck  by  a  machine  once  before, 
in  which  the  wild  and  dangerous  char-  and  was  "pretty  shy  of  machines"; 
acter  of  a  horse  would  make  his  use  on  but  there  was  nothing  in  the  evidence 
a  road  frequented  by  automobiles  neg-  to  indicate  that  a  man  accustomed,  as 
ligence  per  se,  but  in  the  average  case,  plaintiff  was,  to  the  use  of  horses, 
and  in  such  a  case  as  we  think  the  evi-  would  experience  any  serious  difficulty 
dence,  viewed  most  favorably  for  de-  in  riding  the  horse  by  a  oar  if  the  driver 
fendants,  shows  this  one  to  be,  it  is  a  thereof  obeyed  the  statute."  Cohen  v. 
fair  presumption  that  a  horse  which  is  Meader,  119  Va.  429,  89  S.  E.  876. 
likely  to  become  frightened  and  un-  28.  Spangler  v.  Markley,  39  Pa. 
manageable  upon  meeting   an   automo-  Super.  Ct.  351,  356,  per  Orlady,  J. 


Frightening  Horses.  675 

f  .  ■    ---'     r,  , 

negligence.-^  And,  too,  it  is  held,  in  an  action  for  injuries 
from  a  runaAvay  alleged  to  have  been  caused  by  a  horse  being 
frightened  by  an  automobile,  that  evidence  of  the  character 
of  the  horse  as  being  vicious  and  having  a  jDropensity  to  run 
away  is  admissible,  on  the  issue  of  whether  the  proximate 
cause  of  the  injury  was  the  negligence  of  the  defendant  or  the 
vice  of  the  animal.  And  evidence  of  the  reputation  of  the 
horse  in  these  respects  would  be  admissible,  where  the  issue 
of  contributory  negligence  is  raised,  to  show  that  the  plaintiff 
had  knowledge  of  its  character  as  to  viciousness.^^  One  who 
has  handled  horses  for  twenty  years  and  has  observed  their 
conduct  and  habits,  especially  when  frightened,  is  competent 
to  testify  as  an  expert  on  the  characteristics  and  habits  of  a 
horse.^^ 

Sec.  545.  Contributory  negligence  —  driving  frightened  horse 
pa5t  automobile. 

It  has  been  held,  that,  where  the  driver  of  a  frightened 
horse  attempts  to  pass  an  automobile  that  stopped  when  the 
fright  of  the  horse  was  discovered,  he  will  be  guilty  of  such 
contributory  negligence  as  will  defeat  a  recovery,  unless  the 
evidence  shows  that  there  was  no  other  reasonable  course 
that  he  could  pursue,  and  that  the  negligence  of  the  driver 
of  the  automobile  placed  him  in  the  position  of  peril.  So 
where  a  person  who  was  driving  a  restive  horse,  turned  off 
the  road  for  the  purpose  of  quieting  his  horse,  and  about  the 
same  time  the  driver  of  the  automobile,  discovering  the  fright 
of  the  horse,  stopped  the  machine  some  distance  away  and 
the  horse  becoming  more  unmanageable,  its  driver  undertook 
to  force  him  by  the  standing  machine,  and  in  the  attempt  was 
thrown  out  of  the  vehicle,  it  was  held  that  he  could  not 
recover.^^ 

29.  Bliss   V.   Wolcott.   40   Mont.    491,  31.  Delfs  v.  Dunshee,  143  Iowa.  381. 
107   Pac.   423.     Compare  Wells,   Farrjo       122  X.  W.  236. 

&  Co.  V.  Keeler   (Tex.  Civ.  App.).  173  32.  Cumliorland    Telegraph    i-    Tcle- 

S.  W.  926.  phone  Co.   v.   Yeiser,   141    Ky.    15.    131 

30.  Cain     v.    Wintersteen.     144     Mo.  S.  W.  1040,  31   L.  R.  A.   CS.  S.")   1137. 
App.   1,   128  S.  W.  274. 


676  The  Law  of  Automobiles. 

Sec.  546.  Joint  wrong-doers. 

Where  two  defendants,  each  mounted  on  a  motor  tricycle 
with  a  gasoline  engine  emitting  steam  and  making  a  loud 
noise,  came  up  behind  the  plaintiff,  who  was  driving  slowly 
in  a  wagon  and  passed  him  at  a  high  rate  of  speed,  one  on 
each  side,  causing  his  horse  to  shy  so  that  injury  resulted,  it 
was  held  that  it  was  a  question  for  the  jury  whether  each 
contributed  to  the  accident,  and  that  if  both  were  found  to  be 
wrong-doers,  it  was  not  material  that  there  was  no  concert 
between  them  or  that  it  was  impossible  to  determine  what 
portion  of  the  injury  was  caused  by  each.^^ 

Sec.  547.  Pleading. 

Automobiles  being  lawful  vehicles,  a  person  who  claims  to 
have  been  injured  by  the  operation  of  one,  as  where  horses 
are  frightened,  must  plead  and  prove  that  some  act  or  acts 
of  negligence  on  the  part  of  the  operator  of  the  machine  were 
the  proximate  cause  of  the  injury.^*  A  complaint  alleging 
that  a  team  was  frightened  by  the  negligence  of  the  driver  of 
an  automobile  in  blowing  his  whistle  when  directly  opposite 
the  team,  while  driving  at  a  high  rate  of  speed  in  violation  of 
a  city  ordinance,  in  such  a  manner  as  to  frighten  the  team, 
fairly  includes  the  rate  of  excessive  speed  as  a  proximate 
cause  of  the  accident.^" 

An  answer,  in  an  action  for  injuries  from  a  runaway, 
alleged  to  be  caused  by  a  horse  being  frightened  by  an  auto- 
mobile, which,  in  addition  to  a  general  denial,  contains  the 
allegation  that  ** plaintiff's  alleged  damages  and  injuries,  if 
any  she  sustained,  were  caused  by  and  directly  due  to  the 
plaintiff's  own  carelessness  and  negligence,"  is  held  not  to 
be  a  plea  of  contributory  negligence,  but  a  direct  negation  of 
the  cause  of  action  pleaded.'^ 

An  order  requiring  a  pleading  to  be  made  more  definite  and 
certain  should  not  require  the  disclosure  of  matters  which 

33.  Corey  v.  Havener,  182  Mass.  250,  35.  Grant  v.  Armstrong,  55  Wash. 
65  N.  E.  69.  365,  104  Pac.  632. 

34.  Sapp  V.  Hunter,  134  Mo.  App.  36.  Cain  v.  Wintersteen,  144  Mo. 
685,  115  S.  W.  463.  App.  1,  128  S.  W.  274. 


Frightening  Horses.  677 

are  more  properly  the  subject  of  a  bill  of  particulars.  Thus, 
in  an  action  founded  upon  the  negligence  of  the  defendant  in 
operating  an  automobile,  allegations  in  the  complaint  that 
the  defendant  operated  his  automobile  negligently  and  care- 
lessly by  not  giving  proper  and  adequate  signals,  and  by  run- 
ning at  a  dangerous  rate  of  speed,  should  not  be  required  to 
be  made  more  definite  and  certain;  further  information  as  to 
these  allegations,  if  the  defendant  be  entitled  thereto,  should 
be  procured  by  motion  for  a  bill  of  particulars.  On  the  con- 
trary, allegations  that  the  defendant  was  negligent  in  not  ob- 
serving and  obeying  rules  and  regulations  promulgated  by 
the  authorities  having  control  of  the  highway  and  its  use 
should  be  required  to  be  made  more  definite  and  certain.  The 
plaintiffs  should  be  required  to  state  the  rules  and  regulations 
referred  to,  and  the  authorities  by  whom  they  were  made  and 
pronmlgated.^^ 

Where  the  plaintiff  alleged  that  the  defendant  drove  its 
automobile  on  a  street  at  a  high  rate  of  speed,  and  negligently 
ran  it  against  the  plaintiff's  horses,  frightening  and  injuring 
them,  and  causing  them  to  run  away,  evidence  that  the  auto- 
mobile approached  slowly,  but  that  the  driver  failed  to  stop 
it,  or  slacken  its  speed  when  seeing  that  the  horses  were 
frightened  and  about  to  run,  was  proof  of  facts  not  legally 
identical  with  those  alleged,  and  the  plaintiff  could  not 
recover.'^ 

Sec.  548.  Punitive  damages. 

Punitive  or  exemplary  damages  are,  as  a  general  proposi- 
tion, allowed  to  one  injured  by  the  wrong  of  another,  when 
the  act  is  maliciously  perpetrated,  or  when  the  wrongful  act 
is  done  knowingly,  wantonly  and  recklessly,  under  such  cir- 
cumstances as  indicate  that  the  wrong-doer  knew  that  the  act 
was  fraught  with  probable  injury  to  person  or  property.  To 
justify  the  imposition  of  such  damages,  malice  must  accom- 
pany the  wrong  complained  of,  or  such  gross  negligence  or 

37.  Harrington   v.    Stillman,    120   N.  38.  Tront  Brook  Ice  Co.  v.  Hartford 

Y.  App.  Div.  659,  105  N.  Y.  Suppl.  Electric  Light  Co.,  77  Conn.  338,  59 
75.  Afl.  405. 


678  The  Law  of  Automobiles. 

oppression  or  fraud  as  amounts  to  malice.^^  The  circum- 
stances attendant  upon  the  perpetration  of  a  wrong  largely 
determine  the  character  of  the  wrong.  An  act,  done  in  one 
place,  or  under  one  set  of  circumstances,  may  not  amount  to 
an  act  of  simple  negligence  even;  the  same  act,  done  in  another 
place  or  under  another  set  of  circumstances,  may  amount  to 
that  reckless  disregard  of  persons,  lives  or  property  of  others 
as  to  amount,  in  law,  to  wantonness.'"^  Where,  in  an  action  for 
injuries  to  travelers  on  a  highway  by  their  horse  becoming 
frightened  by  an  automobile  and  running  away,  the  evidence 
showed  that  the  operator  failed  to  comply  with  the  statutory 
regulations  as  to  the  maximum  speed  and  warning  of  his  ap- 
proach, and  there  was  nothing  to  show  that  the  horse  showed 
symptoms  of  fright  until  the  automobile  was  so  near  that  it 
was  probably  impracticable  to  stop  it,  that  the  operator  knew 
that  the  horse  was  frightened  or  that  he  purposely  refrained 
from  looking,  punitive  damages  were  held  not  to  be  recover- 
able.*^ But,  where  the  driver  of  the  automobile  knows  of  the 
animal's  fright  and  ignores  it  in  violation  of  the  statute 
relative  to  stopping,  punitive  damages  may  properly  be 
awarded  against  him.^ 

Sec.  549.  Questions  for  jury. 

Speaking  in  general  terms,  in  an  action  to  recover  damages 
occasioned  by  the  fright  of  a  horse  from  a  motor  vehicle,  the 
negligence  of  the  defendant  and  the  contributory  negligence 

39.  Bowles   v.   Lowery,    5   Ala.    App.  the  plaintiff's  rights  may  be  sufficient 

555,  59  So.  696;  Searey  v.  Golden,  172  to  show  silch  malice  as  to  warrant  the 

Ky.  42.  188  S.  W.  1098.  recovery  of  punitive  damages,  although 

Pleading. — In      Alabama,     under      a  the  words  were  spoken  after  the  hap- 

complaint    averring   only   simple   negli-  pening  of  the  accident.     Martin  v.  Gar- 

gence.  it  is  not  permissible  to  recover  lock,  83  Kans.  266,  108  Pac.  92. 

punitive  or  vindictive  damages.     Louis-  40.  Bowles  v.  Lowery,    5   Ala.   App. 

villo  &  N.  R.  Co.  V.  Markoe,  103  Ala.  555,    59    So.    696;     Searcy    v.    Golden, 

160,  15  So.  511;  Roach  v.  Wright,  195  172  Ky.  42,  188  S.  W.  1098. 

Ala.  333,  70  So.  271 ;  Bowles  v.  Lowery,  41.  National    Casket    Co.    v.    Powar, 

5  Ala.  App.  555,  59  So.  690.  137  Ky.  156,  125  S.  W.  279. 

Evidence  of  words  spoken  after  ac-  42.  Searey    v.    Golden,    172    Ky.    42, 

cident.— Evidence    that    the    defendant  188  S.  W.  1098. 
used  language  showing  a  disregard  of 


Frightening  Horses. 


679 


of  the  plaintiff  are  questions  for  the  jury.^'  Thus,  where  it 
appeared  that  the  plaintiff  was  leading  his  horse  along  the 
highway  Avhen  defendant  approached  in  his  automobile  and 
the  horse  became  frightened  while  the  car  was  some  distance 
away,  and,  as  defendant  came  nearer,  reared,  struck  plaintiff 
down  and  injured  him,  and  plaintiff  did  not  signal  for  the 
driver  to  check  the  machine,  it  was  held  that  the  questions 
of  negligence  and  contributory  negligence  were  for  the  jury/* 
Especially  are  the  issues  for  the  jury,  where  there  is  a  sharp 
conflict  in  the  evidence  and  the  determination  depends  on  the 
credibility  of  the  witnesses  and  the  weight  to  be  given  to 
their  testimony.'*^  And  even  when  there  is  no  conflict  in  the 
testimony,  if  different  conclusions  can  rationally  be  drawn 
from  tlie  evidence,  a  question  is  presented  for  tho  jury.*'' 


43.  Arkansas.— BjtA  v.  Smith.  215  S. 
AV.   640. 

lotca. — Strand  v.  Grinnell  Automobile 
Garago  Co.,  136  Iowa,  69,  113  N.  "\V. 
488;  Horak  v.  Dougherty,  Il4  N.  W. 
883;  Cresswell  v.  \Vaimvright,  134 
Iowa,  167,  134  X.  W.  594;  Gipe  t. 
Lynch,  155  Iowa.  627.  136  N.  W.  714; 
Herdman  v.  Zwart,  167  Iowa,  500,  149 
K  W.  631;  Younkin  v.  Yettcr,  181  N. 
W.    793. 

KentucJcii.—Wade  v.  Brebts,  161  Ky. 
607,  171  S.  "\V.  188;  Coughlin  v.  Mark, 
173  Ky.  728,  191  S.  W.  503;  Weiskopf 
V.  Bitter,  29  Ky.  Law  Eep.  1268,  97 
S.  W.  1120. 

Maine. — Blackden  v.  Blaisdell,  113 
Me.  567,  93  Atl.  540;  Hobbs  v.  Pres- 
ton, 115  Mo.  553,  98  Atl.  757. 

MicMfian. — Chapman  v.  Strong,  162 
Mich.  C23,  127  N.  W.  741;  Kasprzak 
V.  Chapman.  197  Mich.  552,  164  N.  W. 
358. 

Minnesota. — La    Brash   v.   Wall,    134 


Minn.   130,  158  N.  W.  723. 

Missouri. — Fields  v.  Sevier.  184  Mo. 
App.  6S5,  171  S.  W.  610. 

North  CaroUtia. — Conrad  v.  Shuford, 
94  S.  E.   424. 

North  Dakota. — Messer  v.  Bruening, 
32  X.  Dak.  515,  156  N.  W.  241. 

Sonth  Carolina. — Rochester  v.  Bull, 
78  S.  Car.  249,  58  S.  E.  766. 

Tennessee. —  Coco  Cola  Bottling 
Works  V.  Brown,  139  Tenn.  640.  202 
8.   W.   926. 

Washington. — Ross  v.  Rose,  186  Pac. 
892. 

44.  Cusick  T.  Kinney,  164  Mich.  25, 
128  N.  W.   1089. 

45.  Kirlin  v.  Chittenden.  176  111. 
App.  550 ;  Kasprzak  v.  Chapman,  197 
Mich.  552.  16i  N.  W.  258;  Burchan  v. 
Robinson.  113  Miss.  527.  74  So.  417; 
Messer  v.  Bruening,  32  X.  Dak.  515, 
156  N.  W.  241. 

46.  Henderson  v.  Northam.  176  Cal. 
493,  168  Pac.  1044. 


680  The  Law  of  Automobiles. 

CHAPTER  XXI. 

RAILROAD  CROSSINGS. 

Section  550.  Contributory  negligence  of  auto  driver,  in  general. 

551.  Statute  requiring  "  highest "  degree  of  care  of  autoraobilist. 

552.  Distinction  between  automobiles  and  other  vehicles. 

553.  Burden  of  proof  as  to  contributory  negligence  of  autoist. 

554.  When  contributory  negligence  not  a  bar. 

555.  Care  of  taxicab  driver. 

556.  Relative  rights  of  autoraobilist  and  railroad. 

557.  Duty  to  look  and  listen  —  in  general.  • 

558.  Duty  to  look  and  listen  —  place  of  looking  and  listening. 

559.  Duty  to  look  and  listen  —  obstructed  view. 

560.  Duty  to  look  and  listen  —  failiore    to    observe    approaching    train, 

though  looking. 

561.  Duty  to  look  and  listen  —  looking  by  passenger. 

562.  Duty  to  look  and  listen  —  reliance  on  flagman. 

563.  Duty  to  look  and  listen  —  reliance   on  open  gates. 

564.  Duty  to  look  and  listen  —  reliance  on  automatic  signals. 

565.  Duty  to  look  and  listen  —  reliance  on  signal  from  engineer. 

566.  Duty  to  look  and  listen  —  running  into  train. 

567.  Duty  to  stop  before  crossing  track  —  majority  rule. 

568.  Duty  to  stop  before  crossing  track  —  minority  rule. 

569.  Crossing  in  front  of  observed  train. 

570.  Choice  of  crossings. 

571.  Sounding  of  horn  by  automobilist. 

572.  Speed  and  control. 

573.  Violation  of  statute  regulating  automobiles. 

574.  Machine  stalled  on  track. 

575.  Last  clear  chance. 

576.  Acts  in  emergencies. 

577.  Function  of  jury. 

578.  Negligence  of  railroad  in  operation  of  train  —  inevitable  accident. 

579.  Negligence  of  railroad  in  operation  of  train  —  speed. 

580.  Negligence  of  railroad  in  operation  of  train  —  warning. 

581.  Negligence  of  railroad  in  operation  of  train  —  obstruction     along 

railroad. 

582.  Negligence  of  railroad  in.  operation  of  train  —  defective  crossing. 

583.  Negligence  of  railroad  in  operation  of  train  —  private   crossing. 

584.  Negligence  of  railroad  in  operation  of  train  —  permissive     use     of 

tracks  of  railroad  company. 

Sec.  550.  Contributory  negligence   of  anto   driver,   in  gen- 
eral. 

Eeasonable  care  under  the  circumstances  is  the  general  doc- 
trine in  actions  of  negligence  as  to  the  measure  of  one's  duty. 
And  thus  it  is  said  that  the  driver  of  an  automobile  about  to 


Railroad  Crossings. 


681 


cross  a  railroad  track  shall  exercise  such  care  as  a  reasonably 
prudent  man  would,  taking  into  consideration  all  of  the  cir- 
cumstances which  should  affect  his  conduct.^     The  oblii?ation 


1.  United  States. — Lehigh  Valley  R. 
Co.  V.  Kilmer,  231  Fed.  628,  145  C.  C. 
A.  514.  "  The  failure  of  one  about  to 
cross  a  railroad  track  to  use  due  care 
deprives  him  of  his  right  to  recover 
damages,  if  such  negligeiu-e  proxi- 
mately contributed  to  the  injury,  but 
not  otherwise.  .  .  .  Due  care  in  these 
cases  means  ordinary  care.  It  implies 
the  use  of  such  watchfulness  and  pre- 
cautions to  avoid  coming  into  danger 
as  a  person  of  ordinary  prudence 
would  use  under  the  same  circum- 
stances in  view  of  the  danger  to  be 
avoided.  But  no  greater  care  than 
that  is  required.  Totten  v.  Phipps,  52 
N.  Y.  354;  Davis  v.  Concord,  etc.,  E. 
R.  Co.,  68  N.  H.  247,  44  Atl.  388.  A 
person  is  not  bound  to  use  extraordi- 
nary care  or  to  exercise  the  best  judg- 
ment or  to  use  the  wisest  precaution." 
Lehigh  Valley  R.  Co.  v.  Kilmer,  231 
Fed.  628,  145  C.  C.  A.  514. 

Arkansas. — St.  Louis-San  Francisco 
Ry.  Co.  v.  Stewai-t,  137  Ark.  6,  207  S. 
W.  440;  Smith  v.  Missouri  Pac.  R. 
Co.,  138  Ark.  589,  211  S'.  W.  657. 

Delaware. — Trimble  v.  Philadelphia, 
etc.,  R.  Co.,  4  Boyce  (Del.)  519,  89  Atl. 
370. 

Georgia. — Seabord  Air  Line  Ry.  v. 
Hallis,  20  Ga.  App.  555,  93  S.  E.  264. 

Idaho. — Graves  v.  Northern  Pac. 
Ry.   Co.,   30  Idaho,  542,   166   Pac.  571. 

Illinois. — Marshall  v.  Illinois  Cen- 
tral R.  Co.,  207  111.  App.  619. 

Indiana. — Pittsburgh,  etc.,  R.  Co.  v. 
Dove,  184  Ind.  447,  111  N.  E.  609; 
Central  Indiana  Ry.  Co.  v.  Wishard, 
186  Ind.  262,  104  N.  E.  593;  Ft.  Wayne 
&  N.  I.  Tr.  Co.  V.  Schoeff,  56  Ind.  App. 
540,  105  N.  E.  924;  Central  Indiana 
Ry.  Co.  V.  Wishard,  114  N.  E.  970; 
Union  Traction  Co.  v.  Elmore,  66  Ind. 
App.  95,  116  N.  E.  837;  Lake  Erie  & 
W.    R.     Co.   V.   Howarth    (Ind.   App.), 


124  N.  E.  687. 

loioa.—WuiT  V.  Wabash  R.  Co.,  162 
Iowa,  702,  144  N.  W.  703;  Dombrenos 
V.  Chicago,  etc.,  Ry.  Co.,  174  N.  W. 
596;   Corbett  v.  Hines,  180  N.  W.  690. 

Kentucky. — Louisville  &  I.  R.  Co.  v. 
Morgan,  174  Ky.  633,  192  S.  W.  672; 
Louisville  &  N.  R.  Co.  v.  Treanor's 
Adm'r,  179  Ky.  337.  200  S.  W.  634; 
Piersall's  Adm'r.  v.  Chesapeake  &  O. 
Ry.  Co.,  180  Ky.  659,  203  S.  W.  551; 
Louisville,  etc.,  R.  Co.  v.  Schuester, 
183  Ky.  504,  209  S.  W.  542,  4  A.  L.  R. 
1344.  '"The  duty  ordinarily  required 
of  one  about  to  cross  a  railroad  track, 
if  he  would  escape  contributing  to  hia 
own  injury  by  negligence,  is  to  exer- 
cise ordinary  care  to  discover  the  ap- 
proach of  a  car  and  to  avoid  being 
struck  by  it,  and  to  so  use  and  move 
his  own  vehicle  as  t-o  avoid  colliding 
with  the  car  upon  the  railroad  track. 
The  care  required  of  him  is  such  care 
as  an  ordinarily  prudent  person  would 
exercise  under  similar  circumstances." 
Louisville  &  I.  R.  Co.  v.  Morgan,  174 
Ky.  633,  192  S.  W.  672. 

Louisiana. — Perrin  v.  New  Orleans 
Terminal  Co..  140  La.  818,  74  So.  160. 

NebrasJca. — Morris  v.  Chicago,  etc., 
R.  Co.,   101   Neb.  479,   163  N.  W.  799. 

New  Jersey. — Jacobson  v.  New 
York,  etc.,  87  N.  J.  L.  378.  94  Atl. 
577. 

Oklahoma. — St.  Louis  &  S.  F.  R.  Co. 
v.  Model  Laundry.  42  Okla.  501,  141 
Pac.  970. 

Oregon. — Robison  v.  Oregon- Wash- 
ington R.  &  Nav.  Co.,  90  Oreg.  490. 
176  Pac.  594. 

Pennsylvania. — Follmer  v.  Pennsyl- 
vania R.  Ck>.,  246  Pa.  St.  367.  92  Atl. 
340. 

Tennessee. — Hurt  v.  Yazoo,  etc.,  R. 
Co.,  140  Tenn.  623.  205  S.  W.  437. 

Teasaa.— Houston    Belt   &    T.    R.    Co. 


682 


The  Law  of  Automobiles. 


of  reasonable  care  is  required,  not  only  for  the  safety  of  tlie 
automobilist,  Imt  also  for  the  safety  of  the  puhlic.-  But 
''  reasonable  care  "  varies  according-  to  the  circumstances, 
being'  commensurate  with  the  dangers  involved.''  The  care 
which  common  prudence  requires  of  a  traveler  on  the  highway 
where  there  is  no  such  peril,  is  not  the  standard  by  which  his 
conduct  must  be  judged  when  approaching  the  tracks  of  a  rail- 
road in  front  of  a  rapidly  moving  train.*  It  is  the  duty  of  a 
traveler  at  a  railroad  crossing  to  assume  a  present  danger 
which  includes  the  immediate  approach  of  a  train  within  a 
dangerous  distance.^  A  railroad  track  is,  of  itself,  a  procla- 
mation of  danger  which  imposes  a  positive  duty  on  the  auto- 
mobilist of  using  care  to  avoid  trains.^     "A  railroad  cross- 


V.  Ruoker  (Civ.  App.),  167  S.  W.  301; 
Adams  v.  Galveston  H.  &  S.  A.  R.  Co. 
(Civ.  App.),  164  S.  W.  853;  St.  Louis 
Southwestern  Ry.  Co.  v.  Hariell,  194 
S.  W.  971;  Beaumont,  S.  L.  &  W.  Ry. 
Co.  V.  Myrich,  208  S.  W.  935. 

f/fa/t.— Shortino  v.  Salt  Lake  &  U. 
R.  Co.,  52  Utah  476,   174  Pac.  861. 

Virginia. — Seaboard  Air  Line  Ry.  v. 
Abernathy,   121   Va.   173,  92  S'.  E.  913. 

2.  Wiar  v.  Wabash  R.  Co.,  162  Iowa, 
702,  144  N.  W.  703;  Wehe  v.  Atehison. 
etc.,  Ry.  Co.  97  Kans.  794,  156  Pac. 
742,  L.  R.  A.   1916  E.  455. 

3.  Section  278. 

4.  Fogg  v.  New  York,  etc.,  R.  Co.. 
223  Mass.  444,  HI  N.  E.  960. 

5.  Riekert  v.  Union  Pac.  R.  Co.  100 
Neb.  304,  160  N.  W.  86. 

6.  Busli  V.  Brewer,  136  Ark.  248. 
206  S.  VV.  322;  Rayhill  v.  Southern 
Pa«.  Co.  35  Cal.  App.  231,  169  Pac. 
718;  Walker  v.  Southern  Pac.  Co.,  38 
Cal.  App.  3/7,  176  Pac.  175;  Waking 
V.  Cincinnati,  etc.,  R.  Co.  (Ind.  App.), 
125  N.  E.  799;  Flannery  v.  Interurban 
Ry.  Co.,  171  Iowa,  238,  153  N.  W. 
1027;  Bunton  v.  Atchison,  etc.,  Ry. 
Co.,  100  Kans.  165,  163  Pac.  801;  Slipp 
v.  St.  Louis,  etc.,  Ry.  Co.  <Mo.  App.), 
211,  S.  W.  730;  Cathcart  v.  Orcgon- 
Wasihington  Rd.  &  Navigation  Co..  86 
Oreg.   250.   168   Pac.   308;    Lawrence  v. 


Denver,  etc.,  R.  Co.,  52  Utah,  414,  174 
Pac.  817;  Atlantic  Coast  Line  R.  Co. 
V.  Church,  120  Va.  725.  92  S.  E.  905. 
Track  apparently  abandoned.  — 
■  That  a  railroad  track  across  a  high- 
way is  itself  a  proclamation  of  dan- 
ger, and  that  travelers  approaching 
such  crossing  on  the  liighway  must 
exercise  proper  precautions  for  their 
own  safety,  is  perfectly  well  settled  in 
this  country.  Even  though  the  com- 
pany may  be  guilty  of  negligence,  the 
traveler  cannot  recover  if  his  own 
neglect  to  take  such  proper  precau- 
tions proximately  contributed  to  his 
injury.  In  order  to  constitute  such 
proclamation  of  danger,  however,  un- 
der this  just  rule  of  law,  the  com- 
pany should  not  do,  or  omit  to  do. 
anything  which  is  likely  to  disarm  the 
traveler  and  reassure  him  of  his  safe- 
ty. The  reason  of  the  law  fails  if  the 
tracks  in  fact  and  beyond  all  question 
have  been  abandoned.  If  the  rails 
were  so  covered  with  earth  as  not  only 
to  be  invisible  on  the  highway  bed, 
but  to  convey  the  impression  that  the 
track  was  not  in  use  by  trains,  if,  in 
addition  to  this,  the  rails  themselves 
were  rusty,  obscured  by  vegetation 
growing  close  to  them,  and  if  there 
was  no  crossing  signal  board,  then 
tln'se      combined      circumstances      pre- 


Kailroad  Crossings.  683 

ing  is  a  dangerous  place,  and  the  man  who,  kiiowin-  it  to  be 
a  railroad  crossing,  approaches  it,  is  careless  unless  he 
approaches  it  as  if  it  were  dangerous."'  The  surrounding- 
circumstances  may  require  greater  care  of  the  driver  of  m 
motor  vehicle  in  some  cases  than  in  others.^  The  gi-eater  the 
difficulty  of  seeing  and  hearing  an  approaching  train  as  it 
nears  a  crossing,  the  greater  caution  the  law  imposes  on  the 
traveler.^  The  degree  of  care  to  be  exercised  by  automobiles 
on  approaching  railroad  crossings  may  be  modified  bv 
statute.^^' 

Sec.  551.  Statute  requiring   "  hig^hest  "   degree   of  care   of 
automobilist. 

A  statutory  enactment  requiring  the  drivers  of  motor 
vehicles  to  use  the  ''highest"  degree  of  care  to  prevent 
injury  or  death  to  persons  on,  or  traveling  over,  upon  or  across 
the  public  highways  or  places  much  used  for  travel,  is  appli- 
cable in  a  case  where  the  driver  is  suing  for  injuries  received 
at  a  i-ailroad  crossing.  Such  a  statute  requires  the  highest 
care  on  the  part  of  the  driver  in  looking  out  for  the  safety  of 
himself  as  well  as  others,  and  hence  furnishes  the  standard 
for  the  driver's  care  when  approaching  a  railroad  crossing.^^ 


^ 


sented   a   question   to  be  submitted  to  Rd.   &   Navigation    Co..   86   Oreg.    250, 

the  jurj-  to  deteimine  whether  or  not  168  Pac.  308.     "The  care  which  a  per- 

a    prudent    man    exercising    due    care  son  who  crosses  a  railroad  track   in  a 

commensurate   with   the   danger  to  be  city  is  required  to  use,  as  well  as  that 

apprehended,    in    approaching    such    a  which  the  company  is  required  to  use. 

tra^k.     would     apprehend     danger,     or  varies    with    the    surrounding    circum- 

would    feel    assured    of    his    s<ifety    b,-  stances   and   is   a  question  of  fact  for 

cause  of    the   absence   of   the   crossing  the  jury."     Hauff  v.   S.   D.   Cent.   Ry. 

sign,    together    with    such    other    sur-  Co.,   34   .S".  Dak.    183,    147   N.    W.   986. 

rounding  conditions."     Atlantic   Coast  See   also,    Pittsburgh,    etc..   Ry.   Co'  v. 

Line   R.    Co.    v.   Church,    120   Va.    725.  Nichols    (Ind.   App!) .  130  N.  E.  546. 

92  S.  E.  905.  9.  !>,,„;„    ,..    New   Orleans   Terminal 

7.  McKinney  v.  Port  Townsend  &  P.  Co..  140  La.  818.  74  So.  160;  Wash- 
S.  Ry.,  91  Wash.  387,  158  Pac.  107;  ington  &  O.  D.  Ry.  v.  Zell's  Adm'x. 
Peck    v.    New    York,    etc.,    R.    Co.,    50  118  Va.  755,  88  S.  E.  309. 

Conn.  379,  394;   quoted  in  Borhlum  v.  10.  Oordon   v.   Illinois   Cent.   R.   Co. 

New   York,   etc.,   R.   Co.,  90  Conn.   52,  168  Wis.  244,  169  N.  W.  570. 

^^  ^^'-   ^^^-  11.  Treadgill   v.   United   Rvs.   Co.   of 

8.  Louisville  t  N.  R.  Co.  v.  Trean-  St.  Louis.  279  Mo.  466  214  S  W  161- 
or's  Adm'r,  179  Ky.  337,  200  S.  W.  Monroe  v.  Chicago,  etc..  R.  Co.  (>ro.)' 
634;    Catheart    v.    Oregon- Wash  ington  219  S.  W.  68:   Daniel  v.  Pr>-or    (Mo.) 


684 


The  Law  of  Automobiles. 


Sec.  552.  Distinction  between  automobiles  and  other  vehicles. 
The  courts  in  many  States  have  said  that  the  driver  of  a 
motor  vehicle  is  required  to  use  more  caution  in  passing  over 
a  railroad  crossing  than  is  required  of  a  pedestrian  or  traveler 
in  a  horse-drawn  conveyance.^^  Qne  of  the  reasons  for  impos- 
ing greater  precautions  on  the  driver  of  a  motor  car  is  that 
the  heavy  steel  construction  of  the  machine  may,  perhaps, 
cause  injury  to  passengers  on  the  train,  whereas  there  is  shght 
possibihty  of  injury  to  such  persons  from  a  collision  with  a 
pedestrian  or  carriage.^^    The  distinction  between  automobile 


227    S.    W.    102;     Carroll    v.    Missouri 
Pac.  Ry.  Co.    (Mo.)  229  S.  W.  234. 

Compare  Advance  Transfer  Co.  v. 
Chicago,  etc.,  R.  Co.  (Mo.  App.),  195 
S.  W.  566;  Slipp  v.  St.  Louis,  etc.,  Ry. 
Co.  (Mo.  App.),  211  S.  W.  730.  The 
statute  involved  in  these  decisions  was 
repealed  in  1917.  Edmonston  v.  Bar- 
rock    (Mo.   App.),  230  S.    W.   650. 

12.  Northern  Pac.  Ry.  Co.  v.  Tripp, 
220  Fed.  286;  Chase  v.  New  York 
Cent.,  etc.,  R.  Co.,  208  Mass.  137,  94 
N.  E.  377;  Olds  v.  Hines,  95  Oreg.  580, 
187  Pac.  586;  Washington  &  O.  D.  Ry. 
v.  Zell's  Adm'x.,  118  Va.  755,  88  S.  E. 
309.  See  also  Rickert  v.  Union  Pac. 
R.  Co.,  100  Neb.  304,  160  N.  W.  86. 

13.  Washington  &  O.  D.  Ry.  v.  Zell's 
Adm'x.,  118  Va.  755,  88  S.  E.  309.  "  A 
pedestrian  is  required  to  be  diligent  in 
looking  out  for  his  own  safety  in 
crossing  a  railroad  track,  but  his  duty 
is  not  very  great  to  avoid  running  in- 
to a  passing  engine  or  train  because 
of  the  danger  of  injury  to  those  on 
the  engine  or  train.  The  driver  of  a 
team  of  horses  hitched  to  a  vehicle 
is  under  the  same  duty  to  look  out  for 
his  own  safety  as  is  the  pedestrian.  It 
is  his  duty  to  exercise  some  care  for 
the  safety  of  those  riding  on  a  train. 
The  driver  of  an  automobile  must  ex- 
ercise care  for  himself,  and  because  of 
the  character  of  the  machine  that  he 
is  driving — aheavy  steel  structure, 
dangerous  to  others — he  must  exercise 


some  degree  of  care  for  the  safety  of 
those  rightfully  traveling  on  a  rail- 
road train  when  he  is  about  to  cross 
the  track.  His  machine  is  easy  of 
control.  It  will  stand  where  he  leaves 
it.  It  will  not  get  frightened.  If  by 
his  negligence  he  should  derail  the 
train,  he  would  be  responsible  to  pas- 
sengers injured,  even  though  the  men 
in  charge  of  the  train  were  guilty  of 
negligence,  if  the  rule  applied  to  a 
passenger  in  an  automobile  when  the 
driver  of  the  automobile  is  guilty  of 
negligence  is  applied  to  passengers  on 
a  train."  Wehe  v.  Atchison,  etc.,  Ry. 
Co.,  97  Kans.  794,  156  Pac.  742,  L.  R. 
A.  1916  E.  455.  "  Because  of  the  fact 
that  a  collision  betAveen  a  railroad 
train  and  an  automobile,  endangers, 
not  only  those  in  the  automobile,  but 
also  those  on  board  the  train,  and  also 
because  the  car  is  more  readily  con- 
trolled than  a  horse  vehicle  and  can 
be  left  by  the  driver,  if  necessary,  the 
law  exacts  from  him  a  strict  perform- 
ance of  the  duty  to  stop,  look,  and 
listen  before  driving  upon  a  railroad 
crossing,  where  the  view  is  obstructed, 
and  to  do  so  at  a  time  and  place  where 
stopping,  looking,  and  listening  will  be 
effective."  Callery  v.  Morgan's  Lou- 
isiana, etc.,  S<.  S.  Co..  139  La.  763,  72 
So.  222.  See  also  Cathcart  v.  Ore- 
gon-Washington Rd.  &  Navigation 
Co.,   86  Oreg.   250,    168   Pac.   308. 


Railroad  Crossings.  685 

travelers  and  other  travelers  was  expressed  in  one  case  in  the 
following  language :    ''  With  the  coming  into  use  of  the  auto- 
mobile, new  questions  as  to  reciprocal  rights  and  duties  of 
the  public  and  that  vehicle  have  and  will  continue  to  arise.    At 
no  place  are  those  relations  more  important  than  at  the  grade 
crossings  of  railroads.     The  main  consideration  hitherto  with 
reference  to  such  crossings  has  been   the   danger   to  those 
crossing.    A  ponderous,  swiftly  moving  locomotive,  followed 
by  a  heavy  train  is  subject  to  slight  danger  by  a  crossing  foot 
passenger,  or  a  span  of  horses  and  a  vehicle;  but  when  the 
passing  vehicle  is  a  pondrous  steel  structure,  it  threatens  not 
only  the  safety  of  its  own  occupants,  but  also  those  on  the 
colliding  train.     And  when  to  the  perfect  control  of  such  a 
machine  is  added  the  factor  of  high  speed,  the  temptation  to 
drive  over  the  track  at  terrific  speed  makes  the  automobile, 
unless   carefully   controlled,   a   new    and   grave    element    of 
crossing  danger.     On  the  other  hand,  when  properly  con- 
trolled,  this   powerful  machine   possesses  possibilities   con- 
tributing to  safety.     When  a  driver  of  horses  attempts  to 
make  a  crossing  and  is  suddenly  confronted  by  a  train,  diffi- 
culties face  him  to  which  the  automobile  is  not  subject.    He 
cannot  drive  close  to  the  track,  or  stop  there,  without  risk  of 
his  horse  frightening,  shying,  or  overturning  his  vehicle.    He 
cannot  well  leave  his  horse  standing,  and  if  he  goes  forward 
to  the  track  to  get  an  unobstructed  view  and  look  for  coming 
trains,  he  might  have  to  lead  his  horse  or  team  with  him. 
These  precautions  the  automobile  driver  can  take,  carefully 
and  deliberately,  and  without  the  nervousness  communicated 
by  a  frightened  horse.    It  will  thus  be  seen  that  an  automo- 
bile driver  has  the  opportunity,  if  the  situation  is  one  of  un- 
certainty, to  settle  that  uncertainty  on  the  side  of  safety, 
with  less  inconveniepce,  no  danger  and  more  surely  than  the 
driver  of  a  horse.     Such  being  the  case,  the  law,  both  from 
the  standpoint  of  his  own  safety  and  the  menace  his  machine 
is  to  the  safety  of  others,  should,  in  meeting  these  new  con 
ditions,  rigidly  hold  the  automobile  driver  to  such  reasonable 
care  and  precaution  as  go  to  his  own  safety  and  that  of  the 
traveling  public.     If  the  law  demands  such  care,  and  those 
crossing  make  such  care,  and  not  chance,  their  protection  the 


686 


The  Law  of  Automobiles. 


possibilities  of  automobile  crossing  accidents  will  be  mini- 
mized. ' '  ^^ 

According  to  the  mode  of  exj^ression  used  by  other  courts, 
it  is  said  that  "  reasonable  "  or  *'  ordinary  "  care  is  all  that 
is  required  of  travelers  approaching  a  railroad  crossing,  and 
the  same  degree  of  care  is  required  regardless  of  the  con- 
veyance in  which  he  is  traveling.^^     The  argument  that  pas- 


14.  New  York  Cent.  &  H.  R.  Co.  v. 
Maidment,  168  Fed.  21,  23,  93  C.  C. 
A.  415,  21  L.  R.  A.  (N.  S.)  794,  per 
BuflBngton,  J.;  quoted  in  Biommer  v. 
Pennsylvania  R.  Co.,  179  Fed.  577. 
579,  103  C.  C.  A.  135,  29  L.  R.  A.  (N. 
S.)  924;  Northern  Pac.  Ry.  Co.  v. 
Tripp,  220  Fed.  286.  and  cited  in 
Chase    v.     New    York     Cent.    R.    Co. 

(Mass.),  94  N.  E.  377.  See  also, 
Anderson   v.    Great   Northern   Ry.    Co. 

(Minn.),  179  N.  W.  687. 

15.  Monroe  v.   Chicago,   etc..   R.    Co. 
(Mo.)   219  S.  W.   68.     "The  fact  that 
one  is  driving  an  automobile  may  have 
an    influence   on    the   question   of    con- 
tributory negligence,  just  as  the  num- 
ber   and   qualities    of    horses    and    the 
kind  of  vehicles  they  are  driving  may 
have;   but  the  standard  of  care  to  be 
used    which    is    necessary    to    absolve 
from    contributory    negligence    is    the 
same  whether  the  traveler   is   on  foot, 
on  horseback,  in  a  wagon,  a  carriage, 
an   automobile,    or    any   other  vehicle. 
It  is  that  degree  of  care  which  one  of 
ordinary    prudence    would   use    in    the 
particular    circumstances."   Pittsburgh, 
etc.,  R.  Co.  v.  Dove,  184  Ind.  447,   111 
N.  E.  609.     "  The  care  required  of  him 
is  such  care  as  an  ordinarily  prudent 
person    would    exercise    under    similar 
circumstances.     The  same  standard  of 
care  applies  to  every  one  who  under- 
takes    to     cross     a     railroad     track, 
Whether    he    is    upon     horseback,     on 
foot,   or   occupying  a   wagon    or   auto- 
mobile.     The    danger    of    the   crossing. 
the    inability    to    observe,    because    of 
natural    obstructions,   the   qualities    of 
the    horse    driven,    or    the    automobile 


in  use,  the  failure  to  sound  a  horn  or 
to  look  for  the  train,  and  many  other 
circumstances,      are      proper      subjects 
for       consideration       in       determining 
whether    the   traveler    has    or   has   not 
exercised     ordinary     care;     but     these 
are     matters     to     be     considered     and 
passed  upon  by  the  jury  in  determin- 
ing  whether   the   traveler   has    or    has 
not  exercised  ordinary  care  under  the 
circumstances  to  look  out  for  the  car 
and  keep  out   of  its  way."     Louisville 
&   I.   R.    Co.   v.   Morgan.   174  Ky.   633, 
192    S.    W.    672.        "  Appellant  asserts 
that    a    distinction    should    be    dra^\Ti 
between       automobiles      and      vehicles 
drawn  by  horses  in  respect  to  the  con- 
duct  of    the    driver    in    approaching   a 
railway      crossing.      It      is      suggested 
that    the    speed    of    an    automobile    is 
under     the     complete     control     of     a 
driver,     and    that,     when     moving     at 
slow   speed,    it    can   be    brought    to   a 
quick    stop   within   a   few    feet  of  the 
tracks,    if   necessary   to    avoid   danger, 
without  exposing  the  occupant  to  the 
danger     incident     to     the     fright     of 
liorses,   which   would   be   likely   if   the 
vehicle  were  drawn  by  horses.     There 
can  be   no    doubt    that    it    is    possible 
for    the    driver    of    an    automobile    to 
take   some   precautions   which   are  not 
available  to  the  driver  of  horses,  and 
the    facts    suggested,    if    they    appear 
from  the  evidence,   are  all   proper  for 
the    consideration    of    the    jury    in    de- 
termining   what   precautions    ordinary 
care    required    the   driver    of    a   motor 
car    to    use    under    the    circumstances 
of    the     particular  case.     Aft^r  all   is 
said,   however,   the   driver   of   a   motor 


Railroad  Crossings. 


687 


sengers  on  the  train  may  be  endangered  by  a  collision  be- 
tween the  train  and  a  motor  vehicle  is  not  sound,  for  experi- 
ence has  demonstrated  that  it  is  only  the  occupants  of  the 
vehicle  who  are  injured.^^ 

Sec.  553.  Burden  of  proof  as  to  contributory  negligence  of 
autoist. 
Under  the  common  law  rules,  the  burden  of  proof,  as  a  gen- 
eral proposition,  was  placed  on  the  plaintiif  to  show,  not  only 
the  negligence  of  the  defendant,  but  also  his  own  absence  of 
contributoiy  negligence.  The  rule  remains  unchanged  in 
some  jurisdictions.^'  But,  in  other  jurisdictions,  statutory 
modifications  have  placed  the  burden  on  the  issue  ^vith  the 
defendant,  requiring  that  he  show  the  contributory  negligence 
of  the  plaintiff  as  an  amrmutive  defense.^'^    Ordinarily,  there 


car  is  required  to  use  only  ordinary 
care;  but  what  he  should  do  in  the 
exercise  of  due  care  must  depend  on 
the  conditions  surrounding  him.  as 
shown  by  the  evidence,  and  the  means 
available  for  controlling  the  speed 
and  managing  the  car."  Central  In- 
diana Ky.  Co.  V.  Wishard,  186  Ind.  262. 
114  N.  E.  970. 

16.  "  We  do  not  think  the  fact  that 
the    automobile    is    capable   of    inflict- 
ing more  harm   than    the  ordinary  ve- 
hicle  is    suflBcient   to  require  at  cross- 
ings  the   application   of  a  rule  differ- 
ent    from     that     applied     to     heavy 
wagons    or    vehicles.     It    is    a    matter 
of    common    knowledge    that    when    a 
collision    occurs    between    an    automo- 
bile and  an   engine,   the  result    is   the 
same    as    Avhen    the    engine    strikes    a 
•wagon,   buggy,   or   other   ordinary    ve- 
hicle— the    occupants    of    the    automo- 
bile or  vehicle   are  the  ones  who  are 
crippled    or    killed,    and    not   the    pas- 
sengers on  the  train  or  its  employees." 
Louisville    &   X.    R.    Co.    v.     Ireanor's 
Adm'r.,   179   Ky.   337.   200  S.   W.   634. 
17.  Simnes   v.    Illinois    Cent.    K.    Co.. 
201     111.     App.    oTS:     rittshm-h.    etc., 
R.   Co.  V.   Dove.    184    Ind.   447.    Ill    X. 
E.   609;    Chicago,  etc.,  Ry.  Co.  v.  Van 


Stone  (Ind  App.),  119  N.  E.  874; 
Fogg  V.  New  York,  etc.,  R.  Co.,  223 
Mass.  444,  111  X.  E.  960. 

18.  Ujiited  States. — Emens  v.  Le- 
high Valley  R.  Co..  223  Fed.  810;  Lake 
Erie  &  W.  R.  Co.  v.  Schneider,  257 
Fed.  675. 

California . — Ellis  v.  Central  Califor- 
nia Tract.  Co..  37  Cal.  App.  390,  174 
I'ac.  407. 

Indiana. — Indiana  Union  Traction 
Co.  V.  Love,  180  Ind.  442,  99  X.  E. 
1005;  Lake  Erie  &  W.  R.  Co.  v. 
Howarth  (Ind.  App.),  124  X.  E.  687. 
Massachusetts. — Morel  v.  X.  Y..  etc., 
n.  (o..  131  X.  E.  175. 

Missouri. — ^Morrow  v.  Hines  (Mo. 
App.)    233  S.  W.  493. 

}foniana — George  v.  Xorthcrn  Pac. 
Ry.  Co.   (Mont.).  196  Pac.  869. 

North  Carolina. — Goff  v.  Atlantic 
Coast  Line  R.  Co.,  179  X.  Car.  216.  102 
S.  E.  320;  Parker  v.  Seaboard  Air  Line 
Co..    IIK)   S.  E.  755. 

Texas. — ^loye  v.  Beaumont.  S.  L.  & 
\V.  Ky.  Co.  (Tex.  Civ.  App.),  212  S. 
\V.  471;  Chicago,  etc.,  R.  Co.  v.  John- 
son (loK.  Civ.  App.).  224  S.  W.  277. 
^Vashington. — Hines  v.  Chicago,  etc.. 
Ry.  Co.,  117  Pac.  795. 

Instructions. — A   charge  to  the  jury 


688  The  Law  of  Automobiles. 

is  no  presumption  that  the  driver  of  the  machine  was  or  was 
not  in  the  exercise  of  due  care  at  the  time  of  the  injury.^^ 
But,  in  some  jurisdictions,  the  rule  is  adopted  that  a  pre- 
sumption of  due  care  arises  on  the  part  of  one  who  was  killed 
while  crossing  a  railroad  track.-^ 

Sec.  554.  When  contributory  negligence  not  a.  bar. 

Under  the  common  law  system,  contributory  negligence  on 
the  part  of  the  driver  of  a  motor  vehicle  when  crossing  a  rail- 
road track,  bars  any  recovery  for  the  injuries  to  the  driver 
or  to  the  machine.*^^  The  negligence  of  the  railway  em- 
ployees does  not  excuse  the  negligence  of  the  operator  of  the 
car.^-  Of  course,  under  the  general  principles  of  the  law  of 
negligence,  contributory  negligence  is  not  a  bar  unless  such 
negligence  was  one  of  the  proximate  causes  of  the  injury  on 
which  the  action  is  based.^^  But,  if  an  automobilist  negli- 
gently crosses  or  stops  on  a  railroad  track  and  is  struck  by 
a  train,  there  is  generally  no  difficulty  with  the  question  of 
proximate     cause.^*     Statutory    enactments    have    changed 

that   the   burden   of   proving  contribu-  v.   Cooper    (Ala.),  86  La,.  396;    Smith 

tory    negligence    is    upon    the  defend-  v.  Missouri  Pac.  R.  Co.,  138  Ark.  589, 

ant,  has  been   condemned,  because  the  211   S.  W.  657;   Perrin  v.  New  Orleans 

instruction      should      have     concluded  Terminal  Co.,  140  La.  818,  74  La.  160; 

"  unless   such    contributory    negligence  Lanier    v.    Minneapolis,    etc..    Ry.    Co. 

was    disclosed    by    the   plaintiff's    evi-  (Mich,),    176    N.    W.    410;     Daniel    v. 

dence,     or    could     fairly     be     inferred  Pryor    (Mo.),  227  S.  W.  102;   Swegart 

from    the    circumstances"    or    in    Ian-  v.  Lush,  196  Mo.  App.  471,   192  S.  W. 

guage    of     similar     import.       Norfolk  138;    Atlantic    Coast    Line    R.    Co.    v. 

Southern  R.  Co.  v.  Smith,  122  Va.  302,  Church,  120  Va.  725,  92  S.  E.  905. 
94  S.  E.  789.  22.  Lehigh  Valley  R.  Co.  v.  Kilmer, 

19.  Chicago,    etc.,    Ry.    Co.    v.    Van  231  Fed.  628,  145  C.  C.  A.  514. 

Stone     (Ind.    App.),    119    N.    E.    874.  23.  Hines    v.    Champion     (Ala.),    85 

Bee  also  Sohl  v.  Chicago,  etc.,  Ry.  Co.,  So.  511;  Hines  v.  Paden   (Ala.),  87  So. 

183  Iowa  616,  167  N.  W.  529.  88;   Chicago,  etc.,  R.  Co.  v.  Neizgodski, 

20.  Graves  v.  Northern  Pac.  Ry.  Co.,  66  Ind.  App.  557.  118  N.  E.  559;  Mon- 
30  Idaho,  542  166  Pac.  571;  Rice  v.  roe  v.  Chicago,  etc.,  R.  Co.  (Mo.),  219 
Erie  R.  Co.  (Pa.),  114  Atl.  640;  Bar-  S.  W.  68;  Cottam  v.  Oregon  Short  Line 
rett  V.  Chicago,  etc.,  R.  Co.  (Iowa).  R.  Co.  (Utah),  187  Pac.  827.  See  also 
175  N.  W.  950;  Smith  v.  Inland  Em-  Lehigh  Valley  R.  Co.  v.  Kilmer,  231 
pire  R.  Co.  (Wash.),  195  Pac.  236;  Fed.  628.  145  C.  C.  A.  514.  And  see 
See    also    Gillett    v.    Michigan    United  section  575. 

Trax:t.  Co.,  205  Mich.,  410.  171  N.  W.  24.  Bagdad   Land   &   Lumber   Co.   v. 

536.  Money  way     (Fla.),    86    So.    687;    An- 

21.  Lehigh  Valley  R.  Co.  v.  Kilmer,  drews  v.  Mynier  (Tex.  Civ.  App.). 
231  Fed.  628,  145  C.  C.  A.  514;  Hines  190  S.  W.  1164. 


Railroad  Crossings. 


689 


many  of  the  common  law  rules  of  negUgence.  For  example, 
in  a  few  States,  the  doctrine  of  "  comparative  "  negligence 
has  been  created,  under  which  contributory  negligence  m 
some  cases  is  a  partial,  not  an  absolute,  defense.^^'    In  Texas, 

25.  nines  v.  Hoover,  271  Fed.  645; 
Seaboard  Air  Line  Ky.  Co.  v.  Good 
(Fla.),  84  So.  733;  Central  of  Ga.  Ry. 
Co.  V.  McKey,  13  Ga.  App.  477,  79  S. 
E.  378;  Central  of  Ga.  Ry.  Co.  v.  Lar- 
sen,  19  Ga.  App.  413,  91  S.  E.  517; 
Yazos.  etc.,  R.  Co.  v.  Williams,  114 
Miss.  236,  74  So.  835;  Hines  v.  McCul- 
lers,  121  Miss.  666,  83  So.  734. 

Instruction  to  jury.— Where  there 
is  evidence  of  mutual  negligence  on 
the  part  of  the  driver  of  the  automo- 
bile, as  well  as  on  the  part  of  the  de- 
fendant and  the  comparison  of  such 
negligence     is,     therefore,     a    question 

for  the   jury,   it    is  error   to  refuse  a 

written   request  to   charge   as   follows: 

"  If  you  believe  that  the  plaintiflf  and 

defendant    were     both     negligent,    but 

that    the    negligence    of    the    plaintiff 

exceeded    that    of    the    defendant,    or 

equalled    it,    then    the    plaintiff    could 

not  recover,   and  you   should   find   for 

the    defendant."     Central    of    Ga.    Ry. 

Co.  V.  McKey,  13  Ga.  App.  477.  79  S. 

E.  37S. 

Comparative   negligence   in   Georgia. 
_In   Central   of   Ga.   Ry.    Co.  v.  Lar- 
son,  19    Ga.    App.   413,   91    S'.   E.    517, 
the   court   said:      "While   at   common 
law,   if  the   negligence  of  the  plaintiff 
contributed    to    the    injury,    he    could 
not  recover    in   this  State   the   liabil- 
ity   of    railroad    companies    for    injury 
done  by   them   to   persons  or  property 
has    been    modified,    so    that    the    law 
governing  such  liability  is  as  follows: 
Under   the    provisions    of   section    2781 
of  the  Civil  Code,  no  person   shall  re- 
cover   damages    from    a    railroad  com- 
pany   for    injury    done    to    himself    or 
his  property,  where  the  same   is  done 
by    his    consent   or    is    caused    by    his 
own   negligence.     If    the    complainant 
and    the    agent    of    the    company    are 

44 


both  at  fault,  the  former  may  recover, 
but  the   damages    shall   be   diminished 
by    the    jury     in     proportion     to    the 
amount     of     default     attributable     to 
him.      The    doctrine    usually    referred 
to  as   that   of   contributory   negligence 
is  not  the  law  of  this  State,  inasmuch 
as  that  term,  properly  used,  expresses, 
not   such    negligence    as    would   dimin- 
ish, but  only  such  negligence  as  would 
preclude,     a    recovery.      The    doctrine 
which    here    obtains    can    be    and    is 
more    accurately    and    properly    desig- 
nated   as    that   of    comparative    negli- 
gence.    .      .      .      Thus,   if   the  plaintiff 
and    the    defendant    were    both    negli- 
gent,   the    former    can    recover,   unless 
his  negligence  was  equal  to  or  greater 
than  the  negligence  of  the  defendant, 
except  that  this  rule  is  further  quali- 
fied by  the  provisions  of  section  4426 
of  the  Civil  Code,  which  provides  that 
if     the     plaintiff,     by    ordinary    care, 
could    have    avoided    the   consequences 
to  him<^elf   caused  by   the   defendant's 
negligence,   he   is   not.    in   such   event, 
entitled  to  recover.    .  The  rule 

stated    in    section    4426.    however,    ap- 
plies  only  where  the  defendant's  neg- 
ligence   became    apparent    to    the    per- 
Ro'n    injured,    or    where,    by  the    exer- 
cise  of   ordinary   care,  he   could  have 
become  aware  of  it.  and  he  thereafter 
failed    to    exercise    ordinary    and    rea- 
sonable   diligence    to    avoid    the    conse- 
quences  of  the   defendant's   negligence. 
Thus   it  will  be  seen  that  a 
plaintiff   can   recover  partial   damages 
for   injuries   caused   by    the   negligence 
of    a    railway    company,   notwithstand- 
ing   his    own    fault,    which    might,    in 
some     less     degree,     have    contributed 
thereto      provided     that    he    exercised 
ordinarv    and     reasonable    caution    by 
plaintiff  to  avoid  the  consequences  of 


690  The  Law  or  Automobiles. 

the  rule  of  comparative  negligence  applies  as  between  com- 
mon carriers  and  their  employees,  but  not  as  between  com- 
mon carriers  and  persons  injured  by  crossing  their  tracks.-^ 
In  some  jurisdictions  gross  or  wanton  negligence  on  the  part 
of  a  railroad  company  may  have  the  effect  of  excusing  the 
contributory  negligence  of  a  traveler,-"  but  not  the  gross 
negligence  of  the  traveler.-^  But  the  mere  fact  that  the  rail- 
road company  in  the  running  of  its  trains  violated  a  munici- 
pal ordinance,  or  even  several  ordinances  simultaneously, 
does  not  make  wanton  or  willful  negligence  which  will  render 
the  company  liable  for  the  injuries  irrespective  of  simple 
negligence  on  the  part  of  the  traveler.-^  Wanton  or  willful 
misconduct  cannot  be  charged  against  the  railroad  because  it 
approaches  a  much  used  crossing  without  proper  warning, 
where  the  speed  of  the  train  is  very  reasonable."** 

Sec.  555.  Care  of  taxicab  driver. 

As  between  the  driver  of  a  taxicab  and  a  passenger  riding 
therein,  the  driver  is  considered  as  a  common  carrier  and  is 
required  to  exercise  what  is  sometimes  termed  as  the  '*  high- 
est "  degree  of  care.^^  This  doctrine,  however,  has  no  appli- 
cation as  between  the  driver  and  the  railroad  over  whose 
track  he  attempts  to  pass  but  is  struck  by  a  train.  In  such 
a  case,  the  rule  of  ordinary  care  measures  the  duty  of  the 
driver.-''- 

the    defendant's     negligence,    after     it  632.  152  N.  W.  204. 

had   or   should  have  become  apparent.  28.  Morel,    New    York,    etc..    R.    Co. 

Ordinarily  the   question   of  negligence,  (Mass.),  131  N.  E.  175. 

both  on  the  part  of  the  plaintiff  and  29.  Fluckey  v.  Southern  Ry.  Co.,  242 

the   defendant,    is   an    issue   to  be   de-  Fed.  469;   Chatelle  v.  Illinois  Cent.  R. 

termined  by  the  jury;    but  where  the  Co.,  210  111.  App.  475. 

plain tiflF's   petition   shows   on   its    face  30.  Bailey  v.  Southern  Ry.  Co.,  196 

that  he  has  no  right  to  recover,  and  Ala.  133,  72  So.  67.    See  also,  Evans  v. 

this  question   is  raised  by  general   de-  Illinois  Cent.  R.  Co.    (Mo.),  233  S.  W. 

murrer,  it  is  the  duty  of  the  court  to  :}P7, 

sustain  the  demurrer  and  dismiss  the  31.  Section  282. 

petition."  32.  Southern    Ry.    Co.   v.   Voughan^s 

26.  Andrews  v.  Mynier  (Tex.  Civ.  Adm'r,  118  Va.  692,  88  S.  E.  305,  L. 
App.),  190  S.  W.  1164.  ]..  A.  1916  E.  1222. 

27.  See    Rouso    v.    Blair.    185    Mich. 


Railroad  Crossings. 


691 


Sec.  556.  Relative  rights  of  automobilist  and  railroad. 

At  a  point  where  a  railroad  track  crosses  a  public  highway, 
motor  vehicles  along  tlie  road  and  railroad  trains  along  the 
railroad  are  said  to  have  equal  rights  to  the  use  of  the  cross- 
ing.^"    Such  a  statement,  however,  is  not  to  be  construed  as 


33.  Hurt  V.  Yazoo,  etc.,  R.  Ct-..  140 
Tenn.  623,  205  S.  W.  437;  Galveston- 
Houston  Elec.  Ry.  Co.  v.  Patella  (Tex. 
Civ.  App.),  222  S.  W.  615.  See  also 
Flannery  v.  Interurban  Ry.  Co,,  171 
Iowa,  238,  153  N.  W.  1027. 

Erroneous    instruction    to    jury. — It 
has    been    held   improper   for   the    pre- 
siding    judge     to     charge     the     jury 
"  That    as    a   matter    of   law   the    de- 
ceased   (the  driver  of  an  automobile) 
had   an    equal   right  to   travel    on   the 
dirt  road  at  the  intersection  with  the 
railroad,   as    the   railroad   had   to  run 
its  train  on   its  track  at  that  point." 
Baker    v.     Collins     (Tex.    Civ.     App.). 
199     S.    W.    519,    wherein    the    court, 
holding    that  the   charge   was    confus- 
iig   end    misleading   and   th?refci\.>   ci- 
loneous.  said:     "As  bearing  upon  the 
question  of  negligence  charged  against 
railroad    companies    in    the    operation 
of    their    trains,    our    Supreme    Court 
has     frequently     said     that     railroads 
have  no  exclusive  right  to  the  use  of 
their    tracks    where   they    cross    public 
highways;    that    the    public    have   the 
right  to  travel  such  highways,  and  in 
.so    doing     to    cross    railroad     tracks; 
and   that  tlic   law   imposes   upon   those 
operating   railroad   trains  the   duty   of 
exercising  due  care  to  prevent   injury 
to  persons   who  may  be  so  traveling. 
And    in    considering    the    question    of 
negligence    on    the    part    of    the    rail- 
road   company,    it   is    not  improper  to 
give   such  charge,    if   it  is  so  framed 
as  to  limit   it  to  that  question.     The 
charge     now    under  consideration    was 
nut    rolriitcil    to    a    consideration    of 
till"    (luestiun    of    the    defendant's    neg- 
ligence,   and    the    jury    had    the    right 
to     consider     it     in     deterniininir     the 


•luostion     of    contributory     negligence. 
And   when   so  considered,  and  in  view 
of    the    fact    that    it  specifically    de- 
clared that  Mr.  Collins  had  an  equal 
right    to   travel    on    the  dirt    road    at 
the    intersection    of    the    railroad    as 
the  railroad  had  to  run  its  trains  on 
its  track  at  that  point,  the  jury  may 
liave  concluded  that  the  charge  meant 
that  as   Collins  had   such   right,  proof 
c)f    the    fact    that  he    knowingly    and 
willfully     ran     his     automobile    upon 
the    track  at    a    time    when    he    must 
'  have  known  that  it  was  very  danger- 
ous   to    do    so    would    not    defeat   the 
plaintiffs'  right  to  recover.     It  is  not 
sufficient    answer    to    say    that    in    its 
main  charge  the   court   instructed  the 
jury   othei^wise,   and   therefore   the   re- 
quested   charge    was    harmless.      The 
point   is  that  this   charge   when   liter- 
ally   construed    was    in    contlict    with 
the    main    cliarge    of    the    court,    and 
therefore  it  was  calculated  to  confuse 
and    mislead    the    jury    upon    one    of 
the   most  vital  questions   in   the   case. 
Of  course,  it  is  not  true  in  either  law 
or  reason  that  when  a  person  is  trav- 
eling a  public  highway   which   crosses 
a    railroad    track,    that    such    person 
and   the    railroad   each   have   the   right 
to  pass    the  intersection   at  tlie   same 
time.     Under   such  circumstances,  and 
in    the   very   nature   of   things,   one  or 
the     other    must     have     the     right    of 
precedence,    because    they    cannot   both 
occupy    the    point    of    intersection    at 
tlie   same  time.     Such   right   of  prece- 
dence  is   not  fixed   by   statute   in   this 
Slate,     but,    generally   speaking,    com- 
mon sense  and  the  public  welfare  dic- 
tate   that    it    should    be    accorded    to 
railroad  trains;  and  it  is  a  matter  of 


692  The  Law  of  Automobiles. 

interfering  with  the  rights  of  priority  which  are  accorded  to 
railroad  trains  so  far  as  its  tracks  are  concerned.^*  ''  Trav- 
elers approaching  a  pubHc  crossing  must  bear  in  mind  that, 
while  their  rights  and  those  of  the  railroad  company  at  that 
point  are  '  mutual,'  '  reciprocal,'  and  *  coextensive  '  in  gen- 
eral, the  law  has  always  accorded,  and  in  the  nature  of  the 
case  must  accord,  to  a  moving  train  the  right  of  way. '  '^"* 

Sec.  557.  Duty  to  look  and  listen  —  in  general. 

In  some  jurisdictions,  an  imperative  duty  is  placed  on  the 
driver  of  a  motor  vehicle  to  stop,  look  and  listen  before  cross- 
ing the  tracks  of  a  railroad  company.  This  view,  however, 
is  the  minority  view;  and  the  rule  sustained  in  most  States 
is  that  there  is  no  imperative  duty  to  stop  under  all  circum- 
stances.^^ But  whatever  difference  of  opinion  there  may  be 
on  the  question  of  stopping  an  automobile  before  crossing  the 
track,  it  is  practically  agreed  that  the  driver  is  guilty  of  con- 
tributory negligence  as  a  matter  of  law  if  he  does  not  look 
and  listen  for  approaching  trains  before  venturing  on  the 
tracks.^^     Both  looking  and  listening  are  ordinarily  required; 

common   knowledge  that,  as  a  general  ington  &  0.  D.  Ry.  v.  Zell's  Adm'x,  118 

rule,     the     traveling    public    recognize  Va.   755,   88   S.   E.   309.     "  The  use  of 

and    accord    such    right    of    precedence  the  highway  at  these  crossings  by  the 

to    approaching    trains.      We    do    not  railway    and    the    general    public    is    a 

state  this  as  a  rule  of  law  to  be  given  common    one,    to    be    enjoyed    by   each 

in  charge  to  juries,  though  the  writer,  consistently    with    the    rights    of    the 

speaking     for     himself     only,    believes  other.     While   the  railroad   has  gener- 

that  it  should  be."     See  also.  Southern  ally  the  priority  of  right  of  way,  that 

Traction    Co.    v.    Kirksey     (Tex.    Civ.  priority  depends  upon  the  principle  of 

App.),  222  S.  W.  702.  equality   as    applied    to   the   nature   of 

34.  Indiana  Union  Traction  Co.  v.  the  public  service  it  performs  and  the 
Love,  180  Ind.  442,  99  N.  E.  1005;  character  of  the  machinery  and  ap- 
Lake  Erie  &  W.  Ry.  Co.  v.  Sams  (Ind.  pliances  necessary  for  its  prosecu- 
App.),  127  N.  E.  566;  Dombrenos  v.  tion."  Jackson  v.  Southwest  Missouri 
Chicago,  etc.,  Ry.  Co.    (Iowa),  174  N.  R.  Co.   (Mo.),  189  S.  W.  381. 

W.  596;    Walters  v.   Chicago,  etc.,  R.  36.  Section  567. 

Co.,  47  Mont.  501,  133  Pac.  357,  46  L.  37.   United     Sifa^es.— Northern     Pan. 

E.    A.     (N.    S.)    702;     Olds    v.    Hines  Ry.  Co.  v.  Tripp,  220  Fed.  286;   Dela- 

95  Oreg.  580,  187  Pac.  586;   Washing-  ware   L.  &  W.  R.  Co.  v.  Welshman,  229 

ton  &  O.  D.  Ry.  v.  Zell's   Adm'x,   118  Fed.  82,  143  C.  C.  A.  358;   Lehigh  Val- 

Va.  755,  88  S.  E.  309.  ley  R.  Co.  v.  Kilmer.  231  Fed.  628,  143 

35.  Pittsburgh,  etc.,  Ry.  Co.  v.  Nich-  C.  C.  A.  514. 
ols  (Ind.  App.),  130  N.  E.  546;  Wash- 


Railroad  Crossings. 


693 


the  traveler  has  no  right  to  depend  exclusively  on  his  hearing 
when  there  are  attendant  noises  which  materially  interfere 


Alabama.— Bailey    v.    Southern    Ry 
Co.,  196  Ala.  133,  72  So.  67. 

Arfconsas.— Bush  v.  Brewer,  136 
Ark.  248,  206  S.  W.  322. 

California.— Thompson  v.  Southern 
Pac.  Co.,  31  Cal.  App.  567.  161  Pac. 
21;  Jones  v.  Southern  Pa«.  Co.,  34 
Cal.  App.  629,  168  Pac.  586; 
Murray  v.  Southern  Pac.  R.  Co.,  169 
Pac.  675;  Rayhill  v.  Southern  Pac.  C'>. 
35  Cal.  App.  231,  169  Pac.  718;  Walk- 
er V.  Southern  Pac.  Co.,  38  Cal.  App. 
377,  176  Pac.  175. 

Georgia.— ilines  v.  Stevens  {Ga. 
App.),  106  S.  E.  298. 

7Wi?iois.— Sunnes  v.  Illinois  Cent.  R. 
Co.,  201  111.  App.  378;  Elder  v.  Pitts- 
burgh, etc.,  R.  Co.,  186  111.  App.  199. 

Indiana. — Pittsburgh,  etc.,  R.  Co. 
V.  Dove,  184  Ind.  447,  lU  N.  E.  609; 
Central  Indiana  Ry.  Co.  v.  Wishard. 
186  Ind.  262,  114  N.  E.  970;  Waking 
v.  Cincinnati,  etc.,  R.  Co.  (Ind.  App.), 
125  N.  E.  799. 

/otoa.— Duggan  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  159  N.  W.  228;  Beemer 
V.  Chicago,  R.  I.  &  P.  Co.,  162  N.  W. 
43;  Sohl  V.  Chicago,  etc.,  Ry.  Co.,  183 
Iowa  616,  167  N.  W.  529;  Hawkins  v. 
Interurban  Ry.  Co.,  184  Iowa  232,  168 
N.  W.  234;  Corbett  v.  Hines  (Iowa), 
180  N.  W.  690;  Reynolds  v.  Interurban 
Ry.  Co.   (Iowa),  182  N.  W.  804. 

£:onsas.— Cor  ley  v.  Atchison,  etc., 
Ry.  Co.,  90  Kans.  70.  133  Pac.  555; 
Jacobs  V.  Atchison,  etc.,  Co.,  97 
Kans.  247.  154  Pac.  1023;  Wehe  v. 
Atchison,  etc.,  Ry.  Co.,  97  Kans.  794, 
156  Pac.  742,  L.  R.  A.  1916  E.  455; 
Prichard  v.  Atchison,  T.  &  S'.  E.  Ry. 
Co.,  99  Kans.  600,  162  Pac.  315;  lum- 
ton  V.  Atchison,  etc.,  Ry.  Co..  100 
Kans.  165,  163  Pac.  801;  Kirkland  v. 
Atchison,  etc.,  Ry.  Co.,  179  Pac.  362. 

Louisiana.— W&lV^er  v.  Rodiguez.  139 
La.  251,  71  So.  499;  Perrin  v.  New 
Orleans  Terminal  Co.,  140  La.  818,  74 


So.  IGO. 

Maiue.^onant  v.  Grand  Trunk  Ry. 
Co.,  114  Me.  92,  95  Atl.  444. 

Massachusetts. — Fogg  v.  New  York, 
etc.,  R.  Co.,  223  Mass.  444,  111  N.  E. 
960. 

Michigan. — Pershing  v.  Detroit,  etc., 
R.  Co.,  206  Mich.  304,  172  N.  W.  530; 
Hardy  v.  Pere  Marquette  Ry.  Co.,  208 
Mich.  622,  175  N.  W.  462;  Groves  v. 
Grand  Trunk  Western  Ry.,  178  N.  W. 
232. 

Mississippi. — Yazoo,  etc.,  R.  Co.  v. 
Williams,  114  Miss.  236,  74  So.  835. 

Missouri.— Coby  v.  Quincy,  etc.,  R. 
Co.,  174  Mo.  App.  648,  161  S.  W.  290; 
Swigart  v.  Lush.  196  Mo.  App.  471, 
192  S.  W.  138:  Tannehill  v.  Kansas 
City,  etc.,  Ry.  Co.,  279  Mo.  158,  213 
S.  W.  818;  Slipp  v.  St.  Louis,  etc.,  Ry. 
Co.  (Mo.  App.),  211  S.  W.  730;  Cen- 
tral Coal  &  Coke  Co.  v,  Kansas  City 
So.  Ry.  Co.  (Mo.  App.),  215  S.  W. 
914;  Lyter  v.  Hines  (Mo.  App.),  223 
R.  W.  795;  Alexander  v.  St.  Louis, 
etc.,  Ry.  Co.  (Mo.),  233  S.  W.  44; 
Evans  v.  Illinois  Cent.  R.  Co.  (Mo.), 
233  W.  397. 

ifon<ana.— George  v.  Northern  Pac. 
Ry.  Co.,  196  Pac.  869;  Keith  v.  Great 
Northern   Ry.  Co.,   199  Pac.  718. 

]Vc5rasfca.— Rickert  v.  Union  Pac 
R.  Co.,  100  Neb.  304,  160  N.  W.  86; 
Askey  v.  Chicago.  et«.,  Ry.  Co.,  101 
Neb.  266,  162  N.  W.  647. 

New  Yorfc.— Kidd  v.  New  York  Cen- 
tral, etc.,  R.  Co.,  218  N.  Y.  313,  112 
N.  E.  1051;  Turch  v.  New  York,  etc., 
R.  Co..  108  N.  Y.  App.  Div.  142,  95  N. 
Y.  Suppl.  1100;  Bonert  v.  Long  Island 
R.  Co.,  145  N.  Y.  App.  Div.  552,  130 
N.  Y.  Suppl.  271.  "If  at  all  places 
from  a  point  in  the  highway  one  hun- 
dred and  fifty  feet  from  the  railroad 
line  he  had  a  fair  view  of  approaching 
trains,  notwithstanding  the  darkness, 
it  was  certainly  negligent  to  drive 
himself    aad   his   family   on   to   death. 


694 


The  Law  of  Automobiles. 


with  the  exercise  of  that  fimction,  and  lie  has  a  conveuient 
opportunity  to  look  both  ways  along  the  track  in  safety  before 


Under  the  circumstances  the  common- 
est prudence  required  sufficient  watch- 
fulness to  observe  the  train  before  it 
was  too  late."  Kidd  v.  New  York 
Central,  etc.,  R.  Co.,  218  N.  Y.  313, 
112  N.  E.  1051. 

North  Carolina. — Shepard  v.  Nor- 
folk, etc.,  R.  Co.,  166  N.  Car.  539.  82 
S.  E.  872;  Brown  &  Co.  v.  Atlantic 
Coast  Line  R.  Co.,  171  N.  Car.  266. 
88  S.  E.  329;  Coff  v.  Atlantic  Coast 
Line  R.  Co..  179  N.  Car.  216,  102  S.  E. 
320,  Costin  v.  Tidewater  Power  Co., 
106  S.  E.  568. 

Oklalioma. — ^Thrasher  v.  St.  Louis, 
et<^.,  Ry.  Co.,  198  Pac.  97. 

Oregon. — Cathcart  v.  Oregon-Wash- 
ington Rd.  &  Navigation  Co..  86  Oreg. 
250,  168  Pac.  308;  Robison  v.  Oregon- 
Washington  R.  &  Nav.  Co..  90  Oreg. 
490,   176   Pac.   594. 

Pennsylvania. — Peoples  v.  Pennsyl- 
vania R.  Co.,  251  Pa.  St.  275,  96  Atl. 
652. 

Rhode  Island. — Geoffrey  v.  New 
York,  etc.,  R.  Co.,  104  Atl.  883. 

Tennessee. — Hurt  v.  Yazoo,  etc.,  R. 
Co.,  140  Tenn.  623,  205  S.  W.  437. 

Texas. — Beaumont,  etc.,  R.  Co.  v. 
Moy  (Civ.  App.),  174  S.  W.  697;  ¥t. 
Worth,  et«.,  R.  Co.  v.  Hart  (Civ. 
App.),  178  S.  W.  795;  Southern  Tr. 
Co.  V.  Kicksey  (Civ.  App.),  181  S.  W. 
545;  Texas,  etc.,  R.  Co.  v.  Harrington 
(Civ.  App.),  209  S.  W.  685.  Compare 
St.  Louis  Southwestern  Ry.  Co.  v.  Har- 
rell  (Civ.  App.).  194  S.  W.  971;  Beau- 
mont, S.  L.  &  W.  Ry.  (>).  V.  :\Iyrich 
(Civ.  App.),  208  S.  W.  93.-) :  Southern 
Traction  Co.  v.  Kirksey,  (Civ.  App), 
222  S.  W.  702;  Hinea  v.  Roan  (Civ. 
App),  230  S.  W.  1070. 

Utah. — Shortino  v.  Salt  Lake  &  U. 
R.  Co.,  52  Utah  476,  174  Pac.  861. 

Virginia. — Virginia  &  S.  W.  Ry.  Co. 
V.  Skinner,  119  Va.  843,  89  S.  E*  887; 
Washington  &  O.  D.  Ry.  v.  Zell's 
Adm'x,  118  Va.  755.  88  S.  K.  .309. 


Washington. — Golay  v.  Northcni 
I'ar.  Ry.  Co.,  177  Pac.  804;  Miller  v. 
Northern  Pac.  Ry.  Co.,  105  Wash. 
(i45.  178  Pac.  808;  Hoyle  v.  Northern 
Pac.  R.  Co.,  105  Wash.  652,  178  Pac. 
810;  Monso  v.  Bellingham  &  N.  Ry. 
Co..  106  Wash.  299,  179  Pac.  848. 

West  Virginia. — Helvey  v.  Prince- 
Ion  Power   Co.,  99  S.   E.   180. 

Wisconsin. — Puhr  v.  Chicago,  etc., 
R.  Co.,  176  N.  W.  767. 

Statutes  may  modify  the  "  look 
and  listen  "  rule.  Baer  v.  Lehigh,  etc., 
Ry.  Co.,  93  J.  L.  85.  106  Atl.  421; 
Gordon  v.  Illinois  Cent.  R.  Co.,  16& 
Wis.  244,  169  N.  W.  570. 

Instruction  to  jury. — ^The  plaintiflF's 
iL'slaUir  was  niii  ilmsu  and  killed  by 
a  train  of  the  defendant  railroad  cor- 
poration while  ho  was  endeavoring  to 
drive  his  automobile  over  its  tracks. 
The  court,  on  request  by  defendant's 
counsel,  refused  to  charge,  substan- 
tially, that  if  the  jury  believed  that 
the  deceased  had  a  fair  vieAv  of  ap- 
proaching trains  at  ;ill  places  within 
not  less  than  one  liundred  and  fifty 
feet  from  the  cro.ssirig,  he  was  negli- 
gent m  not  discovering  the  approach- 
ing train.  Ilcld,  that  as  there  was. 
evidence  from  which  the  jury  might 
have  found  facts  as  they  were  as- 
sumed in  the  request,  the  refusal  to 
so  charge  was  error.  Kidd  v.  New 
York  Central,  etc.,  R.  Co.,  218  N.  Y. 
313,  112  N.  E.  1051. 

Muffling  engine. — If  looking  is  in- 
effective and  the  noise  of  the  engine 
interferes  with  his  hearing,  it  may  be 
Iiis  duty  to  muffle  the  engine.  Central 
Coal  &  Cc4ce  Co.  v.  Kansas  City  So. 
Ry.  Co.  (Mo.  App.).  215  S.  W.  914; 
Lyter  v.  Hines  (Mo.  App.),  223  Si  W. 
795. 

Driver  looking  down  at  engin-j  of 
auto. — When,  as  an  automobile  was 
approaching  a  railroad  track,  the 
driver   was    looking    down    and    listen- 


Railroad  Crossings. 


695 


crossing.'^'*  The  general  rule  applies  to  a  city  crossing  as 
well  as  to  one  in  a  rural  section."''-'  And  it  applies  to  a  cross- 
ing over  a  siding  or  switch  track  as  well  as  to  a  crossing  over 
the  main  line  track  of  the  railroad."*'^  But  it  may  not  be  ap- 
plicable when  there  is  no  evidence  sho^^'ing  that  looking  and 
listening  would  have  given  notice  in  time  to  have  avoided  the 
colli  si  on. "^^  Indeed,  it  is  recognized  that  in  some  cases  the 
surrounding  circumstances  may  be  such  as  to  relieve  one 
from  the  absolute  duty  of  looking  and  listening  for  trains.'*- 
Thus,  one  may  be  excused  from  looking  and  listening  for 
trains  when  he  is  not  conscious  that  he  is  approaching  a  rail- 
road track.^^ 


ing  to  the  engine  of  his  machine,  and 
the  other  occupants  were  joking  and 
"  kidding "  the  occupants  of  another 
automobile,  none  of  them  giving  any 
attention  to  the  crossing,  it  Avas  held 
that  all  the  occupants  of  the  machine 
were  guilty  of  negligence.  Conant  v. 
Grand  Trunk  Ry.  Co.,  114  Me.  92,  95 
Atl.  444. 

A  presumption  arises  that  a  person 
killed  at  siich  a  crossing  did  look  and 
listen  and  the  defendant  has  burden 
of  showing  contributory  negligence. 
Emens  v.  Lehigh  Valley  R.  Co.,  223 
Fed.  SIO;  Hines  v.  Hoover,  271  Fed. 
G45. 

38.  Cathcart  v.  Oregon -Washington 
Rd.  &  Navigation  Co.,  86  Oreg.  250. 
168  Pac.  308;  Robison  v.  Oregon- 
Washington  R.  &  Nav.  Co.,  90  Oreg. 
490,  176  Pac.  594.  See  also  Siejak  v. 
United  Rys.  etc..  Co..  135  Md.  367,  109 
.Ul.  107. 

39.  Jacobs  v.  Atchison,  etc..  Ry.  Co., 
97  Kans.  247,  154  Pac.  1023. 

40.  Morrow  v.  Hines  (Mo.  App.). 
233  S.  W.  493;  Peoples  v.  Pennsyl- 
vania R.  Co.,  251  Pa.  St.  275,  96  Atl. 
652. 

41.  Union    Traction    Co.    of    Indiana 


v.    Hawortli.    1S7    Ind.    4.-.I.    11.',    N.    E. 
753. 

42.  Case  v.  Atlanta,  etc..  Ry.,  107 
S.  C.  216,  92  S.  E.  472;  Hurt  v.' Yazoo, 
etc.,  R.  Co.,  140  Tenn.  623,  205  S.  W. 
437;  Seaboard  Air  Line  Ry.  v.  Aber- 
nathy.  121  Va.  173,  92  S.  E.'  913.  "The 
rule  that  it  is  negligence  per  se  to  en- 
ter upon  a  railroad  tra^-k  without 
looking  or  listening  has  been  applied 
to  the  ordinary  case  in  which  the 
plaintiff,  or  the  deceased,  wa-s  not  pre- 
vented from  seeing  or  hearing  by  any 
other  circumstances,  and  had  the  use 
of  his  faculties.  In  such  case  an  ordi- 
narily prudent  man  is  deemed,  under 
the  law,  to  be  guilty  of  such  negli- 
gence as  would  bar  a  recovery  if  he 
entered  upon  the  tra<'k  without  doing 
so.  And  it  is  only  in  exceptional 
cases  that  the  rule  does  not  apply, 
and  in  eases  in  which  the  facts  re- 
lied upon  as  creating  the  exception 
itself  are  not  superinduced  by  the 
want  of  due  care.  But  what  is  due 
care  in  the  circumstances  of  the  ex- 
ception is  ordinarily  a  question  for 
the  jury."  Hurt  v.  Yazoo,  etc..  R.  Co.. 
140  Tenn.  623.  205  S.  W.  437. 

43.  Hurt  V.   Yazoo,  etc..   R.   Co.   140 
IVnn.  623.  205  S.  W.  437. 


696 


The  Law  of  Automobiles. 


Sec.  558.  Duty  to  look  and  listen  —  place  of  looking  and 
listening. 
The  driver  of  a  motor  vehicle  about  to  cross  a  railroad 
track  must  at  an  appropriate  place  use  his  faculties  to  learn 
of  the  approach  of  trains.*^  That  is,  he  must  look,  where,  by 
looking  he  can  see;  and  must  listen,  where,  by  listening  he 
can  hear.'*^     "  To  have  looked  too  late  was  not  to  have  looked 


44.  United  States. — Delaware,  L.  & 
W.  R.  Oo.  V,  Welshman,  229  Fed.  82, 
143  C.  C.  A.  358. 

Arkansas. — Bush  v.  Brewer,  136 
Ark,  248,  206  S.  W.  322. 

Illinois. — Sunnes  v.  Illinois  Cent.  R. 
Co.,  201   111.  App.  378. 

Indiana. — Pittsburgh,  etc.,  R.  Co.  v. 
Dove,  184  Ind.  447,  111  N.  E.  609; 
Central  Indiana  Ry.  Co.  v.  Wishard, 
186  Ind.  262,  114  N.  E.  970;  Indian- 
apolis, etc..  Tract.  Co.  v.  Harrell  (Ind. 
App.),  131  N.  E.  17.  'The  duty  to 
use  ordinary  care  to  avoid  injury 
which  is  imposed  on  one  about  to 
make  use  of  a  street  over  which  rail- 
road trains  cross  does  not  ordinarily 
require  him  to  stop,  but  it  does  re- 
quire him  to  look  and  listen  and  to 
exercise  ordinary  care  to  select  a  place 
where  the  act  of  looking  and  listening 
will  be  reasonably  effective."  Pitta- 
burgh,  etc.,  R.  Co.  V.  Dove,  184  Ind. 
447,   111  N.  E.  609. 

Massachusetts. — Fogg  v.  New  York, 
etc.,  R.  Co.,  223  Mass.  444.  Ill  N.  E. 
960. 

Michigan. — Groves  v.  Grand  Trunk 
Western  Ry.,  178  N.  W.  232. 

Missouri. — Lyter  v.  Hines  (Ma. 
App.),  223  S.  W.  795. 

IS! etc  York. — ^Spencer  v.  New  York 
Cent.,  etc.,  R.  Co.,  123  N.  Y.  App.  Div. 
789.  108  N.  Y.  Suppl.  245,  affirmed 
without  opinion,   197  N.  Y.  507. 

Pennsylvania. — Peoples  v.  Pennsyl- 
vania R.  Co.,  251  Pa.  St.  275,  96  Atl. 
652. 

Tennessee. — Stem  v.  Nashville  Ry., 
142  Tenn.  494,  221   S.  W.   192. 

Texas. — Texas,  etc..  R.  Oo.  v.  Hous- 


ton Undertaking  Co.  (Civ.  App.),  218 
S.  W.  84. 

Virginia. — ^Virginia  &  S.  W.  Ry.  Co. 
V.  Skinner.  119  Va.  843,  89  S.  E.  887; 
Norfolk  &  W.  Ry.  Co.  v.  Simmons,  103 
6'.  E.  609. 

Within  last  thirty  feet. — ^A  chauf- 
feur, forty  years  of  age  and  in  full 
possession  of  his  faculties,  who  was 
injured  by  a  railroad  train  while 
driving  an  automobile  in  broad  day- 
light over  a  grade  crossing,  is  guilty 
of  contributory  negligence,  as  matter 
of  law,  when  the  evidence  shows  that 
the  train  was  in  ■  plain  sight  long 
enough  to  have  enabled  him  to  bring 
the  machine  to  a  standstill  before 
reaching  the  track,  and  that  he  was 
driving  so  slowly  that  he  could  have 
stopped  the  car  immediately.  The 
fact  that  the  plaintiff  looked  twice 
before  reaching  the  track  and  did  not 
see  the  train  does  not  show  freedom 
from  contributory  negligence  if  he 
traversed  the  last  thirty  feet  before 
reaching  the  track  without  looking; 
nor  is  his  failure  to  do  so  excused  by 
the  fact  that  the  car  was  hemmed  in 
by  a  crowd  of  people  bound  for  a 
nearby  railroad  station.  Spencer  v. 
New  York  Central,  etc.,  R.  Co.,  123 
N.  Y.  App.  Div.  789,  108  N.  Y.  Suppl. 
245.  affirmed  without  opinion,  197  N. 
Y.  507. 

45.  Delaware,  L.  &  W.  R.  Co.  v. 
Welshman.  229  Fed.  82,  143  C.  C.  A. 
358;  .Jone.s  v.  Southern  Pac.  Co.,  34 
Cal.  App.  629.  168  Pac.  586;  Rickert 
V.  Union  Pac.  R.  Co.,  100  Neb.  304, 
160  N.  W.  86;  Askey  v.  Chicago,  etc., 
Ry.  Co.,  101  Neb.  266,  162  N.  W.  647; 


Railroad  Crossings. 


697 


at  all."^"  Failing  to  use  his  faculties  at  a  proper  place  may 
be  as  serious  as  a  failure  to  use  them  at  all;  and  may  pre- 
clude a  recovery  for  his  injuries.^^  But  the  law  does  not  re- 
quire that  the  driver  look  at  the  precise  place  and  time  when 
and  where  looking  would  be  of  the  most  advantage.*^  All 
that  is  required  of  the  driver  is  that  he  exercise  reasonable 
care  in  selecting  the  place  in  view  of  the  conditions  before 


Cathcart  v.  Oreg-oii-Washington  Rd.  & 
Navigation  Co.,  86  Oreg.  250,  16S  Pac. 
308;  Luken  v.  Pennsylvania  R.  Co. 
(Pa.),  110  Atl.  151.  "The  incontest- 
able conclusions  of  fa«t  to  be  drawn 
from  the  facts  established  by  the  evi- 
dence are  that  Pritohard,  had  he 
looked  when  he  was  30  feot  from  the 
track,  or  anywhere  from  that  point 
until  he  reached  the  place  where  he 
was  struck,  could  have  seen  the  ap- 
proaching train;  that  there  was  noth- 
ing to  prevent  his  seeing  the  train,  and 
that  if  he  looked,  he  saw  the  train 
coming  and  attempted  to  cross  the 
track  in  front  of  it.  The  facts  show 
contributory  negligence  on  the  part  of 
James'  A.  Pritchard  and  prevent  any 
recovery."  Pritchard  v.  Atchison,  etc., 
Ry.  Co',  99  Kans.  600.  162  Pac.  315. 

46.  Walker  v.  Rodiguez,  139  La.  251, 
71  So.  499. 

47.  Thompson  v.  Southern  Pac.  Co., 
31  Cal.  App.  567,  161  Pac.  21;  Indian- 
apolis, etc.,  Tract.  Co.  v.  Harrell  (Ind. 
App.),  131  N.  E.  17;  Sturgeon  v.  Min- 
neapolis, etc.,  R.  Co.  (Iowa),  174  N. 
W.  381;  Walker  v.  Rodiguez.  139  La. 
251,  71  So.  499;  Rickert  v.  Union  Pac. 
R.  Co.,  100  Nob.  304.  160  -N.  W.  86; 
Shoemaker  v.  Central  Railroad  of  New 
Jersey  (N.  J.).  89  Atl.  517;  Cathcart 
V.  Oregon- Washington  Rd.  &  Navi- 
gation Co.,  86  Oreg.  250,  168  Pac.  308. 
"The  duty  of  due  care  is  not  dis- 
charged unless  the  traveler  looks  and 
listens  at  a  place  where  looking  and 
listening  will  be  effective,  unless  a 
reasonable  excuse  exists  for  failing  so 
to  do."     Rickert  v.  Union  Pac.  R.  Co., 


100   if  eh.   304,    160  N.   W.   86.     "It  is 
undisputed    that    the    plaintiff    knew 
that  ho  was  approaching  the  railroad, 
because  he  had  just  crossed  it,  and  he 
testifies  that  the  automobile  was  mov- 
ing   slowly,    and    that    he    could  have 
stopped  it  within  a  distance  of  10  feet. 
It    also    appears    that    the    train    was 
coming  from  the  north,  and,  when  the 
plaintiff    was    within    42    feet    of    the 
track,  he  had  a  clear  view  along  it  of 
900  or  more  feet ;  and  the  clear  weight 
of   the    testimony    shows    that   he   did 
not  look  along  the  track  in  the  direc- 
tion from  which  the  train  was  coming 
until  he  was  very  near  to  the  track. 
It  also  appears  that  a  number  of  other 
persons   who  were  farther   away   than 
he  saw  the  train  coming,  and  shouted 
warnings  to  him.     We  fail  to  perceive 
how   it    was    possible    under    this    evi- 
dence   for    the    jury    to   find    that    the 
plaintiff   exercised    even    ordinary   care 
in  approaching  the  crossing.    If  he  had 
looked  when  at  least  42  feet  from  the 
track,   he  could  have   seen   the   train, 
and,  if  he  did  not  see  it,  it  can  only 
be   because    he   did    not   look."     Shoe- 
maker v.  Central  Rd.  of  N.  J.    (N.  J. 
L.),  89  Atl.  517. 

48.  Lehigh  A^'allcy  R.  Co.  v.  Kilmer. 
231  Fed.  628.  145  C.  C.  A.  514;  Al- 
loggi  V.  Sotithern  Pac.  Co.  (Cal.  App.). 
173  Pac.  1117;  Pittsburgh,  etc..  R.  Co. 
V.  Dove.  184  Ind.  447.  Ill  N.  E.  609; 
Central  Indiana  Ry.  Co.  v.  Wishnrd. 
186  Ind.  262.  114  N.  E.  970:  Rupener 
V.  Cedar  Rapids  &  Iowa  City  Railway 
&  Light  Co..  178  Iowa.  615.  159  N.  W. 
1048. 


698 


The  Law  of  Automobiles. 


him  and  the  danger  reasonably  to  be  anticipated.^^  Whether 
he  nsed  ordinary  care  in  the  selection  of  his  view  point,  may 
be  a  question  within  the  province  of  the  jury/^^  The  circum- 
stances may  require  the  autoist  to  continue  to  look  as  he  ap- 
proaches the  cro&sing,5i  yet  the  courts  recognize  that  prud- 
ence requires  him  to  give  at  least  a  part  of  his  attention  to 
the  road  and  the  crossing.  Especially  is  this  so  when  the 
crossing  is  rough  and  in  bad  condition,  and  he  is  under  no 
absolute  duty  to  stop.^-  Where  there  is  evidence  that  the 
driver  stopped  the  machine  within  three  or  four  yards  of  the 
track  and  looked  for  approaching  cars  but  saw  none,  the 
courts  will  not  say  as  a  matter  of  law  that  he  was  guilty  of 
contributory   negligence   in   proceeding   across   the    track.^^ 


49.  Alloggi  V.  Southern  Pac.  Co.,  37 
Cal.  App.  72,  173  Pac.  1117;  Pitts- 
burgh, etc.,  K.  Co.  V.  Dove,  184  Ind. 
447.  Ill  N.  E.  609;  Lake  Erie  &  W. 
R.  Co.  V.  Sanders  (Ind.  App.),  125  N. 
E.  793:  Waking  v.  Cincinnati,  etc.,  R. 
Co.  (Ind.  App.),  125  N.  E.  799;  Hauft 
V.  S.  D.  Cent.  Ry.  Co..  34  S..Dak.  183, 
147  N.  W.  986. 

50.  Van  Orsdal  v.  Illinois  Cent.  R. 
Co.,  210  111.  App.  619;  Pittsburgh,  etc., 
R.  Co.  V.  Dove,  184  Ind.  447,  111  N. 
E.  609;  Union  Traction  Co.  of  Indiana 
V.  Haworth.  187  Ind.  451,  115  X.  E. 
753;  Littlewood  v.  Detroit  United  Ry., 
189  Mich.  388,  155  N.  W.  698;  Mis- 
souri, etc.,  R.  Co.  V.  Thayer  (Tex.  Civ. 
App.),  178  S.  W.  988.  "That  point, 
however,  in  its  precise  relation  to  the 
track  in  feet,  is  seldom  to  be  deter- 
mined as  a  matter  of  law;  the  under- 
lying test  being:  Was  ordinary  care 
used  by  the  traveler  in  selecting  the 
place  in  view  of  the  conditions  before 
him  and  the  danger  reasonably  to  be 
anticipated.  It  is  only  when  ordi- 
narily prudent,  impartial,  and  sensible 
men  could  reacli  but  one  conclusion 
that  the  question  becomes  one  of  law. 
When  different  men  equally  possessing 
such  qualities  might  draw  different  in- 
ferem^es  from  the  facts  as  to  the  ex- 
istence    of      contributory      negligence, 


then  it  is  not  a  question  of  law." 
Pittsburgh,  etc.,  R.  Co.  v.  Dove,  184 
Ind.  447,  111  N.  E.  609. 

51.  See  Wingert  v.  Philadelphia, 
etc.,  Ry.  Co.,  262  Pa.  21,  104  Atl.  859; 
Jester  v.  Philadelphia,  etc.,  R.  Co. 
(Pa.),  109  Atl.  774;  Luken  v.  Penn- 
sylvania R.  Co.  (Pa.),  110  Atl.  151. 
"  If,  from  a  place  of  safety  on  his 
way,  the  traveler  in  control  of  the 
vehicle  in  which  he  is  riding  can  ob- 
tain a  view  of  the  coming  train,  he 
must  look  upon  the  course  of  the  train 
from  that  point,  and  this  responsi- 
bility is  constant  until  the  danger  is 
past;  that  is,  until  he  is  safely  across 
the  railway  track.  The  duty  is  con- 
stant because  the  danger  is  incessant. 
Instead  of  being  intermittent,  it  grows 
as  the  traveler  gets  near  the  crossing, 
and  reaches  its  climax  only  as  he  ac- 
tually crosses  the  track  in  his  pas- 
sage." Robison  v.  Oregon-Washington 
R.  &  Nav.  Co.,  90  Oreg.  490,  176  Pac. 
594. 

52.  Louisville,  etc.,  R.  Co.  v.  Schues- 
ter,  183  Ky.  504,  209  S.  W.  542;  4  A. 
L.  R.  1344. 

53.  Littlewood  v.  Detroit  United 
Ry.,  189  Mich.  388,  155  X.  W.  698; 
Compare  Canody  v.  Xorfolk.  etc.,  Ry. 
Co.    (Va.),  105  S.  E.  585. 


Railroad  Crossings.  699 

And  one  stopping  and  listening-  when  twenty-one  feet  from 
the  track  may  be  justified  in  proceeding  without  again  look- 
ing.^* But,  when  one  could  have  seen  the  approaching  train 
when  comparatively  near  the  track,  he  is  guilty  of  contributory 
negligence  when  he  looks  only  at  a  distance  of  a  hundred 
yards  therefrom/'""'  , 

Sec.  559.  Duty  to  look  and  listen  —  obstructed  view. 

The  presence  of  obstinictions  along  the  railroad  track 
which  have  the  effect  of  interfering  with  a  traveler's  view, 
are  material  m  considering  whether  he  has  fulfilled  his  duty 
of  observing  proper  care.^^  The  fact  that  the  driver  is 
aware  of  obstructions  imposes  on  him  care  proportionate  to 
the  known  danger.'"'"  The  greater  the  difficulty  of  seeing  and 
hearing  an  approaching  train  as  it  nears  a  crossing,  the 
greater  caution  the  law  imposes  upon  the  traveler.^^  So  long 
as  buildings  and  other  o})jects  obstruct  his  Wew,  a  traveler 
is  perhaps,  excused  from  looking  for  approaching  trains,  for 
the  law  does  not  compel  one  to  do  the  impossible. ^^  But, 
when  the  traveler  reaches  a  point  where  his  view  is  no  longer 
obstructed,  due  care  requires  that  at  such  place,  or  at  some 
place  nearer  the  track,  he  use  his  faculties  to  learn  of  the 
approach  of  trains.^^    Where  the  obstruction  continues  until 

54.  Advance  Transfer  Co.  v.  Chi-  57.  Murray  v.  Southern  Pac.  R.  Co. 
r.ipo.  etc..  R.  Co.  (Mo.  App.).  195  S.  177  Cal.  1,  169  Pac.  675;  Sunnes  v. 
\V.  566.  Illinois  Cent.  R.  Co.,  201  111.  App.  378; 

55.  Virginia  &  S'.  W.  Ry.  Co.  v.  Piersall's  Adm'r.  v.  Chesapeake  &  0. 
Skinner,   119  Va.  843,  89  S.   E.   887.  Ry.  Co.   (Ky.),  203  8'.  W.  551. 

One  hundred  fifteen  feet. — One  look-  58.  Piersall's    Adm'r    v.    Chesapeake 

ing  at  a  distance  of  115  feet  from  the  &  0.  Ry.  Co.,  180  Ky.  659,  203  S.  W. 

track,   does   not  nc<;essarily   fulfill   his  551;   Perrin  v.  New  Orleans  Terminal 

duty.      Sturgeon    v.    Minneapolis,    etc.,  Co..  140  La.  818,  74  So.  160;   Blanch- 

Ry.  Co.   (Iowa).  1.74  N.  W.  381.  ard  v.  Maine  Cent.  R.  Co.  116  Me.  170. 

56.  Cathcart  v.  Oregon-Wasliington  100  Atl.  666;  ^fcKinney  v.  Port  Town- 
Rd.  &  Navigation  Co..  86  Oreg.  250,  send  &  P.  S.  Ry.  Co..  91  VVa-sh.  387.  158 
168  Pac.   308;    Texas  &  P.  Ry.  Co.  v.  Pac.  107. 

Eddleman   (Tex.  Civ.  App.),  175  S.  W.  59.  See    Ohio    Electric    Ry.     Co.     v. 

775;    Seaboard   Air  Line  Ry.   v.   Aber-  Weingertner,   93  Ohio  St.    124.   112  X. 

nathy,  121  Va.  173.  92  S.  E.  913.  E.  203;  Case  v.  Atlanta,  etc..  Ry.,  107 

Smoke  and  dust. — May  constitute  an  S.  C.  216,  92  S.  E.  472;   Hxibenthal  v. 

obstruction    to    the   driver's    view,   and  Spokane,   etc.,    R.    Co..    97    Wa-^^h.    581, 

may  have  a  bearing  on  hi»(  negligence.  liiO  Pac.  797. 

Smith  v.  Missouri  Pac.  R.  Co.    (Ark.),  60.   i'nifed        States. — riuckey        v. 

211  S.  W.  657.  Southern   Rv.  Co..   242   Fed.   469. 


700 


The  Law  of  Automobiles. 


comparatively  close  to  the  track,  the  operator  of  the  machine 
should  have  his  car  under  such  control  and  running  at  such 
speed  so  that,  if  he  sees  a  train,  he  can  stop  his  car  in  time 
to  avoid  a  collision.^^  Where  the  track  was  obscured  until 
he  was  within  forty-three  feet  of  the  track,  he  was  deemed 
guilt}^  of  negligence  in  failing  to  look  for  an  approaching 
train  while  passing  over  the  interval  of  forty-three  feet.®^  If 
the  obstructions  continue  so  close  to  the  track  that  the  trav- 
eler cannot  look  effectively  until  he  is  in  a  place  where  he  will 
be  struck  by  the  train,  reasonable  care  would  seem  to  require 
that  he  stop  his  machine  previously  and  listen,^^     Thus,  if  a 


Alabama. — Rothrock  v,  Alabama 
Great  Southern  R.  Co.,  78  So.  84. 

/otca.— Corbett  v.  Hines,  180  N.  W. 
690. 

Missouri. — Gersman  v.  Atchison, 
etc.,  R.  Co.,  229  S.  W.  167;  Alexander 
V.  St.  Louis,  etc.,  Ry.  Co.,  233  S.  W. 
41 

Pennsylvania. — Luken  v.  Pennsyl- 
vania  R.   Co.,   110  Atl.   151. 

Virginia. — Canody  v.  Norfolk,  etc., 
Ry.  Co.,  105  S.  E.  585. 

61.  Fluckey  v.  Southern  Ry.  Co.,  242 
Fed.  469;  Gersman  v.  Atchison,  etc.,  R. 
Co.  (Mo.),  229  S.  W.  167;  Spencer  v. 
New  York  Cent.,  etc.,  R.  Co.,  123  N. 
Y.  App.  Div.  789,  108  N.  Y.  Suppl. 
245,  affirmed  without  opinion,  197  N. 
Y.  507;  Washington  &  0.  D.  Ry.  v. 
Zell's  Adm'x,  118  Va.  755,  88  S.  E. 
309;  McKinney  v.  Port  Townsend  &  P. 
S.  Ry.  Co.,  91  Wash.  387,  158  Pae. 
107.     And  see  section  572. 

62.  Northern  Pac.  Ry.  v.  Tripp,  220 
Fed.  286.  And  see  Fluckey  v.  South- 
ern Ry.  Co.,  242  Fed.  469,  wherein  the 
court  explained  the  situation  as  fol- 
lows: "When  the  automobile  reached 
a  point  40  feet  from  the  rail,  the 
buildings  and  the  standing  cars  on  the 
driver's  left  had  so  far  ceased  to  ob- 
struct his  view  that  he  could  see  120 
feet  along  the  straight  track  upon 
which  the  car  was  approaching,  and  at 
that  moment  the  car  was  not  more 
than    100   feet   from  the   point  of   col 


lision.  It  was  broad  daylight,  there 
was  neither  smoke  nor  dust  to  ob- 
scure the  view,  there  was  no  other 
moving  train  to  drown  the  noise  of  the 
approaching  car,  nor  was  there  any- 
thing to  distract  the  driver's  atten- 
tion. It  is  not  to  be  disputed  that,  if 
the  driver  had  looked  at  the  first  in- 
stant when  looking  would  do  any  good, 
he  would  have  seen  the  car  coming. 
He  was  familiar  with  the  crossing, 
and  knew  that,  by  reason  of  the  ob- 
structions, it  was  a  dangerous  crossing 
and  must  be  approached  cautiously. 
His  clear  duty  was  not  only  to  look  as 
soon  as  he  could  see,  but  to  have  his 
machine  under  such  control  that,  if 
necessary,  he  could  stop  before  getting 
into  the  danger  zone.  In  this  respect, 
the  case  is  to  be  distinguished  from 
that  of  one  driving  horses,  where  to 
undertake  to  stop  so  near  the  rail  mav 
involve  danger. 

63.  Chicago  Great  Western  R.  Co.  v. 
Biwer,  266  Fed.  965;  Rothrock  v. 
Alabama  Great  Souttiern  R.  Co.  (Ala.), 
78  So.  84;  Thompson  v.  Southern  Pac. 
R.  Co.,  31  Cal.  App.  567,  161  Pac.  21; 
Nailor  v.  Maryland,  D.  &  V.  Ry.  Co., 
6  Boyce's  (29  Del.)  145,  97  Atl.  418; 
Wehe  V.  Atchison,  etc.,  Ry.  Co.,  97 
Kans.  794,  156  Pac.  742,  L.  R.  A.  1916 
E.  455;  Turch  v.  New  York,  etc.,  R. 
Co.,  108  N.  Y.  App.  Div.  142,  95  N. 
Y.  Nuppl.  1100;  Washington  &  O.  D. 
Ry.  V.   Zell's   Adm'x,   118  Va.   755,  88 


Kailroad  Crossings.  701 

passing  train  obstructs  the  view  of  the  automobilist  so  as  to 
render  the  crossing  unsafe,  it  is  his  duty  to  delay  the  crossing 
until  that  train  has  passed  so  far  that  a  sufficient  view  may 
be  had.*^*     Even  the  motor  should  be  stopped,  if  necessary 
to  make  listening  effective.^''    Or  it  may  be  that  the  circum- 
stances will  require  the  automobilist  to  alight  from  his  ma- 
chine before  crossing  the  track.^c     where  the  plaintiff  ad- 
mitted that  he  knew  of  the  crossing  and  that  he  ran  his  ma- 
chine at  from  eighteen  to  twenty  miles  an  hour  over  a  very 
rough  road  up  to  within  fifty  feet  of  the  crossing,  which  was 
in  plain  view,  by  the  side  of  a  hedge  which  he  could  not  see 
over,  although  he  looked  until  he  was  satisfied  that  no  train 
was  coming,  it  was  held  that  his  evidence  showed  a  want  of 
ordinary  care  amounting  to  gross  negligence  which  would 
prevent  a  recovery.^^ 

Sec.  560.  Duty  to  look  and  listen  —  failure  to  observe  ap- 
proaching train,  though  looking. 

When  the  driver  of  a  motor  vehicle  is  struck  by  a  railroad 
train  at  a  crossing,  and  the  evidence  shows  that  the  train  was 
plainly  visible  for  a  considerable  distance  from  the  crossing, 
the  law  places  the  driver  in  a  dilemma.  Either  he  looked  or 
he  did  not  look.  If  he  did  not  look,  the  law  may  charge  him 
with  negligence  as  a  matter  of  law  for  his  failure  in  that  re- 
spect.^*   If  he  looked,  he  either  saw  the  approaching  train 

S.    E.    309;    Robison    v.    Oregon-Wash-  of  thirty  miles  an  hour  to  Avithin  sixty 

ington  R.  &  Nav.  Co.  90  Oreg.  400,  176  or  ninety  feet  of  the  crossing  when  the 

Pac.  594.     And  see  section  567.  emergency  brakes  were  applied,  it  was 

64.  Langley    v.    Hines     (Mo.    App.),  held  that  the  question  of  contributory 

227   S.   W.   877;    Turch  v.   New  York,  negligence  was  for  the  jury.     Stone  v. 

etc.,  R.  Co.,  108  N.  Y.  App.  Div.  142,  Northern  Pac.  Ry.  Co.,  29  N.  Dak.  480, 

95  N.  Y.  Suppl.   1100.  151  N.  W.  36. 

Question    for    jury.— Where,    in    an  65.  Rayhill    v.    Southern    Pac.    Co.. 

action    for    injuries    from    a    collision  35  Cal.  App.  231,  169  Pac.  718. 
between    an    automobile    and    a    train,  66.  Murray  v.  Southern  Pac.  Ry.  Co. 

there   was   evidence   to  the  effect   that  177  Cal.  1,  169  Pac.  675:   Blanchard  v. 

the   traveler's  view  was   obstructed  by  Maine   Cent.   R.   Co.   116   Me.   179.   100 

freight   cars,    and    that    a    twenty-mile  Atl.  666. 

per   hour   wind   was   blowing   carrying  67.  Sunnes   v.   Illinois   Cent.   R.   Co.. 

the  roar   of  the   train   away   from  the  201   111.  App.  378. 
traveler,  and  the  crossing  was  dusty,  68.  Section  557. 

and  the  train  was  running  at  a  speed 


702 


The  Law  of  Automobiles. 


or  he  did  not  see  it.  If  he  saw  it,  he  may  be  found  gniilty  of 
negligence  in  taking  the  chances  of  beating  the  train  over  the 
crossing.^^  If  he  claims  that  he  looked  and  did  not  see  the 
danger,  even  if  the  courts  believe  his  statement,  he  may  be 
charged  with  negligence  in  failing  to  see  what  was  plainly 
visible."^^  A  person  before  attempting  to  cross  a  railroad 
track,  and  when  an  approaching  train  is  in  full  view,  is 
chargeable  with  seeing  what  he  could  have  seen  if  he  had 
looked,  and  with  hearing  what  he  would  have  heard  if  he  had 
listened.  In  other  words,  where  he  apparently  looks  and 
listens,  but  does  not  see  or  hear  the  approaching  train, 
it  will  be  presumed  that  he  did  not  look  or  listen 
at  all,  or,  if  he  did,  that  he  did  not  heed  what  he  saw 
or  heard.'^  Thus,  where  one  at  a  point  five  feet  from  the 
track  has  an  unobstructed  view  over  a  straig-ht  track  for  nine 
hundred  feet,  but  he  testifies  that  he  did  not  see  an  approach- 
ing train  which  struck  him  before  he  passed  the  track,  it  was 
held  that  there  was  no  evidence  of  freedom  from  contributory 


69.  Section  569. 

70.  California. — Jones  v.  Southern 
Pac.  Co.,  34  Cal.  App.  629,  168  Pac. 
586. 

Connecticut. — Lassen  v.  New  York, 
etc.,  R.  Co.,  87  Conn.  705,  87  Atl.  734. 

louoa. — Anderson  v.  Dickinson,  174 
N.  W.  402;  Waters  v.  Chicago,  etc.,  R. 
Co.,  178  N.  W.  534;  Swearington  v.  U. 
S.  Railroad  Administration,  183  N.  W. 
330. 

Kansas. — Prichard  v.  Atchison,  T.  & 
S.  F.  Ry.  Co.,  99  Kans.  600,  162  Pac. 
315. 

Louisiana. — Perrin  v.  Xew  Orleans 
Terminal  Co.,   140  La.  818,  74  So.  160. 

Massachusetts. — Fogg  v.  Xew  York, 
etc.,  R.  Co.,  223  Mass.  444,  111  X.  E. 
960. 

New  Hampshire. — Collins  v.  Ilustis, 
111  Atl.  286. 

New  Jersey. — Shoemaker  v.  Central 
Railroad  of  Xew  Jersey,  89  Atl.  517. 
See  also  Barber  v.  McAdoo,  110  Atl. 
119. 

Oregon. — Olds  v.  Hines,  95  Oreg. 
580,  187  Pac.  586. 


Pennsylvania: — Sjnifch  v.  McAdoo, 
■im  Pa.  328,   109  Atl.  759. 

Texas. — Baker  v.  Collins  (Civ. 
App.),  199  S.  W.  519. 

Utah. — Lawrence  v.  Denver,  etc.,  R. 
Co..  52  Utah  414,  174  Pac.  817. 

Virginia. — Virginia  &  S.  W.  Ry.  Co. 
V.  Skinner,  119  Va.  843,  89  'S.  E.  887. 

Disbelief  of  jury. — ^Where  the  jury 
finds  that  there  is  nothing  to  obstruct 
the  view  of  a  person  approaching  a 
railway  crossing,  nothing  to  prevent 
him  seeing  a  train  for  a  quarter  of  a 
mile  or  more,  such  finding  in  effect  is 
an  expression  of  the  jury's  disbelief  of 
his  evidence  that  he  looked  and 
listened  and  saw  no  train  approaching. 
Buntoii  v.  Atchison,  etc..  Ry.  Co.,  100 
Kans.   16.5,  163  Pac.  801. 

71.  Anderson  v.  Great  Xorthern  Ry. 
Co.  (Minn.)  179  X.  W.  687;  George  v. 
Xorthern  Pac.  Ry.  Co.  (Mont.)  196 
Par.  -869:  Olds  v.  Hines,  95  Oreg.  580, 
1S7  Pac.  5S6;  Louisiana  Western  Ry. 
Co.  v.  Jones  (Tex.  Civ.  App.),  233  S'. 
W.  363;  LaM-rence  v.  Denver,  etc..  R. 
Co..  .52  Utah  414.  174  Pac.  817. 


Kailroad  Crossings. 


703 


negligence  sufficient  to  go  to  the  jury  on  the  issue.'-  But,  if 
the  traveler's  view  is  obstructed,  the  circumstancL's  may  be 
such  that  he  can  fairly  claim  that  he  exercised  reasonable 
care  and  looked  for  approaching  trains  but  did  not  see  the 
one  which  struck  him.'^s  Qr,  if  traveling  in  the  night  time,  a 
driver  who  is  struck  ])y  a  backing  train  or  car,  with  no  lights 
may  be  entitled  to  go  to  the  jury  on  the  question  of  his  negH- 
gence."^*  The  courts  are  not  always  compelled  to  believe  the 
testimony  of  a,  person  in  a  motor  vehicle  when  he  says  that 
he  looked  for  an  approaching  train  and  did  not  see  one.  The 
relative  speeds  of  the  machine  and  train  and  their  respective 
distances  from  the  crossing  may  show  conclusively  that  the 
train  was  in  plain  sight  when  the  machine  was  at  a  place 
where  there  was  a  duty  to  look  for  trains.'^  But,  if  there  is 
any  doubt  as  to  whether  or  not  the  train  was  in  sight  when 
the  traveler  says  that  he  looked  and  did  not  see  it,  the  testi- 
mony will  not  be  held  to  be  incredible  as  a  matter  of  law.*^^ 

72.  Virginia    &    S.    W.    Ry.    Co.    v. 
Skinner,  119  Va.  843,  89  S.  E.  887. 

73.  Ft.  Smith,  etc.,  E.  Co.  v.  Pence, 
122  Ark.  611,  182  S.  W.  568;  De 
Vriendt,  Chicago,  etc.,  R.  Co.  (Minn.), 
175  N.  W.  99;  Smith  v.  Inland  Em- 
pire R.  Co.  (Wash.).  195  Pac.  236.  See 
also  Golay  v.  Northern  Pac.  Ry.  Co. 
(Wash.),  177  Pac.  804;  Pogue  v.  Great 
Northern  Ry.  Co.,  127  Minn.  79.  148 
N.  W.  889,  wherein  it  Avas  said :  "  It 
is  contended  that  the  evidence  is  con- 
clusive that  plaintifT  was  guilty  of 
contributory  negligence.  We  cannot  so 
hold.  Plaintiff's  view  of  the  train  was 
obscured  by  a  long  string  of  box  cars 
on  an  intervening  track.  The  distance 
between  these  standing  cars  and  the 
passing  train  was  less  than  30  feet. 
Not  until  he  passed  these  cars  could 
he  have  a  clear  view  of  the  approach- 
ing train.  Plaintiff's  testimony  as 
given  on  this  trial  was  to  the  effect 
that  after  passing  these  standing  cars, 
he  stopped  his  automobile  and  looked 
up  and  down  the  track,  did  not  see 
jinything,  and  went  ahead;  that  he  did 
not  discover  the  train  until  '  just  like 
a  flash  of  your  eye  it  was  right  there. 


and  then  a  blow.'  It  is  conceded  that, 
if  this  testimony  is  believable,  plain- 
tiff was  not  guilty  of  contributory 
negligence.  The  evidence  is  conflicting 
as  to  just  how  dark  it  was.  Plaintiff's 
witnesses  testified  that  it  was  very 
dark.  There  is  some  evidence  that  the 
evening  was  cloudy  and  gloomy.  The 
lights  of  the  village  were  lighted.  The 
lights  on  plaintiff's  automobile  were 
lighted.  There  is  evidence  that  the 
trainmen  were  giving  signals  with 
lighted  lanterns.  The  trainmen  them- 
selves deny  this,  but  it  is  admitted 
that  they  lighted  their  lanterns  for 
this  purpose  at  Solway,  the  station 
above.  If  it  was  as  dark  as  plaintiff 
now  claims,  it  is  not  unbelievable  that 
he  might  look  and  still  fail  to  see  the 
approaching  engine  beyond  the  range 
of  his  own  lights." 

74.  Louisville  &  N.  R.  Co.  v.  Eng- 
lish, 78  Fla.  211,  82  So.  819;  Mills  v. 
Waters.  198  Mich.  637.  165  N.  W.  740; 
De  Vriendt  v.  Chicago,  etc.,  R.  Co.,  144 
Minn.  467,  175  N.  W.  99. 

75.  Coby  V.  Quincy,  etc.,  R.  Co..  174 
Mo.  App.  648,  161  S.  W.  290. 

76.  Loomis   v.   Brooklyn  Heights   R 


704 


The  Law  of  Automobiles. 


Sec.  561.  Duty  to  look  and  listen  —  looking  by  passenger. 

When  an  action  is  brought  by  a  passenger  to  recover  in- 
juries sustained  in  a  collision  at  a  grade  crossing,  the  general 
rule  is  that  the  negligence  of  the  driver  is  not  imputed  to  the 
passenger.  There  are,  however,  various  exceptions  to  the 
general  rule,  and  in  some  States  a  passenger  is  required  to 
exercise  more  or  less  diligence  in  looking  for  approaching 
trains  independently  of  the  duty  cast  upon  the  driver  in  that 
respect.  The  negligence  of  passengers,  so  far  as  it  bars  an 
action  for  their  injuries,  is  discussed  in  another  place  in  this 
work."^^  Where  the  employer  of  the  driver  is  riding  with  him 
and  has  undertaken  to  look  out  for  approaching  trains,  such 
situation  is  a  circumstance  to  be  considered  in  judging  the 
driver's  conduct  on  an  issue  of  his  negligence.'^^  An  em- 
ployee riding  with  his  employer,  the  latter  driving  the  ma- 
chine, may  be  under  the  duty  of  looking  for  trains.'^^ 


Co.,   133  N.  Y.   App.  Div.  247,  117  N. 
Y.  Suppl.  292. 

Not  necessarily  incredible. — Where 
in  an  action  to  recover  for  injuries  re- 
ceived from  a  collision  at  a  crossing' 
between  defendant's  train  and  an  auto- 
mobile whicli  plaintiff  was  driving, 
there  is  evidence  that  the  train  was 
running  under  full  headway,  and  that 
although  the  view  of  the  track  was 
partly  obstructed  by  a  house  and  a 
sign,  plaintiff  looked  south,  the  direc- 
tion from  which  the  train  came,  until 
he  passed  the  sign,  when,  his  view  be- 
ing entirely  obstructed  in  that  di- 
rection by  a  hedge,  he  looked  north, 
and  that  he  did  not  see  the  train  until 
within  eight  feet  of  the  track,  it  can- 
not be  held  as  matter  of  law  that 
plaintiff's  testimony  is  incredible  al- 
though at  one  point  a  view  between 
the  house  and  the  sign  could  be  had 
for  450  feet  down  the  track  and  the 
train  would  have  reached  this  point 
unless   it    were   going    at    the    rate   of 


sixty  miles  an  hour,  which  was 
thought  impossible,  as  it  had  stopped 
at  a  station  1,000  feet  south  of  the 
crossing.  Where,  in  addition,  it  ap- 
pears that  the  train  gave  no  signal 
of  its  approach  to  the  crossing;  that 
plaintiff  listened  all  the  time  while 
nearing  the  track  but  heard  nothing, 
a  judgment  entered  on  the  dismissal  of 
the  complaint  will  be  reversed,  since 
the  calculation  on  which  it  was  based 
did  not  take  into  account  the  con- 
stantly increasing  speed  of  the  train, 
and  there  was  no  evidence  that  it  was 
impossible  for  the  train  to  attain  a 
speed  of  sixty  miles  an  hour  within 
500  feet.  Loomis  v.  Brooklyn  Heights 
R.  Co..  133  N.  Y.  App.  Div.  247,  117 
N.  Y.  Suppl.  292. 

77.  Sections  688-695. 

78.  Lehigh  Valley  R.  Co.  v.  Kilmer, 
231   Fed.  628,   145  C.  C.  A.  514. 

79.  Hoyle  v.  Northern  Pac.   R.  Co., 
105  Wash.  652,  178  Pac.  810. 


Railroad  Crossings. 


705 


Sec.  562.  Duty  to  look  and  listen  —  reliance  on  flagman. 

It  is  held  that  the  fact  that  a  railroad  company  maintains 
at  a  crossing  a  flagman  to  warn  travelers  of  the  approach  of 
a  train,  does  not  necessarily  justify  the  driver  of  a  motor 
vehicle  in  relying  on  the  flagman  for  information  as  to  ap- 
proach of  trains ;  but,  on  the  contrary,  the  driver  is  required 
to  exercise  his  own  faculties  and  to  look  and  listen  for  ap- 
proaching trains.^^  Indeed  the  presence  of  the  flagman  ren- 
ders it  possible  for  the  traveler  to  call  to  him  and  ascertain 
whether  the  crossing  is  safe.  In  a  close  case,  however,  the 
fact  that  the  traveler  relied  on  the  flagman  for  warning  from 
trains,  may  be  an  important  circumstance  to  be  considered 
with  the  other  circumstances  surrounding  the  accident.^^  If 
the  driver  proceeds  across  the  track  on  the  signal  of  the  flag- 
man, the  courts  will  not  condemn  him  of  negligence  as  a  mat- 
ter of  law  because  he  does  not  thereafter  stop  and  look  and 
listen  for  the  approach  of  a  train.^-  Of  course,  the  act  of  the 
flagman  in  giving  a  signal  that  the  way  is  safe,  may  reasonably 


80.  Brommer  v.  Pennsylvania  R. 
Co.,  179  Fed.  577,  103  C.  C.  A.  135,  29 
L.  R.  A.  (N.  S.)  924;  Hajnes  v.  New 
York,  etc..  R.  Co.  91  Conn.  301,  99 
Atl.  694;  Reynolds  v.  Inter-Urban  Ry, 
Co.  (Iowa),  182  N.  W.  804;  Stephana 
V.  Chicago,  etc.,  R.  Co.  (Mo.  App.), 
199  S.  W.  273. 

81.  Derr  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  163  Wis.  234,  157  N.  W.  753.  See 
also.  Brink  v.  Erie  R.  Co.,  190  App. 
Div.  527,  180  N.  Y.  Suppl.  931. 

"  It  is  further  held  that  the  presence 
or  absence  of  signal  warning  or  other 
precaiitionary  measures  usually  ob- 
served by  the  company  at  a  given 
crossing  is  always  relevant  and  must 
be  given  due  weight  in  deciding  as  to 
whether  the  traveler  has  been  obser- 
vant of  proper  care  before  entering  on 
the  crossing  and  in  failing  to  come  to 
a  complete  stop."  Shepard  v.  Norfolk, 
etc.,  R.  Co.,  166  N.  Car.  539,  82  S.  E. 
872.  "If  the  facts  are  that  such  a 
flagman  customarily  signaled  to  ap- 
proaching   travelers    to    protect    them 

45 


against  existing  dangers  of  approach- 
ing cars  and  trains  and  plaintiff  knew 
this  and  relied  on  the  absence  of  such 
signal  when  he  approached  the  cross- 
ing as  indicating  that  no  car  or  train 
was  approaching,  then  plaintiff's  con- 
duct as  to  looking  and  listening  for 
moving  cars  while  approaching  the 
crossing  must  be  considered  in  the 
light  of  these  circum=tnnces."  Derr  v. 
Chicago,  etc.,  R.  Co..  163  Wis.  234,  157 
N.  W.  753.  "  While  it  is  true  that  the 
failure  of  the  flagman  to  perform  his 
duty  will  not  wholly  absolve  the 
traveler  from  the  duty  to  look  out,  yet 
the  fact  that  a  flagman  is  maintained 
and  he  gives  no  warning  has  its  in- 
fluence, and  may  frequently  be  allowed 
to  relieve  a  traveler  of  what  might 
otherwise  have  been  culpable  negli- 
gence." Stephan  v.  Chicago,  etc..  R. 
Co.    (Mo.  App.),  199  S'.  W.  273. 

82.  Deheave  v,  Hines,  217  111.  App. 
427;  Lake  Erie  &  W.  R.  Co.  v.  Sand- 
ers (Ind.  App.),  125  N.  E.  793. 


706  The  Law  of  Automobiles. 

dissuade  the  driver  from  making  an  independent  lookout  for 
trains,  and  his  conduct  in  this  respect  is  not  necessarily  negli- 
gent.^ But  the  fact  that  the  flagman  beckons  him  to  pass  over 
the  crossing  does  not  relieve  the  driver  from  the  exercise  of 
due  care  or  necessarily  excuse  him  from  taking  some  precau- 
tions for  his  safety.^*  ^\Tiere  the  flagman  has  his  back  to  an 
approaching  automobile  and  is  waving  a  white  flag  as  a  signal 
for  the  train  to  come  on,  the  driver  of  the  machine  is  guilty 
of  contributory  negligence  if  he  attempts  to  cross,  and  he  can- 
not excuse  his  conduct  by  claiming  that  the  waving  of  the  flag 
was  an  assurance  of  safety  rather  than  a  warning  of  dan- 
ger.^^  Where  the  flagman  ordered  the  driver  to  stop,  then 
ordered  him  to  go  back,  but  then  ordered  him  to  proceed,  but 
the  driver  seeing  a  train  approaching  jmiiped  from  the  car 
which  was  destroyed,  it  was  held  that  the  driver's  negligence 
was  a  question  for  the  jury.^^ 

Sec.  563.  Duty  to  look  and  listen  —  reliance  on  open  gates. 

Where  a  grade  crossing  is  equipped  with  gates  which  are 
lowered  to  bar  the  passage  of  travelers  at  times  of  danger, 
and  the  driver  of  an  automobile  does  not  attempt  to  cross  the 
tracks  until  the  gates  are  raised,  he  is  not  necessarily  guilty 
of  contributory  negligence  because  he  fails  to  look  and  listen 
before   starting   across   the   tracks.^"^     As   has   been    said,®® 

83.  Deheave  v.  Hines.  217  111.  App.  conclusion.  It  is  a  matter  of  common 
427;  Stephan  v.  Chicago,  etc.,  R.  Co.  knowledge  that  flagmen  appointed  to 
(Mo.  App.),  199  S.  W.  273.  See  also  guard  railway  crossings  do  not  stand 
Shepard  v.  Norfolk,  etc.,  R.  Co.,  Ififi  in  the  traveled  path  waving  flags  ex- 
N.  Car.  539,  82  S.  E.  872.                      .  cept  when  a  train  is  approaching  the 

84.  Haynes  v.  New  York,  etc.,  R.  crossing.  There  was  nothing  in  the 
Co.,  91  Conn.  301,  99  Atl.  694.  conduct    of    this    flagman,    who    stood 

85.  Borglum  v.  New  York,  etc.,  R.  with  his  back  to  the  a/pproaching  auto- 
Co.,  90  Conn.  52.  96  Atl.  174,  wherein  mobile  waving  his  flag  across  its  line 
it  was  said:  "It  is  claimed  that  the  of  travel,  which  would  reasonably  sug- 
jury  might  have  found  that  the  plain-  gest  to  the  plaintiff's  decedent  that  he 
tiff's  decedent  was  in  the  exercise  of  lyas  inviting  him  to  cross  in  front  of 
due  care  on  the  theory  that  he  had  a  the  approaching  train." 

right  to   interpret  the  flagman's  pren-  86.  Central  of  Ga.  Ry.  Co.  v.  How- 

ence  in   the  highway,   waving  a  white  ell  23  Ga.  App.  269,  98  S.  E.   105. 

flag  across  the  line  of  travel,  as  an  as-  87.  Delaware,    L.    &    W.    R.    Co.    V. 

surance  of  safety  and  an  invitation  to  Welshman,  229  Fed.  82,  143  C.  C.  A. 

cross   the  track.     We   think   the   jury  358.    See  also  Shepard  v.  Norfolk,  etc., 

could  not  reasonably  have  come  to  that  R.  Co.,  166  N,  Car.  539,  82  S.  E.  872; 


Railroad  Crossings. 


707 


"  We  tbiiik  the  experience  and  judgment  of  every  day  life  is 
that  the  raised  gate  is  an  index  of  the  railroad's  view  that 
crossing  may  be  safely  made,  and  that  a  crosser  may  reason- 
ably accept  it  as  an  invitation  to  go  forward."  The  fact  that 
the  gates  are  open,  when  the  driver  does  not  know  that  they 
are  out  of  order,  is  some  assurance  of  safety.^''  The  fact 
that  the  gate  is  raised  does  not  establish  freedom  from  con- 
tributoi-y  negligence,  but  permits  the  question  to  go  to  the 
jury  who  are  to  determine  whether  the  traveler  exercised 
proper  care  under  the  circumstances.^^    Though  he  may  place 


Director-General    v.    Lucas    (Va.)>  107 
S.  E.  675. 

Traveler  struck  by  gate. — It  is  the 
duty  of  a  railroad  company  to  exercise 
reasonable  care  in  the  operation  of 
safety  gates  so  as  to  protect  a  traveler 
from  the  gates;  and  the  jury  may  be 
authorized  to  find  negligence  on  the 
part  of  the  railroad  when  the  gates  are 
so  operated  that  a  traveler  is  struck 
thereby.  S'gier  v.  Philadelphia,  etc.. 
Ry.  Co..  260  Pa.  243.  103  Atl.  730; 
Sikorski  v.  Philadelphia,  et-c.,  Ry.  Co.. 
260  Pa.  243,   103  Atl.  618. 

88.  Delaware,  L.  &  W.  R.  Co.  v. 
Welshman,  229  Fed.  82.  143  C.  C.  A. 
358. 

89.  Hines  v.  Smith.  270  Fed.  132; 
vStepp  V.  Minneapolis,  etc.,  R.  Co.,  137 
Minn.  117.   162  N.  W.   1051. 

90.  Blan chard  v.  Maine  Central  R. 
Co.,  116  Me.  179,  100  Atl.  666.  "Of 
course,  the  raising  of  the  gates  did  not 
make  the  railroad  either  an  insurer  or 
the  sole  guardian  of  the  crosser's 
safety.  The  duty  of  care,  of  the  use 
by  the  crosser  of  sight,  hearing,  and 
such  other  factors  of  safety  as  the 
situation  and  circumstances  permitted 
and  required  of  one  intent  on  his  own 
safety,  still  rested  on  him.  The  raised 
gate  is  not  an  invitation  to  cross  with- 
out care,  but  an  invitation  to  cross 
with  the  use  of  all  care  the  situation 
permits.  To  hold  otherwise  would  be 
to  make  gates  and  flagman  harmful 
creators  of  negligence  instead  of  help- 


ful aids  to  safety.  The  crossing  driver 
must  bear  in  mind  that  the  flagman 
is  human  and  therefore  liable  to  make 
mistakes,  and  that  in  so  important  a 
thing  as  his  own  safety  and  life  the 
driver  must  not  intrust  them  to  any 
one  man,  but  that  common  sense  as 
well  as  common  law  require  him,  not- 
withstanding the  invitation,  to  himself 
use  all  possible  care  to  aid  in  a  safe 
crossing.  If  the  driver  does  not  con- 
tribute such  care,  he  contributes  lack 
of  care,  and  lack  of  care  is  contribu- 
tory negligence."  Delaware,  L.  &  W. 
f"..  Co.  V.  Welshman,  229  Fed.  82,  143 
r.  C.  A.  358.  "  The  fact  that  the  gat^s 
are  open  is  an  important  fact  for  con- 
sideration in  the  determination  of  the 
question  whether  the  deceased  exer- 
"ised  due  care.  The  weight  properly  to 
III'  given  to  this  fact  necessarily  will 
vary  in  different  cases  and  will  be  af- 
fected by  consideration  of  the  location 
of  the  ^t«s,  whether  on  a  street  in  a 
populous  city  or  in  the  country,  the 
presence  or  absence  of  traffic  on  the 
highway  at  the  particular  time  and 
place,  the  presence  or  absence  of  ob- 
structions near  the  track,  the  presence 
or  absence  of  a  ^latoman,  etc.  If  the 
facts  are  in  controversy  or  if  fair- 
min'led  men  ean  draw  different  con- 
clusions from  facts  which  are  not  i;on- 
troverted  the  question  of  contributory 
negligence  would  be  then  properly  sub- 
mitted to  a  jury."  Oeoffrey  v.  New 
York,  etc.,  R.  Co.  (R.  I.).  104  Atl.  88.3. 


708  The  Law  of  Automobiles. 

some  reliance  on  tlie  circumstances  that  the  gates  are  open, 
he  is  not  thereby  relieved  from  the  obligation  of  exercising 
all  care  for  his  safety.^^  And,  in  a  particular  case,  the  cir- 
cumstances may  be  such  that  the  court  is  able  to  say  as  a 
matter  of  law  that  the  driver  was  guilty  of  negligence,  if  he 
proceeded  actoss  the  track  without  looking  for  trains,  al- 
though the  gates  were  open.^^  In  Pen?isylvania,  it  is  held 
that  the  fact  that  the  safety  gates  are  raised  at  the  time  the 
driver  approaches,  does  not  relieve  him  of  the  duty  to  stop, 
look  and  listen  for  approaching  trains.^^  In  at  least  one 
jurisdiction,  it  is  i3rovided  by  statute  that  when  the  gates  are 
not  down,  the  question  of  contributory  negligence  shall  be 
one  for  the  jury;  but  it  is  held  that  this  statute  does  not  de- 
prive the  court  of  the  power  to  determine  the  question  as  one 
of  law  when  the  facts  are  undisputed.^'* 


Sec.  564.  Duty  to  look  and  listen  —  reliance  on  automatic 
signals. 

It  has  been  held  to  be  contributory  negligence  as  a  matter 
of  law  for  the  driver  of  a  mooter  vehicle  to  attempt  to  cross 
a  railroad  crossing  without  looking  and  listening  for  ap- 
proaching trains,  although  an  electric  warning  bell  is  main- 
tained at  the  crossing  and  such  bell  is  not  ringing  at  the 
time.^^     But,  while  a  traveler  cannot  blindly  rely  on  auto- 

91.  Blanchard  v.  Maine  Central  R.  most  can  be  nothing  but  a  warning  of 
Co.,  116  Me.  179,  100  Atl.  666.  an    approaching    train    to    those    who 

92.  Geoffroy  v.  New  York,  etc.,  R  listen,  cannot  be  classed  with  a  gate 
Co.    (R.  I.),  104  Atl.  883.  thrown  across  a  street  to  prevent  pasa- 

93.  Earle  v.  Philadelphia  &  R.  R,  ing  over  railroad  tracks;  neither  can 
Co.,  248  Pa.  St.  193,  93  Atl.  1001.  it    be    classed    with    a    flagman    who 

94.  Hall  V.  West  Jersey  &  Seashore  stands  in  the  street  and  stops  those 
R.  Co.,  244  Fed.  104,  construing  a  w^ho  desire  to  cross  when  there  is  dan- 
statute  of  New  Jersey.  ger.     It   is  more  nearly  analogous  to 

95.  Jacobs  v.  Atchison,  etc.,  Ry.  Co.,  the  locomotive  beJl  and  whistle.  Fail- 
97  Kans.  247,  154  Pac.  1023,  wherein  ure  to  ring  the  engine  bell  or  sound 
it  was  said:  "In  the  present  case  an  the  whistle  does  not  relieve  the  travel- 
electrical  mechanical  device  was  in-  er  from  the  duty  to  look  and  listen  be- 
tended  to  give  warning  of  approaching  fore  attempting  to  cross  a  railroad 
trains.  Sometimes  this  bell  would  not  track.  If  the  plaintiff's  contention  in 
ring  when  trains  were  passing,  and  at  this  respect  is  correct,  a  railroad  in- 
other  times  it  rang  when  no  train  was  creases  its  responsibility  and  liability 
in    sight.     An   electric   bell,    which    at  by  putting  in  electric  bells  at  highway 


Railroad  Crossings. 


709 


matic  signals,  the  fact  that  the  signal  was  not  given  accord- 
ing to  the  usual  custom  may  be  considered,  and  in  a  dose  case 
•it  may  be  sufficient  to  carry  the  traveler's  contribntory  iico]' 
gence  to  the  jury.^® 

Sec.  565.  Duty  to  look  and  listen  —  reliance  on  signal  from 
engineer. 
In  some  States  it  is  held  that  the  driver  of  a  vehicle  when 
approaching  a  grade  crossing  cannot  assume  that  the  rail- 
road employees  will  ring  the  bell  and  blow  the  whistle  as  re- 
quired by  law  and  thus  give  him  warning  of  the  approach  of 
the  train.  The  law  requires  the  traveler  to  look  and  listen 
for  cars  approaching  on  the  railroad  tracks,  and  his  neglect 
of  duty  in  this  respect  is  not  excused  by  the  failure  of  the 
railroad  employees  to  fulfill  their  duty  in  respect  to  warn- 
ings. The  absence  of  proper  warning  will  not  carry  the  ques- 
tion of  contributory  negligence  to  the  jnry,  but  the  matter 
will  be  disposed  of  as  a  question  of  law.^"     In  other  decisions 


and  street  crossings.  The  object  in 
putting  in  electric  bells  is  to  promote 
public  safety,  not  to  increase  railroad 
liability.  Silence  of  such  a  bell  is  not 
an  invitation  to  cross  railroad  tracks 
without  taking  the  ordinary  pre- 
cautions. .  .  .  We  think  the  better  rule 
is  that  the  failure  of  an  electric  bell 
to  ring  does  not  relieve  one  about  to 
cross  a  railroad  track  of  the  impera- 
tive duty  to  look  and  listen  before 
crossing;  if  he  fails  to  do  so,  he  is 
guilty  of  such  contributory  negligence 
as  will  prevent  his  recovery  for  any 
injuries  sustained,  and  there  is  noth- 
ing to  submit  to  the  jury."  See,  to  the 
same  eflfect,  McSweeny  v.  Erie  Rail- 
road Co.,  93  N.  Y.  App.  Div.  496,  87 
N.  Y.  Suppl.  836,  making  the  same 
ruling  with  reference  to  a  buggy  cross- 
ing a  railroad  track. 

Statutes  may  make  a  different  rule 
in  some  jurisdictions.  Baer  v.  Lehigh, 
etc.,  E.  Co.,  93  N.  J.  L.  85.  106  Ail. 
421. 

96.  Birmingham  So.  Ry.  Co.  v.  Har- 
rison. 203  Ala.  284.  82  So.  534;   Bush 


V.  Brewer,  136  Ark.  248,  206  S.  VV. 
322;  Swigart  v.  Lush,  196  Mo.  App. 
471,  192  S.  W.  138;  Director-General 
V.  Lucas   (Va.),  107  S.  E.  675. 

97.  Hines  v.  Smith,  270  Fed.  132; 
Swearingen  v.  U.  S.  Railroad  Adminis- 
tration (Iowa),  183  N.  W.  330; 
Jacobs  V.  Atchison,  etc.,  Ry.  Co..  97 
Kans.  247,  154  Pac.  1023;  Fogg  v.  New 
York,  etc.,  R.  Co.,  223  Mass.  444,  111 
N.  E.  960;  Central  Coal  &  Coke  Co.  v. 
Kansas  City  So.  Ry.  Co.  (Mo.  App.). 
215  S.  W.  94;  Gersman  v.  Atchison  R. 
Co.  (Mo.),  229  S.  W.  167:  Loiselle  v. 
Rhode  Island  Co.  (R.  I.),  110  Atl. 
407.  See  also  Robison  v.  Oregon- 
Washington  R.  &  Nav.  Co.  90  Oreg. 
490,  176  Pac.  594.  "  Coming  to  a  place 
of  danger  like  a  railroad  crossing, 
where  there  is  opportunity  for  sight 
and  hearing,  a  traveler  is  not  in  the 
exercise  of  due  care  unless  he  uses  his 
senses,  looks  and  listens,  and  governs 
his  conduct  accordingly.  He  cannot, 
entirely,  rely  upon  signals  and  the  per- 
formance of  duty  by  the  agents  of  the 
defendant.     He  must  actively   seek  to 


710 


The  Law  of  Automobiles. 


the  rule  obtains,  that,  if  the  view  is  obstructed,  the  traveler 
may  ordinarily  rely  upon  his  sense  of  hearing,  and  if  he 
listens  and  is. induced  to  enter  on  the  crossing  because  of  the 
negligent  failure  of  the  company  to  give  the  ordinaiy  signals 
this  will  usually  be  attributed  to  the  failure  of  the  company 
to  warn  the  traveler  of  the  danger,  and  not  imputed  to  him 
for  contributory  negligence.^**  It  has  been  said  that  these 
cases  may  be  harmonized  so  that  the  rule  may  be  deduced  to 
tlie  effect  that  the  traveler  may,  in  regulating  his  conduct, 
have  some  regard  to  the  presumption  that  the  railroad  will 
give  proper  signals,  and,  if  he  hears  none,  the  same  prepared- 
ness and  caution  will  not  be  expected  of  him  as  would  be  re- 
quired in  case  proper  signals  were  given;  but  that  he  cannot 
wholly  omit  the  duty  of  looking  and  listening  simply  because 
he  hears  none  of  the  customary  or  required  signals  of  the 
approach  of  a  train.®® 


safegxiard  his  own  safety  by  using  his 
faculties,  and  making  use  of  the  means 
at  hand  to  save  himself  from  danger." 
Fogg  V.  New  York.  etc..  R.  Co..  223 
Ma.ss.  444,   111  N.  E.  960. 

98.  Smith  v.  Missouri  Pac.  R.  Co., 
138  Ark.  589,  211  S.  W.  657;  Union 
Tract.  Co.  v.  McTurnan  (Ind.  App.). 
129  N.  E.  404;  Barrett  v.  Chicago,  etc.. 
R.  Co.  (Iowa),  175  N.  W.  950;  Slipp 
V.  St.  Louis,  etc.,  Ry.  Co.  (Mo.  App.), 
211  S.  W.  730;  Brown  &  Co.  v.  Atlan- 
tic Coast  Line  R.  Co.,  171  N.  C.  266, 
88  S.  E.  329;  GoflF  v.  Atlantic  Coast 
Line  R.  Co.,  179  N.  Car.  216,  102  S.  E. 
320;  Costin  v.  Tidewater  Power  Co. 
(N.  Car.).  106  S.  E.  568;  Parker  v. 
Seaboard  Air  Line  Co.  (N.  C),  106  S. 
E.  755.  See  also  Union  Traction  Co. 
V.  Elmore.  66  Ind.  App.  95,  116 
S.  E.  837;  Waking  v.  Cincinnati 
etc.,  R.  Co.  (Ind.  App.),  125 
N.  E.  799.  "We  believe  that  the 
driver  did  all  that  was  required  of  him 
whwi  he  stopped,  looked,  and  listened 
for  trains.  At  least  we  cannot  say  as 
a  matter  of  law  that  he  was  required 
to  do  more.  As  it  has  already  been 
stated,  when  the  driver  stopped, 
looked  and  listened,  his  truck  was  21 


ftet  0  inches  from  tlie  west  rail  of  the 
track,  and  his  view  of  the  track  to  the 
soutli  was  obstructed.  Not  having 
hoard  any  signal,  the  driver  had  the 
right  to-  presume  that  in  handling  itvS 
cars  the  railroad  company  would  act 
witli  appropriate  care,  and  that  the 
usual  signals  of  approach  would  be 
seasonably  given,  and  he  was  justified 
in  proceeding  to  cross  the  track  with- 
out again  looking."  Advance  Trans- 
fer Co.  V.  Chicago,  etc.,  R.  Co.  (Mo. 
App.),  195  S\  W.  566.  "Reasonable 
minds  might,  we  think,  have  differed 
as  to  whether  a  reasonably  prudent 
person,  having  the  right  to  expect  that 
the  bell  of  the  engine  would  be  ringing 
if  it  was  moving,  would  have  con- 
cluded, when  he  saw  and  heard  noth- 
ing indicating  that  it  was  moving, 
that  the  engine  was  standing  still,  and 
that  he  could  safely  pass."  Texark- 
ana  &  Ft.  Smith  Ry.  Co.  v.  Rea  (Tex. 
Civ.  App.),  180  S.  W.  945. 

99.  PogTie  V.  Great  NortJiern  Ry. 
Co..  127  Minn.  79,  148  N.  W.  889, 
wherein  it  was  said:  "There  are 
cases  which  hold  that  a  person  cannot 
rely  upon  signals  to  remind  him  of 
danger,  that  the  failure  of  the  traveler 


Railroad  Crossings. 


711 


Sec.  566.  Duty  to  look  and  listen  —  running  into  train. 

When  the  driver  of  a  motor  vehicle  runs  his  machine  into 
a  train  or  a  car  at  a  crossing,  the  courts  have  no  difficulty  in 
finding,  as  a  matter  of  law,  that  the  accident  would  have  been 
avoided  had  he  exercised  reasonable  care.^  A  recovery  may 
be  justified,  however,  if  a  car  is  permitted  to  stand  at  a  cross- 
ing with  no  lights  or  attending  watchman. - 

Sec.  567.  Duty  to  stop  before  crossing  track  —  majority  rule. 

While,  in  a  few  jurisdictions,  it  is  held  that  there  is  a  posi- 
tive duty  on  the  driver  of  an  automobile  to  stop  the  machine 
before  crossing  a  railroad  track,^  the  rule  adopted  in  the 
larger  nmnber  of  jurisdictions  is  that  there  is  no  such  im- 
perative duty.'^     The  question  whether  the  operator  of  the 


to  look  and  listen  is  negligence  or  not, 
according  to  the  circumstances,  but 
that  the  neg'ligence  of  the  employees 
of  a  railroad  company  in  failing  to 
whistle  or  ring  a  bell  is  no  excuse  for 
negligence  on  the  part  of  the  person 
about  to  cross  in  failing  to  use  his 
senses  to  discover  danger.  ...  On  the 
other  hand,  numerous  cases  hold  that 
when  a  traveler  is  approaching  a  rail- 
road track,  he  may,  in  regulating  his 
own  conduct,  have  a  right  to  presume 
that  the  railroad  company  will  act 
with  proper  care  in  giving  signals  of 
the  approach  of  its  trains.  .  .  .  We 
think  these  cases  may  be  harmonized, 
and  that  the  rule  deduciblc  from  them 
is  that  the  traveler  may,  in  regulating 
his  conduct,  have  some  regard  to  the 
presumption  that  the  railroad  com- 
pany will  give  proper  signals,  and,  if 
he  hears  none,  the  same  preparedness 
and  caution  Avill  not  be  expected  of 
him  as  would  be  required  in  case 
proper  signals  were  given;  but  he  can- 
not in  any  case  wholly  omit  the  duty 
of  looking  and  listening  simply  because 
he  hears  none  of  the  customary  or  re- 
quired signals  of  the  approach  of  a 
train.  ...  In  other  words,  the  failure 
of  the  defendant  to  give  expected  sig- 
nals may  excuse  a  traveler  in  relaxing 


somewhat  in  his  vigilance,  but  it  has 
never  been  held  to  dispense  with  vigil- 
ance altogether.  If  such  were  the  law, 
then  there  would  be  little  left  of  the 
rule  which  requires  the  traveler  to  look 
and  listen,  for  the  rule  is  only  ap- 
plied as  bearing  upon  the  question  of 
his  contributory  negligence,  and  that 
question  is  never  reached  unless  there 
is  some  negligent  act  or  omission  in 
the  operation  of  the  train.  See  also, 
Saiidry  v.  Hines  (Mo.  App.).  226  S. 
W.  ()4fi. 

1.  n.  Worth,  et«.,  R.  Co.  v.  Hart 
(Tex.  Civ.  App.),  178  S.  W.  795  South- 
ern Tr.  Co.  V.  Kicksey  (Tex.  Civ. 
App.).   181   S.  W.  545. 

2.  Prescott  v.  Hines  (S.  Car.).  103 
S.   K.  543. 

3.  Section  568. 

4.  United  States. — Hines  v.  Hoover, 
271  Fed.  645. 

Arizona. — I>avis  v.  Boggs.  199  Pac. 
116. 

Arkansas. — St.  Louis-San  Francisco 
Ry.  Co,  V.  Stewart,  137  Ark.  6,  207  S. 
W.  440;  Hines  v.  Gunnells.  222  S.  W. 
10. 

Idaho. — Graves  v.  Nofthern  Pac.  Ry. 
Co.,  30  Idaho,  542,  166  Pac.  571. 

Indiana. — Pittsburgh,  etc.,  R.  Co.  v. 
Dove,    184    Ind.    447,    111    N.    E.   609; 


712 


The  Law  of  Automobiles. 


macliine  is  guilty  of  negligence  under  the  circumstances  is 
for  tile  jury.^    Of  course,  the  traveler  must  look  for  approach- 


Central  Indiana  Ry.  Co.  v.  Wishard, 
186  Ind.  262,  114  N.  E.  970;  Cleveland, 
etc.,  R.  Co.  V.  Baker  (Ind.),  128  N.  E. 
836. 

Kansas. — Jacobs  v.  Atchison,  etc., 
Ry.  Co.,  97  Kans.  247,  154  Pac.  1023; 
Bunton  v.  Atchison,  etc.,  Ry.  Co.,  lOOl 
Kans.  165,  163  Pac.  801. 

Kentucky. — Louisville  &  I.  R.  Co.  v. 
Morgan,  174  Ky.  633,  192  S.  W.  672; 
Louisville  &  N.  R.  Co.  v.  Treanor's 
Adm'r,  179  Ky.  337,  200  S.  W.  634; 
Louisville,  etc.,  R.  Co.  v.  Clore,  183 
Ky.  261,  209  S.  W.  55;  Louisville  & 
N.  R.  Co.  V.  Scott,  184  Ky.  319,  211  S. 
W.  747. 

Michigan. — Rouse  v.  Blair,  185 
Mich.  632,  152  N.  W.  204.  See  also 
Nichols  V.  Grand  Trunk  Western  Ry. 
Co.,  203  Mich.  372,  168  N.  W.  1046; 
Deland  v.  Michigan  Ry.  Co.  (Mich.), 
180  N.  W.  389. 

Minnesota. — Laurisch  v.  Minneap- 
olis, St.  P.,  R.  &  D.  Electric  Traction 
Co.,  132  Minn.  114,  155  N.  W.  1074. 

Missouri. — Monroe  v.  Chicago,  etc., 
R.  Co.,  219  S.  W.  68;  Slipp  v.  St. 
Louis,  etc.,  Ry.  Co.  (Mo.  App.),  211 
S.  W.  730. 

Montana. — Walters  v.  Chicago,  etc., 
R.  Co.,  47  Mont.  501,  133  Pac.  357,  46 
L.  R.  A.   (N.  S.)  702. 

New  Jersey. — Dickinson  v.  Erie  R. 
Co.,  81  N.  J.  L.  464.  81  Atl.  104;  Wil- 
son v.  Central  Railroad  of  N.  J.,  88 
N.  J.  L.  342,  96  Atl.  79. 

New  York. — Brooks  v.  Erie  R.  Co., 
177  App.  Div.  290,  164  N.  Y.  Suppl. 
104;  Brink  v.  Erie  R.  Co..  190  App. 
Div.  527,  180  N.  Y.  Suppl.  931. 

North  Carolina. — Shepard  v.  Nor- 
folk, etc.,  R.  Co.,  166  N.  Car.  539,  82 
S.  E.  872;  Hunt  v.  North  Carolina  R. 
Co.,  170  N.  Car.  442,  87  S.  E.  210; 
Brown  v.  R.  R.,  171  N.  C.  269.  88  S. 
E.  329;  Perry  v.  McAdoo,  104  S.  E. 
673. 

North     Dakota. — ^Pendroy    v.     Great 


Northern  Ry.  Co.,  17  N.  D.  433,  117 
X.  W.  531. 

Orcfjon. — Cathcart  v.  Oregon-Wash- 
ington Rd.  &  Navigation  Co.,  86  Greg. 
250,  168  Pac.  308;  Robison  v.  Oregon- 
Washington  R.  &  Nav.  Co.,  90  Greg. 
490,  176  Pac.  594.  "  While  failure  to 
stop  may  be  considered  on  the  subject 
of  contributory  negligence  with  other 
evidence,  it  is  not  necessarily  controll- 
ing in  the  matter.  If,  by  the  use  of 
his  faculties  of  hearing  and  seeing,  one 
approaching  a  crossing  can  safely  de- 
termine whether  there  is  danger  or  not, 
stopping  would  not  essentially  add  to 
or  detract  from  his  diligence.  Stop- 
ping is  necessary  only  when  continued 
advancing  would  materially  affect  his 
senses  of  seeing  or  hearing."  Cathcart 
V.  Oregon- Washington  Rd.  &  Navi- 
gation Co.,  86  Greg.  250,  168  Pac.  308. 

Tennessee. — Hurt  v.  Yazoo,  etc.,  R. 
Co.,  140  Tenn.  623.  205  S.  W.  437; 
Hines  v.  Partridge,  231  S.  W.  16. 

Texas. —  Texas  &  Pac.  R.  Co.  v.  Hil- 
gartner  (Civ.  App.),  149  S.  W.  1091; 
Chicago,  etc.,  Ry.  Co.  v.  Zumwalt. 
(Civ.  App.),  226  S.  W.   1080. 

Virginia. — Seaboard  Air  Line  Ry.  v. 
.\bernathy,   121   Va.   173.  92  S.  E.  913. 

Washington. — McKinney  v.  Port 
Townsend  &  P.  S.  Ry.  Co.,  91  Wash. 
387,  158  Pac.  107;  Hines  v.  Chicago, 
etc.,  Ry.  Co.,  177  Pac.  795;  Kent  v. 
Walla  Walla  Valley  Ry.  Co.,  108 
Wash.  251,  183  Pac.  87. 

5.  St.  Louis-San  Francisco  Ry.  Co. 
V.  Stewart,  137  Ark.  6,  207  S.  W.  440; 
Hawkins  v.  Interurban  Ry.  Co.,  184 
Iowa  232,  168  N.  W.  234;  Louisville  & 
N.  R.  Co.  V.  Treanor's  Adm'r,  179  Ky. 
337,  200  S.  W.  634;  Monroe  v.  Chicago, 
etc..  R.  Co.  (Mo.),  219  S.  W.  68, 
(citing  Huddy  on  Automobiles).  Wal- 
ters V.  Chicago,  etc.,  R.  Co.,  47  Mont. 
501,  133  Pac.  357,  46  L.  R.  A.  (N.  S.) 
702;  Dickinson  v.  Erie  R.  Co.,  81  N. 
J.  L.  464,  81  Atl.  104;   Brooks  v.  Erie 


Railroad  Crossings. 


713 


ing  trains,*^  and  he  must  take  all  other  reasonable  precau- 
tions for  his  safety.'  And,  though  it  is  not  negligence  per  se 
to  fail  to  stop  before  crossing  the  track,  the  jury  may  in  a 
particular  case  properly  find  that  he  was  guilty  of  negligence 
in  driving  on  the  track  without  stopping.^  Moreover,  the 
facts  may  be  such  in  particular  cases  that  the  court  can  say 
that  the  driver  was  guilty  of  negligence  as  a  matter  of  law 
in  failing  to  stop  under  the  circumstances.^  Thus,  where  ob- 
structions continue  close  to  the  track  so  that  a  view  cannot 
be  had  of  approaching  trains  until  the  diiver  of  the  machine 


R.  Co.,  177  N.  Y.  App.  Div.  290  164 
N.  Y.  Suppl.  104;  Shepard  v.  Norfolk, 
etc.,  R.  Co.,  166  N.  Car.  539,  82  S.  E. 
872;  Kent  v.  Walla  Walla  Valley  Ry. 
Co.,  108  Wash.  251,  183  Pac.  87. 

6.  Section  557. 

7.  Louisville  k  N.  R.  Co.  v.  Trean- 
or's  Adm'r,  179  Ky.  337,  200  S.  W. 
634;  St.  Louis  Southwestern  Ry.  Co 
V.  Harrell  (Tex.  Civ.  App.).  194  S.  W. 
971.  "Now  Avhen  a  travelei-  has  exer- 
cised such  care  as  a  person  of  ordinary 
prudence  would  exercise,  considering 
all  the  surrounding  conditions,  to 
learn  of  the  approach  of  trains  and 
keep  out  of  their  way,  this  measure  of 
care  is,  we  think,  sufficient  to  meet  all 
reasonable  requirements.  It  is  true  this 
rule  does  not  prescribe  any  specific 
thing  the  traveler  must  do,  but  it  puts 
on  him  the  duty  of  doing  everything 
that  a  person  of  ordinary  prudence 
would  think  it  necessary  to  do  for  his 
own  safety.  This  is  the  usual  and  gen- 
erally approved  standard  of  care  that 
the  common  sense  law  demands  that 
men  shall  observe  when  they  are  un- 
der a  duty  to  exercise  care  in  the  regu- 
lation of  their  own  conduct,  and  is  as 
great  as  the  average  person  should  be 
expected  to  observe.  Louisville  &  N. 
R.  Co.  V.  Treanor's  Adm'r,  179  Ky. 
337,  200  S.  W.  634. 

8.  Central  Indiana  Ry.  Co.  v.  Wis- 
hard.  186  Ind.  262,  114  N.  E.  970; 
Union  Traction  Co.  v.  Elmore,  66  Ind. 
App.  95,  116  N.  E.  837;  Kimbrough  v. 
Hines   (N.  Car.),  104  S.  E.  684. 


Inability  to  stop. — ^Evidence  that  the 
>irivor  applied  the  brakes,  but  they 
failed  to  stop  the  car,  may  carry  the 
(^ase  to  the  jury.  Norfolk  &  W.  Ry. 
Co.  v.  Simmons  (Va.),  103  S.  E.  609; 
Puhr  V.  Chicago,  etc.,  R.  Co.  (Wis.), 
176  N.  W.  767. 

9.  Waking  v.  Cincinnati,  etc.,  R.  Co. 
(Ind.  App.),  125  N.  E.  799;  Keith  v. 
Great  Northern  Ry.  Co.  (Mont.),  199 
Pac.  718;  Cline  v.  McAdoo  (W.  Va.), 
102  S.   E.  218. 

"The  duty  to  keep  a  sharp  look- 
out for  trains  at  a  public  crossing  has 
often  been  expounded  by  this  court.  A 
railroad  crossing  is  itself  a  danger 
signal.  One  who  proposes  to  cross  a 
railroad  must  look  and  listen.  It  is 
not  required,  in  this  State,  that  a  per- 
son must  necessarily  stop,  in  order  to 
look  and  listen,  unless  the  surround- 
ings and  circumstances  demand  that 
unusual  prudence.  If  the  circumstances 
do  demand  such  prudence,  then  there 
is  a  duty  to  stop,  look  and  listen." 
Bunton  v.  Atchison,  etc.,  Ry.  Co.,  100 
Kans.   165,   163  Prac.  801. 

Place  of  stopping. — Though  the 
driver  is  required  by  the  surrounding 
circumstances  to  stop,  in  selecting  the 
stopping  place,  he  is  not  required  to 
exercise  more  than  the  ordinary  care 
that  a  reasonably  prudent  man  would 
exercise  for  his  own  protection  under 
the  circumstances.  Pittsburgh,  etc.,  R. 
Co.  V.  Dove.  184  Ind.  447.  Ill  N.  E. 
609. 


714 


The  Law  of  Automobiles. 


is  in  a  position  of  clanger,  it  may  be  his  absolute  duty  to  stop 
his  ear  and  listen  for  approaching  trains.^^^  Or,  if  he  sees 
an  approaching  train  as  he  nears  the  track,  it  may  be  negli- 
gence as  a  matter  of  law  for  him  to  attempt  to  pass  ahead 
of  the  train.i^  And,  if  the  nmning  of  the  automobile  inter- 
feres with  his  hearing  or  looking,  it  is  his  duty  to  stop  and 
look  and  listen  so  as  to  make  looking  and  listening  effective.^" 

Sec.  568.  Duty  to  stop  before  crossing  track  —  minority  rule. 

In  a  few  juiisdictions,  a  positive  duty  is  imposed  on  the 
driver  of  a  motor  vehicle  to  stop  before  passing  over  a  grade 
crossing  of  a  raikoad,  and  a  failure  to  observe  this  precau- 
tion renders  the  driver  gniilty  of  negligence  as  a  matter  of 
law.^^    Indeed,  mider  some  circumstances  of  obstructed  view, 


10.  Wehe  v.  Atchison,  etc.,  Ry.  Co., 
97  Kans.  794,  156  Pac.  742,  L.  R.  A. 
1916  E.  455;  Acker  v.  Union  Pac.  R. 
Co.,  106  Kans.  401,  188  Pac.  419;  Rule 
V.  Atc-hison  Ry.  Co.,  107  Kans.  479, 
192  Pac.  729;  Sanford  v.  Grand  Trunk- 
Western  Ry.  Co..  190  Mich.  390,  157 
N.  W.  38;  Woodard  v.  Bush  (Mo.), 
220  S.  W.  839  (discussing  the  rule  in 
Kansas) ;  Gersman  v.  Atchison,  etc., 
R.  Co.  (Mo.),  229  S.  W.  167  (discuss- 
ing the  rule  in  Kansas)  ;  Bonert  v. 
Long  Island  R.  Co.,  145  N.  Y.  App. 
Div.  552,  130  N.  Y.  Suppl.  271.  And 
see  section  559. 

11.  Corley  v.  Atchison,  etc.,  Ry.  Co., 
90  Kans.  70,  133  Pac.  555;  McKinney 
V.  Port  Townsend  &  P.  S.  Ry.  Co.,  91 
Wash.  387,  158  Pac.  107.  And  see  sec- 
tion 569. 

12.  Washington  &  O.  D.  Ry.  v.  Zell's 
Adm'x,  118  Va.  7.55.  88  S.  E.  309. 

13.  United  States. — New  York  Cent. 
&  H.  R.  R.  Co.  V.  Maidment.  168  Fed. 
21,  93  C.  C.  A.  415,  21  L.  R.  A.  (N. 
S.)  924;  Brommcr  v.  Pennsylvania  R. 
Co.,  179  Fed.  577.  103  C.  C.  A.  135.  29 
L.  R.  A.  (N.  S.)  924.  Compare,  Lake 
Erie  &  W.  R.  Co.  v.  Schneider.  257 
Fed.  675;  Hines  v.  Hoover,  271  Fed. 
645. 

Alabama. — Bailev    v.    Soxithern    Rv. 


Co..  196  Ala.  133,  72  So.  67;  Fayet  v. 
St.  Louis  P.  S.  F.  R.  Co.,  203  Ala.  3, 
81  So.  671 ;  Central  of  Georgia  Ry.  Co. 
V.  Faust  (Ala.  App.),  82  So.  36;  Hines 
v.  Cooper,  86  S'o.  396;  Hurt  v.  South- 
em  Ry.  Co.,  87  So.  533;  Hines  v. 
Cooper,  88  So.   133. 

California. — GriflBn  v.  San  Pedro, 
etc.,  R.  Co.,  170  Cal.  772,  151  Pac.  282, 
L.  R.  A.  1916  A.  842;  Thompson  v. 
Southern  Pac.  R.  Co.,  31  Cal.  App.  567, 
161  Pac.  21;  Walker  v.  Southern  Pac. 
Co.,  38  Cal.  App.  377,  176  Pac.  175. 
"  It  is  true,  as  declared  in  the  opin- 
ions, that  the  rule  requiring  the 
traveler  to  stop  is  not  an  absolute  one. 
If  the  view  is  entirely  unobstructed, 
the  traveler,  while  going  toward  a 
crossing,  may  see  whether  a  train  is 
approaching  in  dangerous  proximity. 
Of  course,  in  a  case  like  that  it  would 
be  idle  to  require  the  traveler  to  stop 
to  find  out  something  that  he  can  as- 
certain just  as  well  without  stopping. 
He  must,  however,  avail  himself  of  the 
vision,  and  if  he  is  exercising  ordinary 
care,  he  need  not  stop  except  to  allow 
an  approaching  train  to  pass  so  as  to 
avoid  a  collision.  But  where  the  view 
is  obstructed,  he  must  place  himself  in 
a  position  where  he  can  use  his  facul- 
ties  of   observation   to  advantage.     In 


Railroad  Crossings. 


715 


the  driver  sliould  alight  or  stop  the  motor  of  his  vehicle  iu 
order  that  listening  may  be  effective."  The  existence  of  ob- 
structions to  the  driver's  view  emphasizes  his  duty  to  observe 
the  rule.^''     His  duty  is  to  ''  stop,  look  and  listen  "  for  the 


Huch  case  he  stops — not  primarily  to 
avoid  a  collision — but  to  ascertain 
whether  a  collision  is  threatened. 
Whereas,  if  the  view  is  unobstructed, 
if  he  stops,  it  is  to  allow  the  approach- 
ing train  to  pass."  Thompson  v. 
Southern  Puc.  R.  Co.,  31  Cal.  App.  567, 
161    Pac.  21. 

Louisiana. — Callery  v.  Morgan's 
Louisiana,  etc.,  S.  S.  Co..  139  La.  763, 
72  So.  222;  Perrin  v.  New  Orleans  Jer- 
minal  Co..   140  La.  818,  74  So.  160. 

Massachusetts. — Chase  v.  New  Cent. 
R.  Co.,  208  Mass.  137,  94  N.  E.  377. 
See  also  Fogg  v.  New  York,  etc.,  R. 
Co.,  223  Mass.  444,  111  N.  E.  960 

Pennsylvania. — Craig  v.  Pennsyl- 
vania R.  Co.,  243  Pa.  St.  455,  90  Atl. 
135;  Senft  v.  Western  Md.  Ry.  Co..  246 
Pa.  St.  446,  02  Atl.  553;  Barle  v. 
Philadelphia  &  R.  R.  Co..  248  Pa.  St. 
193,  93  Atl.  1001;  Peoples  v,  Pennsyl- 
vania R.  Co.,  251  Pa.  St.  275,  96  Atl. 
652;  Hamilton  v.  Philadelphia.  B.  & 
W.  R.  Co.,  252  Pa.  St.  615,  97  Atl. 
850;  KJnepp  v.  Baltimore,  etc.,  R.  Co.. 
262  Pa.  421,  105  Atl.  636;  Martin  v. 
Pennsylvania  R.  Co.,  265  Pa.  St.  282, 
108  Atl.  631:  'Hiompson  v.  Philadel- 
phia &  R.  Ry.  Co.,  263  Pa.  St.  569, 
107  Atl.  330;  Gordon  v.  Director-Cen- 
eral,  112  Atl.  68;  Serfs  v.  Lehigh,  etc., 
R.  Co..  113  Atl.  370;  Sefton  v.  Balti- 
more &  Ohio  R.  Co..  64  Pa.  Super.  Ct. 
218. 

Darkness. — "  The  duty  to  stop  is 
■nbeiiding,  and  darkness  is  no  excuse 
for  failure  to  perform  it."  Eline  v. 
Western  Maryland  R.  Co..  262  Pa.  33. 
104  Atl.  85T.  See  also,  Serfas  v.  I^- 
bigh,  etc..  R.  Co.    (Pa.),  113  Atl.  370. 

Unknown  crossing. — The  obligation 
of  a  driver  when  passing  over  a  cross- 
ing which  is  unknown  to  him.  is  not 
so  strict,  and  a  question  may  be  left 


with  the  jury  as  to  his  care  in  discov- 
ering the  danger  of  the  passage.  Mc- 
(liiri-  V.  Suuthern  Pac.  Co.  (Cal.  App.), 
183  Pac.  248;  Wanner  v.  Philadelphia, 
vU:.  Ry.  Co.  (Pa.),  104  Atl.  570.  See 
also  Whitney  v.  Northwestern  Pac.  R. 
Co..  :19  Cal.  App.  139.   178   Pac.  326. 

Railroad  siding, — The  duty  of  stop- 
ping is  applied  to  one  crossing  a  sid- 
ing as  well  as  to  one  crossing  a  main 
linf.  Peoples  v.  Penubylvania  R.  Co., 
251  P:..  St.  275,  96  Atl.  652,  wherein  it 
was  said :  "  We  know  of  no  case  in 
which  a  distinction  has  been  made  be- 
tween the  degree  of  care  required  of  a 
person  driving  along  a  highway  at  a 
pul)lif  crossing  over  the  main  tracks 
of  a  railroad  and  that  which  is  re- 
quired at  a  public  crossing  over  a  rail- 
road siding.  No  good  reason  for  any 
8uch  distinction  is  apparent,  especially 
where,  as  here,  the  siding  was  in  fre- 
quent and  at  least  daily  use  by  the 
railroad  company.  It  appears  from 
the  testimony  that  plaintiff  lived  near 
the  crossing,  was  familiar  with  the 
locality,  had  used  the  crossing  at  in- 
t<^rvals  during  a  period  of  four  years, 
and  knew  that  the  siding  was  used  by 
the  railroad  company  at  least  once 
each  day.  It  is  hardly  necessary  to 
say  that  there  has  been,  in  this  State, 
no  relaxation  of  the  rule  making  it  the 
iluty  of  a  traveler  on  a  public  high- 
way, as  he  approaches  a  railroad  cross- 
ing, to  stop,  look  and  listen.'"  See 
also,  Serfas  v.  Lehigh,  etc..  \l.  Co. 
(Pa.).   113  Atl.  370. 

14,  Murray  v.  Southern  Pac.  R.  Co.. 
177  Cal.  1.  169  Pac.  675:  Rayhill  v. 
Southern  Pac.  Co..  35  Cal.  App.  231, 
169  Pac.  718;  Knepp  v.  Baltimore,  etc.. 
R.  Co.,  262  Pa.  421.  105  Atl.  636. 

15,  Hincp  v.  Cooper  (Ala.).  S6  So. 
396. 


716  Thk  Law  of  Automobiles. 

approach  of  trains,  and  lie  should  stop  at  a  place  where  his 
conduct  will  be  effective  in  discovering  whether  a  train  is 
approaching.^^  His  stopping  place  should  be  sufficiently 
close  to  the  railroad  to  enable  him  to  look  up  and  down  the 
track  and  to  see  or  hear  any  approaching  train,^'^  and  should 
not  be  so  close  that  a  slight  unexpected  movement  of  the  ma- 
chine will  cause  it  to  enter  a  place  of  danger.^^  But  the  fact 
that  there  was  a  better  stopping  place  whioli  the  traveler  dis- 
regarded is  not  conclusive  on  the  question  of  his  negligence.^^ 
Unless  it  affirmatively  appears  that  the  stopping  place  he 
used  was  an  improper  one,  the  question  is  for  the  jury.  If 
there  is  any  doubt  as  tO'  the  stopping  place  being  a  proper 
one,  the  court  cannot  decide  the  question  as  a  matter  of  law, 
although  it  may  be  that  there  is  a  place  nearer  the  track  where 
a  better  view  could  be  liad.-^  If  the  driver  stops  at  the  place 
where  people  usually  do  so,  it  may  be  sufficient  to  exonerate 
him  from  a  charge  of  negligence.^^  And,  if  the  traveler 
has  stopped  to  look  and  listen  for  trains,  but  is  nevertheless 
struck  when  he  continues  his  journey,  he  is  not  necessarily 
guilty  of  contributory  negligence.     If  he  failed  to   see  the 

16.  New  York  Cent.  &  H.  R.  R.  Co.  view  for  four  hundred  and  eighty  feet. 

V.  Maidment,  168  Fed.  21,  93  C.  C.  A.  Sefton  v.  Baltimore  &  Ohio  R.  Co.,  64 

415,  21   L.   R.  A.    (N.   S.)    924;    Brom-  •  Pa.  Super.  Ct.  218. 

mer  v.   Pennsylvania  R.  Co.,   179   Fed.  17.  Perrin  v.  New  Orleans  Terminal 

577,  103  C.  C.  A.  135,  29  L.  R.  A.   (N.  f  o..  140  La.  818,  74  So.  160. 

S.)    924;   Delaware,  L.  &  W.  R.  Co.  v.  18.  Gordon        v.        Director-General 

Welshman,  229   Fed.   82.   143  C.   C.   A.  (Pa.),    112   Atl.   68. 

358;  Fayet  v.  St.  Louis  P.  S.  F.  R.  Co.,  19.  Allogi  v.  Southern  Pac.   Co.,   37 

203    Ala.    3,     81     So.     671;     Hines    v.  Cal.   App.  72,   173  Pac.   1117;   Bush  v. 

Cooper    (Ala.),   88   So.    133;    Knepp   v.  Philadelphia,  etc.,  Ry.  Co.,  232  Pa.  St. 

Baltimore,  etc..  R.  Co.   (Pa.),  105  Atl.  327,    81    Atl.    409;    Hamilton   v.    Phil- 

636;    Thompson   v.   Philadelphia   &   R.  adelphia,  B.  &  W.  R.  Co.,  252  Pa.  615, 

Ry.  Co..  263  Pa.  St.  569.  107  Atl.  330.  97  Atl.  850. 

On  tr&ck. — Stopping  on  the  track  is  20.  Walker  v.  Southern  Pac.  Co.,  38 

not  a  compliance  with  the  rule.     Ser-  Cal.  App.   377,   176   Pac.    175;   Bush  v. 

fas  V.  Lehigh,   etc.,   R.  Co.    (Pa.),   113  Philadelphia,  etc.,  Ry.  Co..  232  Pa.  St, 

Atl.  370.  327,    81    Atl.    409;    Hamilton   v.    Phil- 

Forty-five     feet     from     track.— The  adelphia,  B.  &  W.  R.  Co.,  252  Pa.  St. 

driver    of    a    motor    vehicle    was    held  615,  97  Atl.  850;   Wingert  v.  Philadel- 

guilty       of      contributory      negligence  phia,  etc.,  Ry.  Co.,  262  Pa.  21,  104  Atl. 

where  he   stopped   forty-five  feet  from  8.59;  Jester  v.  Philadelphia,  etc.,  R.  Co. 

the  track  and  looked,  hut  did  not  stop  (Pa.),    109  Atl.   774. 

again,    although    just   before   going   on  21.  Knepp  v.  Baltimore,  etc.,  R.  Co., 

the     track     he    had     an     unobstructed  262  Pa.  421,   105  Atl.  636. 


Railroad  Crossings. 


717 


train  by  which  he  was  stiiick,  whether  he  exercised  due  cau 
tion  in  proceeding  may  be  a  question  for  the  jury.-- 

Sec.  569.  Crossing  in  front  of  observed  train. 

When  one  about  to  pass  over  a  railroad  crossing  sees  a 
train  approaching,  as  a  general  proposition,  it  is  his  duty  to 
stop  his  machine  and  permit  the  train  to  pass.-"  The  law 
does  not  permit  him  to  indulge  in  a  race  with  the  train  and 
then  recover  if  he  misjudged  the  speed  of  the  train.  The 
traveler  cannot  assume  that  the  train  will  not  move  over  the 
crossing  at  a  rate  faster  than  that  allowed  by  statute  or 


22.  Firth  v.  Southern  Pac.  Co.  (Cal. 
App.),  186  Pac.  815;  Witmer  v.  Besse- 
mer, etc.,  R.  Co.,  241  Pa.  St.  112,  88 
Atl.  314;  Clinger  v.  Payne  (Pa.),  113 
Atl.  830;  Rice  v.  Erie  R.  Co.  (Pa.), 
114  Atl.  640. 

Whether  a  driver  stopped  a  suffi- 
cient length  of  time  and  whether  he 
exercised  due  caution  before  going  on 
a  railroad  track  are  questions  for  the 
jury.  Rush  v.  Philadelphia  &  R.  Ry. 
Co.,  232  Pa.  St.  327,  81  Atl.  409. 

23.  Alabama. — Hurt  v.  Southern  Ry. 
Co..  87  So.  533. 

California. — Jones  v.  Southern  Pao.. 
Co.,  34  Cal.  App.  629,  168  Pac.  586. 

Connecticut. — Lessen  v.  New  York, 
etc.,  R.  Co.,  87  Conn.  705,  87  Atl.  734. 

Iowa. — ^Sohl  V.  Chicago,  etc..  Ry. 
Co.,  183  Iowa  472,  167  N.  W.  529; 
Corbctt  V.  Hines.  180  N.  W.  690. 

Kansas. — Corley  v.  Atchison,  etc., 
Ry.  Co.,  90  Kans.  70,  133  Pac.  555; 
Pritchard  v.  Atchison,  T.  &  S.  F.  Ry. 
Co.,  99  Kans.  600,  162  Pac.  315;  Kirk- 
land  V.  Atchison,  etc..  Ry.  Co.,  179  Pac. 
.362. 

Maine. — Thompson  v.  Lewiston,  etc., 
St.  Ry.,  115  Me.  560,  99  Atl.  370. 

Massachusetts. — Fogg  v.  New  York, 
etc.,  R.  Co..  223  Mass.  444.  Ill  N.  E. 
960. 

Minnesota. — Wesler  v.  Chicago,  etc., 
R.  Co.,  143  Minn.  159,  173  N.  W.  563; 
Anderson  v.  Great  Northern  Ry.  Co., 
179  N.  W.  687. 

Missouri. — Coby   v.    Quincy,   etc.,   R. 


Co.,  174  Mo.  App.  648,  161  S.  W.  290. 

T^ebraska. — Rickert  v.  Union  Pac.  R. 
Co.,  100  Neb.  304,  160  N.  VV.  86.  "A 
traveler  on  the  l\ighway  who,  being 
aware  of  an  approaching  train  at  a 
railroad  crossing,  attempts  to  beat  the 
train  over  the  crossing,  must  suffer  the 
consequences  of  his  own  experiment." 
Rickert  v.  Union  Pac.  R.  Co.,  100  Neb. 
304,  160  N.  W.  86. 

New  Hatp.pshire. — ^Collins  v.  Hustis, 
111   Atl.  286. 

New  York. — Turch  v.  New  York, 
etc..  R.  Co.,  108  N.  Y.  App.  Div.  142, 
95  N.  Y.  Suppl.  1100. 

Rhode  Island. — Fillmore  v.  Rhode 
Island  Co.,   105  Atl.  564. 

Sotith  Carolina. — Gibson  v.  Atlantic 
Coast  Line  R.  Co.,  170  S.  Car.  331,  96 
S.  E.  519. 

Texas. — Baker  v.  Collins  (Civ. 
App.),  199  S.  W.  519.  Compare,  St. 
Louis,  etc.,  Ry.  Co.  v.  Morgan  (Civ. 
App.),   220   S.   W.   281. 

Washington. — McKinney  v.  Port 
Townsend  &  P.  S.  Ry.  Co..  91"  Wash. 
387.   158  Pac.  107. 

Wisconsin. — Puhr  v.  Chicago,  etc.. 
R.  Co.,  176  N.  W.  767. 

Presumption. — In  an  action  for  the 
death  of  a  driver  of  an  automobile  at 
a  railroad  crossing,  there  is  no  pre- 
sumption that  the  decedent  was  guilty 
of  negligence  in  attempting  to  make 
the  crossing  ahead  of  the  train.  Gal- 
veston, etc.,  R.  Co.  v.  Sloman  (Tex. 
Civ,  App.),   195  S.  W.  321. 


718 


The  Law  of  Automobiles. 


municipal  ordinance,  and  calculate  that  he  can  pass  if  the 
train  does  not  exceed  such  limit,  and  then  blindly  go  ahead 
without  determining  the  true  rate  of  speed.-*  There  may  be 
cases  where  the  approaching  train  is  so  far  distant  that  one 
in  the  exercise  of  reasonable  care  may  be  justified  in  attempt- 
ing to  cross  without  waiting.  But,  he  may  be  charged  with 
contributory  negligence  as  a  matter  of  law  in  attempting  to 
cross,  though  he  would  have  made  the  passage  in  safety  had 
he  not  struck  a  depression  between  the  rails  wliich  caused  the 
engine  to  stop.^^"'  Contributoiy  negligence  will  not  be  charged 
as  a  matter  of  law  against  an  automobilist  who  does  not  stop 
as  a  protection  from  a  train  standing  still  with  the  rear  car 
near  the  highway,  though  it  happens  that  a  collision  ensues 
from  the  sudden  starting  of  the  train.^^ 


24.  Coby  V.  Quincy,  etc.,  R.  Co..  174 
Mo.  App.  648,  161  s".  W.  290.     "While 
a   railway    company   may   not  operate 
its    train.?    over   highway    crossings    at 
such  a  speed  as,  in  view  of  local  con- 
ditions,    will    endanger    the    lives     of 
those  prudently  making  use  of  these,  a 
traveler  is  not  permitted  to  make  nice 
calculations   as  to  whether  he  will  be 
able  to  pass  over  in  front  of  a  rapidly 
approaching  train   in  safety.     The  lat- 
ter  is  under  the   same   duty   of   exer- 
cising  ordinary    care   to    avoid   a   col-  . 
lision  as  is  the  company.     The  degree 
of  care  to  be  observed  by  each  is  to  be 
measured    by    the    threatened    danger, 
and  the  traveler  is  no  more  excusable 
for  risking  himself  before  an  oncoming 
train  than  the  company  is  in  running 
him  down  when   it  knows  long  enough 
beforehand   to  enable   it  to  avoid  the 
collision  that  he  cannot  or  will  not  get 
out  of  its  way."     Sohl  v.  Chicago,  etc., 
Ry.  Co.,  183  Iowa  616,  167  N.  W.  529. 

25.  Bunton  v.  Atchison,  etc.,  Ry. 
Co.,  100  Kans.  16.5,  163  Pac.  801. 

26.  DeHardt  v.  Atchison  R.  &  S.  F. 
Ry.  Co.,  100  Kans.  24,  163  Pac.  650, 
wherein  it  was  said:  ".  .  .  Where 
one  end  of  a  string  of  ears  is  stand- 
ing still  near  a  crossing,  an  engine 
being  at  the  other  end,  ordinary  pni- 


dence   does   not   require   a  traveler   to 
stop  and  look  up  the  track  before  at- 
tempting   to    cross,    because    whatever 
risk  he  runs  is   that  the   engine  may 
suddenly    start    up,    and    stopping   his 
own  vehicle  and  going  upon  the  track 
to  look  would  not  give  him  any  addi- 
tional information  as  to  the  likelihood 
of  that  taking  place."    .      .    .    "  Where 
a  single  freight  car,  or  a  small  group 
of  cars,  is  standing  near  the  crossing, 
it   would   be  possible  to   ascertain,  by 
looking  from  a  point  in  the  road  close 
to  the  track,  whether  a  train  is  about 
to  run  into  it  and  drive  it  across  the 
highway.     But  we  do  not  think  it  can 
be  said  as  a  matter  of  law  that  the 
driver    of    an    approaching    vehicle    is 
guilty  of  negligence  if  he  neglects  to 
take  this  precaution.     He  is  bound  to 
act  upon  the  assumption  that  a  train 
may    at  any    moment  be '  approaching 
upon    an    otherwise  unoccupied  track, 
until   he  has  employed   all   reasonable 
means    to   assure   himself  to  the   con- 
trary.    He  may  not  rely  on  the  fact 
that  no  signal  has  been  given,  for  that 
affirmative  precaution   on   the  part   of 
the    trainmen     may    be    thoughtlessly 
omitted.    But  if  he  sees  that  the  track 
is    obstructed    by    a    detached    car    or 
string  of   oars,   the  probability   of  in- 


Kailroad  Crossings. 


719 


Sec.  570.  Choice  of  crossings. 

In  an  action  for  the  recovery  of  damages  caused  by  a  col- 
lision with  a  railroad  train,  the  fact  that  the  crossing  used  by 
the  driver  was  dangerous  to  his  knowledge  and  that  there 
was  another  crossing  which  was  safer  and  which  could  have 
been  used  without  inconvenience,  is  a  matter  which  may  be 
considered  by  the  jury  on  the  question  of  his  contributory 
negligence.^^ 


Sec.  571.  Sounding  of  horn  by  automobilist. 

It  is  held  that  the  failure  of  an  automobilist  to  sound  his 
horn  when  approaching  the  crossing  of  an  interurban  rail- 
road does  not  necessarily  convict  him  of  contributory  negli- 
gence, but  that  such  failure  is  to  be  considered  by  the  jury 
with  the  other  surrounding  circumstances  in  determining 
whether  he  exercised  proper  precautions.-*^ 


jury  resulting  to  him  from  a  train 
coming  from  that  direction  is  so  far 
diminished  that  we  think  the  question 
■whether  ordinary  prudence  forbids  his 
attempting  to  cross  without  further  in- 
vestigation is  a  fair  one  for  a  jury." 

27.  Ft.  Smith  and  W.  R.  Co.  v. 
Seran,  44  Okla.  169.  143  Pac.  1141. 

28.  Louisville  &  I.  R.  Co.  v.  Mor- 
gan, 174  Ky.  633,  192  S.  W.  672. 
wherein  it  was  said :  "  As  a  matter  of 
fact,  the  horn  was  not  sounded  as  the 
automobile  approached  the  crossing, 
and  the  question  is  presented  whether 
the  failure  of  an  automobile  to  sound 
its  horn  while  approaching  a  railroad 
crossing  is  such  negligence  per  sc  as  to 
bar  a  recovery  for  damages  to  the 
automobile,  when  it  is  demolished 
upon  the  crossing  by  the  negligence  of 
the  railroad  company.  The  rule  in 
this  State  is  that  contributory  negli- 
gence, such  as  without  which  the  in- 
jury would  not  have  been  received- 
bars  a  recoverj-.  and  in  the  instruc- 
tions to  the  jury  in  such  cases  thf 
courts  have  not  o^-tablished  any  other 
rule  for  an  automobilist,  who  is  suing 
a  railroad  for  damages  to  his  automo- 


bile, than  is  applied  to  the  owner  of 
a  wagon,  threshing  machine,  or  other 
vehicle,  whose  owner  undertakes  to 
cross  a  railroad  track  with  it,  and  is 
struck  by  a  train  being  operated  upon 
the  track.  If  one  with  a  traction  en- 
gine proposes  to  cross  a  railroad  track, 
the  jury  is  not  told  that  it  becomes 
the  duty  of  the  owner  of  the  engine  to 
sound  a  whistle  from  it,  nor  is  the 
owner  of  a  wagon  or  other  vehicle  re- 
quired, before  crossing  a  railroad 
track,  to  shout,  or  to  sound  a  horn,  as 
a  warning  to  the  ones  operating  the 
cars  upon  the  railroad  tracks.  The 
duty  ordinarily  required  of  one  about 
to  cross  a  railroad  track,  if  he  would 
escape  contributing  to  his  own  injury 
by  negligence,  is  to  exercise  ordinary 
care  to  discover  the  approach  of  a  car 
and  to  avoid  being  struck  by  it,  and  to 
so  use  and  move  his  own  vehicle  as  to 
avoid  colliding  with  the  car  upon  the 
railroad  track.  The  care  required  of 
him  is  such  care  as  an  ordinarily  pru- 
dent person  would  exercise  under  simi- 
lar circumstances.  The  same  standard 
of  care  applies  to  every  one  who  under- 
takes     to     cross     a     railroad     track, 


720 


The  Law  of  Automobiles. 


Sec.  572.  Speed  and  control. 

The  driver  of  an  automobile  may  be  guilty  of  contributory 
negligence  in  running  his  machine  over  a  railroad  crossing 
at  an  unreasonable  speed  so  that  he  will  be  barred  from  any 
remedy  for  injuries  sustained  in  a  collision  with  a  railroad 
train.-'"^  Seasonable  care  requires  that  the  driver  of  a  motor 
vehicle  have  the  machine  under  such  control  at  a  railroad 
crossing  that  it  may  be  stopped  if  necessary  to  avoid  a 
train.^o"  His  contributory  negligence  is  especially  clear,  when 


whether  he  is  upon  horseback,  on  foot, 
or  occupying  a  wagon  or  automobile. 
The  danger  of  the  crossing,  the  inabil- 
ity to  observe,  because  of  natural  ob- 
structions, the  qualities  of  the  horse 
driven,  or  the  automobile  in  use,  the 
failure  to  sound  a  horn  or  ta  kok  for 
the  train,  and  many  other  circum- 
stances, are  proper  subjects  for  con- 
sid-^ration  in  determining  whether  the 
traveler  has  or  has  not  .exercised  ordi- 
nary care;  but  these  are  matters  to  be 
considered  and  passed  upon  by  the 
jury  in  determining  whether  the  trav- 
eler has  or  has  not  exercised  ordinary 
care  under  the  circumstances,  to  look 
out  for  the  car  and  keep  out  of  its 
way.  Our  attention  has  not  been 
called  to  any  case  in  any  jurisdiction 
where  it  has  been  held  that  it  was  the 
duty  of  the  court  to  specifically  direct 
the  jury  that,  when  an  automobilibt 
proposes  to  cross  a  railroad  track,  to 
avoid  the  imputation  of  contributory 
negligence,  he  must  sound  the  automo- 
bile's horn." 

29.  Hayes  v.  New  York,  etc.,  R.  Co., 
91  Conn.  301,  99  Atl.  694;  Central  of 
Ga.  Ry.  Co.  v.  Larsen,  19  Ga.  App. 
413,  91  S.  E.  517;  Gage  v.  Atchison, 
etc.,  R.  Co.,  91  Kans.-  253,  137  Pac. 
938;  Farmer  v.  New  York,  etc.,  R.  Co., 
217  Mass.  158,  104  N.  E.  492;  Askey 
V.  Chicago,  etc.,  Ry.  Co.,  101  Neb.  266, 
162  N.  W.  647.     And  see  section  305. 

Question  for  jury. — It  is  a  question 
for  the  jury  whether  one  is  operating 
a  motor  vehicle  at  a  rate  of  speed 
greater  than  is  reasonable  and  proper. 


Central  of  Ga.  R.'Co.  v.  Larsen,  19  Ga. 
App.  413,  91  S.  E.  517. 

30.  Great    Western    Ry.    Co.    v.    Lee 
(Colo.),  198  Pac.  270;  Corbett  v.  Hines 
(Iowa),  180  N.  W.  690;  Gage  v.  Atch- 
ison,  etc.,   R.    Co.,  91    Kans.   253,   137 
Pac.    938;    Walker    v.    Rodriguez,    139 
La.  251,  71    So.   499;    Farmer  v.  New 
York,  etc.,  R.  Co.,  217  Mass.   158,   104 
N.    E.   492;    Sanford   v.    Grand   Trunk 
Western   Ry.   Co.,   190  Mich.    390,    157 
N.   W.   38;   Evans  v.  Illinois   Cent.  R. 
Co.    (Mo.),  233   S.   W.   397;    Askey  v. 
Chicago,   etc.,  Ry.   Co.,    101    Neb.   266, 
162  N.  W.  647.     Set  also  Sandresky  v. 
Erie   R.   Co.,   91   Misc.   67,    153   N.   Y. 
Suppl.   612;    Craig  v.   Pennsylvania  R. 
Co.,  243  Pa.  St.  455,  90  Atl.  135;  Bene- 
dict V.   Hines    (Wash.),   188   Pac.   512. 
"  It   is   the   duty   of   one   operating  an 
automobile  and  approaching  a  crossing 
with   which  he   is  familiar,  and  where 
the  view   is   obstructed  until  near  the 
track,  to  drive  his  car  at  such  speed 
that  he  can  stop  it  after  discovering  a 
train  in  time  to  avoid  a  collision.    The 
high    speed    which    prevents    such   con- 
trol at  a  railroad  crossing  is  negligence 
as  a  matter  of  law.    .     .    .    This  rule 
springs  from  the  rule  which  recognizes 
a  railroad  crossing  as  a  place  of  dan- 
ger   and    requires    one,   knowing   he    is 
approaching  it,  to  look  and.  listen  be- 
fore  attempting   to   cross.     Control   of 
the  vehicle  is  essential.     The  decedent 
either  did  not  look   for   a   train   at  a 
time   when   he   could  have   saved   him- 
self as  he  was  approaching  the  cross- 
ing,   or   he   was   driving   at   a    rate    of 


Railroad  Crossings. 


721 


he  has  exceeded  the  limit  of  speed  fixed  by  statute  or  munici- 
pal ordinance.=^i     ^iid   in   some  cases  reg-ulations  prescribe 
the  speed  at  which  a  motor  traveler  shall  approach  a  railroad 
crossing ''-     Of  course,  there  may  be  a  question  for  the  jury 
whether  the  excessive  speed  was  one  of  the  proximate  causes 
■  of  the  injury .23     But,  when  the  car  is  driven  at  such  a  speed 
that  after  the  driver  has  reached  the  place  to  look  for  trains, 
he  is  unable  to  stop  without  being  propelled  on  the  track,  his 
negligent  speed  is  the  cause  of  the  collisionJ^^     It  is  the  rule, 
however,  in  most  States  that  the  driver  is  not  required,  as  a 
matter  of  law  under  all  circumstances,  to  stop  his  machine,  ^ 
and  hence,  if  his  speed  is  not  clearly  excessive,  there  may  be 
a  question  for  the  jury  whether  speed  of  the  machine  consti- 
tutes  contributory  negligence.^^     A  margin  is   allowed   the 

36.  Payne     v.     Wall  is      (Tex.     Civ. 
App.),  231  S.  W.  1114.     "The  law  ac- 
cords with  common  experience  and  rea- 
son  that  persons    approaching   a   rail- 
road   crossing    when    the   view    is    ob- 
structed depend  on  the  sense  of  hear- 
ing   to    inform    them    of    approaching 
trains     and   this   hearing   includes   the 
hearing  of  such  warning  signals  as  law 
or   custom,   or   both,   require.      And    in 
such   a    case,   when    a   person    is   regu- 
lating his  speed   and  conduct  so  as  to 
maKe   hearing  effectual   and  listens  at- 
tentively  and  hears   no   train,   because 
of  defendant's  fault  in  not  giving  the 
required  signals,  then  he  may  proceed 
at    an    ordinarily    safe    speed    on    the 
theory   that  the   crossing   is  safe;    and 
where  the  evidence  tends  to  show  that 
he  did   this,  the   court   cannot  declare 
him  guilty  of  contributory  negligence." 
Swigart  v.  Lush.  196  Mo.  App.  471,  192 
S.  W.  138. 

A  statute  requiring  a  stop,  and 
making  it  a  misdemeanor  not  to  do  so. 
but  containing  provisions  limiting  its 
application  so  as  not  to  aflTcct  damage 
cases,  was  held  not  applicable  to  an 
action  for  injuries  at  a  grade  crossing. 
Hines  v.  Partridge  (Tenn.),  231  S.  W. 
16. 


speed  which  made  his  discovery  of  the 
train  unavailing.  The  failure  to  do 
these  things  is  more  than  a  slight 
negligence  as  a  matter  of  law."  Ask- 
ey  V.  Chicago,  etc.,  Ry.  Co.,  101  Neb. 
266,  162  N.  W.  647. 

31.  Sections  321,  322. 

32.  Central  of  Ga.  R.  Co.  v.  Larsen, 
19  Ga.  App.  413  91  S.  E.  517;  Collins 
V.  Hustis  (N.  H.),  Ill  Atl.  286; 
Texas,  etc.,  R.  Co.  v.  Harrington  (Tex. 
Civ.  App.),  209  S.  W.  685.  See  also 
Texas  &  Pac.  R.  Co.  v.  Hilgartner 
(Tex.  Civ.  App.),  149  S.  W.  1091; 
SchafT  V.  Bearden  (Tex.  Civ.  App.), 
211  S.  W.  503;  Chicago,  etc.,  R.  Co.  v. 
Johnson    (Tex.   Civ.   App.),   224  S.   W. 

277. 

33.  Central  Indiana  Ry.  Co.  v.  Wis- 
hard,  186  Ind.  262,  114  N.  E.  970; 
Shepard  v.  Norfolk  Southern  R.  Co., 
169  N.  Car.  239,  84  S.  E.  277;  Hinton 
v.  Southern  Ry.  Co.,  172  N.  Car.  587, 
90  S.  E.  756;  Case  v.  Atlanta,  etc.,  Ry. 
Co.,  107  S.  Car.  216,  92  S.  E.  472; 
Houston,  etc..  Ry.  Co.  v.  Wilkerson 
(Tex.  Civ.  App.),  224  S.  W.  574. 

34.  Christman  v.  Southern  Pac.  Co., 
38  Cal.  App.  196,  175  Pac.  808;  Lan- 
ier V.  Minneapolis,  etc.,  Ry-  Co. 
(Mich.),  176  N.  W.  410. 

35.  Section  567. 

46 


722  The  Law  of  Automobiles. 

operaix)r  of  tlie  machine  for  a  miscalculation  of  the  distance 
within  which  he  can  stop  the  car.^^ 

In  many  States  statutes  have  been  enacted  restricting  th* 
speed  of  motor  vehicles  at  the  intersection  of  "  highways." 
The  term  *'  highway  "  may  be  construed  to  include  such 
public  ways  as  railroads  and  hence  such  regulations  may  be 
applicable  to  railroad  crossings.^^  This  question,  however, 
is  not  free  from  difficulty,  and  a  contraiy  conclusion  has  been 
reached.^^ 

Sec.  573.  Violation  of  statute  regulating  automobiles. 

The  violation  of  a  statute  regulating  the  operation  of 
motor  vehicles  is  generally  negligence ;  and,  if  such  violation 
is  a  proximate  cause  to  injuries  sustained  by  the  operator, 
as  a  general  rule  he  cannot  recover  for  his  injuries.  Thus, 
an  automobilist  who  attempts  to  cross  a  railroad  traxik  at  a 
rate  of  speed  greater  than  that  prescribed  by  statute  or 
municipal  ordinance,  is  guilty  of  such  conduct  that,  if  the  col- 
lision with  a  train  is  the  proximate  result  of  the  speed,  he 
cannot  recover  for  his  injuries.^^  The  question  of  proximate 
cause  is  an  important  one,  when  contributoiy  negligence  is 
sought  to  be  charged  against  the  operator  of  a  motor  vehicle 
on  account  of  the  violation  of  some  positive  regulation.  In 
most  jurisdictions,  the  failure  of  the  owner  to  have  the  ma- 
chine registered  and  licensed  in  accord  with  the  statutes  on 
the  subject  does  not  bar  an  action  for  injuries  received  in  a 
collision  with  a  train.*^  Similarly,  the  fact  that  the  chauf- 
feur's badge  was  not  in  sight  as  required  by  law  does  not 
bar  the  action.^- 

37.  Bush   V.   Brewer,    136   Ark.  248,  S.  E.   168;    Gilman  v.  Central  Vt.  Ry 
206  S.  W.  322.  Co.     (Vt.),     107    Atl.     122;     Southern 

38.  Hinton  v.  Southern  Ry.  Co.,  172  Ry.  v.  Voughan's  Adm'r,  118  Va.  692, 
N.  C.  587,  90  S.  E.  756.  88  S.  E.  305,  L.  R.  A.  1916  E.  1222; 

39.  Dobbins  v.  Seaboard  Air  Line  R.  Derr  v.  Chicago,  M-.  &  St.  P.  Ry.  Co., 
Co.  108  S.  Car.  254,  93  S.  E.  932.  163  Wis.  234,  157  N.  W.  753.    And  see 

40.  Section  572.  section   126. 

41.  Central  of  Ga.  Ry.  Co.  v.  Moore,  42.  Latham    v.    Cleveland,    etc.,    R. 
149  Ga.  581,  101  S.  E.  668;  Central  of  Co.,  164  111,  App.  559. 

Ga.  Ry.  Co.  v.  Moore   (Ga.  App.),  102 


Railroad  Crossings. 


723 


Sec.  574.  Machine  stalled  on  track. 

Where  the  operator  of  a  motor  vehicle  exercises  due  care 
in  approaching  a  railroad  crossing  and  is  justified  in  attempt- 
ing to  pass  over  because  no  train  is  in  sight,  he  is  not  neces- 
sarily guilty  of  contributoi-y  negligence  because  his  machine 
becomes  '*  stalled  "  on  the  track  so  that  he  cannot  remove  it 
before  the  approach  of  a  train.^^  Questions  of  negligence  in 
such  cases  are  generally  for  the  jury.'**  And,  on  the  other 
hand,  if  the  engineer  sees  the  machine  stalled  on  the  track, 
it  is  his  duty  to  bring  the  train  to  a  stop  if  reasonably  pos- 
sible without  danger  to  his  passengers."^  In  these  cases,  the 
last  clear  chance  or  "  humanitarian  "  doctrine  may  be  ap- 


43.  Littlewood  v.  Detroit  United 
Ry.,  189  Mich.  388.  155  N.  W.  698; 
Gembell  v.  Minneapolis,  etc.,  Ky.  Co., 
129  Minn.  262,  152  N.  W.  408:  Pack- 
ard V.  New  York,  etc.,  R.  Co..  160  N. 
Y.  App.  Div.  856,  146  N.  Y.  Suppl. 
878;  Denkers  v.  Southern  Pac.  Co.,  52 
Utah  18,  171  Pac.  999;  Norfolk-South- 
ern R.  Co.  V.  Whitehead,  121  Va.  139, 
92  S.  E.  916;  Hull  v.  Seattle,  etc..  R. 
Co.,  60  Wash.   162,  110  Pac.  804. 

Defective  automobile. — If  the  ma- 
chine stops  on  the  track  on  account  of 
its  def«ctive  engine,  and  the  railroad 
employees  do  everything  in  their 
power  to  stop  the  train  before  it 
reaches  the  automobile,  the  company 
is  not  liable.  Louisville  &  Nashville 
R.  Co.  V.  Harrison,  78  Fla.  38.  83  So. 
89. 

Duty  of  flagman. — ^Where,  as  an 
automobile  was  close  to  a  railroad 
track,  for  some  unexplained  reason  it-s 
gears  became  locked  and  it  could  not 
be  moved  away  from  the  track  and 
was  so  close  that  the  front  part  was 
struck  by  a  passing  train  a  few  min- 
utes later,  it  was  held  that  the  proxi- 
mate cause  of  the  injury  was  the  stop- 
ping of  the  automobile  and  not  the 
statement  of  a  flagman  stationed  at 
sueli  crossing  that  no  train  would 
come  along  for  a  long  time.  Further- 
more the  court  held  that  such  a  state- 
ment was  outside  his  duty  as  a  flag- 


man and  not  binding  on  the  railroad 
company.  And  it  was  also  held  that 
he  was  under  no  duty  to  leave  the 
crossing  and  go  up  the  track  and  sig- 
nal the  approaching  train  to  atop.  Car- 
nochan  v.  Erie  R.  Co.,  73  Misc.  131, 
130  N.  Y.  Suppl.  514. 

44.  Southern  Pac.  Co.  v.  Martinez, 
270  Fed.  770;  Geml>ell  v.  Minneapolis, 
etc.,  Ry.  Co.,  129  Minn.  262,  152  N.  W. 
408;  Taylor  v.  Lehigh  Valley  R.  Co., 
87  N.  J.  L.  673.  94  Atl.  566;  Packard 
V.  New  York,  etc.,  R.  Co.,  160  N.  Y. 
App.  Div.  856,  146  N.  Y.  Suppl.  878; 
San  Antonio,  etc.,  Ry.  Co.  v.  Moore 
(Tex.  Civ.  App.).  208  S.  W.  754. 

Guilty  of  negligence. — ^Where  the 
driver  of  an  automobile  got  on  the 
wrong  road,  crossed  the  railroad  track, 
and  discovering  his  mistake,  turned 
and  started  to  recross  the  track,  got 
off  the  planking,  which  was  sixteen 
feet  wide  over  the  track,  and  got  his 
machine  stalled  crosswise  of  the  track 
near  the  cattle  guards,  and  it  appeared 
that  the  night  was  bright,  and  that 
the  stars  were  shining,  and  that  all 
the  lights  on  his  machine  were  lighted 
and  in  good  condition,  it  was  thought 
that  he  was  clearly  guilty  of  contribu- 
tory negligence.  Nicol  v.  Oregon- 
Washington  R.  &  Nav.  Co.,  71  Wash. 
409,  128  Pac.  628. 

45.  Taylor  v.  Lehigh  Valley  R.  Co., 
87  N.  J.  L.  673,  94  Atl.  566;  Costin  v. 


724  The  Law  of  Automobiles. 

plied  with  some  force.^^  But  the  train  operators  are  not  re- 
quired to  presume  that  an  automolnle  crossing  the  track  in 
front  of  the  engine  will  stop  on  the  track.'^'^  An  occupant 
may,  however,  be  guilty  of  contributory  negligence  as  a  mat- 
ter of  law,  where  with  plenty  of  time  to  leave  the  car,  he 
remains  therein  until  it  is  struck  by  the  train.^^  Not  only 
for  the  rescue  of  the  machine,  but  also  to  avoid  possible  mi- 
jury  to  the  passengers  on  the  railroad  train,  the  operator  of 
the  motor  vehicle  owes  a  duty  to  remove  the  car  if  possible 
before  the  arrival  of  a  train;  and  he  will  not  be  held  guiUy 
ol  negligence  merely  because  he  attempts  to  use  the  self 
.starter  for  that  purpose.*^ 

Sec.  575.  Last  clear  chance. 

Under  the  ''  last  clear  chance  "  doctrine,  as  limited  in  the 
larger  number  of  States,  an  automobilist  who  has  negligently 
placed  himself  in  a  dangerous  position  on  a  railroad  crossing 
may  nevertheless  recover  for  his  injuries  where  the  engineer 
of  the  approaching  train  discovered  his  peril  and  could  by 
the  exercise  of  reasonable  diligence  have  stopped  the  train 
in  time  to  have  avoided  the  injury  but  negligently  failed  to 
do  so.^*^  Moreover,  when  the  engineer  sees  one  in  a  danger- 
Tidewater  Power  Co.  (N.  Car.),  106  S.  49.  Taylor  v.  Lehigh  Valley  R.  Co., 
E.  568;  San  Antonio,  etc.,  Ry.  Co.  v.  87  N.  J.  L.  673,  94  Atl.  566. 
Moore  (Tex.  Civ.  App.),  208  S.  W.  50.  Alabama. — Hines  v.  Champion, 
754,                                                                         85  So.  511;  Miles  v.  Hines,  87  So.  837. 

46.  Monson  v.  Chicago,  R.  I.  &  P.  Iowa. — Barrett  v.  Chicago,  etc.,  R. 
Ry.  Co.  (Iowa),  159  N.  W.  679;  Mc-  Co.,  175  N.  W.  950.  See  Waters  v. 
Guire  v.  Chicago,  etc.,  R.  Co.  (Mo.  Chicago,  etc.,  R.  Co.,  178  N.  W.  534. 
App.),  228  S.  W.  541;  Taylor  v.  Le-  Kansas. — Springer  v.  Chicago,  etc., 
high  Valley  R.  Co.,  87  N.  J.  L.  673,  94  R.  Co.,  95  Kans.  408,  148  Pac.  611. 
Atl.  566;  Norfolk-Southern  R.  Co.  v.  Maryland. — Payne  v.  Healey,  114 
Whitehead,  121  Va.  139,  92  S.  E.  916;       Atl.  693. 

Nicol  V.  Oregon-Washington  R.  &  Nav.  Missouri. — Sandry     v.     Hines     (Mo. 

Co.,  71  Wash.  409,  128  Pac.  628.     And       App.)    226  S.  W.  646. 

see  section  575.  A'eio  Hampshire. — Chellis  Realty  Co. 

47.  Bagdad   Land   &   Lumber   Co.   v.       v.  Boston   &  M.  R.  Co.,   106  Atl.  742; 
Money  way   (Fla.),  86  So.  687.  Xorth     Carolina. — Goff    v.     Atlantic 

48.  Smith  v.  Erie  R.  Co.,  182  N.  Y.       Coast  Line  R.  Co.,  179  N.  Car.  216,  102 
App.  Div.  528.   169   N.  Y.  Suppl.   831;       S.   E.   320. 

Coleman    v.    Pittsburgh,    etc.,    St.    Ry.  Oklahoma. — Wichita     Falls,    etc.,    R. 

Co.,  251   Pa.  498,  96  Atl,   1051.     Com^       Co.  v.  Groves,  196  Pac.  677, 
pare  Taylor  v,  Lehigh  Valley  R.  Co.,  Texas. — Texas  Cent.  R.  Co.  v,  Lumas 

87  N.  J.  L.  673,  94  Atl.  566.  (Tex.  Civ.  App,),  149  S.  W.  543;  Gal- 


Railroad  Crossings.  725 

ous  position,  it  may  be  his  duty  to  blow  his  whistle  or  other- 
wise give  warning  of  his  approach.^^  If  the  engineer  sees 
that  an  automobile  is  stalled  on  the  track,  he  must  use  a  rea- 
sonable degree  of  care  to  stop  the  train  before  it  strikes  the 
maohine,  and  he  may  be  charged  with  negligence  for  his 
failure.^-  And  where  an  automobile  collided  with  the  rear 
of  a  freight  train,  and  was  pushed  for  a  considerable  distance 
along  the  track  and  then  overturned,  and  an  occupant  was  run 
over  and  killed,  it  was  held  that  the  railroad  company  was 
liable  for  the  death,-  notwithstanding  any  negligence  of  the 
decedent  prior  to  the  collision,  if  its  employees  could  by  exer- 
cising reasonable  care,  after  becoming  aware  of  the  danger, 
have  stopped  the  train  before  the  overturning  of  the  auto- 
mobile.^^ 

The  discovery  of  the  peril  in  time  to  avoid  the  acci- 
dent is  generally  an  essential  element  of  liability  under  this 
doctrine;  there  is  no  liability  where  the  railroad  employees 
did  not  discover,  or  could  not  by  the  exercise  of  reasonable 
care  have  discovered,  the  danger  of  the  automobilist  in  time 
to  have  avoided  the  accident.^*    Where  the  operator  of  the 

veston,  etc.,   R.   Co.  v.   S'oloman    (Tex.  95  Kans.   364,   148   Pac.   621;    Coby  v. 

Civ.  App.),  195  S.  W.  321.  Quincy,  etc.,  R.  Co.,  174  Mo.  App.  648, 

Washington. — Nicol        v.        Oregon-  161    S.    W.    290;    Tannehill   v.   Kansas 

Washington  R.  &  Nav.  Co.,  71  Wash.  City,  etc.,  Ry.   Co.,   279  Mo.   158.  213 

409,   128  Pac.   628.  S'.  W.   818;    Andrews   v.   Mymer    (Tex. 

51.  Costin  V.  Tidewater  Power  Co.  Civ.  App.).  190  S.  W.  1164;  Galveston, 
(N.  Car.),  106  S.  W.  568;  Galveston,  etc.,  R.  Co.  v.  Sloman  (Tex.  Civ. 
etc.,  R,  Co.  v.  Sloman  (Tex.  Civ.  App.),  195  S.  W.  321;  Hines  v.  Fore- 
App.),  195  S.  W.  321.  man    (Tex.  Civ.  App.),  229  S.  W.  630; 

52.  Monson  v.  Chicago.  R.  I.  &  P.  Hubenthal  v.  Spokane,  etc.,  R.  Co.,  97 
Ry.  Co.  (Iowa),  159  N.  W.  679;  Mc-  Wash.  591,  166  Pac.  797;  Monso  v. 
Guire  v.  Chicago,  etc.,  R.  Co.  (Mo.  Bellingham  &  N.  Ry.  Co.,  106  Wash. 
App.),  228  S.  W.  541;  Taylor  v.  I^e-  299,  179  Pac.  848.  See  also  Lassen  v. 
high  Valley  R.  Co.,  87  N.  J.  Law  673,  New  York,  etc..  R.  Co..  87  Conn.  795, 
94     Atl.     566;     Costin     v.     Tidewater  87  Atl.  734. 

Power  Co.    (N.   Car.),  106  S.  E.  568;  Automobile      light      shining      across 

Norfolk  Southern  R.  Co.  v.  Whitehead,  track. — ^The  fact  that  the  lights  from 

121   Va.    139.   92   S.   E.   916.     And  see  an    automobile   which    is   out   of   sight 

section   574.  are  shining  across  the  track  does  not, 

53.  Springer  v.  Chicago,  etc.,  R.  Co.,  of  itself,  charge  the  engineer  with  in- 
05  Kans.  408.  148  Pac.  611.  See  also,  formation  that  the  occupants  of  the 
Cleveland,  etc..  R.  Co.  v.  Baker  (Ind.),  machine  are  in  danger.  Coby  v. 
128  N.  E.  836.  Quincy,  etc.,  R.  Co..  174  Mo.  App.  648. 

54.  McBeth  v.  Atchison,  etc.,  R.  Co.,  161   S.  W.  290. 


726 


The  Law  of  Automobiles, 


motor  vehicle  drives  on  the  track  but  a  short  distance  ahead 
of  a  rapidly  approaching  train,  there  is  no  opportunity  for 
application  of  the  doctrine.^^  Until  the  engineer  sees  that 
the  automobilist  intends  to  hazard  a  crossing  in  the  face  of 
the  train,  he  may  properly  assume  that  the  car  will  be  stopped 
before  reaching  the  track.-^*^'  As  a  general  proposition,  it  is 
also  an  essential  element  for  the  operation  of  the  last  clear 
chance  doctrine  that  the  negligence  of  the  plaintiff  should 
have  spent  itself  before  the  injury;  if  it  continues  np  to  the 
time  of  the  collision,  it  bars  his  action.^' 


Sec.  576.  Acts  in  emergencies. 

If  the  operator  of  a  motor  vehicle,  while  crossing  a  rail- 
road track,  is  suddenly  confronted  with  a  rapidly  approach- 
ing train,  he  is  not  expected  to  use  the  judgment  which  he 
would  exercise  when  not  in  such  a  position  of  peril.^^    His 


Machine  struck  and  left  near  track. 
— An  automobile  owner  who  negligent- 
ly attempts  to  drive  his  car  across  a 
railroad  track  cannot  recover  from  the 
railroad  company  for  the  injury  done 
to  the  car,  where  it  is  hit  by  a  passing 
train,  which  leaves  the  car  by  the  side 
of  the  track  in  such  a  position  that  in 
a  few  minutes  it  is  struck  by  another 
train,  the  engineer  on  which  does  not 
see  it  in  time  to  stop  his  train  before 
colliding  with  it.  Greene  v.  Atchison, 
etc.,  R.  Co.   (Kans.),  198  Pac.  056. 

55.  Coby  V.  Quincy,  etc.,  R.  Co.,  174 
Mo.  App.  648,  161  S.  W.  290;  Virginia 
&  S.  W.  Ry.  Co.  V.  Skinner,  119  Va. 
843,  89  S.  E.  887;  Norfolk-Southern  R. 
Co.  V.  Smith,  122  Va.  302,  94  S.  E. 
789. 

56.  Hurt  V.  Southern  Ry.  Co.  (Ala.). 
87  So.  533;  Trasher  v.  St.  Louis,  etc., 
Ry.  Co.  (Okla.),  198  Pac.  97;  Miller 
v.  Northern  Pac,  Ry.  Co.,  105  Wash. 
645,  178  Pac.  808. 

57.  Borglum  v.  New  York,  etc.,  R. 
Co.,  90  Conn.  52.  96  Atl.  174;  Rule  v. 
Atchison  Ry.  Co.,  107  Kans.  479,  192 
Pac.  729;  Callery  v.  Morgan's  Louis- 
iana, etc.,  S.  S.  Co.,  139  La.  763,  72  So. 


222;  Krouse  v.  Southern  Mich.  Ry.  Co. 
(Mich.),  183  N.  W.  768.  "The  doc- 
trine of  last  clear  chance  is  applied 
perhaps  most  frequently  to  cases  where 
the  plaintiff's  negligence  has  termi- 
nated, and  where  the  defendant  there- 
after, in  the  exercise  of  reasonable  care 
and  owing  a  duty  to  exercise  it,  should 
have  discovered  the  peril  in  time  to 
have  prevented  an  injury.  It  has  also 
(►ften  been  applied  where  it  would  be 
appjirent  to  one  in  control  of  a  danger- 
ou.e  agency,  if  exercising  reasonable 
vigilance,  that  a  traveler  is  imcon- 
^ious  of  his  danger  or  so  situated  as 
to  be  incapable  of  self-protection,  and 
in  such  cases,  if  the  one  controlling 
the  agency  could  have  averted  the  dan- 
ger by  exercising  reasonable  care  and 
failed  to  do  »o.  liability  follows.  It 
is  based  upon  the  principle  that  the 
negligence  of  the  one  is  remote,  and 
that  the  negligence  of  the  other  is  the 
proximate  and  efficient  cause  of  the 
catastrophe;  he  having  the  last  clear 
opportunity  of  preventing  it."  Nicol  v. 
Oregon- Washington  R.  &  Nav.  Co..  71 
Wash.  409.  128  Pa<\  628. 

58.   T'lvted     states. — Lehigh      Valley 


Railroad  Ceossings. 


727 


conduct  is  not  closely  scrutinized,  and  his  negligence  may  be 
a  question  for  the  jury  though  he  did  not  in  the  emergency 
use  the  best  method  of  avoiding  in  jury. ^''^  He  may  jump  from 
the  vehicle  or  he  may  stay  with  the  machine  in  the  hope  of 
passing  the  danger  point  before  he  is  struck;  and  his  con 
tributoo'  negligence  in  taking  either  alternative,  though  it 
develops  that  the  other  would  have  better  availed  him,  is  gen- 
erally a  question  for  the  jury.^^  And  it  has  been  held  that 
one  approaching  a  railroad  track  and  having  his  vehicle 
under  such  control  that  he  could  have  stopped  it  without  in- 
jury, is  not  necessarily  charged  with  negligence  because  he 
became  confused  and  scared  by  reason  of  the  negligence  of 
the  railroad  and  thus  failed  to  stop  the  machine  before  reach- 
ing the  tracks.^i  The  rule  releasing  one  from  responsibility 
for  careless  acts  committed  in  an  emergency,  cannot  be  in- 
voked in  behalf  of  one  who  has  placed  himself  in  such  a  posl 
tion  through  his  own  lack  of  care.^- 


R.  Co.  V.  Kilmer,  231  Fed.  628,  145  C. 
C.  A.  514;  McClure  v.  Siouthern  Pac. 
Co.   (Cal.  App.),  183  Pac.  248. 

Indiana. — Indiana  Union  Traction 
Co.  V.  I>ove.  180  Ind.  442,  99  N.  E. 
1005. 

Michigan. — Littlewood  v.  Detroit 
United  Ry.,  189  Mich.  388,  155  N.  W. 
698. 

Missouri. — Swigart  v.  Lusk,  196  Mo. 
App.  471,  192  S.  W.  138. 

New  Jersey. — Dickinson  v.  Erie  R. 
Co.,  81  N.  J.  L.  464,  81  Atl.  104. 

North  Carolina. — Brown  &  Co.  v. 
Atlantic  Coast  Line  R.  Co.,  171  N.  C. 
266,  88  S.  E.  329.  "  If  without  fault, 
he  went  upon  the  track  and  was  then 
confronted  s^uddenly  by  a  grave  peril, 
and  exercised  such  care  as  a  man  of 
ordinary  prudence  and  presence  of 
mind  would  have  used  under  the  same 
circumstance«i,  negligence  will  not  be 
imputed  to  him,  and  the  court  bo 
charged  the  jury.  Not  having  brought 
the  danger  upon  himself,  or,  if  he  did, 
the  defendant  having  a  fair  oppor- 
tunity to  prevent  the  injury,  he  was 
not  required  to  act  wisely  or  discreet- 
ly, but  only  with  such  care  and  judg- 


ment as  would  be  c.vpecttU  uf  a  man 
of  ordinary  prudence  in  a  like  situ- 
ation.'" Brown  &  Co.  v.  Atlantic  Coast 
Line  R.  Co.,  171  N.  Car.  266,  88  S.  E. 
329. 

Texas. — See  Baker  v.  Collins  (Civ. 
App.),  199  S.  VV.  519. 

59.  Indiana  Union  Traction  Co.  v. 
Love,  180  Ind.  442,  99  N.  E.  1005; 
Dombrenos  v.  Chicago,  etc.,  Ry.  Co. 
(Iowa),  174  N.  VV.  596;  Brown  &  Co. 
V.  Atlantic  Coast  Line  R.  Co.,  171  X. 
C.  266,  88  S.  E.  329. 

60.  Indiana  Union  Traction  Co.  \f. 
Love,  180  Ind.  442,  99  N.  E.  1005; 
Sherwood  v.  New  York  Central,  etc.. 
R.  Co..  120  N.  Y.  App.  Div.  639,  105 
N.  Y.  Suppl.  547.  See  also  Northern 
Pac.  R.  Co.  V.  Vidal,  184  Fed.  707; 
Krouae  v.  Southern  Mich.  Ky.  Co. 
(Mich.),  183  N.  W.  768. 

61.  Central  of  Georgia  Ry.  Co.  t. 
Faust  (Ala.  App.),  82  So.  36;  Gillipie 
V.   Pryor   (Mo.  App.),  204  S.  W.  S35. 

62.  Fogg  V.  New  York,  etc..  R.  Co., 
223  Mass.  444,  HI  N.  E.  960:  Dob- 
bins V.  Seaboard  Air  Line  R.  Co..  108 
S.  Car.  254,  93  S.  E.  932. 


728 


The  Law  of  Automobiles. 


Sec.  577.  Function  of  jury. 

While  negligence  and  contributory  negligence  of  parties 
are  essentially  questions  within  the  province  of  the  jury,^'^ 
the  contributory  negligence  of  an  automobilist  while  crossing 


63.  United  States. — Lake  Erie  &  W. 
R.  Co.  V.  Schneider,  257  Fed.  675; 
Fish  V.  Pennsylvania  Co.,  259  Fed. 
201;   Hines  v.  Hoover,  271   Fed.  645. 

Alabama. — Illinois  Cent.  R.  Co.  v. 
Camp,  201  Ala,  4,  75  So.  290. 

Arizona. — By  the  State  Constitu- 
tion, contributory  negligence  is  a  jury 
question.  Davis  v.  Boggs,  199  Pac. 
116. 

Arkansas. — Bush  v.  Brewer,  136 
Ark.  248,  206  S.  W.  322;  St.  Louis-San 
Francisco  Ry.  Co.  v.  Stewart,  137  Ark. 
6,  207  S,  W.  440. 

Delaware. — Nailor  v.  Maryland  D. 
&  V.  Ry.  Co.,  6  Boyce's  (29  Del.)  145, 
97  Atl.  418. 

Florida. — Louisville  &  N.  R.  Co.  v. 
English,  78  Fla.  38,  82  So.  819. 

Georgia. — Seaboard  Air  Line  Ry.  v. 
Hallis,  20  Ga.  App.  555,  93  S.  E.  264. 

Illinois. — Moore  v.  Bloomington, 
etc.,  R.  Co.,  295  111.  173,  128  N.  E.  72; 
Boggs  v.  Iowa  Central  Ry.  Co.,  187  111. 
App.  621;  McDonell  v.  Lake  Erie  & 
Western  Ry.  Co.,  208  111.  App.  442. 

Indiana. — Lake  Erie  &  W.  R.  Co.,  v. 
Hawarth  (Ind.  App.),  124  N.  E.  687; 
Lake  Erie  &  W.  R.  Co.  v.  Griswold 
(Ind.  App.),  125  N.  E.  783. 

Iowa. — Rupener  v.  Cedar  Rapids  & 
Iowa  City  Railway  Co.,  178  Iowa  615, 
159  N.  W.  1048;  Fuller  v.  Illinois  Cen- 
tral R.  Co.,  186  Iowa  686,  173  N.  W. 
137;  Dombresnos  v.  Chicago,  etc.,  Ry. 
Co.,  174  N.  W.  596;  Black  v.  Chicago 
Great  Western  R.  Co.,  174  N.  W.  774; 
Barrett  v.  Chicago,  etc.,  R.  Co.,  180  N. 
W.  670. 

Kansas. — Keys  v.  Schaff,  193  Pac. 
322,  107  Kans.  620. 

Kentucky. — Louisville,  etc.,  R.  Co.  v. 
Clore.  183  Ky.  261,  209  S.  W.  55. 

Massachusetts. — See  Stretton  v.  N. 
Y.,  etc.,  R.  Co.,  198  Mass.  573,  84  N. 


E.  799. 

Michigan. — Mills  v.  Waters,  198 
Mich.  637,  165  N.  W.  740;  Fillingham 
V.  Detroit,  etc.,  R.  Co.,  207  Mich.  644, 
175  N.  W.  227. 

Minnesota. — Green  v.  Great  North- 
ern R.  Co.,  123  Minn.  279,  143  N.  W. 
722;  Stepp  v.  Minneapolis,  etc.,  R.  Co., 
137  Minn.  117.  162  N.  W.  1051;  De- 
Vriendt  v.  Chicago,  etc.,  R.  Co.,  144 
Minn.  467,  175  N.  W.  99. 

Missouri. — Gillipie  v.  Pryor  (Mo. 
App.),  204  S.  W.  835;  Monroe  v.  Chi- 
cago, etc.,  R.  Co.,  219   S.  W.   68. 

New  Jersey. — Baer  v.  Lehigh,  etc., 
Ry.  Co.,  93  N.  J.  Law.  85,  106  Atl. 
421. 

Oklahoma. — By  constitutional  pro- 
visions, contributory  negligence  is  a 
jury  question.  See  Wichita  Falls,  etc., 
Pv.  Co.  v.  Groves  (Okla.),  196  Pac. 
677. 

Oregon. — Robinson  v.  Oregon-Wash- 
ington R.  &  Navigation  Co.,  90  Oreg. 
490,  176  Pac.  594. 

Tennessee. — Hines  v.  Partridge,  231 
S.  W.  16. 

Texas. — ^Kirksey  v.  Southern  Trac- 
tion Co.,  217  S.  W.  139;  Harrell  v.  St. 
Louis,  etc.,  R.  Co.,  222  S.  W.  221; 
Southern  Pac.  R.  Co.  v.  Walker  (Civ. 
App.),  171  S.  W.  264;  Missouri,  etc., 
R.  Co.  v.  Thayer  (Civ.  App.),  178  S. 
W.  988;  Galveston  H.  &  S.  A.  R.  Co. 
V.  Marti  (Civ.  App.).  183  S.  W.  846; 
Beaumont  S.  L.  &  W.  Ry.  Co.  v.  My- 
rieh  (Civ.  App.),  208  S.  W.  935; 
Schaff  V.  Merchant  (Civ.  App.),  212 
S.  W.  970;  Moye  v.  Beaumont,  S.  L.  & 
W.  Ry.  Co.  (Civ.  App.),  212  S.  W. 
471;  Galveston-Houston  EJec.  Ry.  Co. 
V.  Patella  (Civ.  App.),  222  S.  W.  615; 
St.  Louis,  etc.,  Ry.  Co.  v.  Morgan  (Civ. 
App.),  220  S.  W.  281;  Hines  v.  Fore- 
man  (Civ.  App.),  229  S.  W.  630. 


Railroad  Crossings. 


729 


a  railroad  track  is  many  times  decided  as  a  matter  of  law. 
Thus,  if  lie  attempts  to  cross  the  track  without  properly  look- 
ing and  listening  for  approaching  trains,  he  will  be  denied 
recovery  for  his  injuries  as  a  matter  of  law.*^^  If  the  ques- 
tion is,  however,  presented  to  the  jury,  a  verdict  for  the  rail- 
road company  would  not  be  disturbed,  except  under  the  most 
unusual  circumstances.^^  As  a  general  rule  it  is  only  in 
clear  cases  where  the  facts  are  undisputed  and  but  one  infer- 
ence can  be  drawn  from  them,  that  courts  can  declare  as  a 
matter  of  law  a  party  g-uilty  of  contributory  negligence.^'* 


Utah. — Shortino  v.  Salt  Lake  &  U. 
R.  Co.,  52  Utah  476,  174  Pac.  861. 

Washington. — Brand  v.  Northern 
Pac.  Ry.  Co.,  6  A.  L.  R.  669  n.  105 
Wash.  138,  177  Pac.  806. 

Wisconsin. — Gordon  v.  Illinois  Cent. 
R.  Co.,  168  Wis.  244,  169  N.  W.  570. 

64.  Section  557. 

65.  Jerolleman  v.  New  Orleans  Ter- 
minal Co.,  140  La.  895,  74  So.  186. 

66.  Delaware. — Nailor  v.  Maryland, 
etc.,  R.  Co.,  97  Atl.  418. 

Georgia. — Seaboard   Air  Line  Ry.  v. 
Hallis,  20  Ga.  App.  555,  93  S.  E.  264. 
Indiana. — Indiana      Union    Traction 
Co.   V.   Love,   180   Ind.   442,  99   N.   E. 
1005;    Union  Traction   Co.   of  Indiana 
V.  Haworth.   187  Ind.   451,   115  N.  E. 
753.      "  The    law    imposes    a   duty    on 
travelers  on  a  highway  approaching  a 
railway    crossing     to     use     reasonable 
care.     This  duty  arises  out  of  the  re- 
lation   of   parties,   and    is    declared   to 
exist  as   a  matter  of  law;    but,  when 
the  question  arises  as  to  what  acts  or 
conduct  ordinary   care  requires   under 
the  circumstances  of  a  particular  case, 
this   must   generally  be   determined  as 
a  question  of  fact.     The  court   cannot 
eay  as  a  matter  of  law  that  ordinary 
care   requires    a    designated    act   to   be 
done,  or  that  it  required  a  specific  act 
to  be  omitted,  unless  the  act   in  ques- 
tion was  of  such  a  character  as  to  be 
wholly   incompatible  with   the   exercise 
of   reasonable  care  when   considered   in 
the    light    of  attending  circumstances. 
It  must  be   so  absolutely    inconsistent 


with  the  exercise  of  ordinary  care  that 
there  could  be  no  room  for  reasonable 
minds  to  diflFer  on  the  ([uestion.  So 
long  as  there  is  room  for  an  honest  dif- 
ference between  reasonable  minds  as  to 
whether  or  not  the  doing  (or  the 
omission  to  do,  as  the  case  might  be) 
of  the  particular  act  was  consistent 
with  the  care  that  a  man  of  ordinary 
prudence  would  use  under  the  circum- 
stances, the  question  is  one  of  fact  for 
the  jury."  Central  Indiana  Ry.  Co.  v. 
Wishard.  186  Ind.  262,  114  N.  E.  970. 
'  Iowa. — Hawkins  v.  Interurban  Ry. 
Co.,  184  Iowa  232,  168  N.  W.  234. 

Pennsylvania. — Witmer  v.  Bessemer, 
etc.,  R.  Co..  241  Pa.  St.  112,  88  Atl. 
814. 

Tennessee. — ^Hurt  v.  Yazoo,  etc.,  R. 
Co.,  140  Tenn.  623,  205  S.  W.  437. 

Texas. — "  Before  this  court  can  say 
that  any  of  the  alleged  acts  of  the 
driver  on  the  occasion  in  question  was 
contribiitory  negligence  as  a  matter  of 
law.  such  acts  must  haye  been  in  vio- 
lation of  some  law,  or  that  the  facts 
were  undisputed  and  admitted  of  but 
one  inference  regarding  the  care  of  the 
party  in  doing  the  acts  in  question.  In 
other  words,  to  have  authorized  the 
court  to  take  the  question  from  the 
jury,  the  evidence  must  have  been  of 
such  character  that  tliore  was  no  room 
for  ordinary  minds  to  differ  as  to  the 
conclusion  to  be  drawn  from  it."  Hous- 
ton Belt  &  Terminal  Ry.  Co.  v.  Hardin 
Lumber  Co.  (Tex.  Civ.  App.),  189  S. 
W.   518. 


730 


The  Law  of  Automobiles. 


But,  if  one  blindly  crosses  a  railroad  track  without  taking 
any  measures  to  ascertain  whether  a  train  is  approaching, 
but  one  inference  can  be  drawn ;  no  reasonable  person  would 
say  that  the  driver  was  in  the  exercise  of  ordinary  oare/'^ 
The  failure  to  stop  before  attempting  to  cross  the  track,  in 
most  States,  will  present  under  ordinary  circumstances  a 
question  of  contributoiy  negligence  for  the  jury;^^  in  some 
States,  however,  the  courts  dispose  of  the  question  by  hold- 
ing as  a  matter  of  law  that  the  traveler  is  guilty  of  negli- 
gence.*^^ 


Sec.  578.  Negligence  of  railroad  in  operation  of  train  — ^in- 
evitable accident. 

A  railroad  company  is  not  an  insurer  of  the  safety  of  trav- 
elers crossing  its  tracks  over  a  grade  crossing  ;^^  its  duty  is 
to  exercise  ordinary  care  under  the  circumstances  and  to 
comply  with  such  regulations  as  are  imposed  by  State  and 
municipalities  upon  the  operation  of  its  trains.^^     If  the  rail- 


Utah. — Sliortino  v.  Salt  Lake  &  U. 
R.  Co.,  52  Utah  476,  174  Pac.  86L  "If 
there  is  any  substantial  doubt  whether 
a  plaintiff  was  or  was  not  guilty  of 
contributory  negligence,  or  whether,  if 
negligent,  such  negligence  was  the 
proximate  cause  of  the  injury,  the 
court  cannot  determine  the  right  to  re- 
cover as  a  matter  of  law,  but  mu.st 
submit  the  question  of  contributory 
negligence  or  of  proximate  cause,  or 
both,  to  the  jury  as  ques,tions  of  fact." 
Shortino  v.  Salt  Lake  &  U.  R.  Co..  52 
Utah  476,  174  Pac.  861. 

Virginia. — Seaboard  Air  Line  Ry.  v. 
Abemathy,  121  Va.  173,  92  S.  E.  913. 

67.  Singer  v.  Erie  R.  Co..  231  N.  Y. 
268.  "  While  it  is  true  that  the  trav- 
eler, in  attempting  to  cross  a  railroad 
track  at  a  public  crossing,  i>  required 
to  exercise  only  ordinary  care,  yet 
what  constitutes  ordinary  care  under 
such  circiimstances.  or,  as  it  is  some- 
times termed,  "  the  mdasure  of  duty.'  is 
prescribed  by  law,  and  therefore  is  not 
left  to  the  whim  or  caprice  of  either 


court  or  jury.  The  measure  of  duty 
in  such  case  is  to  look  and  listen,  and, 
under  certain  circumstances,  it  may 
even  be  necessary  to  stop.  If,  there- 
fore, the  evidence  discloses  that  the 
traveler  has  failed  to  comply  with  the 
duty  the  law  imposes,  and  his  failure 
is  the  proximate  cause  of  the  accident 
and  injury,  the  law  prevents  a  recov- 
ery." Shortino  v.  Salt  Lake  &  U.  R. 
Co.,  52  Utah  476,  174  Pac.  861. 

68.  Section  567. 

69.  Section  568. 

70.  Greiner  v.  Pennsylvania  Co.,  198 
111.  App.  260. 

Oiled  road. — ^A  railroad  company  is 
not  required  to  anticipate  that  on  ac- 
count of  oil  on  the  road  an  aiitoist 
will  be  unable  to  stop  his  car  when 
approaching  the  track.  Oilman  v. 
Central  Vt.  Ry.  Co.  (Vt.).  107  Atl. 
122. 

71.  Taylor  v.  LeMgh  Valley  R.  Co., 
87  N.  .7.L.  673.  94  Atl.  .566;  Nicol  v. 
Oregon-Washington  R.,  &  Nav.  Co.,  71 
Wash.  409,  128  Pac.  628. 


Railroad  Crossings.  731 

road  employees  comply  with  all  requirements  of  the  law,  but 
an  automobilist  suddenly  drives  upon  the  track  in  front  of 
the  train,  the  ensuing  accident  is  due  either  to  inevitable  acci- 
dent or  to  the  contributory  negligence  of  the  traveler.  In 
either  contingency,  the  railroad  is  not  responsible  for 
damages.^- 

Sec.  579.  Negligence   of   railroad   in   operation   of   train  — 
speed. 

Municipal  ordinances  or  statutes  regulating  the  speed  of 
railroad  trains  over  street  or  highway  crossings  are  to  be 
obeyed,  and  their  violation  may  render  it  liable  for  injuries 
proximately  resulting  to  one  traveling  in  a  motor  vehicle  and 
exercising  due  care  for  his  safety.'^"  But,  in  the  absence  of 
ordinance  or  statute,  it  is  not  a  breach  of  duty  to  operate  a 
train  at  any  speed  over  such  a  public  crossing  unless  the 
operative  of  the  train  knows  that  the  use  of  the  crossing  by 
the  public  is  so  frequent  and  so  constant  as  that  people  or 
property  are  likely,  probably,  in  exposed  positions  at  or  about 
the  crossing.'^     Ordinarily,  the  engineer  is  not  required  to 

72.  Bagwell  v.  Southern  Ry,  Co.,  167        16ti   Pao.   797. 

N.  Car.  611,  83  S.  E.  814;  Andrews  v.  Interurban    car. — It    is    not    neces 

Mynier    (Tex.   Civ.    App.),   190   S.   W.  sarily  negligence  to  run  an  interurban 

1164.  electric  car  across   a  city  street  at  a 

73.  Van  Orsdale  v.  Illinois  Cent.  R.  speed  of  from  ten  to  fifteen  miles  an 
Co.,  210  111.  App.  619;  Pittsburgh,  etc.,  hour.  Union  Traction  Co.  v.  Howard, 
R.  Co.  V.  Dove,  184  Ind.  447,  111  N.  173  Ind.  335,  90  N.  E.  764.  Or,  in  the 
E.  609;  Black  v.  Chicago  Great  West-  absence  of  some  regulation  fixing  the 
ern  R.  Co.,  174  N.  W.  774;  Broussard  .speed,  at  a  rate  of  thirty  miles  over 
V.  Louisiana  Western  R.  Co.,  140  La.  a  country  highway.  Indiana  Union 
517,  73  So.  606;  Dyer  v.  Maine  Cent.  Traction  Co.  v.  Love,  180  Ind.  442,  99 
R.  Co.  (Me.),  113  Atl.  26;  Laurisch  v.  N.  E.  1005.  But  in  some  cases  the 
Minneapolis,  St.  P.  R.  &  D.  Electric  speed  of  an  interurban  car  will  pre- 
Traction  Co.,  132  Minn.  114.  155  N.  sent  a  nuestion  for  the  jury.  Stem  v. 
W.  1074;  Brinkley  v.  Southern  Ry.  Kashville  Interurban  Ry.,  142  Tenn. 
Co.,   113  Miss.  367.  74  So.  280;   Hines  494,  221  S.  W.  192. 

V.   Moore    (Miss.),   87   So.    1;    Houston  74.  Rothrock      v.       Alabama      Great 

Belt    &    Terminal    Ry.    Go.    v.    Hardin  Southern    R.    Co.     (Ala.).    78    So.    84; 

Lumber  Co.    (Tex.   Civ.   App.),    189  S.  Pittsburgh,    etc..    Ry.    Co.    v.    Nichols 

W.  518;   Baker  v.   Streater    (Tex.  Civ.  (Ind.  App.),  130  N.  K.  .')46;   Piersall'a 

App.),   221    S.    W.    1039;    Shortino   v.  Adm'r,  v.  Chesapeake  &  O.  Ry.  C.  180 

Salt  Lake  &  U.  R.  Co.,  52  Utah   476.  Ky.   659,   203   S.   W.    551;    Denkers   v 

174  Pac.   861.     See  also  Hubenthal  v.  Southern  Pao.  Co.  .52  Utah  18,  171  Pac. 

Spokane,   etc.    R.   Co..   97    Wa-sh.   581.  999. 


732  The  Law  of  Automobiles. 

stop  his  train  because  there  are  automobile  travelers  in  the 
vicinity  of  a  crossing.  If  such  travelers  are  apparently 
under  no  disability,  either  mentally  or  physically,  he  may 
properly  assume  that  they  will  not  place  themselves  in  a  dan- 
gerous position;  or,  if  they  are  on  the  track  when  the  train  is 
at  some  distance,  that  they  will  go  forward  or  backward  and 
avoid  a  collision/^  But,  if  the  engineer  sees  that  a  motor 
vehicle  is  apparently  stalled  on  the  tracks,  it  is  his  duty  to 
stop  his  train,  as  quickly  as  is  consistent  with  the  safety  of  his 
passengers.''^ 

Sec.  580.  Negligence  of  railroad  in  operation  of  train  — 
warning. 
In  nearly  all  .jurisdictions,  the  railroad  employees  running 
an  engine  are  required  by  statute  to  ring  the  bell  or  blow  the 
whistle,  or  both,  when  the  engine  is  approaching  a  grade 
crossing.  The  failure  to  give  the  proper  warning  affords 
ample  ground  for  liability;  and,  if  an  automobilist  in  the  ex- 
ercise of  due  care  receives  injuries  by  reason  of  a  neglect  to 
give  the  proper  warning,  the  railroad  must  generally  respond 
in  damages.'*^'     And,  after  sunset,  it  is  a  general  requirement 

75.  Yazos,  etc.,  R.  Co.  v.  Williams,  Western  Ry.  Co.,  208  111.  App.  442; 
114  Miss.  236,  74  So.  835;  McMillian  Van  Orsdale  v.  Illinois  Cent.  R.  Co., 
V.  Atlanta,  etc.,  Ry.  Co.,  172  N.  C.  853,       210  III.  App.  619. 

90  S.  E.  683.  Indiana.— PittshuTgh,  etc.,  R.  Co.  v. 

76.  McBeth  v.  Atchison,  etc.,  R.  Co.,  Dove,  184  Ind.  447,  111  N.  E.  609; 
95  Kans.  364,  148  Pac.  621;  Taylor  v.  Lake  Erie  &  W.  R.  Co.  v.  Howarth 
Lehigh  Valley  R.  Co.,  87  N.  J.  Law,  (Ind.  App.),  124  N.  E.  687;  Cleveland, 
673,  94  Atl.  566.     And  see  section  574.  etc.,  R.  Co.  v.  Baker  (Ind.),  128  N.  E. 

77.  United  States.— Lake  Erie  &  W.  836. 

R.    Co.    V.    Schneider,    257    Fed.    675;  Kentuclcy.  —  Piersall's      Adm'r      v. 

Charleston,  etc.,  R.  Co.  v.  Alwang,  258  Chesapeake  &  0.  Ry.  Co.,  180  Ky.  659, 

Fed.  297.  203  S.  W.  551;   Louisville,  etc.,  R.  Co. 

Arizona,.— D&viB   v.   Boggs,    199   Pac.  v.  Clore,  183  Ky.  261,  209  S.  W.  55. 

116.  Louisiana. — Clements  v.  Texas,  et«.. 

California.— EAW^    v.     Central     Call-       Ry.  Co.,  148  La.  ,  88  So.  394. 

fornia  Tract.  Co.,  37  Cal.  App.  390,  174  Massachusetts. — Lydon  v.  New  York, 

Pac.  407.  etc.,  R.  Co.,  126  N.  E.  794. 

Georgia. — ^Seaboard  Air  Line  Ry.  v.  Michigan. — Nichols   v.   Grand   Trunk 

Hallis,  20  Ga.  App.  555,  93  S.  E.  264.  Western   Ry.    Co.,   203   Mich.   372,    16S 

Idaho. — Graves  v.  Northern  Pac.  Ry.  N.  W.  1046. 

Co.,  30  Idaho  542.   166  Pac.  571.  Minnesota. — Laurisch     v.     Minne.ij.- 

Illinois. — ^McDonell    v.    Lake  Erie  &  olis,  St.  P.  R.  &  D.  Electric  Traction 


Railroad  Crossings. 


733 


that  the  engine  shall  have  a  headlight,  the  absence  of  which 
may  justify  a  charge  of  negligence.'^    If,  however,  the  per- 


Co.,  132  Minn.  114,  155  N.  W.  1074; 
Anderson  v.  Great  Northern  Ry.  Co., 
179  N.  W.  687. 

Mississippi. — Yazos,  etc.,  R.  Co.  v. 
Williams,  114  Miss.  236,  74  So.  835. 
North  Carolina.— GoS  v.  Atlantic 
Coast  Line  R.  Co.,  179  N.  Car.  216,  102 
S.  E.  320;  Perry  v.  McAdoo,  104  S. 
E.  673;  Costin  v.  Tidewater  Power  Co., 
106  S.  E.  568. 

OA'/tt/ioma.— Midland  Valley  R.  Co. 
V.  Lawhorn,   198   Pac.  586. 

Pennsylvania. — V^'anner  v.  Philadel- 
phia, etc.,  Ry.  Co.,  261  Pa.  273,  104 
Atl.  570;  Ellne  v.  Western  Maryland 
Ry.  Co.,  262  Pa.  33,  104  Atl.  857;  Win- 
gert  V.  Philadelphia,  etc.,  Ry.  Co.,  262 
Pa.  21,  104  Atl.  859. 

Tennessee. — Tennessee  Cent.  R.  Co. 
V.  Vanhoy,  226  S.  W.  225. 

Texas. — Texarkana  &  Ft.  Smith  Ry. 
Co.  V.  Rea  (Civ.  App.),  180  S.  W.  945; 
Houston  Belt  &  Terminal  Ry.  Co.  v. 
Hardin  Lumber  Co.  (Civ.  App.),  189 
S.  W.  518;  Chicago,  etc.,  Ry.  Co.  v. 
Johnson  (Civ.  App.),  224  S.  \Y.  277; 
Hines  v.  Foreman  (Civ.  App.),  229  S. 
W.  630. 

yjr^tnia.— Norfolk  &  W.  Ry.  Co.  v. 
Simmons,  103  S'.  E.  609. 

Washington.— McK'mney  v.  Port 
Townsend  &  P.  S.  Ry.  Co.,  91  Wash. 
387,  158  Pac.  107;  Kent  v.  Walla 
Walla  Valley  Ry.  Co.,  108  Wash.  251, 
183  Pac.  87. 

"In  almost  every  State  it  is  made 
by  statute  the  duty  of  an  engineer,  in 
approaching  a  crossing,  to  sound  his 
whistle  or  ring  his  bell,  or  both.  W^here 
the  statute  imposes  the  duty,  the  fail- 
ure to  comply  with  it  is  negligence 
per  se.  Unless  the  duty  is  imposed  by 
statute,  the  failure  to  give  such  sig- 
nals is  not  as  matter  of  law  a  neglect 
of  duty.  In  such  a  case  the  failure  to 
give  the  signals  would  be  a  question  of 
fact  for  the  jury  to  decide  whether, 
under  the  circumstances,  the  omission 


amounted  to  a  failure  to  exercise  due 
care."  Lehigh  Valley  R.  Co.  v.  Kil- 
mer, 231  Fed.  628,  145  C.  C.  A.  514. 

Testimony  of  occupants  of  automo- 
bile.— In  the  absence  of  evidence  show- 
ing that  the  noise  of  the  vehicle  would 
drown  the  sound  of  the  bell  upon  the 
locomotive,  the  courts  will  not  say 
that  the  occupants  of  the  vehicle  were 
prevented  from  hearing  the  signal  of 
the  locomotive,  and  will  not  hold  as  a 
matter  of  law  that  their  testimony 
that  no  signal  was  given  is  valueless. 
Advance  Transfer  Co.  v.  Chicago,  etc., 
R.  Co.   (Mo.  App.).  195  S.  W.  566. 

Negative    testimony.— Testimony    of 
witnesses   that   they   did   not   hear   the 
bell  rung,  or  the  whistle  sounded,  will 
not  sustain  a  finding  of  the  jury  that 
such   warnings   were  not   given    where 
the  witnesses  testified  that  they  were 
not  paying  any  particular  attention  to 
that   occurrence    and   that   the   signals 
might   have   been   given   without   their 
knowledge,    and  other    witnesses  testi- 
fied   postively    that    the    signals    were 
given.     Rickert  v.  Union  Pac.  R.  Co., 
100  Neb.  304,  160  N.  W.  86.     See  also, 
as  to  negative  testimony,  Fayet  v.  St. 
Louis  &  S.  F.  R.  Co.,  203  Ala.  3,  81 
So.  671;  Collins  v.  Hustis  (N.  H.),  Ill 
Atl.  286;  Schaff  v.  Bearden   (Tex.  Civ. 
App.),  211   S.  W.  503;   Hines  v.  Roan 
(Civ.  App.),  230  S.  W.  1070;   McKin- 
ney  v.  Port  Townsend  &  P.  S.  Ry.  Co., 
gi'Wash.  387,  158  Pac.  107;  Matutino- 
Vich  v.  New  York  Central  R.  Co.,  182 
App.  Div.  451,  162  N.  Y.  Suppl.  350. 

Question  for  jury. — In  case  of  con- 
flict in  the  testimony  whether  the 
proper  warning  was  given,  a  question 
is  presented  within  the  province  of 
the  jury.  Louisville  &  N.  R.  Co.  v. 
Treanor's  Adm'r.  179  Ky.  337,  200  S. 
W.  634;  Advance  Transfer  Co.  v.  Chi- 
cago, etc..  R.  Co.  (Mo.  App.).  195  S. 
W.  566. 

78.  Laurisch   v.   Minneapolis.  St.   P. 


734  The  Law  of  Automobiles. 

son  injured  had  actual  knowledge  of  the  approach  of  the 
train,  the  failure  to  give  the  statutory  warning  cannot  be 
deemed  the  proximate  cause  of  his  injuriesJ^  A  railroad  is 
not  required  to  have  a  gate  or  flagman  or  brakeman,  or  to 
ma:inta.in  signals  and  lights  at  every  crossing  of  a  highway, 
but  only  at  such  places  as  may  be  regarded  as  reasonably 
necessaiy  for  the  protection  of  travelers.  What  might  be 
considered  as  reasonably  necessary  for  such  protection  at  one 
grossing  might  be  deemed  wholly  needless  and  unnecessary 
at  another,  in  each  case  depending  upon  the  amount  of  travel 
upon  the  highway,  the  frequency  with  which  trains  passed 
over  it,  upon  the  view  which  could  be  obtained  of  trains  as 
they  approached  the  crossing  and  upon  other  conditions.^^ 
It  is  not  incumbent  upon  a  railroad  to  keep  and  maintain  a 
gong  at  a  crossing,  since  other  modes  of  warning  might 
equally  suffice,  but  having  so  estabUshed  it  and  educated  trav- 
elers to  rely  upon  such  a  warning,  it  is  the  duty  of  the  rail- 
road either  to  keep  it  in  efficient  operation,  or  to  give  notice 
that  it  is  not  in  working  order.'^*^*' 

R.    &    D.    Electric    Traction    Co.,    132  (Iowa),  180  N.  W.  152;  Trask  v.  Bos- 

Minn.  114,  155  N.  W.   1074;  Hines  v.  ton  &  M.  R.  Co.,  219  Mass.  410,  106  N. 

Chicago    etc.,    Ry.    Co.    (Wash.),    177  E.     1022;      Southern    Pac.    R.    Co.    v. 

p^^    795  Walker    (Tex.   Civ.   App.),   171    S.  W. 

Backing  a  train  over  a  crossing  at  264;     Baker    v.    Streater     (Tex.    Civ. 

night  without  a   warning  or   light,   is  App.),  221   S.  W.   1039;   Chicago,  etc.. 

negligence.      Parker    v.    Seaboard   Air  R.   Co.  v.   Shockley    (Tex.  Civ.   App.), 

Line  Ry.  (N.  Car.),  106  S.  E.  755.  214  S.  W,  716;   Chicago,  etc.,  Ry.  Co. 

79    Central   of   Ga.  Ry.   Co.   v.   Mc-  v.  Zumwalt    (Tex.   Civ.  App.),  226  S. 

Key    13  Ga.  App.  477,  79  S.  E.  378;  W.    1080.     See  also  Conant  v.   Grand 

Frush  v.   Waterloo,  etc.,   Ry.   Co.    185  Trunk  Ry.  Co.,  114  Me.  92,  95  Atl.  444. 

Iowa  156,  169  N.  W.  360.  80-a.  Washington      v.      Birmingham 

Sign.— The  failure  to  obey  a  statute  Southern    R.    Co.,    203    Ala.    295,    82 

requiring  a  sign  at  a  crossing  is  not  So.    545;    Birmingham    So.   R.    Co.    v. 

the     proximate    cause    of    an    injury.  Harrison,  203  Ala.  284,  82  So.  534. 

where  the  driver  has  actual  knowledge  Negligence     of    flagman.— See    Lake 

of  the  crossing.     Hines  v.  McCullers,-  Erie    &    W.    R.  Co.  v.  Griswold    (Ind. 

121  Miss.  666,  83  So.  734.  App.),  125  N.  E.  783;  Lake  Erie  &  W. 

80.  Opp  V.  Pryor    (HI.),   128  N.  E.  R.  Co.  v.  Sanders  (Ind.  App.),  125  N. 

580;  Glanville  v.  Chicago,  etc.,  R.  Co.  E.  793. 


Railroad  Crossings.  735 

Sec.  581.  Negligence   of   railroad   in   operation   of   train  — 
obstruction  along  railroad. 

While  a  railroad  company  cannot  be  charged  with  negli- 
gence because  the  railroad  station  or  some  other  building  or 
object  useful  in  the  operation  of  the  railroad  obstructs  the 
view  of  approaching  travelers,^^  in  some  jurisdictions  the 
maintenance  of  unnecessary  obstructions  may  afford  ground 
for  an  allegation  of  negligence.^-  In  any  event,  the  existence 
of  obstructions  may  influence  the  precautions  to  be  taken  by 
the  railroad;  if  a  view  of  the  crossing  is  obstructed,  it  is  rea- 
sonable to  expect  the  train  to  be  propelled  at  a  lower  speed 
and  the  warning  signals  to  be  given  with  greater  care.^^  In 
an  action  for  injuries  arising  from  a  collision  with  a  car 
standing  on  a  crossing,  the  automobilist  cannot  recover  on  the 
theory  that  the  railroad  company  violated  the  statute  forbid- 
ding the  blocking  of  a  crossing  for  more  than  five  minutes, 
where  he  fails  to  show  how  long  the  car  had  remained  at  the 
crossing.^* 

Sec.  582.  Negligence  of  railroad  in  operation  of  train  —  defec- 
tive crossing. 
A  duty  is  imposed  on  a  railroad  company  to  exercise  rea- 
sonable care  to  keep  its  grade  crossings  in  repair  for  the 
avoidance  of  injury,  not  only  to  its  own  passengers,  but  also 
to  vehicular  travelers  using  the  crossing.^^  The  duty  of  the 
company  in  this  respect  is  generally  affirmed  by  statute.^    If, 

81.  Corley  v.  Atchison,  etc.,  Ry.  Co.,  Mass.  410,  106  N.  E.  1022.  And  see 
90  Kans.  70,  133  Pac.  555;  Bickert  T.  Central  Indiana  Ry.  Co.  v.  Wishard, 
Union  Pac.  R.  Co.,  100  Neb.  304,  160  186  Ind.  262,  114  N.  E.  970;  Galves- 
]Sr.  W.  86.  ton,  H.  &  S.  A.  R.  Co.  v.  Marti   (Tex. 

82.  Corley  v.  Atchison,  etc.,  Ry.  Co.,  Civ.  App.),  183  S.  W.  846. 

90  Kans.   70,   133   Pac.  555;    Burzio  v.  85.  Southern    Pac.    Co.    v.    Martinez, 

Joplin,   etc.,   Ry.   Co.,   102   Kans.   287-  270    Fed.    770;    Southern    Ry.    Co.    v. 

562,  171  Pac.  3*51;  Texas  &  P.  Ry.  Co.  Flynt,  203  Ala.  65.  82  So.  25;  Taylor 

V.  Eddleman    (Tex.  Civ.  App.),  175  S.  v.  Lehigh  Valley  R.  Co.,  87  N.  J.  L. 

W.  775.  673,    94    Atl.    566;    Pusey  v.   Atlantic 

83.  vSchaefer  v.  Arkansas  Valley  In-  Coast  Line  R.  Co.   (N.  Car.),  106  S.  E. 
tx:rurban    Ry.    Co.     (Kans.),   179   Pac.  452;   Dobbins  v.  Seaboard  Air  Line  R. 
323;    Fimple  v.  Southern  Pac.  Co.,  38  Co..  108  S.  Car.  254,  93  S.  E.  932. 
Cal.  App.  727,  177  Pac.  871.  86.  Root  v.  Connecticut  Co.  (Conn.). 

84.  Trask  v.  Boston  &  M.  R.  Co.,  219  108  Atl.  506;  Peterson  v.  Chicago,  etc., 


736  The  Law  of  Automobiles. 

on  account  of  a  defect  in  the  crossing,  tlie  occupant  of  an 
automobile  using  due  care  is  injured,  the  company  must  re- 
spond in  damages.*^^  If  a  defective  crossing  causes  the  en- 
gine of  the  automobile  to  become  stalled  so  that  the  machine 
cannot  be  moved  before  the  arrival  of  the  train  the  company 
may  be  liable.^^  Even  after  the  appointment  of  a  receiver 
for  the  company,  the  duty  of  maintaining  the  crossing  in 
a  reasonably  safe  condition  continues  in  force,  so  that  dam- 
ages may  be  collected  of  the  receiver.^^  Some  difficulty  may 
be  encountered  in  locating  the  demarkation  between  the 
crossing  to  be  maintained  by  the  railroad  and  the  approach 
thereto  to  be  maintained  by  the  town,  county  or  other  high- 
way district.^^ 

Sec.  583.  Negligence  of  railroad  in  operation  of  train  —  pri- 
vate crossing. 
The  duty  of  the  employees  of  a  railroad  company  at  a  pri- 
vate crossing  is  different  than  at  a  public  crossing.  Many 
statutory  provisions  governing  the  operation  of  trains  over 
crossings  will  be  found  inapplicable  at  private  crossings.^^ 
At  a  private  crossing  in  a  rural  district,  ordinarily  the  rail- 
road is  not  required  to  give  any  warning  of  the  approach  of 
its  cars,  nor  is  it  required  to  slacken  the  speed  thereof,  but 
may  run  them  at  any  speed  consistent  with  its  duty  to  its  own 
passengers.^-  As  to  a  mere  licensee  using  the  private  cross- 
ing, the  duty  of  the  railroad  is  merely  to  use  reasonable  care 

R.  Co.,  185  Iowa  378,  170  N.  W.  452;  270  Fed.  770. 

Taylor  v.  Lehigh  Valley  R.  Co.,  87  N.  89.  Louisville  &  I.  R.  Co.  v.  Spreck- 

J.  L.  673,  94  Atl.  566;   Felton  v.  Mid-  man,  169  Ky.  385,  183  S.  W.  915.    See 

land  Continental  R.  R.,  32  N.  Dak.  223,  also,  Cottam  v.  Oregon  Short  Line  R. 

155  N.  W.  23.  Co.    (Utah),  187  Pac.  827. 

Absolutely    safe. — Statutes    do    not  90.  See    Louisville    &    I.    R.    Co.    v. 

require  that  the  crossing  shall  be  ab-  Speckman,  169  Ky.  385,  183  S.  W.  915. 

solutely  safe  for  travelers.     Peterson  v.  91.  Hawkins    v.    Interurban  Ry.  Co. 

Chicacro,  etc.,  R.  Co.,  185  Iowa  378,  170  184  Iowa  232,  168  N.  W.  234. 

N.  W.  452.  92.  Central  of  Ga.  Ry.  v.  McKey,  13 

87,  Still  v.  Atlantic  Coast  Line  R.  Ga.  App.  477,  79  S.  E.  378;  Louisville 
Co.  (S'.  Car.),  101  S.  E.  836;  Smith  v.  &  I.  R.  Co.  v.  Morgan.  174  Ky.  G?.3, 
Illinois  Cent.  R.  Co.,  162  Wis.  120,  155  192  S.  W.  672;  Louisville  &  L  R.  Co. 
N.  W.  933.  v.    Cantrell,    175    Ky.    440,  194  S.  W. 

88.  Southern    Pac.    Co.  v.  Martinez,  353. 


Railroad  Crossings.  737 

to  avoid  injury  after  discovery  of  the  peril  of  the  licensee.'-*^ 
But  it  is  further  held  that  if  the  railroad  has  customarily 
given  signals  of  the  approach  of  trains  to  a  private  crossing, 
and  these  were  relied  on  by  the  persons  using  the  crossing, 
and  one  is  injured  on  the  crossing  by  the  failure  to  give  the 
signals,  a  recovery  may  be  had.  It  is  also  held  that,  if  the 
crossing  is  one  where  the  presence  of  persons  is  to  be  ex- 
pected, and  therefore  anticipated,  a  lookout  duty  rests  upon 
the  railroad  company.  If  the  crossing  is  a  private  one,  in 
the  country,  and  it  is  shown  that  the  public  generally  uses  the 
crossing  with  the  knowledge  and  acquiescence  of  the  railroad 
company,  the  presence  of  persons  upon  the  crossing  is  to  be 
anticipated  by  those  operating  the  trains.^^  The  use  of  a 
private  crossing  by  many  persons  does  not  put  upon  the  rail- 
road a  lookout  duty  as  to  them,  nor  require  an  anticipation 
of  their  presence  upon  the  track  or  dangerously  near  to  it, 
unless  the  use  is  with  the  knowledge  and  acquiescence  of  the 
railroad.  It  may,  however,  be  said  that  wherever,  from  the 
nature  and  use  of  a  crossing  by  the  public,  the  duty  is  im- 
posed upon  the  railroad  of  anticipating  the  presence  of  per- 
sons upon  the  crossings,  the  duty  of  the  ones  operating  a  rail 
road  train  to  maintain  a  lookout,  to  give  warnings  of  the  ap- 
proach, and  to  have  the  train  under  control,  follows.^^ 

Sec.  584.  Negligence  of  railroad  in  operation  of  train  —  per- 
missive use  of  tracks  of  railroad  company. 
Where  a  person  driving  an  automobile  is  injured  at  a  point 
where  the  railroad  crosses  a  street  or  highway  and  such  in- 
jury is  due  to  the  negligence  of  the  company,  it  is  liable 
therefor.  And  where  such  company  simply  permits  another 
railroad  company  to  run  cars  upon  its  tracks,  it  is  declared 
to  be  the  general  rule  that  the  former  is  liable  for  damages 
caused  by  the  negligence  of  the  company  enjoying  the  per- 

93.  Central  of  Ga.  Ry.  Co.  v.  McKey,  &  I.  R.  Co.  v.  Cantrell,   175  Ky.  440, 
13  Ga.  App.  477,  79  S.  E.  378;   Whit-  194  S.  W.  353;  Louisville,  etc..  R.  Co. 
ner  v.  Southern  R.  Co.,  101  S.  Car.  441,  v.  Clore,  183  Ky.  261,  209  S.  W.  55. 
85  S.  E.  1064.  95.  Louisville   &    I.   R.    Co.   v.   Mor- 

94.  Louisville  &.  I.  R.  Co.  v.  Morgan,  gan,  174  Ky.  633,  192  S.  W.  672. 
174  Ky.  633,  192  S.  W.  672;  Louisville 

47 


738  The  Law  op  Automobiles. 

missive  use.  In  this  connection,  in  an  action  against  a  rail- 
road company  for  an  injury  sustained  at  a  grade  crossing 
by  one  riding  in  an  automobile,  it  was  decided  that  the  case 
was  for  the  jury  upon  evidence  that  the  safety  gates  at  the 
crossing  where  the  accident,  occurred  were  raised,  that  there 
was  no  watchman  on  duty,  that  no  warning  was  given,  that 
the  automobile  stopped  at  a  proper  place  and  was  immedi- 
ately started  again  when  a  trainman  of  the  defendant  mo- 
tioned them  to  proceed,  and  that  it  was  struck  before  it  got 
across  the  tracks.^® 

96.  Sanders  v.  Pennsylvania  R.  Co.,  225  Pa.  St.  105,  73  Atl.  1010. 


Collisions  With  Street  Cars.  739 


CHAPTER  XXII. 

COLLISIONS  WITH  STREET  CARS. 
SBction  585.  Relative    rifjhts   of   street    cars    and    automobiles  —  at   intersecting 
streets. 

586.  Relative    rights    of    street    cars   and    automobiles  —  between    cross- 

ings. 

587.  Relative    rig'hts    of    street    cars    and    automobiles  —  street    railway 
company  not  an  insurer 

588.  Relative  rights  of  street   cars   and   automobiles  —  burden   of   proof 

as  to  negligence. 

589.  Relative   rights   of   street   cars   and   automobiles  —  when    contribu- 

tory negligence  not  necessarily  a  bar. 

590.  Relative  rights  of  street  cars  and  automobile?  —  proximate   cause. 
.591.  General  duty  of  automobilist  to  exercise  due  care. 

592.  Looking  for  approaching  street  cars  —  in  general. 

593.  Looking    for    approaching    street   cars  —  proper    place    for    looking. 

594.  Looking  for  approaching  street  care  —  continuity  of  looking. 

595.  Looking  for  approaching  street  cars  —  ignorance  of  street  car  line. 

596.  Looking    for     approaching    street    cars  —  backing    or     tiirniing    in 

street. 

597.  Looking    for    approaching    street    cars  —  failure    to     see,    though 

looking. 

598.  Ix)oking   for   ;ipproaehing  street   cars  —  looking  to  rear. 

599.  Crossing  in  front  of  observed  car. 

600.  I>riving  auto  along  track  —  in  general. 

601.  Driving  auto  along  track — car  from  rear. 

602.  Driving  auto  along  track- — ^car  in  front. 

60.3.  Speed     and     control     of     automobile  —  approaching     imtersecting 
streets. 

604.  Speed  and  control  of  automobile  —  stopping. 

605.  Speed  and  control  of  automobile  —  unfamiliarity   with   brakes. 

606.  Speed  and  control  of  automobile  —  automobile      rimning      against 

street  car. 

607.  Stopping  auto  near  track. 

608.  Turning  or  backing  auto  in  street. 

609.  ReliaBce  on  proper  care  by  street  railway. 

610.  Violation  of  regulation  by  autoist. 

611.  Auto  stalled  on  tracks. 

612.  Acts  in  emergencies. 

613.  Last  clear  chance  doetrine. 

614.  Function  of  jury. 

615.  Negligence  of  railway     in  general. 

616.  Negligence  of  railway-    lookout. 

617.  Negligence  of  railway-  speed. 

618.  Negligence  of  railway-    stopping,   if   necessary. 

619.  Negligence  of  railway-   warning  of  approach. 

620.  Negligence  of  railway— -private  crossings. 

621.  Liability  of  street  railway  (■<  mpany  to  its  passenger. 

622.  Liability  of  auto  driver. 


740 


The  Law  of  Automobiles. 


Sec.  585.  Relative  rights  of  street  cars  and  automobiles  —  at 
intersecting  streets. 

At  intersecting  streets,  the  general  rule  is  that  a  street  car 
crossing  in  one  direction  and  an  automobile  approaching  at 
right  angles  have  equal  right  to  the  use  of  the  crossing.^ 


1.  Idaho. — Holmes  v.  Sandpoint  &  I. 
R.  Co.,  25  Idaho  345,  137  Pac.  532. 

Illinois. — Hedmark  v.  Chicago  Rys. 
Co.,  192  111.  App.  584;  Johnson  Oil  Re- 
fining Co.  V.  Galesburgh,  etc..  Power 
Co.,  200  111.  App.  392. 

Maine. — Cobb  v.  Cumberland  County 
Power  &  Light  Co.,  117  Me.  455,  104 
Atl.  844. 

Maryland. — United  Rys.  &  Elec.  Co. 
V.  State  to  Use  of  Mantik,  127  Md. 
197,  96  Atl.  261. 

Minnesota. — Syck  v.  Duluth  St.  Ry. 
Co.,  177  N.  W.  944. 

New  York. — Harlan  v.  Joline,  77 
Misc.  (N.  Y.)  184.  136  N.  Y.  Suppl. 
72;  Ebling  Brewing  Co.  v.  Linch,  80 
Misc.  (N.  Y.)  517,  141  N.  Y.  Suppl. 
480;  James  Everard's  Breweries  v. 
New  York  Rys.  Co.,  151  N.  Y.  Suppl. 
905. 

Canada. — Carleton  v.  City  of  Re- 
gina,  1  D.  L.  R.  778. 

"A  street  car  has  no  paramount 
right  of  way  over  other  vehicles  and 
pedestrians  at  the  intersections  of 
streets  where  the  car  tracks  cross 
other  streeta  than  the  one  they  run 
along.  The  preference  of  right  of  way 
accorded  to  street  cars  upon  city 
streets,  especially  between  street  cross- 
ings, and  in  respect  to  vehicles  passing 
in  the  same  or  opposite  directions  to 
the  cars,  within  the  space  embraced 
within  their  tracks,  does  not  apply  at 
street  crossings,  and  their  rights  to 
the  use  of  the  streets  at  crossings  are 
precisely  the  same  as  those  of 
pedestrians  and  other  vehicles  crossing 
their  tracks  there.  Neither  has  a 
superior  right  to  the  other.  The  car 
has  a  right  to  cross,  and  must  cross 
the  street;  and  a  vehicle  or  pedestrian 
has  the  right  to  cross  and  must  cross 
the  railroad  track.     The  right  of  each 


must  be  exercised  with  due  regard  to 
the  right  of  the  other,  in  a  reasonable 
and  careful  manner,  and  so  as  not  un- 
reasonably to  abridge  or  interfere  with 
the  rights  of  the  other.  The  trolley 
car  and  the  driver  may  each  acquire  a 
right  of  way  to  cross  at  street  inter- 
sections, though  it  is  suggested  that  a 
driver  might  be  negligent  though  he 
has  a  right  of  way  if  he  persists  in 
crossing  when  he  perceives  or  ought  to 
perceive  that  the  motorman  is  not 
j'ielding  to  his  just  claim.  It  is  in- 
cumbent upon  a  street  railway  com- 
pany in  operating  its  cars  at  public 
crosisings  to  use  ordinary  care  to  avoid 
injury,  and  this  rule  is  applicable  in 
thickly  populated  or  much-used  dis- 
tricts regardless  of  whether  or  not 
there  is  a  statute  or  a  municipal  ordi- 
nance limiting  the  rate  of  speed. 
While  a  street  railway  company  has 
a  preferential  right  of  way  it  has  no 
right  to  proceed  upon  the  assumption 
that  it  may  take  no  heed  of  the  prob- 
ability of  encountering  vehicles  at 
crossings.  A  motorman  in  approach- 
ing crossings  must  proceed  with  such 
care  and  caution  that  he  can  reduce  to 
the  minimum  the  danger  to  others.  A 
street  car  should  be  kept  under  the 
reasonable  control  of  the  motorman 
when  crossing  a  street,  and  persons 
with  or  without  vehicles,  passing  over 
the  track  at  street  crossings,  may  as- 
sume that  care  will  be  used  to  reduce 
the  speed  at  such  crossings.  The  rail- 
road company  must  recognize  and  re- 
spect the  equal  rights  of  all  others, 
and  cause  its  servants  who  operate  the 
cars  to  exercise  the  care  which  the  in- 
creased danger  arising  under  the  travel 
at  street  crossings  demand,  and  others 
using  the  street  must  take  all  reason- 
able   and    proper    precaution    to    avoid 


Collisions  With  Street  Caes. 


741 


Each  must  exercise  reasonable  care  to  avoid  a  collision,-  and 
neither  can  heedlessly  continue  his  course  on  the  assumption 
that  the  other  will  give  way.^     But,  if  one  reaches  the  inter- 


accidents.  If  it  is  the  rule  that  cars 
must  be  under  control  at  street  cross- 
ings, this  control,  in  the  absence  of 
legislative  requirements,  must  be  a 
reasonable  control,  depending  upon  the 
circumstances,  and  not  an  absolute 
control  so  that  the  car  may  be  stopped 
immediately  under  all  circumstances. 
If  the  motorman  sees  a  clear  track  and 
has  no  occasion  to  stop  and  no  reason 
to  anticipate  danger  to  another,  it 
would  not  be  negligence  to  maintain 
the  usual  rate  of  speed,  even  over  a 
crossing.  But  if  he  sees,  or  ought  to 
see,  persons  or  vehicles  thereon,  not 
able  to  get  out  of  his  way  readily,  it 
would  certainly  be  negligence  not  to 
have  such  control  of  his  car  as  to  be 
able  to  stop  before  reaching  such  cross- 
ing. The  general  rule  is  that  at  a 
street  crossing,  or  at  a  place  used  as  a 
street  crossing,  the  motonnan  in 
charge  of  a  car  approaching  one  dis- 
charging passengers  is  bomid  to  keep  a 
sharp  lookout  for  passengers  or  other 
persons  who  may  attempt  to  cross  the 
tracks  behind  the  standing  or  moving 
car,  to  have  his  car  under  such  con- 
trol that  he  can  stop  it  upon  the  ap- 
pearance of  danger,  and  to  give  such 
sig-nals  as  will  usually  protect  travel- 
ers who  are  in  the  exercise  of  ordinary 
prudence."  Nellis  on  Street  Railways 
(2d  Ed.),  §  388. 

While  street  cars  and  other  vehicles 
have  equal  rights  at  street  intersec- 
tions, a  vehicle  is  not  equally  entitled 
to  cross  at  the  same  moment  the  car 
is  crossing  without  regard  to  the  speed 
at  which  the  car  is  running.  Hed- 
mark  v.  Chicago  Rys.  Co.,  192  111.  App. 
584. 

A  fast  suburban  trolley  line  oper- 
ated over  the  tracks  of  an  ordinary 
railroad  has  a  paramount  and  superior 
right  of  way  over  vehicles  at  street 
crossings.     Letzter  v.  Ocean  Elec.  Ry. 


Co..  192  N.  Y.  App.  Div.  114,  182  N. 
Y.  Suppl.  649.  But  where  the  railway 
is  not  operated  on  its  own  right  of 
way,  their  rights  are  more  equal.  Sut- 
ton V.  Virginia  Ry.  &  P.  Co.,  125  Va. 
449,  99  S.  E.  670. 

2.  Hoff  V.  Los  Angeles-Pac.  Co.,  158 
Cal.  596,  112  Pac.  53;  Garrett  v.  Peo- 
ples R.  Co.,  6  Penn.  (Del.)  29,  64  Atl. 
254;  Joyce  v.  Interurban  R.  Co.,  172 
Iowa,  727,  154  N.  W.  936;  Louisville 
Ry.  Co.  V.  Budwell.  189  Ky.  424,  224 
S.  W.  1065;  United  Rys.  &  Elec.  Co.  v. 
State  to  Use  of  Mantik,  127  Md.  197, 
96  Atl.  261 ;  Travelers  Indemnity  Co. 
V.  Detroit  United  Ry.,  193  Mich.  375, 
159  N.  W.  528;  Granader  v.  Detroit 
United  Ry.  206  Mich.  367,  171  N.  W. 
362;  Kirk  v.  St.  Paul  City  Ry.  Co. 
(Minn.),  170  N.  W.  517;  Reed  v.  Ta- 
coma  Ry.  &  P.  Co.  (Wash.).  188  Pac. 
409.  "  It  was  Just  as  incumbent  upon 
the  motorman  to  exercise  due  care  in 
running  the  cars  over  the  crossing,  as 
it  was  upon  the  chauffeur  to  act  pru- 
dently in  the  management  of  the 
motor  truck  as  it  drew  near  to  that 
place  of  possible  danger.  A  due  re- 
gard for  the  interests  of  those  having 
an  equal  right  to  the  use  of  the  cross- 
ing required  that  the  usual  signal 
should  have  been  given  as  the  cars  ap- 
proached the  jimction  of  the  streets, 
and  that  their  speed  should  have  been 
reduced  and  under  ready  control,  es- 
pecially as  the  presence  of  trees  in 
foliage  obstructed  the  view  of  the 
track  from  the  position  which  the 
drivers  of  motor  trucks  and  other 
vehicles  are  accustomed  to  occupy." 
United  Rys.  &  Elec.  Co.  v.  State  to 
Use  of  Mantik,  127  Md.  197.  96  Atl.  2m. 

And  see  section  591. 

3.  Kirk  v.  St.  Paul  City  Ry.  141 
Minn.  457,  170  N.  W.  517;  Jame« 
Everard's  Breweries  v.  New  York  Rys. 
Co.,  151   N.  Y.  Suppl.  905. 


742 


The  Law  of  Automobiles. 


section  clearly  in  advance  of  the  other,  in  the  absence  of 
statute  or  ordinance  regulating  the  priority,  the  law  generally 
permits  him  to  continue  his  course.^  A  statute  or  a  munici- 
pal ordinance  may,  however,  give  the  street  railway  cars  a 
priority  which  is  to  be  respected  by  other  travelers.'  Or 
traffic  on  certain  busy  streets  may  be  preferred  to  that  upon 
less  busy  cross  streets.^  A  traffic  statute  requiring  the  driver 
of  a  vehicle  approaching  the  intersection  of  a  street,  to  grant 
the  right  of  way  to  any  vehicle  coming  from  the  right,  does 
not  necessarily  apply  to  the  motorman  of  a  street  car,'^ 
though  in  some  states  such  a  regulation  may  be  applied  as 
between  a  street  ear  and  automobile.'*     Regulations  of  this 


4.  Margolis  v.  Chicago  Rya.  Co.,  205 
111.  App.  286-,  Reed  v.  Public  Service 
Ry.  Co.,  89  N.  J.  L.  431.  99  Atl.  100; 
Harlan  v.  Joline,  77  Misc.  (N.  Y.) 
184,  136  N.  Y.  Suppl.  72.  "The  driver 
of  the  automobile  would  have  the  right 
of  way  if,  proceeding  at  a  rate  of 
speed  which  under  the  circumstance-s 
of  the  time  and  locality  was  rea-oii- 
able,  he  should  reach  ,the  point,  .if 
crowing  in  time  to  go  safely  upon  the 
tracks  in  advance  of  the  approaching 
car;  the  latter  being  sufficiently  dis- 
tant to  be  checked,  and.  if  need  be, 
stopped,  before  it  should  reach  him." 
Reed  v.  Public  Service  Pvy.  Co..  89  N, 
J.  L.  431,  99   Atl.   100. 

5.  Walker  v,  Rodriguez.  139  La. 
251,   71   So.  499. 

6.  .Johnson  Oil  Refining  Co.  v.  Gales- 
burgh,  etc..  Power  Co..  200  III.  App. 
392;  Tx)uisville  Ry.  Co.  v.  Budwell. 
189  Ky.  424,  224  S.  W.  1065;  Cook  v. 
United  Rys.  &  Elec.  Co.  of  Baltimore, 
132  Md.  .553,  104  Atl.  37;  Boston  Ins. 
Co.  v.  Brooklyn  Heights  R.  Co.,  182 
N.  Y.  App.  Div.  1,  169  N.  Y.  Suppl. 
251  ;  Ebling  Brewing  Co.  v.  Linch,  80 
Misc.  (N.  Y.)  517, 141  N.  Y.  Suppl.  480. 

Question  for  jury  as  to  right  of 
way. — In  an  action  for  damages  aris- 
ing from  a  collision  between  an  auto- 
mobile proceeding  in  an  easterly  di- 
rection and  a  trolley  car  proceeding 
in  a  northerly  direction,  the  court  re- 
fused to  charge  plaintiff's  request  that 


if     tlie    front  of    the    automobile    waa 
from   twenty   to  twenty-five  feet  from 
the   railroad   track   at   the   time   when 
the    street   car    was    from   one-half   to 
three-quarters     of    a  block   away,    the 
trolley   car  did  not   have  the  right  of 
way,     and   further    refused   to    charge 
Chat   if  the  automobile  got  within  the 
square    formed    by    the    intersection    of 
the  streets  before  the  trolley  car,  that 
at  that  point  the  trolley  car  would  not 
liave,   a.s   matter   of   law,   the   right  of 
way.     Held,  that  if  suoh  were  the  factd 
as  the  jury  might  have  found,  it  could 
not  be  said  as  a  matter  of  law  that 
the  trolley  car  had  the  right  of  way, 
but  that  would  be  a  question   of  fact 
depending  on   the  speed   at  which  the 
respective    vehicles    were  approaching, 
and  the  court  instead  of  declining  the 
request     should     have     instructed,     the 
jury  that  whether  the  trolley  car  did 
then  have  the  right  of  way  depended 
on  whether  or  not  if  the  vehicles  pro- 
ceeded    without    changing  their  speed, 
the  trolley  car  would  have  reached  the 
path     of     the     automobile   before   that 
vehicle   would   have  cleared   the  street 
car  track.     Boston  Ins.  Co.  v.  Brook- 
lyn   Heights   R.   Co..    182    N.   Y.   App. 
Div.  1.  169  N.  Y.  Suppl.  251. 

7.  Reed  v.  Public  Service  Ry.  Co., 
89  N.  J.  L.  431,  99  Atl.  100.  And  see 
section  246. 

8.  Syck  v.  Duluth  St.  Ry.  Co. 
(Minn.),  177  N.  W.  944. 


Collisions  With  Street  Cabs. 


743 


character,  however,  do  not  relieve  the  party  entitled  to  pri- 
ority from  the  duty  of  exercising  reasonable  care  to  avoid 
injury  to  other  travelers.  That  is  to  say,  he  cannot  blindly 
rely  on  his  right  of  priority.®  Nor  are  such  regulations  to 
be  extended  to  such  an  extent  as  to  place  a  practical  prohibi- 
tion upon  traflSc  not  entitled  to  priority,^  ^ 

Sec.  586.  Relative  rights  of  street  cars  and  automobiles  — 
between  crossings. 

Between  street  crossings,  the  street  railway  cars  are  gen- 
erally accorded  a  preferential  right  to  use  the  space  allotted 
for  their  tracks.^^     That  is,  an  automobile  or  other  traveler 


9.  Sy«k  V.  Duluth  St.  Ry.  Co. 
(Minn.),  177  N.  W.  944;  El  Paso 
Elec.  Ry.  Co.  v.  Benjamin  (Tex.  Civ. 
App.),  202  S.  W.  996. 

10.  Cook  V.  United  Rya.  &  Elec.  Co. 
of  Baltimore,  132  Md.  553,  104  Atl. 
37. 

11.  Capital  Tr.  Co.  v.  Crump,  35 
App.  D.  C.  169;  Coggin  v.  Shreveport 
Rys.  Co.,  147  I>a.  84  So.  902. 

"A  street  raUway  company  has  not 
the  exclusive  right  to  the  use  of  its 
tracks,  but  it  has  a  paramount  right 
to  that  of  others  traveling  on  the  high- 
way and  using  it,  including  that  por- 
tion occupied  by  the  company's  tracks, 
in  common,  in  that  portion  of  the 
highway  taken  up  by  its  tracks  which 
is  between  intersecting  streets  or 
street  crossings.  Its  cars  have  a 
preference  in  the  streets,  and  while 
they  must  be  managed  with  care  so  as 
not  to  negligently  injure  persons  and 
property  in  the  streets,  pedestrians 
and  persons  riding  or  driving  on  the 
higihway  -must  use  reasonoble  caution 
and  diligence  to  keep  out  of  their  way, 
and  not  unnecessarily  obstruct  or  in- 
terfere with  their  passage.  This  rule 
is  foimded  upon  the  fact  that  the  car 
is  confined  to  a  fixed  track  and  cannot 
turn  out  or  leave  the  track,  and  that 
the  convenience  of  the  individual 
should  be  subordinated  to  the  con- 
venience   and     accommodation    of    the 


public.  The  street  railway  company 
has  no  exclasive  right  to  occupancy  of 
that  portion  of  the  highway  on  which 
its  tracks  arc  located.  Other  travelers 
have  an  equal  right  to  use  this,  as  well 
as  different  portions  of  the  way,  not 
only  for  crossing,  but  for  progressing, 
subject  only  to  the  restriction  that 
they  must  not  unreasonably  obstruct 
the  street  cars,  which  by  the  limit- 
ations of  their  construction  and  legal 
right*  can  proceed  only  on  their  rails. 
Although  street  cars  have  a  superior 
right  of  way  to  general  travel  on  the 
streets,  at  places  other  than  crossings, 
the  general  public  have  the  right  to 
use  and  travel  upon  the  entire  street, 
including  that  portion  of  it  on  which 
the  car  tracks  are  laid,  and  are  in  no 
sense  to  be  treated  as  trespassers  for 
so  doing.  No  part  of  a  public  street 
is  withdraiATi  from  use  by  placing  a 
street  railway  track  upon  it,  such 
street  is  merely  burdened  with  an  ad- 
ditional easement  in  favor  of  the 
street  railway  company,  with  the  pre- 
ferential right  of  passage  over  it.  The 
right  and  duty  of  pedestrians,  and  the 
right  and  duty  of  the  person  in 
charge  of  the  motive  power  of  a  street 
car  when  crossing  streets,  are  re- 
ciprocal, and  each  is  bound  to  use 
equal  diligence  to  avoid  collision.  It 
is  incumbent  on  a  street  railway  com- 
pany  to   use   such   reasonable  care   in 


744 


The  Law  of  Automobiles. 


may  use  the  part  of  the  street  occupied  by  tracks,  but  he 
should  give  way  to  the  prior  right  of  a  street  car  upon  its 
approach.^-  The  motorman  of  the  street  car,  however,  must 
not  willfully  run  into  the  vehicle.^^  When  meeting  an  auto- 
mobile, the  street  car  must  be  accorded  the  right  of  way  along 
its  tracks;  it  cannot  turn  out,  and  the  automobile  must  give 
way  to  permit  the  passage.^* 

Sec.  587.  Relative  rights  of  street  cars  and  automobiles  — 
street  railway  company  not  an  insurer. 
It  is,  of  course,  a  fundamental  principle  in  the  law  of  street 
railway  eompanies  that  they  do  not  insure  travelers  from 
injury  from  their  cars.^^  On  the  contrary,  it  is  only  liable 
for  damages  resulting  from  a  collision  between  one  of  its  cars 
and  a  motor  vehicle,  when  some  negligence  on  its  part  is 
shown  and  when  absence  of  contributory  negligence  on  the 
part  of  the  occupants  of  the  vehicle  exists.^^  When  the 
accident  is  the  result  of  an  inevitable  accident,  no  liability  is 


operating  its  cars,  as  to  speed,  giving 
signals,  and  slowing  up  and  stopping 
the  car  when  danger  is  imminent,  as 
is  demanded  by  the  surroxmding  cir- 
cumstances, and  persons  using  the 
streets  are  also  bound  to  stop,  and,  if 
need  be  turn  out  of  the  tracks,  in  the 
presence  of  danger.  Street  railway 
companies  and  travelers  must  each  use 
the  street  with  reasonable  regard  for 
the  safety  and  convenience  of  the 
other."  N-ellis  on  Street  Railways  (2d 
Ed.),  §  387. 

12.  Busch  V.  Los  Angeles  Ry.  Corp. 
178  Cal.  536,  174  Pac.  665,  2  A.  L.  R. 
1607;  Pantagis  v.  Seattle  El.  Co.,  63 
Wash.    159,   114  Pac.   1044. 

13.  Capital  Tr.  Co.  v.  Crump,  35 
App.  D.  C.  169. 

14.  Slavage  v.  Public  Service  Ry. 
Co.,  89  N.  J.  L.  555,  99  Atl.  383;  Pan- 
tages  V.  Seattle  Elec.  Co.,  55  Wash. 
453,  104  Pac.  629.  "  A  traveler  on  a 
public  street  may  lawfully  use  any 
part  of  the  street  he  pleases  when  the 
same  is  not  in  the  immediate  use  of 
another,  even  though  there  is  no  other 


requirement  for  him  so  to  do  than  that 
of  convenience.  He  must  realize,  of 
course,  that  in  so  far  as  street  cars 
are  concerned  they  can  travel  over 
only  a  given  space,  and  that  he  m^ust 
avoid  this  space  on  the  approach  of  a 
car.  But  his  right  to  use  any  part  of 
the  street  when  not  in  use  by  a  car  is 
not  to  be  governed  by  the  question  of 
necessity."  Pantages  v.  Seattle  El. 
Co.,  63  Wash.  159,  114  Pac.  1044. 

15.  Winter  v.  British  Columbia 
Elec.  R.  W.  Co.,  13  W.  L.  R.  (Canada) 
352. 

16.  Arkansas. — ^Miller  v.  Ft.  Smith 
Light  &  Tract.  Co.,  136  Ark.  355,  206 
S.  W.  329. 

Connecticut. — Bodek  v.  Connecticut 
Co.,  Ill  Atl.  590. 

Delaware. — Garrett  v.  Peoples  R. 
Co.,  6  Penn.  29,  64  Atl.  254. 

Massachusetts. — ^Lynch  v.  Boston 
Elevated  Ry.  Co.,  224  Mass.  93,  112 
N.  E.  488;  Boyd  v.  Boston  Elevated 
Ry.  Co.,  224  Mass.  199,  112  N.  E.  607. 

Michigan. — King  v.  Grand  Rapid* 
Ry.  Co.,  176  Mich.  645,  143  N.  W.  36. 


Collisions  With  Street  Cars. 


745 


imposed  on  the  company. ^"^  The  fact  of  the  collision  does 
not  ordinarily^  of  itself,  establish  either  the  negli^-ence  of  the 
railroad  company  or  the  absence  from  contributory  negli- 
gence of  the  complaining  party.^*  If  neither  party  is  guilty 
of  negligence  contributing  to  the  collision,  neither  is  liable 
for  the  damages  sustained  by  the  other.^'^  If  a  traveler  unex- 
pectedly rushes  in  front  of  a  street  ear  which  is  run  at  a 
proper  speed  and  with  due  precautions  for  the  rights  of  other 
travelers,  and  the  motorman  is  unable  to  stop  the  car  before 
a  collision  results,  the  accident  is  chargeable  to  the  contribu- 
tory negligence  of  the  traveler  or  to  inevitable  accident,  and 
the  street  railway  company  is  not  liable.-*'  But  the  fact  that, 
after  the  discovery  of  the  peril  of  an  automobilist  on  a  street 
car  track,  the  motorman  is  unable  to  stop  his  car  before  strik- 
ing the  machine,  does  not  absolve  the  company  from  liability 
for  its  prior  negligence.  That  is  to  say,  if  the  car  was  run- 
ning at  an  excessive  speed,  the  compan}^  is  chargeable  with 
negligence,  though  it  was  unable  to  stop  after  seeing  a  traveler 
dangerously  near  the  track.^^ 


Nebraska. — Berto  v.  Omaha,  etc., 
Co.,  178  N.  W.  912. 

Pennsylvania^ — ^Taylor  v.  Philadel- 
phia Rapid  Transit  Co.,  55  Pa.  Super. 
Ct.  607. 

Washington. — Pantages  v.  Seattle 
Elec,  Co..  55  Wash.  453,  104  Pac.  629. 

Canada. — Winter  v.  British  Colum- 
bia Elec.  R.  W.  Co.,  13  W.  L.  R. 
(Canada)    352. 

17.  Mobile  Light  &  R.  Co.  v.  Harris 
Grocery  Co.  (Ala.  App.),  84  So.  867. 

Unavoidable  accident. — ^Where  an 
automobile  was  on  a  street  railway 
track  the  company  was  held  not  liable 
in  damages  for  an  injury  due  to  a  col- 
lision between  a  tram  car  and  the 
automobile,  it  appearing  that  the  de- 
fendant's car  was  not  running  at  an 
excessive  rate  of  speed:  that  the 
motorman  was  competent,  and  that 
from  the  time  he  received  a  signal  that 
the  motor  car  was  in  trouble  he  not 
only  did  everything  that  a  reasonable 
man  could  be  exepcted  to  do  but  every- 


thing that  he  could  possibly  do  to 
avoid  the  aecident,  and  there  being  no 
defect  in  the  car  equipment.  Winter 
v.  British  Columbia  Elec.  R.  W.  Co., 
13  W.  L.  R.   (Canada)   352. 

18.  Busch  v.  Los  Angeles  Ry.  Corp. 
178  Cal.  536,  174  Pac.  665,  2  A.  L.  R. 
1607;  Garrett  v.  Peoples  R.  Co.,  6 
Penn.  (Del.)  29,  64  Atl.  254;  Texas 
Electric  Ry.  Co.  v.  Crump  (Tex.  Civ. 
App.),  212  S.  W.  827. 

19.  Boyd  V.  Boston  Elev.  Ry.  Co.. 
224  Mas5.  199,  112  N.  E.  607. 

20.  Dale  v.  Denver  City  Tramway 
Co.,  173  Fed.  787,  97  C.  C.  A.  511; 
West  Helena  Consol.  Co.  v.  MeCray, 
256  Fed.  753;  Vanek  v.  Chicago  City 
Ry.  Co.,  210  111.  App.  148;  Good  Roads 
Co.  V.  Kansas  City  Rys.  Co.  (Mo. 
App.),  217  S.  W.  858;  Lindley  v.  Fries, 
etc.,  Co.,  153  N.  Car.  394,  69  S.  E. 
274;  Gooderham  v.  Toronto  R.  Co.  80 
W.  N.   (Canada),  3,  22  D.  L.  R.  S98. 

21.  Chappell  v.  United  Rye.  Co.,  174 
Mo.  App.  126,  156  S.  W.  819. 


746  The  Law  of  Automobiles. 

Sec.  588.  Relative  rights  of  street  cars  and  automobiles  — 
burden  of  proof  as  to  negligence. 

The  cominon  law  rule,  as  a  general  proposition,  required 
that  the  plaintiff  in  an  action  of  negligence  should  establish, 
not  only  the  negligence  of  the  defendant,  but  also  his  own 
absence  from  contributory  negUgence.^-  While  the  common 
law  rule  remains  in  force  in  some  jurisdictions,^^  the  tendency 
in  recent  years  has  been  to  change  the  rule  as  to  contributory 
negligence  and  to  place  the  burden  of  that  issue  on  the  de- 
fendant.^* Indeed  statutory  provisions  may  be  enacted  to 
the  extent  of  raising  in  some  cases  a  presumption  of  negli- 
gence on  the  part  of  a  street  railway  company  when  one  of 
its  cars  has  struck  an  automobile.-^  Such  a  presumption  is 
rebutted  when  it  is  shown  that  the  company  did  everything 
possible  to  avoid  the  accident.^^ 

Sec.  589.  Relative  rights  of  street  cars  and  automobiles  — 
when  contributory  negligence  not  necessarily  a 
bar. 

The  general  rule  is  that  any  contributory  negligence  on  the 
part  of  the  driver  of  an  automobile  contributing  to  the  acci- 
dent will  be  an  absolute  defense  to  an  action  against  a  street 
railway  company  for  injuries  received  in  a  collision  between 
his  machine  and  one  of  its  street  cars.-"     Modern  innovations 

82.  "  The  general  rule  is  that  a  445,  141  N.  W.  795;  Dreger  v.  Inter- 
plaintiff,  in  an  action  for  negligence,  national  Ry.  Co.,  190  N.  Y.  App,  Div. 
must  show  that  his  injuries  were  not  570,  ISO  N.  Y.  Suppl.  436;  Gagon  v. 
caused  by  his  own  want  of  reasonable  Worcester  Consol.  St.  Ry.  Co.,  231 
care,  and  whether  he  exercised  such  Mass.  160,  120  N.  E.  381;  Hersley  v. 
care,  and,  if  not,  whether  his  failure  to  Kansas  City  Rya.  Co.  (Mo.  App.),  214 
do  so  contributed  essentially  to  his  in-  S.  W.   287. 

jury,  are  questions  for  the  jury  to  de-  25.  Murphy  v.  Georgia  Ry.  &  Power 

termine  from  a  consideration  of  all  the  Co.,   146  Ga.  297,  91   S.  E.   108;  Krebs 

circumstances  of  the  case."     Clarke  v  v.  Paseagoula  St.  Ry.  &  Power  Co.,  117 

Connecticut  St.  Ry.  Co.,  83  Conn.  210.  Miss.  771,  78  So.  753. 

76  All.  523.  26.  Krebs    v.    Paseagoula   St.    Ry.   & 

23.  .Johnson  Oil  Refining  Co.  v.  Power  Co..  117  Miss.  771.  78  So.  753. 
Galesburg,  etc..  Power  Co..  200  111.  27.  Calvert  v.  Detroit  United  Ry., 
App.  392;  Boyd  v.  Boston  Elevated  Ry.  •_>02  Mich.  311.  168  N,  W.  508;  Vogt  v. 
Co.,  224  Mass.  199,  112  N.  E.  607.  Unite<l    Rys.     Co.    of  St.   Louis    (Mo. 

24.  Bailey  v.  Worcester  Consol.  St.  App.).  219  S'.  W.  997;  Sutton  v.  Vir- 
Ry.  Co.,  228  Ma-ss.  477,  117  N.  E.  824;  ?inia  Ry.  &  P.  Co..  125  Va.  449.  99  S. 
Day   V.    Duluth   St.   R.   Co..    121    Minn.  K.  670. 


Collisions  With  Street  Cars.  747 

have  in  some  States  relaxed  the  strictness  of  the  common  law 
rule.  In  some  States,  contributory-  negliircin'o  is  not  a  de- 
fense to  ''  wanton  "  conduct  on  the  part  of  the  employees  of 
the  street  railway  company.-^  And  in  a  few  jurisdictions  a 
doctrine  of  "  comparative  "  negligence  has  been  established, 
which  permits'  the  jury  to  compare  the  negligence  of  the  auto- 
mobilist  and  that  of  the  street  railway  company  and  in  some 
cases  to  give  a  verdict  for  the  plaintiff  though  he  might  have 
been  guilty  of  some  negligence  contributing  to  the  accident.^^' 
The  doctrine  of  "  comparative  "  negligence  in  some  States 
is  applied  in  case  of  actions  for  personal  injuries  and  not  in 
actions  for  injuries  to  property.  In  such  a  situation,  if  a  col- 
lision has  occuiTed  between  a  street  car  and  an  automobile, 
the  contributory  negligence  of  the  driver  will  not  necessarily 
bar  him  from  recovering  for  his  personal  injuries,  but  will 
be  an  absolute  bar  to  a  recovery  for  injuries  to  the  vehicle.^" 

Sec.  590.  Relative  rights  of  street  cars  and  automobiles  — 
proximate  cause. 

One  of  the  fundamental  rules  of  the  law  of  negligence  is 
that  neglect  of  care  on  the  part  of  the  plaintiff  will  not  bar 
his  recovery,  unless  such  neglect  is  a  proximate  cause  of  the 
injury.  A  street  railway  company,  conceding  its  negligence, 
is  liable  only  for  such  consequences  as  naturally  follow  from 
its  neglect.^^  And  an  automobilist  injured  by  a  collision 
with  a  street  car  may  be  permitted  to  recover  for  his  injuries, 
though  he  is  guilty  of  some  act  of  commission  or  omission,  so 
long  as  such  improper  conduct  is  not  a  proximate  contribut- 
ing cause  of  the  coUision.^^     And,  ordinarily,  whether  the  in 

28.  See  Mobile  Light  &  R.  Co.  v.  Mc-  juries  to  an  automobile  which  is 
Evoy.  65  Ala.  App.  46,  75  So.  191;  struck  by  a  truck  thrown  against  it 
Alabama  Power  Co.  v.  Brown  (Ala.),  by  a  street  car.  Washington,  etc.,  Ry. 
87  So.  608.  Co.   V.   Fingles,   135  Md.  574.    109   Atl. 

29.  Columbus    R.    Co.   v.    Waller.    12  431. 

Ga.  App.  674,  78  S.  E.  52.  32.  Birmingham   R.    L.   i    P.   Co.   v. 

30.  Krebs  v.  Pascagoula  St.  Ry.  &  Ely,  183  Ala.  382.  62  So.  816;  Mobile 
Power  Co.,  117  Miss.  771,  78  So.  753.  Light  &  R.  Co.  v.  Harris  Grocery  Co, 

31.  Birmingham  R.  L.  &  P.  Co.  v.  (Ala.  App.),  84  So.  867;  Hygienic  Ice 
Ely,  183  Ala.  382.  62  So.  816.  Co.  v.  Connecticut  Co.,  90  Conn.  21,  98 

Injury  to  machine  at  curb. — ^A  street  Atl.  152;  Cobb  v.  Cumberland  County 
railway  company  may  be  liable  for  in-        Power    &     Light    Co.    (Me.).    104   Atl. 


748  The  Law  of  Automobiles. 

juries  of  tlie  jjlaintiff  are  the  proximate  result  of  his  failure 
to  use  proper  care,  is  a  question  for  the  jury.^^  For  example, 
the  fact  that  the  automobilist  does  not  have  his  car  registered 
and  licensed  according  to  tlie  statutes  on  the  subject,  is  not 
generally  considered  a  proximate  cause  of  the  collision,  and 
a  recoveiy  may  be  permitted  notwithstanding  the  violation 
of  the  law.^^  In  cases  of  collisions  between  motor  vehicles 
and  street  cars,  the  question  of  proximate  cause  is  frequently 
associated  with  the  "  last  clear  chance  "  doctrine.^^  The  fact 
that  the  collision  would  not  have  occurred  but  for  the  negli- 
gence of  the  driver  of  the  automobile  does  not  necessarily 
excuse  the  street  railway  company  for  the  results  of  its  con- 
curring negligence,  so  far  as  a  passenger  in  the  vehicle  is 
concerned;  and  such  passenger  may  be  permitted  to  recover 
against  both  the  railway  company  and  the  driver  of  the  vehi- 
cle, as  joint  tort-feasors.^^ 

Sec.  591.  General  duty  of  automobilist  to  exercise  due  care. 

The  general  rule  applied  in  actions  of  negligence  arising 
out  of  a  collision  between  a  street  car  and  a  motor  vehicle  on 
a  public  highway,  is  that  the  driver  of  the  vehicle  is  under  an 
obligation  to  exercise  reasonable  care  for  the  safety  of  him- 
self and  his  machine.^^     The  reasonable  care  required  of  an 

844;   Clyde  v.   Southern  Pac.   Utilities  ing,  etc.,  Ins.  Co.  v.  Pacific  Elec.  Ry. 

Co.    (S.   Car.),   96   S.   E.    116;    Dallas  Co.    (Cal.  App.),  184  Pac.  29. 

Ry.    Co.    V.    Eaton    (Tex.    Civ.    App.),  Delaware. — Garret  v.  Peoples  R.  Co., 

222  S.  W.  318.  6  Penn.  29,  64  Atl.  254. 

33.  Clarke  v.  Connecticut  St.  Ry.  Illinois. — McEniry  v.  Tri-City  Ry. 
Co.,  83  Conn.  219,  76  Atl.  523;  Donlin  Co.,  179  111.  App.  132;  Ashland  Auto 
V.  Detroit  United  Ry.,  198  Mich.  327,  Garage  v.  Chicago  Rys.  Co.,  183  111. 
164  N.  W.  447;  Clyde  v.  Southern  Pac.  App.  207. 

Utilities  Co.,  109  S.  Car.  290,  96  S.  E.  S'ansas.— Williams  v.   lola   Elec.   R. 

116;    Dallas    Ry.    Co.    v.    Eaton    (Tex.  Co.,  102  Kans.  268,  170  Pac.  397. 

Civ.  App.),  222  S.  W.  318.  Maryland.— Glick   v.    Cumberland    & 

34.  Sections   126,  610.  W.  Elec.  Ry.  Co.,  124  Md.  308,  92  Atl. 

35.  Section  613.  778;  State  to  Use  of  Stumpf  v.  Balti- 

36.  Shield  v.  F.  Johnson  &  Son  Co..  more  &  B.  Elec.  Rys.  Co.,  133  Md.  411, 
132  La.  773,  61  So.  787.  105  Atl.  532. 

37.  Alabama. — Ross  v.  Brannon,  198  Massachusetts. — Ga.gnon  v.  Worces- 
Ala.   124.  73  So.  439.  ter  Consol.  St.  Ry.  Co.,  231  Mass.  160, 

Arkansas.— Tine  Bluflf  Co.  v.  Crunk,       120  N.  E.  381. 
129  Ark.  39,  195  S.  W.  397.  Michigan.  —  Colborne      v.      Detroit 

C'aii/ornia.—Commonwealth  v.  Bond-       United  Ry..   177  Mich.   139,  143  N.  W. 


Collisions  With  Street  Cars. 


749 


autoist  may  vary  according  to  the  circumstances,  for  ''  rea- 
sonable "  or  ' '  due  ' '  care  implies  such  a  degree  of  vigilance 
as  is  commensurate  with  the  dangers  involved/^*^  Thus,  a 
traveler  about  to  cross  a  street  railway  track  need  not,  per- 
haps, exercise  such  great  vigilance  as  when  he  is  crossing 
the  track  of  a  steam  railroad,^'^  for  the  railroad  trains  are  run 
at  greater  speed  and  cannot  be  controlled  or  stopped  as 
readily    as    electric    surface    cars.*^    When    approaching    a 


32;  Weil  V.  Detroit  United  Ry.,  186 
Mich.  614,  152  N.  W.  959;  Travelers 
Indemnity  Co.  v.  Detroit  United  Ry., 
193  Mich.  375,  159  N.  W.  528. 

i/issoMn.— Byerly  v.  Metropolitan 
St.  Ry.  Co.,  172  Mo.  App.  470,  158  S. 
W.  413. 

^'e^o  York. — Clark  v.  New  York  Rys. 
Co.,  78  Misc.  646,  138  N.  Y.  Suppl.  824. 

Pennsylvania. — Odhert  v.  Webster 
M.  &  B.  &  F.  C.  S.  R.  Co.,  50  Pa.  Super. 
Ct.  525. 

Rhode  Island. — Hermann  v.  Rhode 
Island  Co.,  36  R.  I.  447,  90  Atl.  813; 
Frery  v.  Rhode  Island  Co.,  37  R.  I.  96, 
91  Atl.  1. 

Texas. — El  Paso  Ry.  Co.  v.  Terrazas 
(Civ.  App.),  208  S.  W.  387. 

Utah. — Goan  v.  Ogden,  etc.,  Ry.  Co., 
51  Utah  285,  169  Pac.  949. 

Washington.  —  Devitt  v.  Piiget 
Sound  Traction,  Light  &  Power  Co., 
106  Wash.  449,  180  Pac.  483,  affirmed 
on  rehearing,  185  Pac.  583. 

Wisconsin. — Bertrand  v.  Milwaukee 
Electric  Ry.  &  L.  Co.,  156  Wis.  639, 
146  N.  W.  915. 

38.  Taylor  v.  Pacific  Electric  Ry. 
Co.,  172  Cal.  638,  158  Pac.  119;  Gar- 
rett V.  Peoples  R.  Co.,  6  Penn.  (Del.) 
29,  64  Atl.  254;  North  State  Lumber 
Co.  V.  Charleston,  etc.,  Co.  (S.  Car.), 
105  S.  E.  406. 

39.  See  chapter  XXI. 

40.  Schmidt  v.  Mobile  Light  &  R. 
Co.  (Ala.),  87  So.  181.  "While  it  is 
true  that  one  about  to  cross  the  track 
of  a  street  railway  is,  ...  '  not 
held  to  that  high  degree  of  care  which 
is  required  in  the  case  of  an  ordinary 


steam  railroail  running  through  the 
country,  on  which  heavy  trains  of  cars 
are  moved  at  a  high  rate  of  speed  and 
cannot  be  quickly  stopped  or  control- 
led,' ...  he  must,  of  course,  exercise 
such  care  as  is  reasonable  under  all 
the  conditions,  rights  and  circum- 
stances, .  .  .  and,  if  he  fails  to  do  so 
with  the  result  that  his  own  negligence 
contributes  to  the  accident  in  which  he 
is  injured,  he  cannot  recover,  in  the 
absence  of  the  application  to  the  other 
party  of  the  doctrine  of  what  is  called 
in  our  decisions  the  '  last  clear  chance  ' 
doctrine.  The  care  required  has  been 
declared  to  be  '  that  degree  of  care 
which  people  of  ordinarily  prudent 
habits — people  in  general — could  be 
reasonably  expected  to  exercise  under 
the  circumstances  of  a  given  case, 
.  .  .  '  that  degree  of  care  and  pru- 
dence and  good  sense  which  men  who 
possess  those  qualities  in  an  ordinary 
or  average  degree  exercise  '  luider  simi- 
lar conditions."  Hoff  v.  Los  Angeles- 
Pac.  Co.,  158  CaL  596,  112  Pac.  53. 
"  Contrary  to  the  rule  applicable  to 
ordinary  railroads,  we  have  held  that 
it  is  not  negligence  in  itself  to  fail  to 
stop,  look,  and  listen  before  crossing  a 
street  car  track.  This,  of  course,  does 
not  mean  that  a  person  so  crossing 
may  act  blindly,  without  giving  any 
heed  to  his  own  safety;  it  means 
simply  that  the  rule  is  not  one  of  tini- 
form  application  to  such  a  situation; 
that  a  person  is  not  to  be  charged  with 
negligence  from  the  fact  alone  that  he 
did  not  stop,  look,  and  listen.  If  the 
conditions   are  such  that  it  would  be 


750 


The  Law  of  Automobiles. 


crossing  where  the  view  is  more  or  less  obstructed,  the  driver 
of  a  motor  vehicle  is  bound  to  avail  himself  of  his  knowledge 
of  the  locality  and  the  presence  of  danger,  and  to  exercise 
that  degree  of  caution  which  an  ordinarily  careful  and  pru- 
dent person  would  exercise  under  the  circumstances.'*^  If  he 
drives  his  machine  upon  the  street  railway  track  without  tak- 
ing any  precaution  to  ascertain  whether  a  car  is  approach- 
ing, he  is  guilty  of  negUgence  as  a  matter  of  law.^-  In  par- 
ticular States  statutory  enactment  may  change  the  rule  as  to 
the  degree  of  care  by  requiring  the  driver  to  exercise  a 
'  *  high  "  or  "  highest ' '  degree  of  care.*^ 

Sec.  592.  Looking  for  approaching  street  cars  —  in  general. 

The  driver  of  an  automobile  when  approaching  a  street  in- 
tersection along  which  street  cars  are  running,  cannot  con- 
tinue his  course  heedless  of  approaching  street  cars.  Al- 
though street  railways  and  other  travelers  may  have  equal 
rights  at  intersecting  streets,^*  it  is  the  duty  of  automobile 
travelers  to  exercise  reasonable  care  for  their  own  safety.^'' 


the  duty  of  an  ordinarily  prudent  per- 
son to  stop,  look,  and  listen  before 
crossing  the  track,  then  the  person 
crossing  must  do  so,  else  be  charged 
with  negligence  for  not  so  doing. 
Stated  in  another  way,  the  omission  of 
the  dutj^  is  but  a  fact  to  be  weighed 
with  all  other  facts  and  circumstances 
surrounding  the  case  in  determining 
the  question  of  negligence  or  con- 
tributoiy  negligence."'  Johnson  v.  City 
of   Seattle    (Wash.).   194   Pac.   417. 

41.  Garrett  v.  Peoples  R.  Co.,  6 
Penn.  (Del.)  29,  64  Atl.  254,  and  see 
section  279. 

42.  Bardshar  v.  Seattle  Elec.  Co., 
72  Wash.  200,  130  Pac.  101;  Briscoe 
V.  Washington-Oregon  Corp..  84  Wash. 
29,  145  Pac.   995. 

43.  Threadgill  v.  United  Rys.  Co.  of 
St.  Louis,  279  Mo.  466,  214  S.  W.  161 ; 
Davis  V.  United  Rys.  Co.  (Mo.  App.), 
218  S".  W.  .357;  Foy  v.  United  Rys.  of 
St.  Louis  (Mo.  App.),  226  S.  W.  325. 
See  also,  section  281.  See  also,  Ed- 
monston  v.  Barrock  (Mo.  App.),  230 
S.  W.  650. 


44.  Section  585. 

45.  Duty     to     look     and     listen. — 

'■  There  seems  to  be  no  universal  rule 
as  to  the  liability  for  contributory 
negligence,  as  a  matter  of  law,  in  per- 
sons driving  upon  or  across  the  tracks 
of  a  street  railroad  company,  without 
looking  or  listening  for  approaching 
ears.  In  Pennsylvania  and  some  other 
jurisdictions  the  courts  apply  the  rule 
in  all  cases,  whether  at  street  car 
crossings  or  elsewhere,  that  a  failure 
to  look  and  listen,  and,  under  some  cir- 
cumstances, to  stop,  is  negligence  per 
se,  which  will  bar  a  recovery  for  in- 
juries sustained  by  a  collision  with  a 
car.  In  A'ew  Jersey  and  some  otlier 
states,  however,  the  principle  is  held 
to  be  well  established  that  it  is  not 
negligence  in  law  for  a  person  driving 
a  vehicle,  in  approaching  a  street 
crossing  over  which  he  intends  to 
cross,  to  fail  to  look  and  listen  for  an 
approaching  street  car,  in  order  to 
avoid  danger  from  it.  But,  while  it  is 
held,  as  in,  New  York,  that  a  person  is 


Collisions  With  Street  Cars. 


751 


Reasonable  care  requires,  at  the  least,  that  the  driver  of  a 
motor  vehicle  shall  look  for  approaching  street  cars  before 
crossing  a  railway  track  in  the  street.^^     Sometimes,  his  duty 


not  necessarily  negligent  in  failing  to 
look  and  listen  for  approaching  street 
cars  before  attempting  to  drive  across 
the  traok  of  a  street  railroad  it  is  held 
there  and  elsewhere  that  the  traveler, 
as  well  as  those  operating  the  car,  is 
bound  to  use  that  degree  of  care  which 
ordinarily  prudent  men  would  use 
under  the  circumstances,  and  that,  a 
person  of  ordinary  prudence  would 
have  looked  and  listened,  failure  to  do 
so  constitutes  negligence  as  a  matter 
of  fact.  It  has  also  ]>een  quite  gener- 
ally held  that  one  who  drives  upon  a 
street  car  track  in  front  of  an  ap- 
proaching trolley  car.  without  looking 
or  listening,  and  is  injured  by  an  en- 
suing collision,  is  guilty  of  such  con- 
tributory negligence  as  will  bar  a  re- 
covery, when,  if  he  had  looked  and 
listened,  he  might  or  must  have  known 
of  the  dangerous  proximity  of  the  car. 
But  a  driver  or  one  riding  with  him  is 
not  bound  luider  all  circumstances  to 
take  the  same  precautions  before  driv- 
ing upon  street  railway  tracks  as  is 
required  of  a  pedestrian.  If  the  driver 
of  a  vehicle  does  not  know  of  the  ex- 
istence of  street  railway  tracks  upon 
the  street  which  he  is^about  to  cross, 
and  there  is  nothing  in  the  physical 
conditions  to  impute  to  him  such 
knowledge,  no  warning  signal  being 
sounded,  the  law  does  not  impose  an 
absolute  duty  upon  him  to  look  and 
listen  for  an  approa<;hing  car  before 
attempting  to  make  the  crossing,  and 
for  failure  to  do  so  he  is  not  charge- 
able with  contributory  negligence  as  a 
matter  of  law.  The  driver  of  a  vehicle 
upon  the  streets  of  a  city  has  a  right 
to  rely  upon  the  law  which  requires 
the  street  railway  company  to  give 
timely  warnings  of  the  approach  of  a 
car."  Nellis  on  Street  Railways  (2d 
Ed.),  §  416. 

46.  United  States, — Dale    v.    Denver 


City  Tramway  Co.,  173  Fed.  787,  97  C. 
C.  A.  511. 

Alabama. — Ross  v.  Brannon,  198 
.Ala.  124,  73  So.  439. 

California. — Hoflf  v.  Loa  Angelea- 
Pac.  Co.,  158  Cal.  596,  112  Pac.  53; 
Loftus  v.  Pacific  Elec.  Ry.  Co.,  166 
Cal.  464,  137  Pac.  34. 

Connecticut. — Greenhill  v.  Connecti- 
cut Co.,  92  Conn.  560,  103  Atl.  646. 

Illinois. — Swancutt  v.  Trout  Auto 
Livery  Co.,  176  111.  App.  606;  Gray  v. 
Chicago,  etc.,  R.  Co.,  155  111.  App. 
428;  Bastien  v.  Chicago  City  Ry.  Co., 
189  III.  App.  369;  Hack  v.  Chicago 
Interurban  Traction  Co.,  201  111.  App. 
572;  Garden  v.  (  hicago  Rys.  Co.,  210 
.111.   App.    155. 

Iowa. — Flannery  v.  Interurban  Ry. 
Co.,  171  Iowa,  238,  153  N.  W.  1027; 
Bensing  v.  Waterloo,  etc.,  R.  Co.,  179 
N.  W.  835. 

Kansas. — Shelton  v.  Union  Traction 
Co.,  99  Kans.  34,  160  Pac.  977. 

Louisiayia. — Walker  v.  Rodriguez, 
139  La.  251,  71   So.  499. 

Maryland. — State  to  Use  of  Stumpf 
V.  Baltimore  &  B.  Elec.  Rys.  Co.,  133 
Md.  411,   105   Atl.   532. 

Michigan. — Puffer  v.  Muskegon,  etc., 
Co.,  173  Mich.  193,  139  N.  W.  19;  Don- 
lin  v.  Detroit  United  Ry.,  198  Mich. 
327,  164  N.  W.  447;  Congdon  v.  Mich- 
igan United  Traction  Co.,  199  Mich. 
564,  165  N.  W.  744;  Hickey  v.  Detroit 
United  Ry.,  202  Mich.  496*  168  N.  W. 
517;  Gillett  v.  Michigan  United  Tract. 
Co..  205  Mich.  410.  171  N.  W.  536. 

Minnesota. — Syck  v.  Duluth  St.  Ry. 
Co.,   177  N.  W.  944. 

Missouri. — Chappell  v.  United  Rye. 
Co.,  174  Mo.  App.  126,  156  S.  W.  819; 
Voelker  Products  Co.  v.  United  Rys. 
Co.,  185  Mo.  App.  310,  170  S.  W.  332; 
England  v.  Southwest  Missouri  R.  Co. 
(Mo.  App.).  180  S.  W.  32. 

Xorfh   Carolina. — Lindlev    v.    Fries, 


752 


The  Law  of  Automobiles. 


is  expressed  as  that  of  looking  and  listening.*'  Moreover, 
under  some  circumstances,  as  where  the  view  of  the  track  is 
obstructed,  it  may  be  that  the  automobilist  should  stop  his 
machine  before  attempting  the  crossing.*^  The  tracks,  of 
themselves,  are  a  signal  of  danger,  and  impose  a  correspond- 
ing degree  of  care  on  the  automobilist.'*^     Failure  to  look  and 


etc.,  Co.,  153  N.  Car.  394,  69  S.  E. 
274;  Kime  v.  Southern  Railway  Co., 
153  N.  Car.  398,  69  S.  E.  274. 

Pennsylvania. — Clifford  v.  Philadel- 
phia Rapid  Transit  Co.,  112  Atl.  468; 
Lessig  V.  Reading  Transit  &  L.  Co.,  113 
Atl.  381;  Hill  v.  Philadelphia  Rapid 
Transit  Co.,  114  Atl.  634;  Miller 
North  Broad  Storage  Co.  v.  Philadel- 
phia Rapid  Transit  Co.,  62  Pa.  Super. 
Ct.  568. 

Rhode  Island. — Brien  v.  Rhode  Is- 
land Co.,  99  Atl.  1026;  Hambly  v.  Bay 
State  St.  Ry.  Co.,  100  Atl.  497;  Ent- 
wistle  V.  Rhode  Island  Co.,  103  Atl. 
625;  Levein  v.  Rhode  Island  Co.,  110 
Atl.  602;  King  v.  Rhode  Island  Co., 
110  Atl.  623. 

l/taTi.— Oswald  v.  Utah  L.  &  R.  Co., 
39  Utah  245,  117  Pac.  46. 

Washington. — Bowden  v.  Walla 
Walla  Valley  Ry.  Co.,  79  Wash.  184. 
140  Pac.  549;  Briscoe  v.  Washington- 
Oregon  Corp.,  84  Wash.  29,  145  Pac. 
995;  Herrett  v.  Puget  Sound,  etc.,  P. 
Co.,  103  Wash.  101,  173  Pac.  1024; 
Heath  v.  Wylie,  109  Wash.  86,  186 
Pac.  313. 

West  Virginia. — Helvey  v.  Prince- 
ton Power  Co.,  99  S.  E.  180. 

Canada. — Carleton  v.  City  of  Re- 
gina,  1  D.  L.  R.  778. 

47.  Alabama. — Ross  v.  Brannon,  73 
So.  439. 

California. — Hoff  v.  Los  Angeles- 
Pac.  Co.,  158  Cal.  596,  112  Pac.  53; 
Loftus  V.  Pacific  Elec.  Ry.  Co.,  166 
Cal.  464,  137  Pac.  34. 

Delaware. — Garrett  v.  People's  R. 
Co.,  6  Penn.  29,  64  Atl.  254. 

Indiana. — Union  Traction  Co.  v. 
Moneyhun    (Ind.  App.).  127  N.  E.  443. 


Louisiana. — Walker  v.  Rodriguez, 
139  La.  251,  71   So.  499. 

Missouri. — Chappell  v.  United  Rys. 
Co.,  174  Mo.  App.  126,  156  S.  W.  819; 
Voelker  Products  Co.  v.  United  Rys. 
Co.,  185  Mo.  App.  310,  170  S.  W.  332. 

North  Carolina. — Lindley  v.  Fries, 
etc.,  Co.,  153  N.  Car.  394,  69  S.  E. 
274;  Kime  v.  Southern  Railway  Ca, 
153  N.  Car.  398,  69  S:  E.  274. 

Pennsylvania. — Benamy  v.  Reading 
Transit  &  Light  Co.,  112  Atl.  437. 

Wisc07isin. — Dahinden  v.  Milwaukee 
Elec.  Ry.  &  L.  Co.,  171  N.  W.  669; 
Moody  V.  Milwaukee  Elec.  Ry.  &  L. 
Co.,  180  N.  W.  266. 

Distance. — A  driver  is  not  required 
as  a  matter  of  law  to  look  three  or 
four  blocks.  Coons  v.  Olympic  L.  & 
P.  Co.    (Wash.),  191  Pac.  769. 

48.  State  to  Use  of  Stumpf  v.  Bal- 
timore, etc.,  Rys.  Co.,  133  Md.  411, 
105  Atl.  532. 

49.  Loftus  V.  Pacfic  Elec.  Ry.  Co., 
166  Cal.  464.  137  Pac.  34;  Chappell  v. 
United  Rys.  Ce.,  174  Mo.  App,  126, 
156  S.  W.  819.  "  It  is  unnecessary  to 
enlarge  upon  the  well-settled  rule  that 
a  railroad  track  is  in  and  of  itself  a 
sign  of  danger,  and  that  one  approach- 
ing such  track  with  intent  to  cross  it 
is  bound  to  exercise  his  faculties  of 
sight  and  hearing  in  order  to  ascer- 
tain whether  a  train  is  approaching." 
Herbert  v.  S.  P.  Co.,  121  Cal.  227,  53 
Pac.  651 ;  Zibbell  v.  S.  P.  Co.,  160  Cal. 
•237,  116  Pac.  513.  "While  these  re- 
quirements of  care  have  usually  been 
applied  to  persons  seeking  to  cross  the 
track  of  a  steam  railroad,  they  are  al- 
so fairly  applicable  to  crossings  over 
the  track  of  an  electric  railway,  con- 


Collisions  With  Street  Cars. 


753 


listen  for  approaching  trains  at  a  steam  railroad  crossing  is 
negligence  per  se,^^  but  the  rule  is  not  so  strict  at  street  rail- 
way crossings ;  in  the  latter  class  of  cases,  a  question  for  the 
jury  may  be  presented,  though  the  negligence  of  the  traveler 
would  have  been  declared  as  a  matter  of  law  had  the  crossing 
been  that  of  a  steam  railroad.^^ 


Sec.  593.  Looking  for  approaching  street  cars  —  proper  place 
for  looking. 
When  approaching  a  street  railway  track,  the  duty  of  look- 
ing for  cars  implies  that  the  required  observation  shall  be 
made  at  a  place  where  looking  will  be  effective ;  that  is,  at  a 
place  from  which  he  can  stop  his  machine  if  necessary  to 
avoid  a  collision.^-  The  taking  of  an  observation  when  some 
considerable  distance  from  the  track,  with  a  complete  failure 
to  again  look  for  cars  before  reaching  the  traok,  may  be  con- 
tributory negligence  as  a  matter  of  law.^^  Thus,  where  one 
looked  for  cars  when  he  was  about  sixty  feet  from  the  track, 


structed   and   operated   as   the   defend- 


ant's 

road    was."      Loftus    v.    Pacific 

Elec. 

Ry.   Co.,   166   Cal.  464,   137   Pac. 

34. 

50. 

Section  557. 

51.  Dahinden  v.  Milwaukee  Elec. 
Ry.  &  L.  Co.  (Wis.),  171  N.  W.  669. 
And  see  section  614. 

52.  Walker  v.  Rodriguez,  139  La.  251. 
71  So.  499;  Daiill  v.  New  Orleans  Ry. 
&  L.  Co.  147  La.  1012,  86  So.  477; 
Foos  V.  United  Rys.  &  Elec.  Co.  (Md.), 
110  Atl.  849;  Donlin  v.  Detroit  United 
Ry.  198  Mich.  327,  164  N.  W.  447; 
Congdon  v.  Michigan  United  Traction 
Co.,  199  Mich.  564,  165  N.  W.  744; 
Brien  v.  Rhode  Island  Co.  (R.  I.),  99 
Atl.  1026;  Entwistle  v.  Rhode  Island 
Co.  (R.  I.).  103  Atl.  625.  "No  one 
can  doubt  that  the  law  enjoins  the 
duty,  not  only  of  listening  for  the  ap- 
proach of  the  car,  but  of  looking  at  a 
point  where  the  vision  is  open  for  a 
considerable  distance,  at  least  when 
considered  with  reference  to  the  known 
likelihood    of    cars    to  approach  at  a 

48 


high  rate  of  speed."  Voelker  Products 
Co.  V.  United  Rys.  Co..  185  Mo.  App. 
310,  170  S.  W.  332. 

Probabilities  not  determinative. — 
In  an  action  where  the  defense  is  that 
plaintiff  was  guilty  of  contributory 
negligence  in  attempting  to  cross  a 
street  car  track  with  his  automobile 
without  ascertaining  in  sufficient  sea- 
son whether  cars  were  approaching, 
the  question  of  contributory  negligence 
is  to  be  determined  by  the  situation 
when  plaintiff  was  at  such  a  distance 
before  going  on  the  track  that  he  could 
control  his  machine  and  avoid  the 
danger,  rather  than  by  probabilities. 
Hack  V.  Chicago  &  Interurban  Tract. 
Co.,  201  111.  App.  572. 

53.  Gray  v.  Chicago,  etc.  R.  Co.. 
155  111.  App.  428;  Congdon  v.  Michi- 
gan United  Traction  Co..  199  :Mich. 
564,  165  N.  W.  744;  Shore  v.  Dunham 
(Mo.  App.),  178  S.  W.  900;  England 
V.  Southwest  Missouri  R.  Co.  (Mo. 
App.),  180  S.  W.  32;  Brien  v.  Rhode 
Island  Co.   (R.  I.),  99  Atl.  1026. 


754  The  Law  of  Automobiles. 

but  attempted  to  drive  across  the  track  without  looking  again, 
when  the  track  was  straight  and  unobstructed  for  six  hun- 
dred feet,  it  was  held  that  he  was  guilty  of  contributory 
negligence.^*  And  when  one  looked  for  approaching  cars 
when  about  thirty  feet  from  the  track  at  a  place  where  his 
view  was  very  limited,  it  was  held  that  he  was  guilty  of 
negUgence  in  failing  to  look  again  before  reaching  the  track.^^ 
But  where  there  is  no  car  in  sight  when  the  driver  of  the 
machine  starts  across  the  street,  he  is  not  necessarily  guilty 
of  negligence  because  he  does  not  thereafter  look  for  a  car.^^ 
The  operator  of  a  motor  vehicle  should  look  for  approaching 
cars  at  a  point  where  the  view  is  open  for  a  distance  propor- 
tionate to  the  probable  speed  of  cars  at  that  point.^^  If  the 
view  is  obstructed  as  the  driver  approaches,  the  duty  to  use 
his  faculties  before  going  upon  the  track,  continues,  and  he 
should  at  some  reasonable  point  before  reaching  the  track 
look  for  cars,^^  even  though  it  is  necessary  for  him  to  stop 
in  order  to  get  an  effective  view  of  the  track.^^  A  lookout  by 
the  traveler  at  a  point  where  he  cannot  see  more  than  sixty 
feet  is  not  sufficient  to  establish  his  exercise  of  care,  for  the 
question  of  his  care  depends  on  his  precautions  when  he  is 
at  such  a  distance  from  the  track  that  he  can  control  his  ma- 
chine and  avoid  the  danger  of  the  approaching  car.^^  When 
passing  behind  a  street  car  on  one  track,  he  must  use  his 
senses  to  discover  whether  there  is  a  car  approaching  on  the 
parallel  track. ^^ 

54.  Puffer  v.  Muskegon,  etc.,  Co.,  102  Kans.  268,  170  Pac.  397;  Donlin  v. 
173  Mich.   193.   139  Nu   W.   19.  Detroit  United  Ry.,  198  Mich.  327,  164 

55.  Brien  v.  Rhode  Island  Co.  (R.  N.  W.  447;  Voelker  Products  Co.  v. 
I.).  99  Atl.  1026.  United  Rys.  Co.,  185  Mo.  App.  310,  170 

56.  Brandt   v.    New   York    Rys.  Co.,       S.  W.  332.     And  see  section  604. 

85  Misc.   (N.  y.)  40,  147  N.  Y.  Suppl.  60.  Hedmark    v.    Chicago  Rys.    Co., 

17.     See  also  Reichle  v.  Detroit  United  192  111.  App.  584. 

Ry.,  203  Mich.  276,   168  N.   W.  972.  61.  Schrankel  v.  Minneapolis  St.  Ry. 

57.  Voelker  Products  Co.  v.  Unite<l  Co.,  144  Minn.  465,  174  N.  W.  820; 
Rys.  Co.,  185  Mo.  App.  310,  170  S.  W.  McCIeave  v.  United  Rys.  Co.  of  St. 
332.                                                                .  Louis     (Mo.    App.).     181   S.  W.   1084; 

68.  Ricker  v.  Rhode  Island  Co.  (R.  Zeis  v.  United  Rys.  Co.  (Mo.  App.), 
I.),  107  Atl.  72;  Levein  v.  Rhode  Is-  217  S.  W.  324;  Bardahar  v.  Seattle 
land  Co.  (R.  I.),  110  Atl.  602.  Elec.  Co.,  72  Wash.  200,  130  Pac.  101. 

69.  Williams    v.    lola  Elec.   R.    Co., 


Collisions  With  Street  Cabs.  755 

Sec.  594.  Looking  for  approaching  street  cars  —  continuity  of 
looking. 

The  driver  of  an  automobile,  as  he  approaches  a  street  rail- 
way line,  is  not  ordinarily  required  to  keep  a  continuous 
lookout  for  approaching  street  cars.^-  Indeed,  he  should  not 
give  all  of  his  attention  to  one  direction,  for  ordinarily  danger 
may  be  expected  in  either  direction.^^  Moreover,  he  might 
be  guilty  of  negligence  if  lie  used  his  faculties  entirely  for 
street  cars,  for,  while  exceeding  the  requirements  of  the  law 
in  respect  to  looking  for  street  cars,  he  might  be  grossly 
negligent  with  respect  to  carriages  and  automobiles,  as  well 
as  bicyclists,  pedestrians  and  other  travelers  in  the  highway. 
The  law  contemplates  that  he  shall  divide  his  lookout  between 
all  classes  of  travelers  and  vehicles.  If  he  devotes  his  atten- 
tion to  pedestrians  and  does  not  see  an  approaching  street 
car,  he  may  be  deemed  guilty  of  negligence  as  a  matter  of 
law.^*  But,  when  the  driver  of  an  automobile  sees  a  street 
car  on  a  cross  street,  and  it  is  reasonably  apparent  that  both 
will  reach  the  intersection  at  about  the  same  time,  due  care 
on  the  part  of  the  driver  requires  that  he  shall  be  watchful 
of  the  street  car  until  danger  therefrom  is  obviated.^^  Where 
the  driver  of  an  automobile  coming  out  of  a  garage  glanced 
down  the  street  and  saw  an  electric  car  approaching  about 
300  feet  away,  but,  without  looking  again,  drove  on  the  track 
and  came  in  collision  with  the  car  it  was  held  that  he  was 
guilty  of  negligence,  there  being  no  evidence  showing  with 
legal  certainty  that  the  motorman  was  operating  the  car  at 
a  dangerous  rate  of  speed,  or  that,  by  the  exercise  of  ordi- 

62.  Byerley  v.  Metropolitan  St.  R.  street  car,  are  circumstances  which 
Co.,  172  Mo.  App.  470,  158  S.  W.  413;  take  the  case  out  of  the  operation  of 
Foy  V.  United  Rys.  Co.  of  St.  Louis  those  cases  which  have  held  the  in- 
(Mo.  App.),  226  S.  W.  325;  Stream  v.  jured  person  guilty  of  contributory 
Grays  Harbor  Ry.  &  L.  Co.  (Wash.),  negligence  as  a  matter  of  law."  Byerly 
1&5  Pac.  1044;  Dahinden  v.  Milwau-  v.  Metropolitan  St.  Ry.  Co..  172  Mo. 
kee  Elec.  Ry.  &  L.  Co.    (Wis.),  171  N.  App.  470.  158  S.  W.  413. 

W.  669;  Moody  v.  Milwaukee  Elec.  Ry.  64.  Shelton    v.    Union    Traction  Co., 

&  L.  Co.    (Wis.).  180  N.  W.  26(5.  99  Kans.  34,  160  Pac.  977. 

63.  "  The  fact  that  plaintiff  looked  65.  Weston  v.  Grand  Rapids  R.  Co.. 
once  to  the  south  and  then  to  the  180  Mich.  373,  147  N.  W.  630;  Lane  v. 
north  and  then  again  to  the  south,  Kansas  City  Rys.  Co.  (Mo.  App.),  228 
coupled  with  the  excessive  speed  of  the  S.  W.  870. 


756  The  Law  of  Automobiles. 

nary  care  after  the  discoYery  of  the  danger,  he  could  have 
avoided  the  collision.^^ 

Sec.  595.  Looking  for  approaching  street  cars  —  ignorance  of 
street  car  line. 
The  fact  that  the  operator  is  not  familiar  with  the  sur- 
roundings and  hence  is  not  aware  of  the  presence  of  a  street 
car  line  on  a  cross  street  will  not  necessarily  excuse  his  fail- 
ure to  look  for  approaching  cars.^^  If  the  collision  occurs 
in  the  day  time,  the  poles,  wires,  tracks  and  other  appliances 
of  the  railway  company  may  be  so  clearly  visible,  that  one 
in  the  exercise  of  due  care  should  be  aware  of  the  railway 
system,  and  the  driver  may  be  charged  with  contributory 
negligence  in  failing  to  learn  of  its  presence.^^ 

Sec.  596.  Looking  for  approaching  street  cars  —  backing  or 
turning  in  street. 

One  backing  an  automobile  from  a  garage  to  a  street  along 
which  street  cars  are  accustomed  to  run,  cannot  be  said  to  be 
in  the  exercise  of  reasonable  care,  if  he  does  not  look  for  ap- 
proaching cars  as  he  backs  his  machine.^^  So,  too,  one  about 
to  turn  his  motor  vehicle  around  in  the  street  must  look  for 
approaching  street  cars  before  making  the  turn;  and,  if  he 
fails  in  this  respect,  he  may  be  charged  with  contributory 
negligence.^^ 

Sec.  597.  Looking  for  approaching  street  cars  —  failure  to 
see,  though  looking. 

As  a  general  proposition,  a  traveler  along  a  street  or  high- 
way is  chargeable  with  a  knowledge  of  such  conditions  as  he 
should  discover  in  the  exercise  of  due  care."^^     Thus,  if  a 

66.  Marston  v.  Shreveport  Traction  70.  Capp  v.  Southwestern  Tract.  & 
Co.,  140  La.  18,  72  So.  794.  Power   Co.,    142  La,   529,    77    So.    141 ; 

67.  Lindley  v.  Fries,  etc.,  Co.,  153  N.  Birch  v.  Athol,  etc.,  Ry.  Co.,  198  Mass. 
Car.  394,  69  S.  E.  274.  257,  84  N.  E.  310. 

68.  Beaver  Valley  Milling  Co.  v.  In-  71.  "  The  plaintiff,  an  adult  in  full 
terurban  Ry.  Co.  (Iowa),  166  N.  W.  possession  of  his  senses  so  far  as  this 
565.  record   shows,    in  broad  daylight,  was 

69.  Holmes  v.  Sandpoint  &  I.  R.  Co.,  therefore,  as  a  matter  of  law,  charged 
25  Idaho,  345,  137  Pac.  532.  with    knowledge   of    its    approach,   for 


Collisions  With  Street  Cars. 


757 


motor  vehicle  collided  with  a  street  car  wliich  was  in  plain 
view  and  would  have  been  seen  by  the  driver  had  he  exer- 
cised reasonable  care  in  looking  for  cars,  it  does  not  avail 
him  to  claim  that  he  looked  for  approaching  street  cars  but 
failed  to  see  anyJ^  His  failure  to  see  what  is  in  plain  sight 
is  as  culpable  as  not  to  look.  The  surrounding  circum- 
stances, however,  may  be  such  as  tend  to  excuse  the  failure 
of  the  driver  to  see  an  approaching  car  and  to  present  a  ques- 
tion for  the  jury  as  to  his  contributory  negligence."^^  Thus, 
on  an  interurban  electric  railway  crossing,  if  the  driver  of 
an  automobile  at  a  proper  place  stops  and  looks  and  listens 
for  approaching  cars  and  does  not  discover  the  approach  of 
a  car,  he  may  be  justified  in  attempting  to  cross  the  track; 
and,  in  such  a  case,  his  contributory  negligence  may  be  a  ques- 
tion for  the  jury.'^* 


to  look,  in  the  eyes  of  the  law  is  to 
see  that  which  is  before  one  in  plain 
view,  and  the  courts  close  their  doors 
on  one  falling  short  in  that  require- 
ment where  he  is  not  shown  to  be 
physically  disabled  in  his  eyesight." 
England  v.  Southwest  Missouri  R.  Co. 
(Mo.  App.),  180  S.  W.  32. 

72.  Greenhill  v.  Connecticut  Co.,  92 
Conn.  560.  103  Atl.  646;  Birch  v. 
Athol,  etc.,  Ry.  Co.,  198  Mass.  257.  84 
N.  E.  310;  Pigeon  v.  Massachusetts, 
et«.,  St.  Ry.  Co.,  230  Mass.  392,  119  N. 
E.  762;  Schrankel  v.  Minneapolis  St. 
Ry.  Co.,  144  Minn.  465.  174  N.  W. 
820;  Oswald  v.  Utah  L.  &  R.  Co.,  39 
Utah,  245,  117  Pac.  46;  Herrett  v. 
Puget  Sound,  etc.,  P.  Co.,  103  Wash. 
101,  173  Pac.  1024.  See  also  Sponcc 
V.  Milwaukee  Electric  Ry.  &  Light  Co., 
163  Wis.  120.  157  N.  W.  517. 

73.  Merrell  v.  Chicago,  etc.,  K.  Co. 
(Wis.),  177  N.  W.  613;  Moody  v.  Mil- 
waukee Elec.  Ry.  &  L.  Co.  (Wis.).  180 
N.  W.  266. 

74.  Loftus  V.  Pacific  Elec.  Ry.  Co., 
166  Cal.  464,  137  Pac.  34,  wherein  the 
situation  was  explained  as  follows: 
"  We  think  the  present  case  is  not  ono 
in   which  it   can  he  said  that    the  un- 


contradicted evidence  forces  the  con- 
clusion that  the  plaintiff  approached 
the  track  without  exercising  the  care 
which  an  ordinarily  prudent  man,  situ- 
ated as  he  was,  would  have  exercised. 
Before  he  turned  his  automobile  to 
cross  the  track,  he  brought  his  ma- 
chine to  a  stop,  or  nearly  to  a  stop, 
and,  as  he  testified,  looked  and  lis- 
tened to  ascertain  wliether  a  train  was 
approaching.  At  that  time  the  train 
was  still  at  such  a  distance  and  so 
placed  as,  under  the  evidence,  to  jus- 
tify the  inference  that  it  could  not  be 
seen  or  heard  by  one  in  plaintiff's  posi- 
tion. As  he  advanced,  after  turning 
to  cross  the  tracks,  the  point  beyond 
which  the  easterly  track  was  hidden 
by  the  line  of  poles  was  constantly 
coming  nearer  to  him,  as  was  the  train. 
Under  all  the  circumstances,  there  is 
nothing  unreasonable  in  the  inference 
that  the  train  could  neither  be  heard 
nor  seen  by  plaintiff  from  the  time  he 
first  slowed  down  until  he  reached  the 
point,  on  the  west  track,  where,  as  he 
says,  he  became  aware  of  the  fact  that 
a  train  was  approaching.  This  being 
so,  the  jury  had  the  right  to  believe, 
from  the  plaintiff's  story,  that  he  took 


758 


The  Law  of  Automobiles. 


Sec.  598.  Looking  for  approaching  street  cars  —  looking  to 
rear. 

As  is  stated  above/'^'  a  street  railway  company  has  the 
paramount  right  to  the  space  occupied  by  its  tracks  between 
street  crossings,  but  other  travelers  may  properly  use  snch 
space  subject  to  the  rights  of  the  company.  The  driver  of  a 
motor  vehicle  is  not  necessarily  guilty  of  contributory  negli- 
gence because  he  is  operating  his  machine  along  the  track  of 
a  street  railway  company,  though,  perhaps,  greater  caution 
is  imposed  on  him  than  if  he  were  running  the  car  along  a 
course  where  danger  from  a  street  car  would  not  be  antici- 
pated. He  is  not,  however,  as  a  matter  of  law,  required  con- 
tinually to  look  to  the  rear  to  see  if  a  car  is  approaching.'^* 
He  may  to  some  extent  rely  on  the  motorman  giving  him  a 


advantage  of  every  opportunity  to 
learn  of  the  possible  approach  of  a 
train,  and  that,  notwithstanding  his 
precautions,  he  could  not,  and  did  not, 
know  that  a  train  was  nearjng  the 
ciossing  until  he  was  in  a  position  of 
danger  from  which  he  was  unable,  by 
the  exercise  of  ordinary  care,  to  extri- 
cate himself." 

75.  Section  580. 

76.  Capital  Tr.  Go.  v.  Crump,  ;i") 
App.  D.  C.  169;  Bruening  v.  Metro- 
politan St.  Ry.  Co.,  180  Mo.  App.  434, 
168  S.  W.  248;  Neubauer  v.  Nassau 
Elec.  R.  Co.,  191  App.  Div.  732,  182  N. 
Y.  Suppl.  20;  Foley  v.  Forty-second 
St.  R.  Co.,  49  Misc.  (N.  Y.)  649,  97 
N.  Y.  Suppl.  958;  Hirch  v.  Cincinnati 
Tr.  Co.,  32  Ohio  Circuit  Rep.  (585 ; 
Baldie  v.  Tacoma  Ry.  &  Power  Co..  .52 
Wash.  75,  100  Pac.  162. 

Looking  back. — "  A  driver  in  a  city 
street  has  a  right  to  expect  that 
street  cars  will  be  managed  with  rea- 
sonable care  and  a  proper  regard  for 
the  rights  of  others  lawfully  using  the 
street,  and  he  may  drive  along  the 
track  in  full  view  of  a  car  approach- 
ing from  the  rear;  and.  the  fact  that 
he  so  proceeds  for  any  distance  will 
not  charge  him  with  contributory 
negligence    in    case   of    ;i    collision,    if, 


under  all  the  circumstances,  his  con- 
duct was  consistent  with  ordinary 
prudoncc;  the  only  limitation  on  his 
riaht  being  that  he  must  not  unneces- 
sarily interfere  Avith  the  passage  of 
the  car,  which,  though  entitled  to 
preference,  has  not  an  exclusive  right 
to  the  track.  As  to  the  duty  imposed 
upon  a  person  driving  along  street  car 
tracks  it  seems  to  have  been  well 
stated  in  a  case  in  Missouri  that  a  per- 
son having  used  proper  care  in  driving 
upon  the  tracks  is  not  bound  to  look 
back  to  see  if  a  car  is  coming  from  the 
rear.  It  is  the  duty  of  persons  driving 
on  the  street  to  look  ahead  so  as  to  be 
able  to  proceed  with  .safety,  so  far  as 
other  users  of  the  street  are  concerned 
and  they  have  the  right  to  presume 
that  persons  in  control  of  cars  and 
other  vehicles  following  them  will  be 
on  the  lookout  for  their  safety  and 
avoid  running  upon  them  from  behind. 
So  a  driver  of  an  automobile  is  not 
guilty  of  contributory  negligence  as  a 
matter  of  law  by  reason  of  driving 
upon  street  car  tracks,  nor  by  reason 
of  the  fact  that  while  upon  such  tracks 
he  does  not  look  back  from  time  to 
time;  because  he  ha.s  a  paramount 
duty  to  look  ahead,  and  may  rely  for 
his   protection    at   night   upon    the   red 


Collisions  With  Street  Cars. 


759 


timely  signal  to  get  off  the  track."  His'  duty  to  other  trav- 
elers requires  a  careful  lookout  in  front  to  avoid  pedestrians 
and  other  vehicles."^^  A  greater  degree  of  caution  is  imposed 
on  the  auto  driver  when  he  has  knowledge  of  a  car  approach- 
ing from  the  rear  which  is  likely  to  overtake  him.*^^  And  it 
has  been  held  that,  when  a  person  drives  an  automobile  with 
the  curtains  down  at  a  speed  of  ten  to  fifteen  miles  an  hour 
in  the  day  time,  too  close  to  a  railway  track  for  a  car  to  clear 
the  machine,  and  the  machine  is  struck  from  behind  by  a  car 
which  the  driver  of  machine  could  have  avoided  if  he  had 
looked  back,  the  driver  is  guilty  of  contributory  negligence 
as  a  matter  of  law,  and  there  is  no  case  for  the  .invy.'*^ 

Sec.  599.  Crossing  in  front  of  observed  car. 

There  is  no  positive  rule  of  law  under  all  circumstances 
which  forbids  an  auto  driver,  under  penalty  ol*  being  charged 
with  negligence,  from  crossing  a  street  along  whicli  a  street 
car  is  approaching.^^     If  such  were  the  law,  a  niolor  traveler 


light  on  the  rear  of  his  automobile." 
Nellis  on  Street  Railways  (2(1  Ed.),  § 
418. 

77.  Clayton  v.  Kansas  City  Rys.  Co. 
(Mo.  App.),  231  S.  W.  68. 

78.  Section  332.  "  It  is  true  that  it 
I  driving  on  track]  puts  upon  the 
driver  of  the  vehicle  a  greater  degree 
of  care,  but  it  does  not  put  upon  him 
the  burden  of  keeping  a  lookout  to  the 
rear  to  the  oxclusion  of  his  duty  to 
look  ahead.  The  duty  to  look  ahead 
is  paramount.  The  red  rear  light  is  in 
itself  a  warning  upon  which  the  driver 
has  a  right  to  rely  for  protection  from 
oncoming  cars  or  vehicles  which,  al- 
though they  have  a  paramount  right  of 
•way,  must  assert  it  in  some  aoceptt^d 
manner,  as  by  ringing  a  bell  or  sound- 
ing a  whistle,  so  that  the  <i river  may 
clear  tJie  way  for  the  one  to  whom  it 
more  properly  belongs.  Whether  the 
chaufleur    was  guilty    of  contributory 

-negligence  in  driving  his  automobile 
along  the  track  under  the  circum- 
stances was  a  question  of  fact.  The 
driver   owed   a  duty   to  pedestrians   as 


well  as  to  the  street  car  company,  and 
the  jury  may  have  found  that,  con- 
sidering the  fog  and  darkness,  it  was 
the  part  of  prudence  for  him  to  take 
the  center  of  the  street  rather  than  the 
open  roadway  at  the  side."  Baldie  v. 
Tacoma  Ky.  &  Power  Co..  .52  Wash.  75, 
100  Pac.  162. 

79.  Watts  V.  Ry.,  34  Pa.  Co.  Ct.  Rep. 
373. 

80.  Speakman    v 
Co..  42  Pa.  Super. 


etc., 


Philadelphia. 

Ct.  ,"):)S. 

81.  Crossing  ahead  of  car. — •'  It  is 
the  duty  of  the  driver  of  a  vehicle 
about  to  cross  street  car  tracks,  on  ob- 
serving the  rapid  approach  of  a  street 
car,  to  take  into  (>onsideration  the  fact 
that  it  can  neither  turn  out.  nor  stop 
instantly;  hut  if,  on  such  consider- 
ation, he  enters  on  the  track  when  the 
car  is  so  far  away  and  approaching  at 
such  speed  that,  by  the  exercise  of 
reasonable  diligence,  it  can  be  stopped, 
he  is  not  thereby  guilty  of  negligence. 
A  driver  has  a  right  to  cross  a  street 
railway  track,  although  he  may  see  a 
car  in  the  distance,   if  he  may  reason- 


760 


The  Law  of  Automobiles. 


wishing  to  cross  some  of  the  busy  thoroughfares  in  a  large 
city  would  have  his  progress  indefinitely  stopped.  The  fact 
that  one  voluntarily  assumes  a  certain  degree  of  risk  is  not 
conclusive  of  negligence.^^*  Whether  a  motorist  is  guilty  of 
contributory  negligence  in  trying  to  cross  a  street  ahead  of 
an  approaching  street  car  which  he  sees,  depends  upon  the 
respective  speeds  of  the  two  conveyances  and  their  relative 
distances  from  the  intersection  of  the  streets.  AVhether  the 
automobilist  should  stop  or  proceed  depends  upon  the  sur- 


ably  suppose  he  can  cross  before  it 
reaches  him.  When  a  team  is  driven 
upon  a  street  car  track  with  a  car  ap- 
proaching a  block  or  less  away,  the 
driver  and  the  motorman  assume  each 
a  reciprocal  duty.  The  one  must  use 
ordinary  prudence  to  avoid  receiving 
injury;  the  other  must  use  ordinary 
prudence  to  avoid  inflicting  injury. 
And,  when  injury  is  inflicted,  it  is 
ordinarily  for  the  jury,  under  proper 
instructions,  to  say  who  has  neglected 
the  duty  and  who  has  been  guilty  of 
the  negligence.  And  it  is  only  when, 
as  in  the  cases  above  cited,  the  situ- 
ation as  to  negligence  is  so  plain,  clear, 
and  unequivocal  as  to  admit  of  but  one 
answer,  that  the  court  may  declare 
negligence  as  a  matter  of  law  and  en- 
ter a  judgment  of  nonsuit.  And  it  can- 
not be  said  as  a  matter  of  law  that 
one  who  drives  upon  or  across  or  by 
reason  of  passing  teams  is  compelled 
to  stop  on  a  street  railway  track,  the 
approaching  car  being  at  some  consid- 
erable distance,  is  guilty  of  such  neg- 
ligence as  a  matter  of  law  will  pre- 
clude a  recovery.  The  driver  has  a 
right  to  assume  that  the  car  is  under 
control,  or  will  be  controlled,  when  the 
motorman  sees  him  upon  the  track, 
and  that  he  will  not  run  into  him.  It 
is  for  the  jury  to  say  whether  he  or 
the  motorman  was  guilty  of  that  neg- 
ligence— the  last  efficient  cause — but 
for  which  the  accident  would  not  have 
happened.  But  one  who,  thinking  that 
he  can  drive  across  the  street  in  front 
of  an    electric  car,  which  he  sees   ap- 


proaching, attempts  to  do  so,  with  the 
result  that  there  is  a  collision  when 
the  front  wheels  of  the  wagon  are  on 
the  track,  is  guilty  of  contributory 
negligence.  It  is  not  negligence  for  a 
person  to  drive  across  street  railway 
tracks  whenever  and  wherever  he  may 
have  occasion  to  do  so,  and  this  right 
of  crossing  the  tracks  is  not  confined 
to  street  crossings.  The  question  of 
negligence  in  such  cases  depends  upon 
the  proximity  or  remoteness  of  the 
car,  its  speed,  and  other  circum- 
stances. It  is  the  duty  of  a  traveler 
to  look  out  for  himself,  and  to  exer- 
cise such  ordinary  care  as  would  be 
exercised  by  a  reasonably  prudent  per- 
son under  attendant  circumstances. 
The  duty  imposed  upon  persons  cross- 
ing steam  railway  tracks  to  stop,  look, 
and  listen  is  not  rigidly  applied  to 
persons  traveling  a  street  used  by  a 
street  railway.  The  failure  of  a  per- 
son to  look  for  approaching  cars  be- 
fore crossing  street  railway  tracks 
does  not  place  him  in  any  worse  posi- 
tion than  if  he  had  looked  and  seen 
the  car;  and,  therefore,  if,  at  the  time 
when  he  started  to  drive  across  the 
track,  the  car  was  at  such  a  distance 
that  an  attempt  to  cross  after  having 
seen  it  would  not  have  been  contribu- 
tory negligence,  his  failure  to  look  for 
the  car  will  not  preclude  his  recovery. 
A  person  is  not  guilty  of  contributory 
negligence  merely  because  he  attempts 
to  cross  a  street  railway  when  a  car  is 
approaching.  If  that  were  so.  he  could 
never  attempt  to  cross    such   a  track 


Collisions  With  Street  Cars. 


761 


rounding  circumstances.^^  The  street  car  may  be  so  far 
from  the  danger  point  at  the  time  the  automobilist  attempts 
to  pass  that  it  can  be  said  that  he  was  clearly  not  guilty  of 
negligence.  On  the  contrary,  the  street  car  may  be  so  close 
to  the  intersecting  point  that  a  driver  would  be  rash  in  at- 
tempting the  hazard  of  crossing,  and  the  court  will  have  no 
difficulty  in  adjudging  him  guilty  of  contributory  negligence 
as  a  matter  of  law.^^  Between  the  two  extremes  are  a  large 
number  of  cases  where  the  burden  of  deciding  the  question 


in  the  crowded  part  of  a  city,  where 
there  is  practically  always  an  ap- 
proaching car.  In  such  case,  negli- 
gence depends  upon  the  proximity  or 
remoteness  of  the  car,  its  speed,  and 
all  other  circumstances  surrounding 
the  occurrenct:  It  is  not  negligence 
per  se  for  one  to  cross  a  street  rail- 
way track  in  front  of  an  approaching 
car  which  he  hac  seen  and  which  is 
not  dangerously  near.  One  is  not 
bound,  at  his  peril,  to  know,  before  at- 
tempting to  cross  a  street  railway 
track,  that  a  collision  between  his 
vehicle  and  an  approaching  car  will 
not  occur,  but  he  is  only  required  to 
make  such  observation  as  would  con- 
vince a  reasonably  prudent  man  in  a 
like  situation  that  the  passage  could 
be  made  in  safety."  Nellis  on  Street 
Railways    (2d  Ed.).  §  414. 

81-a.  Commonwealth  Bonding.  eU-., 
Ins.  Co.  V.  Pacific  Elec.  Ry.  Co.  (Cal. 
App.),  184  Pac.  29,  wherein  it  was 
said :  "  The  fact  that  one  voluntarily 
assumes  a  certain  degree  of  risk  is  not 
conclusive  of  negligence.  In  these 
days  of  rapid  transit  and  congested 
traflSc,  every  man  who  crosses  a  busy 
street,  or  drives  an  automobile,  takes 
chances,  and  serious  ones.  The  ques- 
tion is,  are  they  greater  than  is  rea- 
sonably necessary  to  meet  the  ordinary 
requirements  of  business,  or  even 
pleasure?  Where  the  precise  facts 
under  consideration  are  such  as  to  give 
rise  to  an  honest  difference  of  opinion 
between    intelligent   men,   the  question 


is  one  for  the  jury.     We  think  this  is 
such  a  case." 

82.  ftoan  v.  Ogden,  etc.,  Ry.  Co.,  61 
Utah  2S5,   169  Pac.  949. 

83.  Alabama. — Ross  v.  Brannon,  198 
Ala.   124,  73  So.  439. 

California. — Commonwealth  Bond- 
ing, etc.,  Ins.  Co.  v.  Pacific  Elec.  Ry. 
Co.  (Cal.  App.).  184  Pac.  29;  Read  v. 
Pacific  Elec.  Ry.  Co.  (Cal.),  197  Pac. 
791. 

Connecticut. — Greenhill  v.  Connecti- 
cut Co.,  92  Conn.  560,  103  Atl.  646. 

Illinois. — Hedmark  v.  Chicago  Rys. 
Co.,  192  111.  App.  584;  Garden  v.  Chi- 
cago Rys.  Co.,  210  111.  App.  155. 

Iowa. — Yetter  v.  Cedar  Rapids,  etc., 
Ry.  Co.,  182  Iowa  1241.  166  N.  W.  592. 

Kansas. — ^Moore  v.  Kansas  City  Rys. 
Co.,  196  Pac.  430. 

Louisiana. — Marston  v.  Shreveport 
Traction  Co.,   140  La.   18,  72  So.  794. 

Marj/land. — Upton  v.  United  Rys.  & 
Elec.  Co.,   110   Atl.  484. 

Maine. — Thompson  v.  Lewiston,  etc., 
St.  Ry.,  115  Me.  560.  99  Atl.  370. 

Michigan.  Miller  v.  Detroit  United 
Ry..  166  N.  VV.  870.  See  also  Steven- 
son v.  Detroit  United  Ry..  167  Mich. 
45.   132  N.  W.   451. 

Minnesota. — Haleen  v.  St.  Paul  City 
Ry.  Co.,  141  Minn.  289.  170  N.  W.  207; 
Kirk  V.  St.  Paul  City  Ry.  Co.,  141 
Minn.  457,  170  N.  W.  517. 

New  York. — James  Everard's  Brew- 
eries V.  New  York  Rys.  Co.,  151  N.  Y. 
Suppl.  905. 

North  Carolina. — Lindlev     v.     Fries, 


762 


The  Law  of  Automobiles. 


of  contributory  negligence  is  placed  on  the  jury.^^     Where, 
in  the  exercise  of  common  prudence,  a  person  may  think  there 


etc.,  Co.,  153  N.  Car.  394,  69  S.  E.  274; 
Kim£  V.  Southern  Railway  Co.,  153  N. 
Car.  398,  69  S.  E.  274. 

Pennsylvania. — Luterman  v.  Pitts- 
burgh Rys.  Co..  66  Pitts.  Leg.  Jour. 
311. 

Rhode  Island. — Fillmore  v.  Rhode 
Island  Co.,  105  Atl.  564. 

Texas. — ^San  Antonio  Public  Service 
Co.  V.  Tracy  (Civ.  App.),  221  S.  W. 
637. 

Utah. — Ooan  v.  Ogden,  etc..  Ky.  Co., 
169  Pac.  949. 

Wa^Ain^ton.— Blanchard  v.  Puget 
Sound  Tract.,  L.  &  P.  Co.,  105  Wash. 
205,  177  Pac.  822;  Devitt  v.  Puget 
Sound  Traction,  Light  &  Power  Co., 
106  Wash.  449,  180  Pac.  483,  affirmed 
on  rehearing,  185  Pac.  583. 

West  Virginia: — ^Helvey  v.  Prince- 
ton Power  Co.,  99  S.  E.  180. 

Canada. — Ontario.  Hughes — Owen  v. 
Ottawa  Elec.  Co.,  40  O.  L.  R.  614. 

84.  Delaware. — Garrett  v.  People's 
R.  Co.,  6  Penn.  29,  64  Atl.  254. 

Iowa. — Flannery  v.  Interurban  Ry. 
Co.,  171  Iowa,  238,  153  N.  W.  1027; 
Guy  V.  Des  Moines  City  Ry.  Co.,  180 
N.  W.  294. 

Louisiana. — Maritzky  v.  Shreveport 
Rys.  Co.,  144  La.  692,  81   So.  253. 

Massa<^hiisetis. — Bailey  v.  Worcester 
Consol.  St.  Ry.  Co..  228  Mass.  477.  117 
N.  E.  824. 

Michigan.-^Piince  v.  Detroit  United 
Ry.  Co..  192  Mich.  194,  158  N.  W. 
861;  Traveler's  Indemnity  Co.  v.  De- 
troit United  Ry.,  193  Mich.  375,  159 
N.  W.  528.  "The  chauffeur's  negli- 
gence was  clearly  a  question  for  the 
jury.  He  testified  that  he  was  looking 
for  a  chance  to  cross,  and  availed  him- 
self of  a  time  when  there  was  no  ap- 
proaching car  within  the  block,  near 
the  center  of  which  he  crossed;  that 
he  saw  the  car,  which  hit  the  left  hind 
wheel,  when  it  was  300  or  400  feet  be- 
vond     the     fir&t     street     north,     and 


thought  he  had  plenty  of  time  to  get 
over  ahead  of  it.  while  Kays,  whose 
back  was  towards  the  approaching 
car,  confirms  his  claim  that  he  took 
note  of  the  situation  and  looked  both 
ways  as  the  automobile  was  about  to 
cross  the  tracks.  This  is  not  a  case  of 
failing  to  look  and  see  the  approach- 
ing car,  but  of  reasonable  judgment 
and  prudence  in  attempting  to  cross 
after  seeing  it.  If  it  was  reasonable 
for  him  to  believe  he  could  cross  safe- 
ly, he  was  not  negligent  in  attempting 
it.  Provided  the  car  was  as  far  away 
as  he  testified,  it  would  have  to  travel 
at  an  unusual  rate  of  speed  to  catch 
him,  and  in  forming  a  judgment  he 
had  a  right  to  assume  that  a  reason- 
able degree  of  care  according  to  con- 
ditions would  be  observed  by  the 
motorman  also.  If  by  reason  of  the 
misty  evening  and  fading  light  it  was 
more  difficult  for  the  motorman  to  ob- 
-^erve  clearly  plaintiff's  position  and 
readily  discover  whether  or  not  he  had 
cleared  the  track,  it  was  his  duty  '  to 
have  the  car  under  such  control  as  to 
admit  of  its  being  stopped  after  he  be- 
came able  to  discern  objects  on  the 
track,  and  before  a  collision  with  such 
nhjcots  should  occur.'"  Travelers  In 
(lomnity  Co.  v.  Detroit  United  Ry..  193 
Mich.  375,  159  N.  W.  528. 

Minnesota. — Day  v.  Duluth  Si.  R. 
Co..   121   Minn.  445,   141   N.  W.  795. 

Missouri. — Byerley  v.  Metropolitan 
St.  R.  Co.,  172  Mo.  App.  470,  158  S. 
W.  413;  Hanson  v.  Springfield  Tract. 
Co.   (Mo.),  226  S.  W.  1. 

New  York. — Brandt  v.  New  York 
Rys.  Co..  85  Misc.  40,  147  N.  Y.  Suppl. 
17.  See  also  Hirsch  v.  Interurban  St. 
R.  Co.,  94  N.  Y.  Suppl.  330. 

Pennsylvania. — Clifford  v.  Philadel- 
phia Rapid  Transit  Co..   112  Atl.  468. 

Wisconsin. — ^Dahinden  v.  Milwaukee 
Elec.  Ry.  &  L.  Co.,  171  N.  W.  669. 


Collisions  With  Street  Cars.  763 

is  reasonable  time  to  cross  a  street  railway  safely,  be  is  not 
ebargeable  witb  negligence  in  attempting  it.^'"*  But  tbis  nile 
does  not  assist  tbe  traveler  where  be  bas  placed  himself  in  a 
dangerous  position  by  reason  of  bis  negligence  in  failing  to 
look  for  approaching  cars,  and  the  only  apparent  escape  from 
injury  is  to  attempt  the  crossing  before  be  is  struck  by  the 
car.^^  If  tbe  automobilist  reaches  tbe  crossing  distinctly  in 
advance  of  the  street  car,  he  has  a  right  to  assume  that  he 
will  be  allowed  to  proceed  and  that  tbe  street  car  will  slacken 
its  speed,  or  stop  if  necessary.'^'  And  he  may  assmne  that 
the  street  car  will  not  be  run  at  an  unreasonable  speed  or  at 
a  rate  which  is  a  violation  of  a  municipal  regulation.^^  If  be 
proceeds  across  a  street  railway  track  pursuant  to  tbe  direc- 
tions of  a  traffic  officer,  be  will  not  be  charged  with  contribu- 
tory negligence  as  a  matter  of  law."^  Where  ample  oppor- 
tunity seems  to  be  afforded  for  the  safe  passage  of  the  auto- 
mobile at  the  time  its  driver  starts  across  tbe  street,  but  be- 
fore reaching  a  place  of  safety  bis  progress  is  obstructed  by 
other  vehicles,  or  is  delayed  for  some  other  reason,  and  tbe 
street  ear  fails  to  stop  before  striking  him,  tbe  questions  of 
negligence  and  contributor}^  negbgence  are  generally  for  tbe 
jury.^^  Where  at  an  intersection  of  streets  a  passenger  on  a 
street  car  was  injured  by  a  collision  between  tbe  car  and  an 
automobile  and  it  appeared  that  the  motorman  saw  tbe  auto- 
mobile, which  had  its  lamps  lit  and  brightly  shining,  at  a  dis- 
tance of  only  eighty  to  a  hundred  feet  from  him  when  it  was 
moving  at  from  eighteen  to  twenty  miles  an  hour  and  that  tbe 
chauffeur,  not  seeing  tbe  car  until  within  about  twelve  feet 
of  it,  attempted  to  turn  suddenly  to  the  right  and  avoid  a  col 
lision.  but  in  tlie  effort  to  do  so  his  machine  skidded  and 

85.  Mickey     v.    Detroit     United    Ry.       Co..  172  Mo.   App.  470.  158  S.  VV.  413. 
202   Mich.    496,    168   N.   W.   517;    Vir-       And   see  section  600. 

ginia   Ry.   &   P.   Co.   v.   Slack   Grocery  89.  American   Automobile  Ins.  Co.  v. 

Co.   (Va.).  101  S.  E.  878.  United  Rys.  Co.  of  St.  Louis.  200  Mo. 

86.  Congdon      v.     Michigan      United       App.  317.  206  S.  W.  257. 

Traction  Co..  199  Mich.  564,  165  N.  W,  90.  Anderson    v.    Puget  Sound,   etc., 

744.  Co.,   89   Wash.  83,   154  Pac.   135;    Be«- 

87.  Prince  v.  Detroit  United  Ry.  Co.,  man  v.  Tacoraa  Ry.  &  P.  Co.   (Wash.), 
192  Mich.  194,  1.58  N.  W.  861.  191   Pac.  813. 

88.  Byerley    v.    Metropolitan   St.  R. 


764 


The  Law  of  Automobiles. 


struck  the  car  on  the  side,  it  was  held  that  the  motorman  was 
not  negligent,  but  that  the  chauffeur  was  guilty  of  gross  care- 
lessness.®^ 


Sec.  600.  Driving  auto  along  track  —  in  general. 

Though  a  street  railway  company,  except  over  intersecting 
streets,  has  a  paramount  right  to  the  use  of  that  part  of  the 
highway  occupied  by  their  tracks,^^  a  traveler  is  not  neces- 
sarily guilty  of  negligence  in  guiding  his  conveyance  along 
the  tracks.®^  Especially  is  this  so  when  the  road  outside  of 
the  tracks  is  impassable.®*    He  is  bound,  however,  to  antici- 


91.  Minneapolis  St.  Ry.  Co.  v.  Ode- 
gaai-a,  182  Fed.  56,  104  C.  C.  A.  496. 

92.  Section  586. 

93.  Watts  V.  Montgomery  Tr.  Co., 
175  Ala.  102,  57  So.  471;  Capital  Tr. 
Co.  V.  Crump,  35  App.  D.  C.  169; 
Foley  V.  Forty-second  St.  R.  Co.,  49 
Misc.  (N.  Y.)  649,  97  N.  Y.  Suppl. 
958;  Baldie  v.  Tacoma  Ry.  &  Power 
Co.,  52  Wash.  75,  100  Pac.  162;  Pan- 
tagis  V.  Seattle  El.  Co.,  63  Wash.  159, 
114  Pac.  1044;  O'Brien  v.  Washington 
W.  P.  Co.,  71  Wash.  688,  129  Pac.  391. 

Use  of  tracks. — "The  rules  as  to 
rights  of  way  applicable  to  steam  rail- 
roads and  travelers  in  the  highways 
are  not  applicable  to  street  railways 
and  wagons  traveling  along  the  streets 
of  a  city,  and  a  driver  has  the  right  in 
crossing  such  a  railway  to  rely  upon 
the  exercise  of  ordinary  care  by  the 
gripman  of  a  car  to  avoid  a  collision. 
One  traveling  with  a  horse  and  vehicle 
on  a  street  upon  which  such  cars  are 
propelled  whenever  the  necessary  or 
customary  use  of  the  street  requires  or 
permits  him  to  do  so,  and  it  is  not 
contributory  negligence  per  ae  for  him 
to  turn  from  one  track  into  and  upon 
the  other  track,  in  a  street  having  a 
double  track,  to  allow  a  car  to  pass,  if 
in  so  doing,  or  in  endeavoring  to  turn 
back  again,  he  is  struck  by  a  car  run- 
ning upon  the  other  track.  Nor  is  he 
guilty   of   negligence  in  failing  to  get 


off  the  track  when  a  car  comes  along, 
when  he  tries  his  best  to  do  so,  and 
would  have  done  so  but  for  the  reason 
that  the  rails  were  wet  and  slippery 
and  the  ice  and  snow  thereon  held  hip 
wheel,  not  in  turning  toward  the  other 
track,  instead  of  attempting  to  turn 
out  on  the  side  away  from  it,  where 
he  had  no  reason  to  anticipate  that  he 
would  be  unable  to  drive  off  the  track 
at  any  time,  and  get  out  of  the  way 
of  the  car.  Street  railway  companies 
have  no  such  proprietary  interest  m 
the  portion  of  the  street  upon  which 
their  tracks  are  laid  as  limits  the 
rights  of  the  general  public  to  use  the 
same  territory  as  a  part  of  the  public 
highway,  so  as  to  impose  upon  trav- 
elers the  duty  of  keeping  themselves 
and  horses  out  of  the  way  of  the  cars 
on  such  tracks."  Nellis  on  Street 
Railways   (2d  Ed.),  §  417. 

Instructions. — There  was  no  error 
in  instructing  the  jury  that  it  is  the 
duty  of  drivers  of  automobiles  along 
a  street  upon  which  there  is  laid  a 
street  car  track  to  yield  the  right  of 
way  to  the  street  cars,  when  they  can 
reasonably  do  so.  Busch  v.  Los  An- 
geles Ry.  Corp.,  178  Cal.  536.  174  Pac. 
665,  2  A.  L.  R.  1607. 

94.  Langford  v.  San  Diego  Elec.  Ry. 
Co.,  174  Cal.  729,  164  Pac.  398.  See 
also  McNeal  v.  Detroit  United  Ry.  19R 
Mich.   108,  164  N.  W.  417. 


Collisions  With  Street  Cars.  765 

pate  that  street  railway  cars  will  approach,  and  consequently 
more  caution  is  required  than  if  the  driver  were  using  some 
other  part  of  the  highway .^^  That  is,  he  must  use  ordinary 
care  to  avoid  a  collision  with  a  car  approaching  from  the 
front  or  rear,  as  well  as  to  avoid  injury  to  pedestrians  and 
travelers  in  other  vehicles ;  whereas,  when  using  another  part 
of  the  highway,  he  avoids  the  necessity  of  precautions  against 
street  cars  thus  approaching.  It  may  be  that  a  municipality 
under  its  police  power  can  enact  an  ordinance  forbidding  the 
use  of  the  tracks  by  automobilists  so  that  one  violating  the 
ordinance  would  be  guilty  of  contributory  negligence  and 
barred  from  recovering  for  his  injuries.  But  an  ordinance 
which  merely  requires  travelers  to  keep  to  the  right  of  the 
center  of  the  highway  and  does  not  expressly  forbid  the  use 
of  street  railway  tracks,  though  such  tracks  may  be  in  the 
center  of  the  street,  is  not  deemed  to  have  been  enacted  for 
the  benefit  of  the  street  railway  company,  and  it  cannot  base 
contributory  negligence  on  its  violation.^^  Nor  is  an  ordi- 
nance requiring  slow  moving  vehicles  to  keep  to  the  right- 
hand  curb  of  the  street  in  order  to  allow  faster  vehicles  an 
opportunity  toward  the  left,  deemed  applicable  as  between  a 
street  car  and  another  vehicle.^^ 

Sec.  601.  Driving  auto  along  track  —  car  from  rear. 

The  driver  of  an  automobile  is  not  required  continuously 
to  look  to  the  rear  to  discover  the  approach  of  cars  from  that 
direction  ;^^  in  fact,  his  paramount  duty  is  to  keep  a  reason- 
ably careful  lookout  in  front  for  other  travelers  and  convey- 
ances. But  he  cannot  continue  his  course  along  the  track 
heedless  of  the  approach  of  street  cars  from  the  rear  and  re- 
gardless of  their  paramount  right  to  the  use  of  the  track,^^ 
And  especially,  when  he  learns  that  a  street  car  is  overtak- 
ing him,  he  must  use  greater  care  than  is  ordinarily  required 

95.  Claar  Transfer  Co.  v.  Omaha,  Co.,  174  Cal.  729,  164  Pac.  398; 
etc.,  Ry.  Co.  (Iowa).  181  N.  W.  755;  O'Brien  v.  Washington  W.  P.  Co.,  71 
Baldie  v.  Tacoma  Ry.  &  Power  Co.,  52       Wash.  688    129  Pac.  391. 

Wash.  75.  100  Pac.  162.  98.  Section  598. 

96.  Watts  V.  Montgomery  Tr,  Co..  99.  Smith  v.  Somerset  Tract.  Co. 
175  Ala.   102,  57  So.  471.  117  Me.  407,  104  Atl.  788. 

97.  Langford  v.  San  Diego  EIoc.  Ry. 


-766  The  Law  of  Automobiles. 

of  a  traveler,  and  his  failure  may  render  him  RTiilty  of  con- 
tributory negligence.^  Where  an  automobile  was  driven  with 
the  curtains  down  at  a  speed  of  from  ten  to  fifteen  miles  an 
hour  in  the  daytime,  so  close  to  the  track  that  a  car  could  not 
clear  the  machine,  and  the  driver  could  have  avoided  the  col- 
lision had  he  looked  back,  it  was  held  that  he  was  guilty  of 
contributory  negligence  as  a  matter  of  law.^  Under  some 
circumstances,  the  driver  of  a  motor  vehicle  may  be  charged 
with  negligence  if  he  stops  his  car  so  suddenly  that  the  motor- 
man  of  a  following  street  car  is  unable  to  avoid  a  collision. 
But,  the  driver  is  not  to  be  charged  with  neglect  of  care  when 
the  stop  is  made  on  the  order  of  a  traffic  policeman.^ 

Sec.  602.  Driving  auto  along  track  —  car  in  front. 

When  an  automobile  is  driven  along  the  track  of  a  street 
railroad  company,  the  driver  is  bound  to  exercise  reasonable 
care  to  discover  the  approach  of  cars  in  front  of  him  and  to 
turn  out  to  permit  such  cars  to  pass.^  He  must  realize  that 
street  cars  can  travel  only  over  a  certain  course,  and  he  must 
avoid  that  course  upon  the  approach  of  cars,  but,  until  a  car 
approaches,  he  may  use  the  tracks  though  such  use  is  not 
necessary.^  Until  the  contrary  appears,  the  motorman  of  the 
street  car  has  a  right  to  assume  that  the  driver  of  the  auto- 
mobile will  turn  off  from  the  tracks  and  avoid  a  collision.^ 
When  it  is  dark  or  the  weather  conditions  are  such  that  the 
driver  of  the  machine  cannot  see  far  in  advance,  if  he  selects 
the  street  car  tracks  for  his  course,  he  must  proceed  at  a 
speed  slow  enough  to  enable  him  to  turn  off  the  track  in  time 
to  avoid  an  oncoming  car."  One  driving  a  motor  vehicle 
close  to  a  street  railway  track  is  thought  to  be  in  a  better 

1.  Watts  V.  Ry.,  34  Pa.  Co.  Ct.  Rep.  6.  Coverdale    v.    Sioux    City   Service 
373.  Co.,  268  Fed.  963;   Pantages  v.  Seattle 

2.  Speakman    v.     Philadelphia,    etc.,  Elec.  Co.,  .55  Wash.  453,  104  Pac.  629. 
Co.,  42  Pa.  Super.  Ct.  558.  7.  Savage  v.  Public  Service  Ry.  Co.. 

3.  Reines    v.    N.    Y.    Rys.    Co..    103  89  N.  J.  L.  555,  99  Atl.  383. 

Misc.    (N.  Y.)    669,    171    N.  Y.  Suppl.  Smoke. — One   driving  along  a   track 

53.  in  a  cloud  of  smoke,  may  be  guilty  ot 

4.  Petrillo    v.    Connecticut    Co.,    92  negligence  as  a  matter  of  law.     Claar 
Conn.  235    102  Atl.  607.  Transfer   Co.   v.   Omaha,   etc..    Ry.   Co. 

5.  Pantages  v.   Seattle  Elec.  Co.,  63  (Iowa),  181  N.  W.  755. 
Wash.   159,   114  Pac.   1044. 


Collisions  With  Street  Cars.  767 

position  than  the  motorman  of  an  approaching  street  car  to 
determine  whether  there  is  room  for  the  conveyances  to  pass 
each  other;  and,  when  the  driver  of  the  machine  gives  no  sign 
to  the  contrary,  the  motorman  may  assume  that  there  is  no 
danger  of  a  collision.**  And  the  driver  of  a  motor  vehicle 
may  be  guilty  of  negligence  as  a  matter  of  law,  where,  after 
driving  by  the  side  of  the  track,  he  turns  toward  the  left  in- 
stead of  right  side  of  another  vehicle  and  onto  the  track 
where  he  is  struck  by  a  car  which  he  had  seen  approaching.^ 
Under  the  general  law  of  the  road,  an  automobile  should  pass 
a  street  car  approaching  in  front  to  the  right  of  the  street 
car;  and,  his  failure  to  attempt  the  passage  on  the  right  side 
may  be  sufficient  ground  for  a  charge  of  contributor}^  negli- 
gence against  the  driver.^® 

Sec.  603.  Speed  and  control  of  automobile  —  approaching  in- 
tersecting streets. 
When  an  automobilist  is  approaching  an  intersecting  street 
along  which  a  street  car  runs,  it  is  his  duty,  not  only  to  look 
for  approaching  street  cars,^^  but  also  to  have  his  car  under 
such  control  that,  if  necessary,  he  can  stop  his  progress  be- 
fore reaching  the  street  car  line.^^  At  all  times,  the  speed 
must  not  exceed  a  reasonable  rate.^^  Statutes  and  municipal 
ordinances  in  some  cases  limit  the  speed  of  an  automobile  at 
intersecting  streets  or  when  crossing  street  railway  tracks. 

8.  Sharpnack  v.  Des  Moines  City  R.  ker  v.  Rodriguez,  139  La.  25L  71  So. 
Co.    (Tmva),  115  N.  W.  475.  499;   Weston  v.  Grand  Rapids  R.  Co., 

9.  Brown  v.  Pngot  Sound  El.  R.  Co..  180  Mich.  373,  147  N.  W.  630:  Donlin 
76  Wash.  214,  135  Pac.  999.  8<^e  also,  v.  Detroit  United  Ry.  198  Mieh.  327. 
Speakes  Lime  &  Cement  Co.  v.  Duluth  164  N.  W.  447;  Lindley  v.  Fries,  etc., 
St.  Ry.  Co.   (Wis.),  179  N.  W.  596.  Co.,    153   N.   Car.    394.   69   S.    E.   274: 

10.  Athena  Ry.  &  Elec.  Co.  v.  Mc-  Kime  v.  Southern  Railway  Co..  153  N. 
Kinney,  16  Ga.  App.  741,  68  S.  E.  83.  Car.  398,  69  S.  E.  274;  Hill  v.  Phil- 
See  also  Lanj2:ford  v.  San  Diego  Elec.  adelphia  Rapid  Tran-^it  Co.  (Pa.).  114 
Ry.  Co.,   174  Cal.  729.  164  Pac.  398.  Atl.  634;   Sutton  v.  Virginia  Ry.  &  P. 

'll.  Section  592.  Co.,  125  Va.  449.  99  S.  E.  670. 

12.  Ross   V.    Brannon.    198    Ala.    124,  13.  Garrett    v.    Peoples    R.     Co.,     6 

73  So.  439;  Nichols  v.  Pacific  Elec.  Ry.  Penn.    (Del.)    29.  64   Atl.  254;   Weston 

Co.    178   Cal.  630.   174   Pae.   319:    Gar-  v.  Grand  Rapids  R.  Co..  180  Mich.  373, 

rett  V.  Peoples  R.  Co.,  6  Penn.    (Del.)  147   N.    W.    630.      See   also   Savage   v. 

29,  64   Atl.  254;    Fair  v.  Union  Tract.  Public    Service    Ry.    Co.,  89   N.  J.  L. 

Co.  102  Kans.  fill.  171   Pac.  649;  Wal-  555.  99  Atl.  383.     .-^nd  see  section  305. 


768  The  Law  of  Automobiles. 

Such  regulations  must  be  obeyed  by  the  automobilist,  and 
their  violation  may  preclude  a  recovery  for  injuries  sustained 
in  a  collision.^* 

Sec.  604.  Speed  and  control  of  automobile  —  stopping. 

As  a  general  proposition,  the  driver  of  a  motor  vehicle  is 
not  required  to  stop  his  machine  before  crossing  a  street  rail- 
way track.^^  Such  a  precaution  is  not  usually  required  even 
in  the  case  of  a  grade  crossing  of  a  steam  railroad.^^  But 
the  condition  of  travel  in  a  street  frequently  requires  the 
driver  of  a  motor  vehicle  to  stop  his  machine  to  avoid  a  col- 
lision with  a  street  car.  Moreover,  the  existence  of  obstruc- 
tions in  the  street  may  change  the  situation  so  that  reason- 
able care  will  require  that  the  vehicle  be  brought  to  a.  stop.^'^ 
As  a  general  rule,  if  he  runs  into  the  street  car,  he  is  guilty 
of  negligence,  though  circumstances  are  easily  conceivable 
under  which  such  conduct  is  not  necessarily  negligence. ^^  So, 
too,  when  crossing  an  intersecting  street  along  which  a  street 
car  is  proceeding,  if  the  car  is  so  close  to  the  danger  point 
that  the  auto  driver  is  not  justified  in  attempting  the  cross 
ing,^^  he  should  accept  the  alternative  and  slacken  his  speed 
and  stop  his  macliine  if  necessary.^^  But  if  he  reaches  the 
crossing  distinctly  in  advance  of  the  street  car,  he  can  assume 
that  the  motorman  of  the  approaching  car  will  slacken  speed 
if  necessary  to  avoid  the  collision,  and  he  may  proceed  to 
exercise  his  equal  right  to  the  use  of  the  street.^^  And,  if 
the  driver  of  the  car  is  unable  to  steer  it,  it  is  his  duty  to 

14.  Garrett    v.    People's    R.    Co.,    6  16.  Section  567. 

Penn.    (Del.)   29,  64  Atl.  254;    Colum-  17.  Rosa  v.   Brannon,   198   Ala.   124, 

bus  R.  Co.  V.  Waller.  12  Ga.  App.  674,  73  So.   439;    Schmidt  v.   Mobile  &  R. 

78  S.  E.  52;  Fair  v.  Union  Tract.  Co.,  Co.    (Ala.),   87  So.    181;    Williams   v. 

102  Kans.  611,   171   Pac.   649;   Weston  lola    Elec.    R.    Co.     (Kans.),    170    Pac. 

V,     Grand    Rapids     R.    Co.,    180  Mich.  397;   Orth  v.   H.   G.  &  B.  Ry.  Co.,   43 

373,   147  N.  W.  630;    Chero-Cola  Dot-  O.  L.  R.  (Canada)   137. 

tling    Co.    V.    South    Carolina    Light,  18.  Section  606. 

Power  &  Rya.  Co.,  104  S.  C.  214,  88  S.  19.  Section  599. 

E.  534;  Southern  Traction  Co.  v.  Jones  20.  Hansafus  v.  St.  Louis,  etc.,  Rd., 

(Tex.   Civ.   App.),  209   S.  W.  457.  199  HI.  Ap.  4;  Joyce  v.  Interurban  R. 

15.  Schmidt    v.    Mobile    &    R.    Co.  Co.,  172  Iowa,  727,  154  N.  W.  936. 
(Ala.),   87  So.    181;    Williams  v.  Tola  21.  Harlan   v.   Joline,   77   Misc.    (N. 
Elec.  R.  Co.,   102  Kans.  268,  170  Pac.  Y.)    184,  136  N.  Y.  Suppl.  72. 

397. 


Collisions  With  Street  Cars.  769 

stop  the  machine  as  soon  as  practicable.-'-     It  may  be  negli 
gence  as  a  matter  of  law  for  a  driver  to  stop  his  machine  on 
the  track  or  to  go  slowly  over  the  track  when  a  street  car  is 
approaching  close  at  hand.-^ 

Sec.  605.  Speed  and  control  of  automobile  —  unfamiliarity 
with  brakes. 
Under  a  statute  requiring  that  every  motor  vehicle  shall  be 
equipped  with  a  good  and  efficient  brake  or  brakes,  it  is  the 
duty  of  the  driver  of  such  a  conveyance  to  be  reasonably 
familiar  with  the  use  of  such  safety  appliances  and  to  use 
and  apply  them,  if  need  be,  to  avoid  accident.  If  the  driver 
of  the  vehicle  is  unfamiliar  with  the  use  of  the  brakes  and 
therefore  is  unable  to  use  them,  and  his  ignorance  is  one  of  the 
proximate  causes  of  a  collision  with  a  street  car,  he  may  be 
precluded  from  recovering  for  his  injuries.-'* 

Sec.  606.  Speed  and  control  of  automobile  —  automobile  run- 
ning against  street  car. 
The  fact  that  the  automobile  runs  into  the  street  car  in- 
stead of  the  street  car  running  into  the  automobile,  indicates 
with  considerable  force  that  the  driver  of  the  macliine  has 
failed  in  his  duty  of  stopping.-^  At  a  street  crossing,  if  the 
street  car  has  proceeded  to  such  an  extent  that  the  automo- 
bile cannot  cross  in  front  thereof  with  reasonable  safety,  it 
is  the  duty  of  the  chauffeur  to  slacken  speed  and  give  the 
street  railway  company  the  prior  right  to  the  use  of  the  street 
intersection.^^ 

Sec.  607.  Stopping  auto  near  track. 

The  law  does  not  object  to  the  act  of  the  owner  of  a  vehicle 
in  leaving  it  standing  unoccupied  by  the  side  of  the  street  or 

22.  Kneeshaw  v.  Detroit  United  Ry.,  25.  McCrcery  v.  United  Rys.  Co..  221 
169  Mich.  697,  135  N.  W.  903.  Mo.  18,  120  S.  W.  24;  Harvey  v.  Phil- 

23.  Garden  v.  Chicago  Rys.  Co.,  210  adelphia    Rapid  Transit  Co.,    255    Pa. 
111.  App.  155.  220,  99   Atl.   796:    Bayer  v.   St.   Louis. 

24.  Garrett    v.    People's    R.    Co..     6  etc.,  Rd.,  188  111.  App.  323. 
Penn.    (Del.)    29,  64  Atl.  254.  26.  Section  599. 

49 


770  The  Law  of  Automobiles. 

highway  for  a  reasonable  length  of  time.^^  It  is  not  neces- 
sarily negligence  for  the  owner  of  a  motor  vehicle  to  stop  the 
engine  and  leave  the  machine  by  the  side  of  the  highway  for 
a  brief  period.  But  in  so  doing  he  must  use  such  a  reason- 
able degree  of  prudence  and  foresight  as  would  be  exercised 
by  an  ordinarily  prudent  man.  It  may,  however,  be  negli- 
gence to  stop  or  to  leave  an  automobile  on  the  track  of  a 
street  railway  company,  or  so  close  to  it  that  it  will  be  struck 
by  a  passing  car,  where  there  is  no  reason  or  excuse  for  leav- 
ing the  machine  at  that  place.^^  The  law  does  not  necessarily 
forbid  one  to  stop  a  machine  on  the  track  momentarily  in 
order  that  a  passenger  may  alight.-^  Where  an  auto  driver 
in  a  rural  district  in  the  day-time  stopped  his  car  to  pay  toll 
on  a  turnpike  road  so  close  to  the  track  of  an  electric  com- 
pany's track  that  a  car  could  not  pass  without  striking  it, 
although  the  road  was  sufficiently  wide  to  permit  room  for 
passage,  and  it  appeared  that  the  railway  car  was  then  seen 
about  sixty  feet  away  where  it  stopped  to  permit  passengers 
to  get  off  and  on  and  it  then  proceeded  without  warning  and 
struck  the  automobile,  it  was  held  that  the  driver  was  guilty 
of  contributory  negligence.^*^  And  where  one  steps  out  of 
his  machine  on  or  so  close  to  a  railway  track  that  he  is  struck 
by  a  street  car,  and  there  was  nothing  to  prevent  him  from 
seeing  the  car  or  from  avoiding  it,  it  was  held  that  he  was 
guilty  of  negligence.^^ 

Sec.  608.  Turning  or  backing  auto  in  street. 

In  the  absence  of  statute  or  municipal  ordinance  making  a 
contrary  rule,  there  is  no  objection  to  turning  or  backing  an 
automobile  in  the  street.^^  But,  when  one  makes  irregular 
movements  in  the  highway,  more  precautions  are  required 
than  would  ordinarily  be  necessary.     Clearly,  the  driver  of 

27.  Section  340.  129  N.  E.  423. 

28.  Dyer  v.  Cumberland  County  P.  30.  Hause  v.  Lehigh  Valley  Trans. 
A  L.   Co.    (Me.),  110  Atl.   357;    Hause       Co.,  38  Pa.  Super.  Ct.  614. 

V.    Lehigh    Valley    Trans.    Co.,    38    Pa.  31.  Lotharius     v.     Milwaukee,     etc., 

Super.    Ct.    614;    Dyer    v.    Cumberland  Electric  Eailway  &  Light  Co.,  157  Wis, 

County  Power  &  L.  Co.,  117  Me.  576,  184,  146  N.  W.  1122. 

104  Atl.  848.  32.  Section  263. 

29.  Fitch    V.    Bay    St.    Ry.    (Maas.), 


Collisions  With  Street  Cars.  771 

an  automobile  is  guilty  of  negligence  as  a  matter  of  law  if 
be  backs  bis  machine  upon  a  street  railway  track  without 
looking  for  an  approaching  car.-^-^  It  has  even  been  said  that 
he  should  look  for  approaching  cars  after  he  has  started  in 
his  backward  course.^"*  And  if  one  attempts  to  turn  his  auto- 
mobile around  in  the  street,  considerable  care  is  required  so 
that  he  will  not  collide  with  street  cars  and  other  vehicles.^^ 
Unless  the  street  car  is  dangerously  close  at  the  time  of  the 
maneuver,  his  negligence  may  present  a  jury  question.-^® 

Sec.  609.  Reliance  on  proper  care  by  street  railway. 

Every  traveler  on  the  public  highway  relies,  to  a  certain 
extent,  upon  the  exercise  of  reasonable  care  by  other  travel- 
ers. The  driver  of  an  automobile  may  assume,  in  the  ab- 
sence of  some  warning  to  the  contrary  that  the  motorman  of 
an  approaching  street  car  will  exercise  reasonable  diligence 
to  avoid  a  collision.^^  So,  too,  the  motorman  is  entitled  to 
assume  that  the  automobilist  will  use  reasonable  precautions 
to  the  same  end.^^  When  a  traveler  having  an  equal  right 
to  the  use  of  the  street  crossing  reaches  the  crossing  in  ad- 
vance of  the  street  car,  he  can  properly  assume  that  the  mo- 
torman of  the  street  car  will  slacken  its  speed  so  as  to  give 
the  traveler  the  right  of  way  to  which  he  is  entitled.^^  But, 
when  the  law  gives  the  street  car  a  superior  right  at  the 

33.  Holmes  v.  Sandpoint  &  I.  R.  Co.,  '  ' United  Ry.  Co.,  192  Mich.  194,  158  N. 
25  Idaho,  345.  137  Pac.  532;  Birch  v.  W.  861;  Reichle  v.  Detroit  United  Ry. 
Athol,  etc.,  Ry.  Co.,  198  Mass.  257.  84  203  Mich.  276,  168  N.  W.  972;  Day  v. 
N.  E.  310.  Duluth  St.  Ry.  Co..  138  Minn.  312.  164 

34.  Birch  v.  Athol,  etc.,  Ry.  Co.,  198  N.  W.  795;  Otto  v.  Duluth  St.  Ry.  Co., 
Mass.  257,  84  N.  E.  310.  138  Minn.  312,   164  X.   W.   1020;   Hal- 

35.  Johnson  Oil  Refining  Co.  v.  een  v.  St.  Paul  City  Ry.  Co..  141  Minn. 
Galesburg.    etc..    Power    Co.,    200    III.  289,  170  N.  W.  207. 

App.  392.  38.  Marston    v.    Shrcveport   'Iraction 

36.  Davis  v.  United  Rys.  Co.  (Mo.  Co.  140  La.  18.  72  So.  794;  Otto  v. 
App.),  218  S.  W.  357.  Duluth  St.  Br.  Co..  138  Minn.  .312,  164 

37.  Commonwealth      Bonding,  etc..       X.  W.   1020. 

Ins.  Co.  V.  Pacific  Elec.  Ry.  Co.    (Cal.  39.  Prince  v.  Detroit  United  Hy.  Co., 

App.),   184  Pac,  29;    Pigeon  v.  Massa-  192  Mich.  194,  158  N.  W.  861;   karlin 

chusetts,   etc.,   St.   Ry.    Co.,  230  Mass.  v.  Joline,  77  Misc.   (N.  Y.)  184.  136  N. 

392,    119   N.   E.   762;    Gagnon   v.   Wor-  Y.   Suppl.   72;    Reed  v.   Tacoma   Ry.   & 

cester    Consol.    St.   Ry.    Co,   231    Ma.ss.  P.  Co.   (Wash.).  188  Pac.  409. 
160,   120  N.  E.  381;   Prince  v.   Detroit 


772  The  Law  of  Automobiles. 

crossing,  the  automobilist  cannot  rely  on  the  stopping  of  the 
ear;  if  it  does  not  stop  and  the  driver  of  the  machine  does 
not  slacken  speed  to  see  whether  the  street  car  will  proceed, 
he  is  guilty  of  negligence.^^  The  automobilist  may  rely  that 
the  motorman  of  the  street  car  will  obey  an  ordinance  requir- 
ing the  street  car  to  stop  at  a  certain  point.*^  So,  too,  until 
he  discovers  the  violation  by  the  motorman,  he  may  assume 
that  the  street  car  will  not  exceed  a  reasonable  speed  or  the 
limit  of  speed  fixed  by  a  municipal  ordinance.^-  But,  in  order 
to  claim  that  he  relied  on  the  observance  of  a  municipal  ordi- 
nance by  a  street  railway  company,  reason  requires  that  the 
automobilist  have  actual  knowledge  of  the  ordinance.^'^  The 
driver  of  a  vehicle  cannot  blindly  rely  on  the  motorman  of  a 
street  car  performing  his  duty ;  the  driver  must  exercise  rea- 
sonable care  under  the  circumstances.*^ 

Sec.  610.  Violation  of  regulation  by  autoist. 

The  violation  of  a  statute  or  municipal  regulation  prescrib- 
ing the  conduct  of  an  automobilist  is  considered  as  negligence 
or  at  least  as  evidence  of  negligence  ;*^  and,  where  the  viola- 
tion is  a  proximate  cause  of  a  collision  between  a  street  car 
and  the  vehicle,  the  street  railway  company  is  not  generally 
liable  for  ensuing  damages.  Thus,  a  violation  of  the  law  of 
the  road  which  brings  an  automobile  in  collision  with  a  street 

40.  Long  V.  Philadelphia  Rapid  Pennsylvania. — Clifford  v.  Philadel- 
Transit  Co.,  65  Pa.  Super.  Ct.  281.  phia  Rapid  Transit  Co.,  112  Atl.  468. 

41.  See  Todd  v.  Chicago  City  Ry.  Rhode  Island. — King  v.  Rhode  Is- 
Co.,  197  111.  App.  544.  land  Co.,  110  Atl.  623. 

42.  California. — Hofif  v.  Los  Angeles-  Virginia^ — Virginia  Ry.  &  Power  Co. 
Pac.   Co.,    158    Cal.   596,    112   Pac.   53;  v.  Smith,  105  S.  E.  532. 
Commonwealth    Bonding,    etc.,    Co.    v.  Washington. — Coons  v.  Olymphia  L. 
Pacific  Elec.  Ry.  Co.    (Cal.  App.),  184  &  P.  Co.,  191  Pac.  769;  Bieman  v.  Ta- 
Pac.  29.  coma    Ry.    &    P.    Co.,    191    Pac.    813; 

Iowa. — Flannery    v.    Interurban  Ry.  Goldsby   v.   City   of   Seattle,    197   Pac. 

Co.,  171  Iowa  238,  153  T^.  W.  1027-  787. 

Minnesota. — Day    v.    Duluth  St.  R.  43.  Voelker  Products  Co.  v.   United 

Co.,  121  Minn.  445,  141  N.  W.  795.  Rys.  Co.,  185  Mo.  App.  310,  170  S.  W. 

Missouri. — Byerly    v.     Metropolitan  332. 

St.  R.  Co.,   172  Mo.   App.  470,   158  S.  44.  Haleen  v.  St.  Paul  City  Ry.  Co.. 

W.  413.  141   Minn.  289,  170  X.  W.  207;    Blan- 

New   York. — Brandt    v.     New    York  chard  v.  Puget  Sound  Tract.,  L.  &  P. 

Ry,  Co.,  85  Misc.    (N.  Y.)    40,  147  N,  Co.,  105  Wash.  205,  177  Pac.  822. 

Y.  Suppl.  17.  45.  Section  297. 


Collisions  With  Street  Cars.  773 

car,  will  be  ground  for  excusing  tkc  street  railway  company 
from  liability,  if  the  violation  is  a  proximate  cause  of  the  col- 
lision.^^ But,  where  the  regulation  is  one  which  was  not  en- 
acted for  the  benefit  of  street  railway  companies,  it  cannot 
rely  thereon  to  defeat  the  recovery  of  the  automobilist.^^ 
One  may  be  guilty  of  negligence  per  se  if  he  violates  a  munici- 
pal ordinance  requiring  the  attachment  of  a  mirror  for  the 
discovery  of  vehicles  in  the  rear.^^  The  fact  that  the  auto- 
mobile is  not  licensed  according  to  the  State  law  on  that  sub 
ject,  is  generally  considered  not  a  proximate  cause  of  the  col- 
lision, and  hence  does  not  affect  the  liability  of  the  parties.'*^ 
A  contrary  doctrine,  however,  obtains  in  some  States.^^  It 
has  been  held  that  the  fact  that  the  chauffeur  had  been  for 
several  years  licensed  to  operate  an  automobile,  but  at  the 
time  of  the  accident  his  license  had  expired  and  had  not  been 
renewed,  is  some  evidence  of  his  negligence  in  operating  the 
machine,  but  is  not  conclusive.^^ 

Sec.  611.  Auto  stalled  on  tracks. 

•\~  Ordinarily  negligence  is  not  to  be  charged  against  the 
driver  of  a  motor  vehicle  as  a  matter  of  law,  because  his  ma- 
chine becomes  stalled  on  a  street  railway  track  where  it  is 
struck  by  a  street  car.  The  contributory  negligence  of  the 
driver  is  a  question  for  the  jury.^^     So,   too.  the  question 

46.  See  Johnson  Oil  Refining  Co.  v.  Elev.  Ry.  Co.,  230  Mass.  275,  119  N. 
Galesburg,     etc.,     Power    Co.,   200   111.       E.  652.     And  see  section   125. 

App.  392;   Day  v.  Duluth  St.  Ry.  Co.,  51.  Pigeon     v.     Massachusetts,     et^-.. 

121  Minn.  445,  141  N.  W.  795:  Boiilton  St.  Ry.   Co.,  230  Mass.  392.   119  N.   E. 

V.   City   of   Seattle    (Wash.)    195    Pac.  762. 

11;    Tait  v.   B.  C.   Electric  R.   Co.,  27  52.  Burr  v.  United  Rtiilroads  of  Sau 

D.   L.  R.    (Canada)   538,  34  W.  L.  R.  Francisco.  173  Cal.  211.  159  Pac.  584; 

684,  22  B.  C.  R.  571.     And  see  section  Joyner  v.  Interurban  R.  Co..  172  Iowa 

298.  727,  154  N.  W.  936;  Lawrence  v.  Fitoh- 

47.  Watts  V.  Montgomery  Tr.  Co.,  burg,  etc.,  R.  Co.,  201  Mass.  489.  87  N. 
175  Ala.  102.  57  So.  471.  E.  898;  Luttenton  v.  Detroit,  etc..  Ry. 

48.  El  Paso  Ry.  Co.  v.  Terrazas  Co.  (Mich.).  176  N.  W.  558;  Peterson 
(Tex.   Civ.   App.),  208  S.   W.   387.  v.  United   Ry.  Co.,   183  Mo.   App.  715, 

49.  Crossen  v.  Chicago,  etc.,  Co.,  158  168  S.  W.  254;  Mead  v.  Central  Pa. 
111.  App.  42.     And  see  section   126.  Traction  Co.,  63  Pa.  Super.  Ct.  76. 

50.  Knight  v.  Savannah  Elec.  Co.,  20  Railway  employees  assisting  re. 
Ga.  App.  719,  93  S.  E.  17;  Downey  v.  moval  of  machine, — Where  an  auto- 
Bay  State  St.  Ry.  Co..  225  Mass.  281,  mobile  is  overturned  on  the  track  and 
114    N.    E.    207;    Wentzell    v.    Boston  the  employees  of  the  company  are  as- 


774  The  Law  of  Automobiles. 

whether  the  motormaii  of  the  street  ear  was  negligent  in  not 
discovering  the  condition  of  the  vehicle  or  not  stopping  the 
car  in  time  to  avoid  a  collision,  is  a  question  for  the  jury.^" 
In  such  a  case,  the  failure  of  the  motorman  of  the  street  car 
to  sound  the  gong  on  the  car  is  not  a  proximate  cause  of  the 
collision,  and  negligence  must  be  founded,  if  at  all,  on  some 
other  ground.^^  The  motorist  should,  of  course,  take  reason 
able  precautions  to  avoid  injury  from  the  approaching  car. 
Thus,  if  there  is  a  reasonable  opportunity  he  should  give 
some  signal  or  warning  to  the  motorman  of  the  approaching 
car  to  indicate  the  danger  of  the  situation.^^  But  whether 
the  efforts  to  notify  the  motorman  of  the  danger  of  the  situa 
tion  are  sufficient,  is  generally  a  question  for  the  jury.^*^  A 
passenger  in  the  automobile  may  be  guilty  of  contributory 
negligence  if  he  elects  to  remain  in  the  machine  and  trusts  to 
the  motorman  of  the  approaching  car  to  stop,  instead  of  get- 
ting out  of  the  dangerous  position  when  he  has  ample  appor- 
tunity  to  do  so.^'^  If  the  motorman  of  a  street  car  sees  an 
automobile  in  close  and  dangerous  proximity  to  the  track, 
manifestly  helpless,  and  has  time  to  stop  the  car,  but  does  not 
slow  down  so  as  to  enable  him  to  stop  before  a  collision,  and 
takes  the  obvious  chance  of  hitting  it  in  running  by,  the  mo- 
torman is  negligent  as  a  matter  of  law.^* 

sisting  to   remove  it  with  the  consent  (Mass.),   129  N.  E.  598;   Mead  v.  Cen- 

of  the  owner's  agent,  only  the  exercise  tral   Penn.    Tract.    Co.,   54    Pa.   Super, 

of  reasonable  care  is  required.     Auger-  Ct.  400. 

son  V.  Seattle  Elec.  Co.,  73  Wash.  529.  56.  Fischer  v.  Michigan  Ry.  Co.,  203 

132  Pac.  222.  Mich.  668,   169  N.  W.  819. 

53.  Turner  v.  Los  Angeles  Ry.  Corp.  57.  Lawrence  v.  Fitchburg,  etc.,  R. 
(Cal.  App.),  188  Pac.  56;  Joyner  v.  Co.,  201  Mass.  489.  87  N.  E.  898;  Cole- 
Interurban  R.  Co.,  172  Iowa  727,  154  man  v.  Pittsburgh,  etc.,  St.  Ry.  Co., 
N.  W.  936;  Stock  v.  St.  Paul  City  Ry.  251  Pa.  498,  96  Atl.  1051.  See  also 
Co.,  142  Minn.  315,  172  N.  W.  122;  Hensley  v.  Kansas  City  Rys.  Co.  (Mo. 
Mead  v.   Central  Pa.  Traction   Co.,  63  App.),  214  S.  W.  287. 

Pa.   Super,  Ct.  76.  58.  Mertz  v.  Connecticut  Co.,  217  N. 

54.  Peterson  v.  United  States  Rys.  Y.  475.  112  N.  E.  166.  reversing  judg- 
Co.  of  St.  Louis,  270  Mo.  67,  192  S.  W.  ment  161  N.  Y.  App.  Div.  941,  145  N. 
938.  Y.  Suppl.   1133. 

55.  Lounbury  v.  McCormick 


Collisions  AVith  Street  Cars.  775 

Sec.  612.  Acts  in  emergencies. 

When  the  occupant  of  an  automobile  is  suddenly  confronted 
with  an  oncoming  street  car,  which  is  negligently  operated, 
he  is  not  expected  to  use  as  high  a  degree  of  caution  as  he 
would  under  ordinary  circumstances.^'^  His  failure  to  em- 
ploy the  best  course  to  avoid  the  impending  peril  is  not  con- 
tributory negligence  as  a  matter  of  law.^^  For  example,  if 
a  motorist  about  to  cross  a  street  is  without  contributory 
negligence  suddenly  placed  in  a  position  where  a  collision 
with  a  street  car  is  imminent,  it  may  not  be  negligence  as  a 
matter  of  law  for  him  to  attempt  to  stop  before  reaching  the 
track  or  for  him  to  hasten  his  speed  and  try  to  clear  the  track 
before  the  car  reaches  the  intersection  point,  although  as  a 
matter  of  subsequent  mathematical  calculation  it  can  be 
shown  that  the  other  alternative  is  the  course  which  would 
have  taken  him  out  of  danger.^^  The  doctrine  under  consid- 
eration is  applicable  only  when  the  plaintiff  is  suddenly 
placed  in  a  dangerous  position,  if  he  has  ample  time  to  think 
and  act,  there  is  no  emergency  which  gives  an  opportunity 
for  the  application  of  the  general  rule.^-  Leniency  is  also 
extended  to  the  motorman  when  his  actions  in  the  face  of  an 
imminent  collision  are  under  consideration.^^ 

Sec.  613.  Last  clear  chance  doctrine. 

Under  the  ''  last  clear  chance  "  or  *'  discovered  peril  " 
doctrine,  an  automobilist  who  has  negligently  placed  himself 
in  a  position  of  danger  on  a  street  railway  track  may,  never- 
theless, recover  for  injuries  sustained  in  a  collision  with  a 
street  car,  where  the  motorman,  after  discovering  the  danger 
of  the  traveler,  could,  by  the  exercise  of  reasonable  care,  have 
avoided  the  coUision.^^     Moreover,  in  some  jurisdictions,  the 

59.  Hoff  V.  Los  Angeles  Pac.  Co.,  158       ropolitan  St.  R.  Co.,  172  Mo.  App.  470, 
Cal.  596,  112  Pac.  53;  Byerley  v.  Met-       158  S.  W.  413. 

ropolitan  St.  R.  Co..  172  Mo.  App.  470,  62.  Kneeshaw  v.  Detroit  United  Ry., 

158  S.  W.  413;   Letzter  v.  Ocean  Elec.  160  Mich.   697,  135  N.  W.  903. 

Ry.  Co.,  192  N.  Y.  App.  Div.  114.  182  63.  Moore  v.  B.  C.   El.   Ry.   Co.,   35 

N.  Y.  Suppl.  649.  D.  L.  R.    (Canada)    771. 

60.  Taylor    v.    Pacific    Electric    Ry.  64.  Alabama. — Ross  v.  Brannon.  198 
Co..  172  Cal.  638,  158  Pac.  119.            *  Ala.  124,  73  So.  439.     See  also  Harden 

61.  Hoff  V.  Los  Angeles  Pa*.  Co.,  158  v.   Bradley,  88  So.  432. 

Cal.  596,  112  Pac.  53;   Byerley  v.  Met-  Californm.— Taylor    v.    Pacific  Eleo- 


776 


The  Law  of  Automobiles. 


doctrine  is  extended  so  as  to  permit  a  recovery  where  the 
street  railway  employees  by  the  exercise  of  reasonable  care 


trie  Ry.  Co.,  172  Cal.  638,  158  Pac. 
119;  Commonwealth  Bonding,  etc.,  Ins. 
Co.  V.  Pacific  Elec.  Ry.  Co.  (Cal. 
App.),  184  Pac.  29;  Read  v.  Pacific 
Elec.  Ry.  Co.   (Cal.),  197  Pac.  791. 

Connecticut. — Hygienic  Ice  Co.  v. 
Connecticut  Co.,  90  Conn.  21,  96  Atl. 
152.  . 

Delaware. — Garrett  v.  People's  R. 
Co.,  6  Penn.  29,  64  Atl.  254. 

Illinois. — Bozinch  v.  Chicago  Rys. 
Co.,  187  111.  App.  8;  Sorensen  v.  Chi- 
cago Rys.  Co.,  217  111.  App.  174. 

Indiana. — ^Terre  Haute,  etc..  Tract. 
Co.  V.  Overpeck  (Ind.  App.),  131  N. 
E.  543. 

Iowa. — Hutchinson  Purity  Ice 
Cream  Co.  v.  Des  Moinesi  City  Ry.  Co., 
172  Iowa  527,  154  N.  W.  890;  Sensing 
V.  Waterloo,  etc.,  R.  Co.,  179  N.  W. 
835;  Livingston  v.  Chambers,  183  N. 
W.  429. 

Louisiana. — See  Marston  v.  Shreve- 
port  Traction  Co.,  140  La.  18.  72  So. 
794. 

Maine. — Dyer  v.  Cumberland  County 
P.  &  L.  Co.,  110  Atl.  357. 

Minnesota. — Hedlund  v.  Minneap- 
olis St.  R.  Co.,  120  Minn.  319.  139  N. 
W.  603. 

North  Carolina^ — Buffalo  v.  Carolina 
Power  &  L.  Co.,  104  S.  E.  161. 

Rhode  Island. — Strongoli  v.  Receiv- 
ers.  113   Atl.   655. 

South  Dakota. — DeNorma  v.  Sioux 
Falls  Traction  System,  39  S.  Dak.  10, 
162  N.  W.  746. 

,  Teajos.— El  Paso  Elec.  R.  Co.  ▼. 
David.son  (Civ.  App.),  162  S.  W.  937; 
Southwestern  Gas  &  Elec.  Co.  v. 
Grant   (Civ.  App.),  223  S.  W.  544. 

"  Humanitarian  "  doctrine.  —  In 
Missouri,  a  doctrine  has  been  adopted 
which  is  called  the  "  humanitarian  " 
doctrine,  and  which  was  distinguished 
from  the  "  last  clear  chance "  rule  in 
Smith  v.  Heibel,  157  Mo.  App.  177,  137 
S.  W.   70,  in  the  following  language: 


■'  The  argument  of  the  learned  counsel 
for  appellant  assumes  throughout, 
that  the  humanitarian  and  last  chance 
doctrines  are  one  and  the  same.  This 
is  an  erroneous  view.  The  humanitar- 
ian doctrine  proceeds  in  accord  with 
the  precepts  of  humanity  which  re- 
quire every  person  to  protect  every 
other  person  seen  to  be  in,  or  about  to 
become  in,  a  position  of  peril,  if  he 
may  do  so,  by  exercising  ordinary  care 
to  that  end,  while  exercisig  as  well 
ordinary  care  for  himself  and  those  in 
the  conveyance  of  which  he  has  charge. 
This  is  true,  whether  the  plaintiff  be- 
came in  peril  through  his  own  negli- 
gence or  otherwise.  But  the  last 
chance  doctrine  is  not  so  broad.  It 
proceeds  on  the  theory  of  prior  negli 
gence  on  the  part  of  plaintiff.  Such 
was  the  case  in  Davies  v.  Mann,  10 
Mees.  &  W.  545.  The  humanitarian 
doctrine  includes  and  comprehends 
that  of  the  last  chance.  But  the  last 
clear  chance  doctrine  does  not  include 
the  humanitarian  rule  in  its  entirety. 
As  its  name  implies,  the  last  clear 
chance  doctrine  concedes  the  negligence 
of  the  plaintiff  in  the  first  instance  but 
makes  for  a  recovery,  notwithstanding 
such  prior  negligence  of  plaintiff,  on  the 
distinct  groimd  that  the  defendant 
was  the  one  who  had  the  last  clear 
chance  to  avert  the  injury  and  that  he 
omitted  to  do  so.  Under  such  circum- 
stances, the  prior  negligence  of  the 
plaintiff  is  said  to  be  remote  in  the 
chain  of  causation  while  that  of  the 
defendant,  who  omitted  to  exercise 
ordinary  care  to  save  him,  is  held  to 
be  the  proximate  cause  of  the  hurt." 
See  also  Powell  v.  Kansas  City  Rys. 
Co.  (Mo.),  226  S.  W.  916;  England  v. 
Southwest  Missouri  R.  Co.  (Mo. 
App.),  180  S.  W.  32;  Newton  v.  Har- 
vey (Mo.  App.),  202  S.  W.  249;  King 
V.  Kansas  City  Rys.  Co.  (Mo.  App.), 
204    S.    W.    1129:     Sethman  v.   Union 


Collisions  With  STuiiET  CAiiS. 


777 


should  have  discovered  the  danger  of  the  traveler.*^^  .  In  other 
jurisdictions,  the  courts  deny  such  a  broad  application  to  the 
rule.^^'  The  issues  under  the  ''  last  clear  doctrine  "  are  gen- 
erally within  the  province  of  the  jury;^^  but  the  burden  of 
proof  is  upon  the  plaintiff  to  show  that  the  case  comes  within 
the  principle  involved.^^  It  is  essential  for  the  application 
of  the  doctrine  that  the  railway  employees  could  have  avoided 
the  accident  after  the  discovery  of  the  plaintiff's  peiil  or 
after  they  should  have  discovered  it.^^  If  the  driver  of  an 
automobile  is  in  no  apparent  peril  until  the  very  moment  of 
the  collision  with  the  street  car,  when  the  accident  is  unavoid- 
able, there  is  no  basis  for  a  submission  of  issues  to  the  jury 


Depot,  etc.,  Co.  {Mo.  App.),  218  S.  W. 
879;  Lane  v.  Kansas  City  Rys.  Co. 
{Mo  App.),  228  S.  W.  870;  Swinehart 
V.  Kansas  City  Rys.  Co.  (Mo.  App.), 
233  S.  W.  59. 

65.  Birmingham  R.  L.  &  P.  Co.  v. 
Broyles.  194  Ala.  64,  69  So.  .i62:  Atb- 
erton  v.  Topeka  Ry.  Co.;  107  Kan.  6, 
190  Pac.  430;  Calvert  v.  Detroit 
United  Ry.  202  Mich.  311.  168  N.  W. 
508;  Rush  v.  Metropolitan  St.  R.  Co., 
157  Mo.  App.  504,  137  S.  W.  1029; 
Flack  V.  Metropolitan  St.  Ry.  Co.,  162 
Mo.  App.  650,  145  S.  W.  110;  Borders 
V.  Metropolitan  St.  Car  Co.,  168  Mo 
App.  172,  153  S.  W.  72;  Aqua  Con 
tracting  Co.  v.  United  Rys.  of  St 
Louis  (Mo.  App.),  203  S.  W.  483 
Daso  V.  Jefferson  City  Bridge  &  Ter 
minal  Co.  (Mo.  App.),  189  S.  W.  400 
Montague  v.  Missouri  &  K.  I.  Ry.  Co 
(Mo.  App.),  193  S.  W.  935;  Virginia 
Ry.  &  Power  Co.  v.  Smith  (Va.).  105 
S.  E.  532.  See  also  Birmingham  Ry., 
Light  &  Power  Co.,  196  Ala.  148,  72 
So.  96. 

66.  Terre  Haute,  etc..  Tract.  Co.  v. 
Overjieck  (Ind.  App.).  131  N.  E.  543; 
Maris  v.  Lawrence  Ry.  &  Light  Co.,  98 
Kans.  205,  158  Pac.  6;  Nicholson  v. 
Houston  Elec.  Co.  (Tex.  Civ.  App.), 
220  S.  W.  632. 

67.  Birmingham  R..  L.  &  P.  Co.  v. 
Broyles,  194  Ala.  64.  69  So.  562;   Ross 


V.  Brannon,  198  Ala.  124,  73  So.  439; 
Mondt  V.  Iowa  L.  &  R.  Co.,  178  Iowa, 
166,  155  N.  W.  245;  Huff  v.  Michigan 
Union  Traction  Co.,  186  Mich.  88,  152 
N.  W.  936;  Hedlund  v.  Minneapolis 
St.  Ry.  Co..  120  Minn.  319,  139  N.  W. 
603:  King  v.  Kansas  City  Rys.  Co. 
(Mo.   App.),  204   S.  W.   1129. 

68.  Jacobc  v.  Houston  Electric  Co. 
(Tex.  Civ.  App.).  187  S.  W.  247. 

69.  United  States.  —  Coverdale  v. 
Sioux   City   Service  Co..  268   Fed.  963. 

Iowa. — Claar  'J'ransfer  Co.  v.  Omaha 
.'tc.  Ry.  Co..  181  N.  W.  755. 

Maine. — Thompson  v.  Lewiston,  etc.. 
St.  Ry.,  115  Me.  560,  99  Atl.  370. 

Michigan. — Kneeshaw  v.  Detroit 
United  Ry„  167  Mich.  697.  135  N.  W. 
903. 

Missouri. — England  v.  Southwest 
Missouri  R.  Co.  (Mo.  App.),  180  S.  W. 
32 ;  Sethman  v.  Union  Depot,  etc..  Co. 
(Mo.  App.),  218  S.  W.  879. 

North  Carolina. — Buffalo  v.  Caro- 
lina Power  &  L.  Co.  (N.  Car.),  104  S. 
E.  161. 

Rhode  Island. — Hambly  v.  Bay 
State  St.  Ry.  Co.,  100  Atl.  497:  Kicker 
V.  Rhode  Island  Co.,  107  Atl.  72. 

Texas. — See  El  Paso  Elec.  R.  Co.  v. 
Davidson  (Tex.  Civ.  App.),  162  S.  W. 
937. 

Washington. — Johnson  v.  City  of 
Seattle.  194  Pac.  417. 


778 


The  Law  of  Automobiles. 


on  the  theory  of  the  last  clear  chance  rule.'^  The  duty  to 
take  additional  precautions  to  avert  a  collision  is  not  thrust 
upon  the  motorman  by  the  mere  fact  that  he  sees  the  auto- 
mobile, but  it  is  essential  also  that  he  should  see  that  it  was 
in  a  position  of  danger.  He  has  a  right  to  assume  that  it 
will  stop  before  reaching  the  crossing,  and  a  realization  of 
danger  arises  only  when  it  appears  that  the  automobile  is 
driven  in  ignorance  or  disregard  of  the  possibility  of  meeting 
an  approaching  car,  or  that  it  has  got  so  near  the  track  that 
it  cannot  be  stopped  in  time.'^^  The  "  last  clear  chance  " 
rule  is  not  applicable  where  the  negligence  of  the  auto  driver 
continues  up  to  the  time  of  the  accident."^^  Nor  can  it  be  in- 
voked by  one  joint  tort-feasor  as  against  the  other ."^^  The 
doctrine  is  frequently  applied  in  cases  where  the  plaintiff's 
vehicle  has  become  stalled  on  the  track,  but  the  railway  com- 
pany does  not  stop  one  of  its  cars  until  injury  is  caused  to 
the  vehicle.'^'* 


Canada. — Gooderham  v.  Toronto  R. 
Co..  22  D.  L.  R.  (Canada)  898,  8  0.  W. 
N.  3. 

70.  Read  v.  Pacific  Elec.  Ry.  Co. 
(Cal.),  197  Pac.  791;  Underwood  v. 
Oskaloosa  Tr.  &  Light  Co.,  157  Iowa. 
352,  137  N.  W.  933;  Daso  v.  Jeiferson 
City  Bridge  &  Terminal  Co.  (Mo. 
App.),  189  S.  W.  400;  Montague  v. 
Missouri  &  K.  I.  Ry.  Co.  (Mo.  App.), 
193  >S.  W.  935;  Heath  v.  Wylie 
(Wash.),  186  Pac.  313. 

71.  Taylor  v.  Pacific  Electric  Ry. 
Co.,  172  Cal.  638,  158  Pac.  119;  Gar- 
ett  V.  People's  R.  Co.,  6  Penn.  (Del.) 
29,  64  Atl.  254;  Fillmore  v.  Rhode  Is- 
land Co.  (R.  I.),  105  Atl.  564;  Levein 
V.  Rhode  Island  Co.  (R.  I.),  110  Atl. 
602;  King  v.  Rhode  Island  Co.  (R.  L). 
110  Atl.  623.  See  also  Lobbott  &  Dean 
V.  Oakland.  Etc.,  Ry.  (Cal,  App.),  172 
Pac.  1123.  "  A  motorman  may,  with- 
in the  limits  of  reasonable  prudence 
and  fair  judgment,  presume  that  an 
adult  either  will  not  enter  the  range  of 
danger  created  by  an  approaching 
street  car  or  that  he  will  remove  him- 
self or  his  vehicle  therefrom  before  an 


impact  occui;s."  Ross  v.  Brannon,  198 
Ala.  124,  73  So.  439.  "Merely  seeing 
an  automobile  approaching  the  cross- 
ing, .nnd  seeing  that  its  approach,  if 
continued  would  bring  it  dangerously 
near  the  crossing,  would  not  of  itself 
up  to  a  certain  point  charge  the 
motorman  with  knowledge  that  the 
driver  of  the  automobile  would  not 
act  as  an  ordinarily  prudent  man 
would  act  imder  the  same  or  similar 
circumstances.  Pie  had  a  right  to  pre- 
sume that  the  driver  would  or  had 
used  his  eyes,  and  was  therefore  aware 
of  the  danger."  England  v.  Southwest 
Missouri  R.  Co.  (Mo.  App.),  180  S.  W. 
32. 

72.  Shield  v.  F.  Johnson  &  Son  Co., 
132  La.  773,  61  So.  787;  Smith  v. 
Somerset  Tract.  Co.,  117  Me.  407,  104 
Atl.  788:  Sutton  v.  Virginia  Ry.  &  P. 
Co..  125  Va.  449,  99  S.  E.  670;  Huben- 
th.il  V.  Spokane,  etc.,  R.  Co.,  97  Wash. 
-.SI.   16(5  Pac.  797. 

73.  Shield  v.  F.  Johnson  &  Son  Co., 
l;}2  La.  773,  61  So.  787. 

74.  Section   611. 


Collisions  With  Street  Cars. 


779 


Sec.  614.  Function  of  jury. 

The  general  rule  in  negligence  cases  is  that  the  negligence 
of  the  defendant  and  the  contributory  negligence  of  the  plain- 
tiff are  questions  for  the  jury.  In  actions  for  injuries  sus- 
tained in  a  collision  between  a  street  car  and  a  motor  vehicle, 
except  in  cases  where  the  plaintiff  has  clearly  failed  to  exer- 
cise due  diligence  in  avoiding  the  car,  the  question  of  his 
negligence  is  within  the  province  of  the  jury."^  The  evidence 
of  the  plaintiff  tending  to  show  an  exercise  of  reasonable  care 


75.  United  States. — Jackson  Light  & 
Traction  Co.  v.  Lee,  256  Fed.  97. 

California. — Levings  v.  Pacific  Elec. 
Ry.  Co.,  178  Cal.  231,  173  Pac.  87; 
Busch  V.  Los  Angeles  Rj'.  Corp..  178 
Cal.  536,  174  Pac.  665,  2  A.  L.  R. 
1607;  Carlton  v.  Pac.  Elec.  Ry.  Co.,  39 
Cal.  App.  321,  178  Pac.  869. 

Connecticut. — Strosnick  v.  Connecti- 
cut Co.,  92  Conn.  594,  103  Atl.  755. 

Massachusetts. — Richardson  v.  Hav- 
erhill, etc.,  Ry.  Co.,  218  Mass.  52,  105 
N.  E.  221 ;  Keeney  v.  Springfield  St. 
Ry.  Co.,  210  Mass.  44,  96  N.  E.  73; 
Lynch  v.  Boston  Elevated  Ry.  Co.,  224 
Mass.  93,  112  N.  E.  488;  Boyd  v.  Bos- 
ton Elev,  Ry.  Co.,  224  Mass.  199,  112 
N.  E.  607;  Morrissey  v.  Connecticut 
Valley  St.  Ry.  Co.,  233  Mass.  554,  124 
N.  E.  435;  Davis  v.  Worcester  Consol. 
St.  Ry.  Co.,  125  N.  E.  554;  Clayton  v. 
Holyoke  St.  Ry.  Co.,  128  N.  E.  460. 

Michigan.  —  McNeal  v.  Detroit 
United  Rys.,  198  Mich.  108,  164  N.  W. 
417;  Granader  v.  Detroit  United  Ry., 
206  Mich.  367,  171  N.  W.  362;  Powell 
V.  Detroit  United  Ry.,  206  Mich,  698. 
173  N.  W.  349;  Beaubian  v.  Detroit 
United  Ry.,  179  N.  W.  478;  Niman  v. 
Detroit  United  Ry.,  183  N.  W.  48. 

Minnesota. — Otto  v.  Duluth  St.  Ry. 
Co.,  138  Minn.  312,  164  N.  W.  1020. 

Missouri. — Bruening  v.  Metropoli- 
tan St.  Ry.  Co.,  181  Mo.  App.  264,  168 
S.  E.  247;  Davis  v.  United  Rys.  Co. 
(Mo.  App.),  218  S.  W.  357;  Jackels  v. 
Kansas  City  Rys.  Co.  (Mo.  App.).  231 
S.  W.  1023. 


New  York. — Dreger  v.  International 

Ry.  Co.,  190  App.  Div.  570,  180  N.  Y. 

Suppl.  436;  Letzter  v.  Ocean  Elec.  Ry. 

Co..    192    App.    Div.    114.    182    N.    Y. 

Suppl.  649;  Harlan  v.  Joline,  77  Misc. 

184,    136   N.   Y.   Suppl.   72;    Brandt   v. 

N^nv   York   Rys.   Co.,   85  Misc.   40,   147 

N.  Y.  Suppl.  17. 

Pennsylvania. — Rothrock     v.    Lehigh 

Valley     Transit     Co.,     103     Atl.     918; 

Smoker  v.  Baldwin  Locomotive  Works, 

261   Pa.  341,   104  Atl.  597. 

Utah.— Oswam  v.  Utah  L.  &  R.  Co., 
39  Utah   245.   117  Pac.  46. 

Virginia. — Virginia  Ry.  &  P.  Co. 
(Va.),  101  S.  E.  878. 

Washington. — Bardsher  v.  Seattle 
Elec.  Co.,  72  Wash.  200,  130  Pac.  101; 
Herrett  v.  Puget  Sound,  etc.,  P.  Co., 
103  Wash.  101,  173  Pac.  1024;  Coons 
v.  Olympia  L.  &  P.  Co.,  191  Pac.  769; 
Koch  V.  City  of  Seattle.  194  Pac.  572; 
Johnson  v.  City  of  Seattle,  194  Par. 
417;  Stream  v.  Grays  Harbor  Ry.  & 
L.  Co.,  195  Pac.  1044;  Goldsby  v.  City 
of  Seattle,  197  Pac.  787. 

Wisconsin. — Dahinden  v.  Milwaukee 
Elec.  Ry.  &  L.  Co.,  171  N.  W.  669; 
Merrill  v.  Chicago,  etc..  R.  Co.,  177  N. 
W.  613. 

"  .\s  a  general  rule,  the  facts  dis- 
closed in  collisions  of  vehicles  at  inter- 
secting streets,  make  the  issue  of  the 
plaintiff's  care  one  for  the  determi- 
nation of  the  jury."  Lynch  v.  Boston 
Elevated  Ry.  Co.,  224  Mass.  93.  112  N. 
E.  488. 


780 


The  Law  of  Automobiles. 


by  him  is  to  be  considered  by  the  jury,  unless  it  is  inherently 
incredible J^  There  are  some  cases,  as  where  the  traveler 
fails  to  look  for  street  cars  before  trying  to  cross  an  inter- 
secting street,  when  the  courts,  as  a  matter  of  law,  say  that 
he  is  negligentJ'^ 


Sec.  615.  Negligence  of  railway  —  in  general. 

A  street  railway  company  is  required  to  exercise  reason- 
able care  to  avoid  collisions  with  other  vehicles  having  a  law- 
ful right  to  the  use  of  the  street."^^  Except  possibly  at  points 
between  crossings,  the  street  railway  company  has  no  supe- 
rior rights  to  the  use  of  the  streets,  even  as  to  the  space  occu- 
pied by  its  tracks."^^  The  violation  of  some  statute  or  ordi- 
nance prescribing  a  rule  for  the  operation  of  street  cars  may 
be  negligence  per  se  in  some  States,^*^  but,  ordinarily,  the 


76.  Rieck  v.  Chicago  &  Milwaiikee 
Elec.  Ry.  Co.,  160  Wis.  232,  151  N.  W. 
243. 

77.  Underwood  v.  Oskaloosa  Tr.  & 
Light  Co.,  157  Iowa,  352.  137  N.  W. 
933;  Gillett  v.  Michigan  United  Tract. 
Co.,  205  Mich.  140,  171  N.  W.  536; 
Zeis  V.  United  Rys.  Co.  (Mo.  App.), 
217  S.  W.  324.     And  see  section  592. 

78.  Delaware. — Garrett  v.  People's 
R.  Co.,  6  Penn.    (Del.)  29,  64  Atl.  254. 

Florida. — Stevens  v.  Tampa  Elec. 
Co.   (Fla.),  88  So.  303. 

Iowa. — Borg  v.  Des  Moines  City  Ry. 
Co..  181  N.  W.  10. 

Kentucky. — See  Woody  v.  Louisville 
Ry.  Co.,  153  Ky.  14,  154  S.  W.  384. 

Michigan. — Traveler's  Indemnity  Co. 
V.  Detroit  United  Ry.,  193  Mich.  375, 
159  N.  W.  528. 

Minnesota. — Coleman  v.  Minneap- 
olis St.  R.  Co.,  113  Minn.  364,  129  N. 
W.  762. 

Missouri. — Johnson  v.  Springfield 
Tr.  Co.,  176  Mo.  App.  174,  163  S.  W. 
896;  Bruening  v.  Metropolitan  St.  Ry. 
Co.,  181   Mo.  App.  264,  168  S.  W.  247. 

"  High "  degree  of  care. — It  is  error 
to  charge  the  jury  that  the  employees 
of  the  railway  company  are  bound  to 


exercise  a  high  degree  of  care.  Clark 
v.  Public  Service  R.  Co.,  83  N.  J.  Law, 
319,  85  Atl.  189. 

Dazzling  headlight,  causing  two 
motor  vehicles  to  collide.  See  Tupper 
V.  Union  St.  Ry.  Co.  (Mass.),  129  N. 
E.  881. 

Electric  street  cars  are  governed  by 
the  same  rules  which  apply  to  the 
management  of  other  vehicles,  and  be- 
ing of  greater  size  and  weight  than 
they  commonly  are  and  capable  of  be- 
ing moved  at  a  very  high  speed,  the 
car  must  at  all  times  be  kept  so  well 
in  hand  as  not  to  expose  others  to  un- 
reasonable hazard.  Currie  v.  Consoli- 
dated Ry.  Co.,  81  Conn.  383,  71  Atl. 
356;  Laufer  v.  Bridgeport  Traction 
Co.,  68  Conn.  475,  37  Atl.  379,  37  L. 
R.  A.  533. 

A  custom,  as  to  the  conduct  of 
drivers  vehicles  at  street  intersections, 
is  received  in  some  states  as  bearing 
on  the  conduct  of  the  motorman.  Jor- 
dan V.  Boston  &  M.  R.  Co.  (N.  H.),  113 
Atl.   390. 

79.  Section  585. 

80.  Lininger  v.  San  Francisco,  etc., 
R.  Co.,  18  Cal.  App.  411,  123  Pac.  235; 
EXorrance     v.     Omaha,     etc.,     Ry.     Co, 


Collisions  With  Street  Cars.  781 

negligence  of  the  railway  company  in  ease  of  a  collision  with 
an  automobile,  is  a  question  within  the  province  of  the  jury.^^ 
Although  street  cars  usually  travel  on  the  right-hand  track 
in  the  direction  in  which  they  are  going,  in  the  absence  of  the 
statute  or  ordinance  requiring  the  company  to  operate  its 
cars  in  this  manner,  it  is  lawful  to  run  them  in  either 
direction.^- 

Sec.  616.  Negligence  of  railway  —  lookout. 

The  employees  of  a  street  railway  company  must  exercise 
a  reasonable  degree  of  vigilance  in  looldng  out  for  other  trav- 
elers so  that  the  car  may  be  slacked  or  stopped  in  order  to 
avoid  a  collision.^^  The  duty  to  keep  a  reasonable  lookout 
applies  notwithstanding  that  in  a  particular  case  the  street 
car  has  the  right  of  way  at  a  street  intersection.^^  Greater 
precaution  with  reference  to  the  lookout  of  the  motorman  is 
required  where  his  view  of  approaching  travelers  is  more  or 
less  obstructed.®^  Whether,  considering  the  conditions  of  the 
weather  and  obstructions,  the  motorman  of  a  street  car  should 
have  seen  an  automobile  on  the  track  sooner  than  he  did,  is 
ordinarily  a  question  for  the  jury.®^' 

(Neb.),     180    N.     W.    90;     Oswald     v.  83.  Stoker   v.   Tri-City   Ry.   Co.,    182 

Utah   L.  &   R.  Co..  39   Utah,   245,   117  Iowa    1090.    165    N.    W.    30;    Daull    v. 

Pac.  46.  New    Orleans    Ry.    &    L.    Co.,    147    La. 

Pleading   ordinance.— In   the    federal  1012,  86  So.  477;   Cobb  v.  Cumberland 

courts,    a    municipal    ordinance,    to   be  County  Power  &  Light  Co.    (Me.),  104 

admissible   in   evidence,  must   in   some  Atl.  844;  Gagnon  v.  Worcester  Consol. 

manner  be  referred  to  in  the  pleadings.  St.  Ry.  Co.,  231   Mass.   160,  120  N.  E. 

Dale  V.  Denver  City  Tramway  Co.,  173  381;    Good   Roads   Co.  v.  Kansas  City 

Fed.   787,  97   C.   C.  A.   511.  Uys.  Co.    (Mo.   App.),  217  S.  W.   858; 

81.  Prince  v.  Detroit  United  Ry.  Dorrance  v.  Omaha,  etc.,  Ry.  Co. 
Co.,  192  Mich.  194,  158  N.  W.  861;  (Neb.),  180  N.  W.  90;  Alshulir  v.  Mil- 
Travelers  Indemnity  Co.  v.  Detroit  waukee  Electric  Ry.  &  Light  Co.,  169 
United  Ry.,  193  Mich.  375,  159  N.  W.  Wis.  477,  173  N.  W.  304;  Gulessarian 
528;  Lehman  v.  New  York  City  Rail-  v.  Madison  Rys.  Co.  (Wis.),  179  N.  W. 
way  Company,   107  N.  Y.  Suppl.  561;  573. 

Deslandes  v.  Rhode  Island  Co.    (R.  I.),  84.  El    Paso    Elec.   Ry.    Co.   v.    Ben- 

100  Atl.  393.  Jamin     (Tex.    Civ.    App.),   202  S.   W. 

82.  Busch  V.   Los  Angeles  Ry.  Corp.       1)96. 

178  Cal.  536,  174  Pac.  665,  2  A.  L.  R.  85.  Ohio    Valley    Mills  v.  Louisville 

160;   See  also,  Gardner  v.  Wilmington,  Ry.   Co.,   168  Ky.   758,    182  S.  W.  955. 

etc.,    Tract.    Co.,    7    Boyce's    (30   Del.),  86.  Baldie   v.   Tacoma   Ry.   &   Power 

521,  108  Atl.  740.  Co.,  52  Wash.  75.  100  Pac.  162. 


782 


The  Law  of  Automobiles. 


Sec.  617.  Negligence  of  railway  —  speed. 

Due  diligence  on  the  part  of  an  electric  railway  company 
running  through  the  streets  of  a  city  or  village,  requires  that 
it  shall  have  its  cars  under  reasonable  control  and  shall  run 
them  at  a  speed  not  faster  than  a  reasonable  rate  under  the 
circumstances.^^  The  rate  of  speed  permissible  necessarily 
depends  on  the  surrounding  circumstances,  such  as  the  density 


87.  Alabama. — Mobile  Light  &  R. 
Co.  V.  Harris  Grocery  Co.  (Ala.  App.), 
84  So.  867;  Alabama  Power  Co.  v. 
Brown,  87  So.  608. 

California. — Leninger  v.  San  Fran- 
cisco, etc.,  R.  Co.,  18  Cal.  App.  411, 
123  Pac.  235. 

Delaware. — Garrett  v.  Peoples  R. 
Co.,  6  Penn.    (Del.)   29,  64  Atl.  254. 

Indiana. — See  Union  Traction  Co.  v. 
Howard,  173  Ind.  335,  90  N.  E.  764. 
•'  But  it  is  obvious  that  there  may  be 
distinctions  between  the  operation  of 
trains,  or  cars,  at  a  speed  of  thirty 
miles  an  hour  across  country  highways 
and  across  thoroughfares  in  cities,  de- 
pending upon  location  and  conditions 
surrounding  the  crossing.  Whether 
the  rate  of  speed  is  dangerous  de- 
pends largely  upon  the  circumstances. 
The  general  duty  may  be  said  to  be 
the  use  of  reasonable  care  to  so  regu- 
late the  speed  as  not  to  jeopardize 
those  who  are  passengers,  or  those  who 
have  rights  in  the  streets."  Indiana 
Traction  Co.  v.  Love,  180  Ind.  442,  99 
N.  E.  1005. 

Louisiana. — Coggin      v.      .Shreveport 

Rys.  Co.,  147  La.  ,  84  So.  902. 

Maryland. — United  Rys.  &  Elec.  Co. 
V.  Montek,  127  Md.  197,  96  Atl.  261. 

Massachusetts. — Davis  v.  Worcester 
Oonaol.  St.  Ry.  Co..  234  Mass.  297,  125 
N.  E.  554. 

Michigan. — Prince  v.  Detroit  United 
Ry.  Co.,  192  Mich.  194,  158  X.  W.  861; 
Donlin  v.  Detroit  United  Ry.  198  Mich. 
327,  164  N.  W.  447;  Fischer  v.  Mich- 
igan Ry.  Co.  203  Mich.  668,  169  N.  W. 
819. 

Minesota. — Erickson      v.     St.     Paul 


City   Ry.    Co.,    141   Minn.    166,    169   N. 
W.  532. 

Missouri. — Turney  v.  United  Rys.  of 
St.  Louis,  155  Mo.  App.  513,  135  S.  W. 
93;  Chappell  v.  United  Rys.  Co.,  174 
Mo.  App.   126,  156  S.  W.  819. 

Pennsylvania. — Rockroth  v.  Lehigh 
Valley  Transit  Co.,  103  Atl.  918;  Kein- 
ath  V.  Bullock  (Pa.  St.),  110  Atl.  755. 
Texas. — Texas  Electric  Ry.  Co.  v. 
Crump  (Te.x.  Civ.  App.),  212  S.  W. 
827. 

Utah. — Cowan  v.  Salt  Lake,  etc.,  R. 
Co.,   189  Pac.  599. 

Wisconsin. — Speaks  Lime  &  Cement 
Co.  V.  Duluth  St.  Ry.  Co.,  179  N.  W. 
596. 

Canada. — Gallagher  v.  Toronto  Ry. 
Co.,  41  0.  L.  R.    (Canada)  143. 

Rate  of  speed. — "  The  statutes  in 
most  of  the  States  authorize  the  au- 
thorities in  the  various  municipalities 
to  regulate  by  ordinance  the  rate  of 
speed  at  which  street  cars  shall  be 
operated  in  the  streets  of  the  mu- 
nicipality. Usually,  therefore,  each 
municipality  has  an  ordinance  fixing 
the  maximum  rate  of  speed,  and  the 
limit  has  been  fixed  in  various  cities 
at  rates  varying  from  four  to  fifteen 
miles  an  hour.  The  violation  of  such 
an  ordinance  is  generally  held  to  be 
some  proof  of  negligence.  Where  there 
is  no  law  or  ordinance  regulating  the 
rate  of  speed  on  a  city  street,  the 
mere  fact  of  a  street  car  running  at  a 
high  rate  of  speed  does  not  constitute 
negligence,  but  it  is  for  the  jury  to 
say,  in  view  of  the  surrounding  con- 
ditions at  the  time,  whether  such  a 
rate  of  speed  was  excessive,  and,  there- 


Collisions  With  Street  Cars. 


783 


of  traffic,  obstructions,  etc.^^  AVhether  a  given  speed  is  un- 
reasonable under  the  circumstances  is  generally  a  question 
for  the  jury.^^  In  the  absence  of  some  regulation  prescribing 
the  speed,  it  is  not  negligence  per  se  to  run  an  interurban  elec- 
tric car  over  a  country  highway  crossing  at  a  speed  of  thirty 
miles  an  hour.®^     Municipal  ordinances  may  legally  be  en- 


fore,  dangerous  in  the  circumstances. 
A  rate  of  speed  may  be  dangerous 
under  special  circumstances,  though  it 
would  not  be  great,  unusual,  or  exces- 
sive under  ordinary  conditions.  The 
reasonableness  of  the  speed  at  which  a 
car  is  run  is  to  be  measured  by  the  re- 
lation of  that  speed  to  the  particular 
circumstances  under  which  it  is  main- 
tained. A  speed  of  twenty  miles  an 
hour  might  not  be  unreasonable  in  the 
open  country,  where  the  view  is  unob- 
structed, and  there  are  no  travelers  in 
sight.  A  speed  of  three  or  four  miles 
an  hour  might  be  unreasonable  in  a 
crowded  street,  when  other  vehicles  or 
pedestrians  were  on  the  tracks  in 
front,  or  obviously  on  the  point  of 
crossing  them.  Street  railway  com- 
panies in  operating  their  cars  along 
public  streets  have  a  common  right  in 
the  highway  with  other  travelers,  and 
in  the  absence  of  any  law  or  municipal 
ordinance  regulating  the  speed  of 
their  cars,  they  must  be  run  at  such 
speed,  and  must  be  kept  in  such  con- 
trol as  not  to  interfere  unreasonably 
with  the  rights  of  others  upon  the 
highway.  Ordinarily  the  test  of  negli- 
gence in  the  rate  of  speed  is  whether 
or  not  the  car  was  running  at  the 
speed  at  which  an  ordinarily  prudent 
man  would  have  run  the  car  under 
similar  circumstances.  It  is  the  duty 
of  an  electric  motorman  to  keep  his 
car  so  far  under  control  as  to  avoid  in- 
juries to  pedestrians  or  persons  in 
other  vehicles  who  are  in  the  exercise 
of  due  care  to  avoid  injury,  and  it  is 
a  question  for  the  jury  as  to  whether 
a  question  for  the  jury  as  to  whether 
the  motorman  of  a  street  car  lost  con- 


trol thereof  because  the  car  was  run- 
ning at  a  dangerous  speed.  Where  a 
city  ordinance  permits  a  certain  rate 
of  speed,  and  the  car  does  not  exceed 
that  speed,  negligence  cannot  be  im- 
I)uted  to  the  defendant  on  account  of 
the  speed  alone;  but,  although  the  rate 
of  speed  in  a  particular  case  may  not 
have  been  in  excess  of  that  allowed  by 
n  statute  or  ordinance,  it  may  be  neg- 
ligent in  view  of  the  surrounding  cir- 
cumstances. The  violation  of  an  ordi- 
nance regulating  the  rate  of  speed  is 
not  sufficient  negligence  upon  which  to 
maintain  an  action,  unless  such  vio- 
lations were  the  proximate  cause  of 
the  injury.  The  fact  that  the  car  was 
moving  at  a  rate  of  speed  prohibited 
by  an  ordinance  of  the  city  will  not  of 
itself  entitle  the  plaintiff  to  recover. 
The  mere  fact  that  a  street  car  is  run- 
ning at  a  higher  rate  of  speed  than 
any  municipal  ordinance  allows  does 
not  give  one  injured  by  his  own  care- 
lessness by  impact  with  such  a  car  a 
right  of  action."  Nellis  on  Street  Rail- 
ways  (2d  Ed.),  §  393. 

88.  Garfield  v.  Hartford,  etc.,  Ry., 
80  Conn.  260,  67  Atl.  890. 

89.  Alabama  Power  Co.  v.  Brown 
(Ala.),  87  So.  608;  Indiana  Traction 
Co.  v.  Love.  180  Ind.  442.  99  N.  E. 
1005. 

90.  Indiana  Traction  Co.  v.  Love, 
180  Ind.  442,  99  N.  E.   1005. 

Fifty  miles. —  In  the  absence  of 
])i)sitivc  regulation  or  special  circum- 
stances, a  speed  of  fifty  miles  at  a 
crossing  in  the  country  is  not  neces- 
sarily negligence.  Jordan  v.  Osborne. 
147  Wis.  623.  133  N.  W.  32. 


784  The  Law  of  Automobiles. 

acted  which  Umit  the  speed  of  street  cars;  and  the  violation 
of  such  ordinances  in  some  jurisdictions  is  considered  as 
negligence  per  se,  and  in  others  as  evidence  of  negligence.^i 
But,  even  in  the  case  of  a  violation  of  a  positive  speed  regula- 
tion, a  question  of  proximate  cause  may  remain.^-  A.  street 
railway  company  is  bound  by  an  ordinance  limiting  the  speed 
of  its  cars,  though  its  franchise  has  expired,  where  it  is  oper- 
ating its  cars  by  virtue  of  an  extension.^^^ 

Sec.  618.  Negligence  of  railway  —  stopping,  if  necessary. 

An  exercise  of  reasonable  care  on  the  part  of  the  motorman 
of  a  street  car  frequently  requires  that  he  stop  the  car  to 
avoid  a  collision  with  other  travelers.^^  Even  where  the  com- 
pany has  a  preferential  right  of  way  for  its  cars,  it  must 
not  willfully  run  a  car  into  an  automobile.^^  Thus,  if  the 
plaintiff's  automobile  is  "  stalled  "  on  the  track,  the  motor- 
man  must  make  diligent  efforts  to  stop  the  car.^*^  And,  under 
the  last  chance  doctrine,  the  railway  company  may  be  liable 
for  injuries  sustained  by  a  traveler,  though  the  traveler  negli- 

91.  Ward    v.     Ft.     oinith     Light    &  the    question    of    negligence   or    not    is 

Traction  Co.,  123  Ark.  548,  185  S.  W.  one  of  fact  for  the  jury."    Ward  v.  Ft. 

1085;   Lininger  v.   San   Francisco,  etc.,  Smith  Light  &  Traction  Co.,  123  Ark. 

R.  Co.,  18  Cal.  App.  411,  123  Pac.  235;  548,  1S5  S.  W.   1085. 

Williams    v.    lola    Elec.    R.    Co.,    102  Pleading.— Li  some  states,  a  muniei- 

Kans.  268,  170  Pac.  397;  Prince  v.  De-  pal   ordinance   is   not   available,   unless 

troit    United   Ry.    Co..   192   Mich.    194,  it    is    pleaded.      Yeoman    v.    Muskegon 

158  N.  W.  861;'ziegler  v.  United  Rys.  Tract.    &   L.   Co.    (Mich.),    181    N.    W. 

Co.   of   St.   Louis    (Mo.    App.),  220   S.  1021. 

W.    1016.     See   also   Brown  v.   Detroit  92.  Williams  v.  lola  Flee.  R.  Co.  102 

United  Ry.,  179  Mich.  404,  146  N.  W.  Kans.    268,    170   Pac.    397;    Zlegler   v. 

278.     "  There  is  an   irreconcilable  con-  United    Rys.  '  Co.    of    St.    Louis     (Mo. 

liict  in  the  decisions  as  to  the  efTect  of  App.),    220    S.    W.    1016;    Winkler    v. 

the  violation  by  a  street  railway  com-  United    Rys.    Co.    of    St.    Louis     (Mo. 

pany,   in  the  operation  of  its  cars,  of  App.),  229  S.  W.  229. 

regulatory  ordinances  designed  to  pro-  93.  Flannery  v.   Interurban  Ry.  Co., 

mote  the  public  safety.     Our  court  has  171    Iowa,  238,   153   N.   W.    1027. 

already  taken  a  position  on  this  ques-  94.  Peterson  v.  New  Orleans  Ry.  & 

tion.     According  to   our  decisions,  the  Light    Co.,    142    La.   835,  77   So.  647; 

mere    fact    that    the    street    car    was  Reines  v.  N.  Y.  Rys.  Co.,  103  Misc.  (N. 

driven  at  a  rate  of  speed  forbidden  by  Y.)   669,  171   N.  Y.  Suppl.  53. 

the   city   ordinance   would   not  be   con-  95.  Capital    Tr.    Co.    v.    Crump,    35 

sidered   proof  of  negligence  as  a   mat-  App.  D.  C.  169. 

ter    of    law.     It  is  but    an    evidential  96.  Section  611. 
fact  tending  to  prove   negligence,   and 


Collisions  AVith  Street  Cars. 


785 


gently  placed  himself  in  a  position  of  danger,  where  the 
motorman  after  discovery  of  the  danger  failed  to  use  ordi- 
nary care  in  stopping  the  car  and  averting  the  collision/^' 
The  motorman  is  not  necessarily  required  to  stop  or  slacken 
the  speed  of  his  car  every  time  a  person  is  seen  to  approach 
a  crossing  with  intent  to  pass  over  it.  He  may  properly  as- 
sume that  the  traveler,  if  far  enough  away  to  cross  safely, 
will  continue  his  movements  and  cross  in  front  of  the  car; 
or,  if  not  far  enough  and  if  warned  of  the  approach  of  the 
car,  that  he  will  stop  and  let  the  car  pass  first.^'* 

Sec.  619.  Negligence  of  railway  —  warning  of  approach. 

A  street  railway  company  may  be  chargeable  with  negli- 
gence if  the  motorman  fails  to  give  warning  of  the  approach 
of  the  car  at  street  crossings  and  other  places  where  travelers 
may  lawfully  come  into  proximity  to  the  car  tracks.^*^    Par- 


97.  Section  613. 

98.  Garrett  v.  Peoples  R.  Co.,  6 
Penn.  (Del.)  29,  64  Atl.  254.  And  see 
section  613. 

99.  Califoinia. — Thompson  v.  Los 
Angeles,  etc.,  R.  Co.,  165  Cal.  748,  134 
Pac.  709. 

Delaware. — Garrett  v.  People's  R. 
Co.,  6  Penn.  29,  64  Atl.  254. 

Indiana. — Indiana  Union  Traction 
Co.  V.  Love,  180  Ind.  442,  99  N.  E. 
1005. 

Maryland. — United  Rys.  &  Elec.  Co. 
V.  Mantik,  127  Md.  197,  96  Atl.  261. 

Massachusetts. — Davis  v.  Worcester 
Consol.  St.  Ry.  Co.,  234  Mass.  297,  125 
N.  E.  554;  Wright  v.  Concord,  etc.,  Ry. 
Co.,   126  N.  E.  666. 

Missouri. — 'liirney  v.  United  Rys.  of 
St.  Louis,  155  Mo.  App.  513,  135  S.  W. 
93.  See  also  McCreery  v.  United  Rys. 
Co.,  221  Mo.   18,   120  S.  W.  24. 

Texas. — Texas  Electric  Ry.  v.  Wil- 
liams (Civ.  App.),  213  S.  W.  730; 
Northern  Texas  Tract.  Co.  v.  Smith 
(Civ.  App.),  223  S.  W.  1013. 

Wisconsin. — Jordan  v.  Osborne,  147 
Wis.   623,    133   N.   W.   32;    Gulessarian 

50 


V.  Madison  Rys.  Co.   (Wis.).  179  N.  W. 
573. 

Negative  testimony. — "  It  must  be 
held  that  there  was  enough  in  the  evi- 
dence to  justify  the  jury  in  finding 
that  the  motorman  was  negligent  in 
not  giving  proper  warning,  by  bell  or 
whistle,  of  his  approach.  It  is  true 
that  the  only  evidence  that  he  did  not 
give  such  warning  was  negative,  con- 
sisting of  the  statements  of  the  people 
in  the  automobile  that  they  heard  no 
signal.  But.  if  they  were  so  situated, 
as  they  \indoubtcdly  were,  as  to  have 
been  able  to  hear  a  bell  or  whistle 
sounded  from  the  motor  car,  their  fail- 
ure to  hear  is  some~evidence  that  no 
such  signal  was  given.  .  .  .  That  there 
was  positive  testimony  to  the  contrary 
does  not  conclusively  establish  that  a 
warning  was  given.  It  creates  merely 
a  conflict  of  testimony,  which  is  finally 
resolved,  so  far  as  this  court  is  con- 
cerned, by  the  verdict  of  the  jury." 
Thompson  v.  Los  Angeles,  etc.,  R.  Co., 
165  Cal.  748,  134  Pac.  709.  See  also 
to  the  same  effect.  Pigeon  v.  Massa- 
chusetts, etc.,  St.  Ry.  Co.  (Mass.),  119 
N.  E.  762. 


786  The  Law  of  Automobiles. 

ticularly  is  this  so,  when  the  obligation  to  sound  a  gong  or 
give  some  other  proper  form  of  warning,  is  a  duty  which  is 
imposed  by  statute  or  mmiicipal  ordinance.  But  the  failure 
to  sound  the  gong  cannot  be  deemed  the  proximate  cause  of 
the  injuries  sustained  by  one  riding  on  a  motor  vehicle,  where 
the  driver  of  the  vehicle  received  actual  knowledge  of  the  ap- 
proach of  the  street  car  as  soon  as  if  the  signal  had  been 
given.^  But  the  motorman  cannot  neglect  the  warning  on  the 
assumption  that  the  automobilist  is  aware  of  the  approach  of 
the  street  car.^ 

Sec.  620.  Negligence  of  railway  —  private  crossings. 

The  situation  with  reference  to  private  crossings  over 
street  car  lines  is  somewhat  different  from  that  in  reference 
to  public  highways  across  the  tracks.  As  a  general  proposi- 
tion a  railway  company  may  run  its  cars  at  such  speed  as 
suits  its  convenience  over  private  crossings;  and  it  need  not 
give  any  warning  of  the  approach  of  the  cars  to  such  cross- 
ings, miless  it  has  been  customary  for  signals  to  be  given.^ 
But,  if  it  has  been  customary  for  the  company  to  give  signals 
of  the  approach  of  its  cars,  and  these  are  relied  upon  by  a 
traveler  on  the  crossing  who  is  struck  by  reason  of  the  failure 
of  the  railway  employees  to  give  the  customary  signals,  a  re- 
covery may  be  had."* 

Sec.  621.  Liability  of  street  railway  company  to  its  passenger. 
When,  by  reason  of  a  collision  between  a  motor  vehicle  and 
a  street  railway  car,  a  passenger  on  the  street  car  is  injured, 
upon  proof  of  the  negligence  of  the  company  proximately  re- 
sulting in  the  injuries,  and  proof  of  absence  of  contributory 
negligence  on  the  part  of  the  passenger,  the  company  may  be 

1.  stoker  v.  Tri-City  Ry.  Co.,  182  Hys.  Co.  (Mo.  App.),  217  S.  W.  858. 
Iowa  1090,  165  N.  W.  30;  Louisville  3.  Louisville  &  Interurban  Rd.  Co.  v. 
Ry.  Co.  V.  Budwell,  189  Ky.  424,  224  Cantrell,  175  Ky.  440,  194  S.  W.  353; 
S.  W.  1065;  Winkler  v.  United  Ry  \  Turney  v.  United  Rys.  of  St.  Louis, 
Co.  of  St.  Louis  (Mo.  App.),  229  S.  W.  155  Mo.  App.  513,  135  S.  W.  93. 
229;  Blanchard  v.  Puget  Sound  Tract.,  4.  Louisville  &  Interurban  Rd.  Co. 
L.  &  P.  Co.  105  Wash.  205,  177  Pac.  v.  Cantrell,  175  Ky.  440,  194  S.  W. 
S22.  353. 

2.  Good   Roads   Co.   v.   Kansas   City 


Collisions  With  Street  Cars.  787 

liable  to  respond  in  damages.^  Negligence  on  the  part  of  the 
street  railway  company  must  be  shown/'  for  the  doctrine  res 
ipsa  loquitor  does  not  apply.''  As  to  its  passengers  more  than 
''  ordinary  "  care  may  be  required  of  a  common  carrier,  such 
as  a  street  railway  company.^  If  the  employees  of  the  rail- 
way company  have  been  guilty  of  negligence,  the  concurring 
negligence  of  the  operator  of  the  automobile  will  not  relieve 
it  from  liability.^ 

Sec.  622.  Liability  of  auto  driver. 

In  case  of  a  collision  between  a  street  car  and  an  automo- 
bile, the  driver  of  the  automobile  may  be  liable  for  injuries 
sustained  by  an  employee  or  a  passenger  in  the  car,^*^  or  one 
of  the  employees  operating  it.^^  The  action  is  unusual  in 
practice,  but  there  is  no  reason  why  the  liability  should  not 
exist  when  the  automobilist  has  been  guilty  of  negligence 
which  is  a  cause  of  the  passenger's  injuries,  and  the  pas- 
senger has  been  free  from  contributory  negligence.  The  fac; 
that  it  might  be  considered  negligence  as  between  the  street 
railway  company  and  the  passenger  for  the  passenger  to  ride 
on  the  bumper  of  the  car,  does  not  necessarily  determine  that 
it  is  contributory  negligence  as  between  the  passenger  and 
an  approaching  automobilist  who  runs  into  the  car.^-  The 
liability  of  the  operator  of  a  motor  vehicle  to  passengers 
riding  in  his  machine,  is  discussed  in  another  place  in  this 
book.^^ 

5.  Pittsbiirph  Rys.  Co.  v.  Givens.  211  9.  Pittsburgh  Rys.  Co.  v.  Givens, 
Fed.  885  128  C.  C.  A.  263;  Birming-  211  Fed.  885,  128  C.  C.  A.  263;  Jerome 
hnm  Ry.,  L.  &  P.  Co.  v.  Beal,  200  -Via.  v.  New  York  Rys.  Co.,  190  N.  Y.  App. 
409,  76  So.  1;  Omaha  &  C.  B.  St.  Ry.  Div.  311,  179  N.  Y.  Suppl.  777. 

Co.  V.  McKeeman,  250  Fed.  386.  See  10.  Wigginton's  Adm'r  v.  Rickert, 
also,  Richardson  v.  Nassau  Elec.  R.  186  Ky.  650.  217  S.  W.  933:  Regan  v. 
Co..  190  N.  Y.  App.  Div.  529,  180  N.  John  L.  Kelley  Contracting  Co..  226 
Y.  Suppl.  529;  Virginia  Ry.  &  Power  Mass.  58,  114  N.  E.  726;  Healy  v.  War- 
Co.    (Va.),   105  S.  E.  657.  wich,   174  N.  Y.  Suppl.  632. 

6.  McNilf  V.  Boston  Elev.  Ry.  Co.,  11.  Lounsbury  v.  McCormick 
234  Mass.  252    125  N.  E.  391.    "  (Mass,),  129  N.  E.  598. 

7.  Plumb  V.  Richmond  L.  &  U.  Co..  12.  Smith  v.  Heibel,  157  Mo.  App. 
195  App.  Div.  254.  177.  137  S.  W.  70. 

8.  Omaha  &  C.  B.  St.  Ry.  Co.  v.  Mc-  13.  Chapter  XXIV, 
Keeman,  250  Fed.  386. 


788  The  Law  of  Automobiles. 

CHAPTER  XXIII. 

LIABILITY   FOR  ACT   OF  DRIVER;   MASTER  AND   SERVANT. 

Section  623.  Liability  does  not  arise  from  mere  ownership — in    general. 

624.  Liability  dot  >  not  arise  from  mere  ownership — automobile  not  an 

inherently  dangerous  machine. 

625.  Liability  does  oiot  arise  from  mere  ownership — defective     automo- 

bile. 

626.  Liability  does  not  arise  from  mere  ownership — statutory  change  in 

common  law  rule. 

627.  Liability  for  conduct  of  chauffeur — employment    alone    insufficient 

to  charge  owner. 

628.  Liability  for  conduct  of  chauffeur — driver   must   be   acting   within 

scope  of  duty. 

629.  Liability  for  conduct  of  chauffeur — owner   riding   in   machine. 

630.  Liability  for  conduct  of  chauffeur — use  of  car  without  consent  of 

owner. 

631.  Liability  for  conduct  of  chauffeur — private  use  by   chauffeur  with 

consent  of   owner. 

632.  Liability  for  conduct  of  chauffeur — variance    from    direct    course. 

633.  Liability  for  conduct  of  chauffeur — returning  to  employment  after 

unlawful  divergence. 

634.  Liabilty  for  conduct  of  chauffeur — chauffeur    acting   under    direc- 

tion of  owner's  family. 

635.  Liability  for  conduct  of  chauffeur — testing  machine. 

636.  Liability  for  conduct  of  chauffeur — chauffeur   after  personal  laun- 

dry. 

637.  Liability  for  conduct  of  chauffeur — chauffeur  taking  car  for  meals. 

638.  Liabirty  for  conduct  of  chauffeur — chauffeur    taking   passenger. 

639.  Liability  for  conduct  of  chauffeur — chauffeur    permitting    another 

to    run   machine. 

640.  Liability  for  conduct  of  chauffeur — procurement  of  repairs  to  ma- 

chine. 

641.  Liability    for    conduct    of    chauffeur — chauffeur    furnished    by   an- 

other. 

642.  Liability  for  conduct  of  chauffeur — car   loaned   to    third   person. 

643.  Liability  for  conduct  of  chauffeur — car   and   driver   loaned. 

644.  Liab'rty  for   conduct  of  chauffeur — owner  letting  car  for  hire. 

645.  Liability  for  conduct  of  chauffeur— independent  contractor  having 

possession  of  machine. 

646.  Liability  for  conduct  of  chauffeur — garage  keeper  or  bailee  having 

possession  of  automobile. 

647.  Liability  for  conduct  of  chauffeur — seller's     agent     accompanying 

purchaser. 

648.  Liability  for  conduct  of  chauffeur — agent  t+yinfr  to  sell  machine. 

649.  Liability  for  conduct  of  chauffeur — school    giving   instruction. 

650.  Liability  for  conduct  of  chauffeur — chauffeur    teaching    operation 

of  automobile. 


Liability  for  Act  of  Driver.  789 

Section  651.  Liability  for  concluct  of  chuuffcur    driver   employed    to   tow   auto- 
mobile. 

652.  Liability  for  conduct  of  chauffeur— fellow   servants   of   chauffeur. 

653.  Liability  for  conduct  of  chauffour — pleading. 

654.  Lia])ility  for  conduct  of  chauffour — admissibility  of  statements  of 

driver. 

655.  Liability  based  on  control  of  machine. 

656.  Machine  driven  by  member  of  owner's  family — relation    of    parent 

and  child  does  not  determine  liability  of  owner. 

657.  Machine  driven  by  member  of  owner's  family — relation   of  master 

and  servant. 

658.  Machine  driven  by  member  of  owner's  family— use     without      con- 

sent of  ownier. 

659.  Machine  driven  by  member  of  owner's  family— use  for  carriage  of 

owner's   family. 

660.  Machine    driven    by    member   of    owner's    family— use   for    private 

purposes  of  driver. 

661.  Machine  driven  by  member  of  owner's  family— husband  and  wife. 

662.  Machine  driven  by  member  of  owTier's  family— immature  or  incom- 

petent  driver. 

663.  Liability  of  corporations. 

664.  Municipal   corporations. 

665.  Liability  of   seller   of   automobile  for  act   of   servant. 

666.  Liability  of  bailee. 

667.  Liability  of  passenger. 

668.  Automobile  jointly  owned. 

669.  Criminal    liability    for    acts    of    driver. 

670.  Ratification  of  setvant's  act. 

671.  Presumption  of  ownership — from   license   number. 

672.  Presumption  of  ownership — from  name  on   machine. 

673.  Presumption  of  management  from  ownership — in  general. 

674.  Presumption  of  management  from  ownership— rebuttal  of  presump- 

tion. 

675.  Verdict  exonerating  chauffeur,  but  holding  owner. 

676.  Examination  of  owner  before  trial. 

677.  Function  of  jury. 

Sec.  623.  Liability  does  not  arise  from  mere  ownership  —  in 
general. 

It  may  be  stated  as  a  pjeneral  rule  in  the  law  of  automobile 
operation  that,  conceding  the  negligence  of  the  operator  of 
an  automobile,  the  owmer  thereof  when  not  riding  in  the  car, 
is  not  liable  for  injuries  arising  from  such  negligence,  merely 
because  he  is  the  owner  of  the  vehicle.^    Moreover,  as  a  gen- 

1.  California.— MviTtinem     v.     Bond  Indi-an^.—Tremiev  Motor  Mfg.  Co.  v. 

(Cal.  App.),  183  Pac.  461.  Tilford.   61   Ind.  App.   164,   111   N.   E. 


790 


The  Law  of  Automobiles. 


eral  proposition,  the  circumstance  that  the  driver  is  an  em- 
ployee of  the  owner  does  not  fasten  liability  on  the  owner,  for 
the  owner  is  liable  for  the  acts  of  his  servant  only  when  the 
latter  is  acting  within  the  scope  of  his  employment.^  And 
the  fact  that  the  driver  is  a  child  or  near  relative  of  the  owner 
of  the  machine  does  not  necessarily  make  the  owner  liable 
for  the  conduct  of  such  driver.^ 


645;   Decker  v.  Hall   (Ind.  App.),  125 
N.  E.  786. 

S^an^as.— Halverson    v.    Blosser,    101 
Kans.  683,  168  Pae.  863. 

Kentuclcy. — Tyler  v.  Stephan's 
Adm'r,  163  Ky.  770,  174  S.  W.  790. 

Louisia^ia. — Marullo  v.  St.  Pasteur, 
144  La.  926,  81  So.  403. 

Maine. — Pease  v.  Montgomery,  111 
Me.  582,  88  Atl.  973. 

Maryland. — Dearholt  Motor  Sales  Co. 
V.  Merritt,  133  Md.  323,  105  Atl.  316. 
Massachusetts. — Melchionda  v.  Ameri- 
can Locomotive  Co.,  229  Mass.  202,  118 
N.  E.  265;  Gardner  v.  Farnum,  230 
Mass.  193,_  119  N.  E.  666;  Canavan  v. 
Giblin,  232  Mass.  297,  122  N.  E.  171. 
Minnesota. — Slater  v.  Advance 
Thresher  Co.,  97  Minn.  305,  107  N.  W. 
133. 

Missouri. — Calhoun  v.  Mining  Co., 
202  Mo.  App.  564,  209  S.  W.  318. 

New  Hampshire. — Danf  orth  v.  Fisher, 
75  N.  H.  Ill,  71  Atl.  535,  21  L.  B.  A. 
(N.  S.)   93,  139  Am.  St.  Rep.  670. 

Neto  York. — Reilly  v.  Counable,  214 
N.  Y.  586,  108  N.  E.  853;  Potts  v. 
Pardee,  220  N.  Y.  431,  116  N.  E.  78, 
8  A.  L.  R.  785;  Clark  v.  Buekmobile 
Co.,  107  App.  Div.  120,  94  N.  Y.  Suppl. 
771;  Freibaum  v.  Brady,  143  App.  Div. 
220,  128  N.  Y.  Suppl.  121;  Breener  v. 
Goldstein,  184  App.  Div.  268;  Parsons 
V.  Wisner,  113  N.  Y.  Suppl.  922.  Covi- 
pare  Ingraham  v.  Storkamore,  63  Misc. 
(N.  Y.)    114,  118  N.  Y.  Suppl.  399. 

North  Carolina. — Linville  v.  Nissen, 
162  N.  Car.  95,  77  S.  E.  1096;  Reich  v. 
Cone,  104  S.  E.   530. 

Ohio. — White  Oak  Coal  Co.  v.  Rivoux, 


SB  Ohio  IS,  102  N.  E.  302,  46  L.  R.  A. 
(N.  S.)    1091. 

Pennsylvania. — Sarver  v.  Mitchell,  35 
Pa.  Super.  Ct.  69. 

Tennessee. — Davis  v.  Newsum  Auto 
Tire  &  Vulcanizing  Co.,  141  Tenn.  527, 
213  S.  W.  914. 

Texas. — Gordon  v.  Texas  &  Pacific 
Mercantile  &  Mfg.  Co.  (Civ.  App.),  190 
S.  W.  748. 

Utah. — Fergusion  v.  Reynolds,  176 
Pac.  267. 

Wisconsin. — Steffen  v.  McNaughton, 
142  Wis.  49,  124  N.  W.  1016,  19  Ann. 
Cas.  1227,  26  L.  R.  A.  (N.  S.)  382; 
Oulette  V.  Superior  Motor  &  M.  Works, 
157  Wis.  531,   147  N.  W.  1014. 

2.  Section  627. 

3.  Denison  v.  McNorton,  228  Fed. 
401,  142  C.  C.  A.  631;  Lewis  v.  Steel, 
52  Mont.  300,  157  Pac.  575;  Maher  v. 
Benedict,  123  N.  Y.  App.  Div.  579,  108 
N.  Y.  Suppl.  228;  McFarlane  v.  Win- 
ters, 47  Utah,  598,  155  Pac.  437.  ''AH 
the  evidence  the  i^laintiff  produced  to 
establish  the  doctor's  responsibility  for 
the  acts  of  his  son,  Glen,  was  that  the 
former  owned  the  automobile,  and  that 
the  same  was  at  the  time  being  used 
with  his  permission  or  consent  by  the 
son.  That  is  not  sufficient.  Every 
time  an  ovATier  lends  any  article  or  in- 
sturmentality  to  another,  whether  for 
hire  or  gratuitously,  the  owner  consents 
to  its  use  by  the  borrower  or  bailee. 
To  hold  that  evidence  of  that  fact  is 
sufficient  to  fasten  liability  upon  the 
owner  of  the  instrumentality  in  case 
some  injury  is  inflicted  upon  another 
by  the  negligent  use  of  such  instrumen- 


Liability  for  Act  of  Driver. 


791 


Sec.  624.  Liability  does  not  arise  from  mere  ownership  — 
automobile  not  an  inherently  dangerous  machine. 
The  owner  of  certain  dangerous  instrumentalities,  such  as 
railroad  locomotives,  ferocious  beasts,  high  explosives,  etc.,  is 
bound  to  keep  the  same  under  his  control  so  that  injury  will 
not  be  caused  to  another.  As  to  these  forces,  a  duty  rests 
upon  their  owner  to  keep  them  properly  within  his  control; 
and,  when  he  does  not  do  so,  he  may  be  liable  for  injuries  re- 
sulting from  their  improper  use  by  a  servant,  though  such 
servant  was  not  at  the  time  acting  in  the  performance  of  his 
duty.*  But  a  motor  vehicle  is  not  placed  in  the  category  of 
these  per  se  dangerous  agencies.^  Hence  the  liability  of  the 
owner  cannot  be  based  solely  on  the  danger  of  the  machine.'^ 


tality  while  it  is  in  the  possession  and 
under  the  control  of  a  third  person  is 
to  revolutionize  the  law  which  holds  the 
principal  or  master  liable  for  the  acts 
of  his  agent  or  servant.  We  are  of  the 
opinion,  therefore,  that  the  plaintiff 
produced  no  evidence  which  supports 
the  findings  of  the  jury  or  the  judg- 
ment of  the  court  as  against  the  de- 
fendant W.  P.  Winters."  McFarlane 
V.  Winters,  47  Utah,  598,  15.5  Pac.  437. 
And  see  section  656. 

4.  Fielder  v.  Davison,  130  Ga.  509, 
77  S.  E.  618. 

5.  Section  37. 

6.  Alabama. — Parker  v.  Wilson,  179 
Ala.  361,  60  So.  150,  43  L.  R.  A.  (N. 
S.)    87. 

Georgia. — Fielder  v.  Davison,  139  Ga. 
509,  77  S.  E.  618;  Lewis  v.  Amorous,  3 
Ga.  App.  50,  59  S.  E.  338.  "It  is  in- 
sisted in  the  argument  that  automo- 
biles are  to  be  classed  with  ferocious 
animals,  and  that  the  law  relating  to 
the  duty  of  the  owners  of  such  animals 
is  to  be  applied.  It  is  not  the  ferocity 
of  automobiles  that  is  to  be  feared,  but 
the  ferocity  of  those  who  drive  them. 
Until  human  agency  intervenes,  they 
are  usually  harmless."  Lewis  v.  Amo- 
rous, 3  Ga.  App.  50,  59  S.  E.  338. 

Illinois.— Arkin  v.  Page,  287  111.  420. 
123  N.  E.  30. 


Indiana. — Premier  Motor  Mfg.  Co.  v. 
Tilford,  61  Ind.  App.  164,  111  N.  E. 
645;  Martin  v.  Lilly,  188  Ind.  139,  121 
N.  E.  443. 

Kentucky. — Tyler  v.  Stephan's  Adm'r, 
163  Ky.  770,  174  S.  W.  790. 

Maryland. — Symington  v.  Sipes,  121 
Md.   313,   88   Atl.   134. 

Michigan. — Brinkman  v.  Zuckerman, 
192  Mich.   624,  159  N.  W.   316. 

Minnesota. — Slater  v.  Advance 
Thresher  Co.,  97  Minn.  305,  107  N.  W. 
133;  Provo  v.  Conrad,  130  Minn.  412, 
153  N.  W.  753;  Mogle  v.  A.  W.  Scott 
Co.,  144  Minn.  173,  174  N.  W.  832. 
' '  The  rule  of  law  applicable  to  the  care 
and  protection  of  dangerous  instrumen- 
talities does  not  apply,  llu'  rule  re- 
quires the  master  to  exercise  a  proper 
degree  of  care  to  guard,  control,  and 
proper  use  of  such  an  instrumentality 
owned  or  operated  by  him,  and,  an  in- 
jury occurring  by  leason  of  the  im- 
proper use  of  such  an  instrumentality 
by  a  servant,  though  occasioned  while 
not  in  the  performance  of  his  duty,  the 
master  is  liable.  But  the  principle  on 
which  liability  is  founded  in  such  cases 
is  the  failure  of  the  master  to  properly 
keep  within  his  control  such  dan^^erous 
agencies."  Slater  v.  Advance  Thresher 
Co.,  97  Minn.  305,   107  N.  W.   133. 


792 


The  Law  of  Automobiles. 


And  the  fact  that  the  owner  keeps  the  machine  in  a  public 
garage  where  it  might  be  more  accessible  to  the  wrongful  use 
of  his  chauffeur  than  if  he  kept  it  at  his  residence,  does  not 
change  the  rule  in  this  respect.'  Yet,  if  he  intrusts  the  ma- 
chine to  an  incompetent  driver,  it  may  be  converted  into  a 
dangerous  instrumentality.* 

Sec.  625.  Liability  does  not  arise  from  mere  ownership  — 
defective  automobile. 

The  additional  fact  that  an  automobile  was  in  want  of  re- 
pair and  dangerous  for  driving,  does  not  necessarily  charge 
the  owner  with  liability  for  the  act  of  his  servant  in  using  the 
same,  where  such  use  was  not  in  pursuance  of  the  master's 
business  f  and  especially  is  this  true  when  the  use  of  the  car, 
not  its  defective  condition,  is  said  to  be  the  proximate  cause 
of  the  injury .^*^  And,  when  one  loans  his  automobile  to  an- 
other, the  fact  that  the  machine  had  a  broken  muffler  and  was 
noisy  in  operation  does  not  impose  liability  on  the  owner." 


Missouri. — Michael  v.  Pulliam  (Mo. 
App.),  215  S.  W.  763. 

Montan<h. — Lewis  v.  Steel,  52  Mont. 
300,   157  Pac.   575. 

New  Hampshire. —  Danf  orth  v. 
Fisher,  75  N.  H.  Ill,  71  Atl.  535,  21 
L.  E.  A.  (N.  S.)  93,  139  Ann.  St.  Rep. 
670. 

New  York. — Cunningham  v.  Castle, 
127  App.  Div.  580,  111  N.  Y.  Suppl. 
1057.  Compare  Ingraham  v.  Storka- 
more,  63  Misc.  (N.  Y.)  114,  118  N.  Y. 
Suppl.  399. 

North  Carolina. — Linville  v.  Niaaen, 
162  N.  Car.  95,  77  S.  E.  1096. 

Ohio.— TSlms  V.  Flick,  126  N.  E.  66. 

Bhode  Island. — Colwell  v.  Aetna  Bot- 
tle &  Stopper  Co.,  33  R.  I.  531,  82  Atl. 
388. 

Tennessee. — King  v.  Smythe,  104 
Tenn.  217,  204  S.  W.  296,  L.  R.  A. 
1918F  293;  Core  v.  Reaha  (Tenn.),  204 
S.  W.  1149. 

Texas. — Allen  v.  Bland  (Civ.  App.), 
168  S.  W.  35. 

Utah. — McFarlane     v.     "Wintera,     47 


Utah,  598,   155  Pac.  437. 

Virginia. — Blair  v.  Broadwater,  121 
Va.  301,  93  S.  E.  632,  L.  R.  A.  1918A 
1011. 

Washington. — Jones  v.  Hoge,  47 
Wash.  663,  92  Pac.  433,  125  Am.  St. 
Rep.  915,  14  L.  R.  A.   (N.  S.)  216. 

Wisconsin. — Steffen  v.  McNaughton, 
142  Wis.  49,  124  N.  W.  1016,  19  Ann. 
Cas.  1227,  26  L.  R.  A.   (N.  S.)   382. 

Compare. — Southern  Cotton  Oil  Co. 
V.  Anderson   (Fla.),  86  So.  629. 

7.  Lewis  V.  Amorous,  3  Ga.  App.  50, 
59  S.  E.  338;  Jones  v.  Hoge,  47  Wash. 
663,  92  Pac.  433,  125  Am.  St.  Rep.  915, 
14  L.  R.  A.  (N.  S.)   216. 

8.  Gardiner  v.  Solomon,  200  Ala.  115, 
75  So.  621.     And  see  section  662. 

9.  Gordon  v.  Texas  &  Pacific  Mer- 
cantile &  Mfg.  Co.  (Tex.  Civ.  App.), 
190  S.  W.  748. 

10.  Beatty  v.  Firestone  Tire  &  Rub- 
ber Co.,  263  Pa.  St.  271,  106  Atl.  303. 

11.  Halverson  v.  Blosser,  101  Kana. 
683,  168  Pac.  862. 


Liability  for  Act  of  Driver. 


793 


Sec.  626.  Liability  does  not  arise  from  mere  ownership  — 
statutory  change  in  common  law  rule. 

In  a  few  jurisdictions,  the  law-making  bodies  have  at- 
tempted to  impose  on  the  owner  of  a  motor  vehicle  a  liability 
in  excess  of  that  imposed  by  the  common  law.  Thus,  in 
Michigan  the  Legislature  attempted  to  charge  the  owner  with 
liability  for  all  injuries  occasioned  by  the  negligence  of  the 
driver  of  the  machine,  except  in  case  it  was  stolen.^-  But,  it 
was  held  that  the  statute  was  unconstitutional  so  far  as  it 
attempted  to  impose  liability  where  a  trespasser  obtained 
possession  thereof  without  the  consent  of  the  owner  and  with- 
out his  fault.^^  A  subsequent  statute  cured  the  defect  in  the 
former  law  by  providing  that  the  owner  w^ould  not  be  liable 
when  the  machine  was  driven  without  the  consent  or  knowl- 
edge of  the  owner."  The  later  statute  is  constitutional,  al- 
though it  imposes  a  liability  on  the  owner  greater  than  that 
allowed  by  the  conunon  law  rules,  as  for  example  rendering 
him  responsible  for  negligence  in  the  operation  of  the  machine 
when  it  is  loaned  to  another.^    The  statute  also  imposes  lia- 


12.  Under    Mich.    Pub.    Acts,    1909, 

No.  318,  prescribing  regulations  for  au- 
tomobiles on  public  highways,  one  in- 
jured by  a  violation  thereof  was  not 
required  to  first  obtain  judgment 
against  the  driver,  before  suing  the 
owner.  Johnson  v.  Sergeant,  168  Mich. 
444,  134  N.  W.  468. 

13.  Daugherty  v.  Thomas,  174  Mich. 
371,  140  N.  W.  615,  45  L.  R.  A.  (N. 
8.)  699,  Ann.  Cas.  1915A  1163;  Ldehr 
V.  Abell,  174  Mich.  590,  140  N.  W.  926; 
Mitchell  V.  Van  Keuler  &  W.  Lbr.  Co., 
175  Mich.  75,  140  N.  W.  973;  Barry 
V.  Metzer  Motor  Car  Co.,  175  Mich. 
466,  141  N.  W.  529;  Levyn  v.  Koppin, 
183  Mieh.  232,  149  N.  W.  993.  "It 
may  be  laid  down  as  a  general  pro- 
position that  absolute  liability,  with- 
out fault  on  his  part,  cannot  ordinarily 
be  imposed  upon  a  citizen.  It  has 
been  held  in  numerous  cases  that  a 
statute  making  a  railroad  company  li- 
able for  stock  killed,  whether  the  com- 


pany was  negligent  or  not,  and  fixing 
the  damages  according  to  a  schedule, 
was  to  deprive  the  company  of  prop- 
erty without  due  process  of  law." 
Daugherty  v.  Thomas,  174  Mich.  371, 
140  N.  W.  615,  45  L.  R.  A.  (N.  S.) 
699,   Ann.   Cas.    1915A    1163. 

14.  Hatter  v.  Bodge  Bros.,  202  Mich. 
97,  167  N.  W.  935 ;  Hawkins  v.  Erma- 
tinger  (Mich.),  179  N.  W.  249. 

Joint  oVmer. — In  case  of  joint 
ownoi.'<  of  a  motor  vehicle,  the  statute 
does  not  render  one  of  such  persons 
liable  when  the  machine  is  operated  by 
the  other  in  his  personal  affairs.  Mit- 
tlestadt  V.  Kelly,  202  Mich.  524.  168 
N.  W.  501. 

15.  Stapleton  v.  Independent  Brew- 
ing Co.,  198  Mich.  170.  164  N.  W.  520, 
L.  R.  A.  1918A  916.  "The  present 
statute,  while  safe-guarding  the  rights 
of  persons  having  occasion  to  use  the 
streets,  does  not  unreasonably  infringe 
npon  the  rights  of  those  .nble  to   nwn 


794 


The  Law  of  Automobiles. 


bility  when  the  machine  is  driven  by  a  member  of  the  owner  *s 
family,  although  against  his  directions,  and  in  this  respect 
the  statute  has  been  sustained  by  a  divided  court.^^  The  law 
makers  in  Canada  have  not  been  so  hindered  with  constitu- 
tional limitations,  and  have  been  more  successful  in  imposing 
liability  on  the  owner  of  the  machine  for  the  negligence  of 
i)\Q  driver.^'    And  under  the  British  Motor  Car  Act  of  1903, 


automobiles.  The  owner  of  an  auto- 
mobile is  supposed  to  know,  and  should 
know,  about  the  qualifications  of  the 
persons  he  allows  to  use  his  car,  to 
drive  his  automobile,  and  if  he  has 
doubts  of  the  competency  or  careful- 
ness of  the  driver  lie  should  refuse  to 
give  his  consent  to  the  use  by  him  of 
the  machine.  The  statute  is  within  the 
police  power  of  the  State."  Stapleton 
V.  Independent  Brewing  Co.  (Mich.), 
164  N.  W.  520. 

16.  Hawkins  v.  PJrmatinger  (Mich.), 
179  N.  W.  249. 

17.  Canadian  statute. — Where  the 
owner  of  an  automobile  placed  it  in  a 
garage  for  a  purpose  other  than  demon- 
strating, and  a  servant  of  the  garage- 
keeper,  thinking  the  machine  was  in 
the  garage  for  use  in  demonstrating, 
took  it  and  operated  it  with  the  result 
that  injuries  were  caused  to  another, 
it  was  held  that  under  section  19  of 
the  Motor  Vehicle  Act,  2  Geo.  V,  ch. 
48,  which  was  the  statute  in  force  at 
the  time  of  the  accident,  the  owner 
was  liable  therefor.  Downs  v.  Fisher, 
23  D.  L.  R.  (Canada)  726,  33  O.  L.  R. 
504,  8   O.  W.  N.   257. 

Statute  of  6  Edw.  VII.  ch.  46.— 
In  Mattel  v.  Gillies,  16  Ont.  L.  R.  558, 
the  court  also  said :  ' '  Besides  this  I 
am  inclined  to  hold  that,  having  re- 
gard to  the  provisions  of  the  act,  as  to 
registration  of  the  owner,  the  carry- 
ing of  a  number  on  the  machine  for 
the  purpose  of  identification,  and  the 
permit  granted  on  those  conditions,  as 
between  the  owner  and  the  public,  the 
chauffeur  or  driver  is  to  be  regarded 


as  the  alter  ego  of  the  proprietor,  and 
that  the  owner  is  liable  for  the  driver  'a 
negligence  in  all  cases  where  the  use 
of  the  vehicle  is  with  the  sanction  or 
permission  of  the  proprietor.  In  driv- 
ing the  motor  he  is  within  the  osten- 
sible scope  of  his  employment,  and  the 
liability  will  remain  by  virtue  of  the 
statute,  and  this  even  though  the 
driver  may  be  out  on  an  errand  of  his 
own." 

Abrogation  of  common  law  rule. — 
In  a  case  in  Ontario  it  was  held  that 
the  provisions  of  special  legislation  (6 
Edw.  VII,  eh.  46,  and  its  amendments) 
show  an  intention  on  the  part  of  the 
legislature  to  abrogate  to  some  extent 
to  the  common-law  rule  that  the  master 
of  a  vehicle  is  exempt  from  responsi- 
bility if  his  servant  does  an  injury 
with  the  master's  vehicle  when,  out- 
side of  the  duties  of  his  master's  em- 
ployment, he  is  out  at  large  on  an 
errand  or  frolic  of  his  own.  In  this 
case  the  servant  of  the  defendant  took 
the  latter 's  automobile  out  of  his 
salesrooms  without  his  knowledge  or 
consent,  and  while  so  using  it  caused 
the  injury  complained  of.  The  court 
held  that  the  defendant  was  liable  in 
a  dual  aspect,  and  that  he  was  respon- 
sible to  answer  the  damages  brought 
about  by  the  use  of  his  vehicle  in  con- 
travention of  the  statutory  rate  of 
speed  and  because  the  vehicle  was  al- 
lowed to  be  handled  recklessly  by  his 
servant  on  the  highway.  Verrall  v. 
Dominion  Automobile  Co.,  20  Ont.  W. 
R.  178,  3  Ont.  W.  N.  108.  See  also 
the  following  Canadian  cases  as  to  the 


Liability  for  Act  of  Driver.  795 

the  person  causing  or  ])erniitting  a  motor  car  to  be  used  con- 
trary to  regulations  was  held  responsible  as  well  as  the  driver 
in  certain  instances.^^  And  a  statute  in  New  Jersey  relative 
to  pedestrians  attempting  to  cross  a  street  between  the  regular 
crossings,  was  construed  so  as  to  bar  an  action  against  the 
owner  of  the  machine  if  he  was  not  driving  at  the  time  of  the 
collision  mth  such  pedestrian,  but  not  so  as  to  bar  a  remedy 
against  the  driver  at  the  time,  whether  such  driver  was  the 
owner  or  an  employee.^^  And  in  California,  a  statute  has 
been  passed  providing  that  no  minor  shall  operate  an  auto- 
mobile without  a  license  and  requiring  as  a  prerequisite  to 
the  obtaining  of  such  license  that  his  parent  or  guardian  shall 
join  in  the  application ;  and  further  providing  that  in  case  of 
the  negligence  of  such  minor  the  person  so  signing  shall  be 
liable  for  his  negligence.  The  statute  seems  to  apply  whether 
or  not  the  parent  is  owner  of  the  machine.-''  And,  in  Con- 
necticut, statutory  provisions  under  the  bailor  liable  for  in- 
juries occasioned  through  the  use  of  the  car  by  a  bailee.^ 
And  in  a  few  States,  statutes  have  been  enacted  to  the  effect 
that  when  a  motor  vehicle  is  operated  in  violation  of  the  law, 
or  negligently,  or  carelessly,  so  that  one  receives  injuries 
thereby,  the  damages  shall  be  a  lien  on  the  vehicle.^^     The 

liability  of  the  owner:     B.  &  R.  Co.  v.  18.  Pettitt,  Law  of  Motor  Cars,  62; 

McLeod,  18  Dom.  L.  R.  245,  7  A.  L.  R.  Pettitt,    Law    of    Heavy    Motor    Cars, 

349,  28  W.  L.  R.  778,  6  W.  W.  R.  1299 ;  58.     See  also  Lewis  v.  Amorous.  3  Ga. 

Wiltsoe  V.  Arnold,  15  Dom.  L.  R.  915,  App.   50,  59  S.  E.   338. 

27  W.  L.  R.  259,  6  W.  W.  R.  4 ;  Bern-  19.  Sehreiner   v.    Grinuell,    89    N.    J. 

stein  V.  Lynch,  13  Dom.  L.  R.   134,  28  L.  37,  97  Atl.  781. 

O.  L.  R.  435,  4  O.  W.  N.  1005,  49  C.  L.  20.  Crittenden    v.    Murphy,    3G    Cal. 

J.   619;    Hughes   v.   Exchange   Taxicab  App.     803,     173     Pac.    595.       But     see 

&  Auto  Livery.  11  Dom.  L.  R.  314,  24  Spence  v.  Fisher  (Cal.).  193  Pac.  255. 

W.    L.    R.    174;    Wynne   v.    Dalby,    29  See    also,    as    to    lights    on    machine. 

O.  L.  R.  62,  30  O.  L.  R.  67;  Cote  v.  Luckie    v.    Diamond    Coal    Co.     (Cal. 

Pennock,  51  Que.  S.  C.  537;  Smith  v.  App.),  183  Pac.  178. 

Brenner,    12    O.    W.    R.    9;    Lowry    v.  21.  Wolf  v.  Sulik,  93  Conn.  431,  106 

Thompson,   29   O.   L.   R.   478;   Cillis  v.  Atl.  443,  4  A.  L.  R.  356. 

Oakley,   31   O.   L.   R.   603;    Hirschman  22.  Merchants    &    Planters    Bank    v. 

V.   Beal,   38   O.    L.    R.    40;    McCabc   v.  liiigman,    106    S.    Car.    362.    91    S.    E. 

Allan,    39    Que.    S.    C.    29;    Mcllroy   v.  .332;  Matter  of  McFadden,  112  S.  Car, 

Kobald,    35   D.   L.   R.   587;    Walker   v.  258,    99    S.    E.    838;    Core    v.    Resha 

Martin,   45  O.  L.  R.  504,  46  O.  L.  R.  (Tonn.),    204    S.    W.    1149;    Lynde    v. 

144;    Gray    v.    Peterborough    Ry.    Co.,  Browning.  2  Tenn.  C.  C.  A.  262. 

18  O.  W.  N.  260. 


796 


The  Law  of  Automobiles. 


constitutionality  of  the  enactment  has  been  sustained.^^  Un- 
der such  a  statute  the  owner  will  not  necessarily  be  liable  for 
injuries  caused  in  the  operation  of  his  machine  beyond  the 
value  of  his  interest  in  the  machine ;  but  the  person  injured 
may  secure  a  lien  on  the  machine,  and  such  lien  is  given 
priority  to  a  chattel  mortgage  or  other  lien  except  one  for 
taxes.2*  The  lien  may  be  allowed  although  the  driver  thereof 
at  the  time  of  the  accident  in  question  was  not  acting  within 
the  scope  of  the  owner's  business  and  although  a  personal 
judgment  could  not  be  rendered  against  the  owner  for  the 
injuries 


25 


Sec.  627.  Liability  for  conduct  of  chauffeur  —  emplo3nnent 
alone  insufficient  to  charge  owner. 

The  general  rule  is,  that  in  an  action  against  the  owner  of 
a  motor  vehicle  for  injuries  occasioned  by  the  negligence  of 
the  driver  thereof,  the  owner  is  not  liable  merely  because  the 
driver  is  in  the  general  employ  of  the  owner.^^    To  charge  the 


23.  Merchants  &  Planters'  Bank  v. 
Brigman,  106  S.  Car.  362,  91  S.  E. 
332;  Denny  v.  Doe  (S.  Car.),  108  S.  E. 
95. 

24.  Merchants  &  Planters'  Bank  v. 
Brigman,  106  S.  Car.  362,  91  S.  E.  332. 

25.  Denny  v.  Doe  (S.  Car.),  108  S. 
E.  95;  Core  v.  Resha  (Tenn.),  204  S. 
W.  1149. 

26.  California. — Martinelli  v.  Bond 
(Cal.  App.),  183  Pac.  461. 

Georgia. — Fielder  v.  Davison,  139 
Ga.  509,  77  S.  E.  618;  Mclntire  v. 
Hartf  elder-Garbutt  Co.,  9  Ga.  App.  327, 
71  S.  E.  492. 

Indiana. — Premier  Motor  Mfg.  Co. 
V.  Tilford,  61  Ind.  App.  164,  111  N. 
E.  645. 

Kentucky. — Taylor  v.  Stephan  's 
Adm'r,  163  Ky.  770,  174  S.  W.  790. 

Massachusetts. — O  'Rourke  v.  A-G 
Co.,  Inc.,  232  Mass.  129.  122  N.  E.  193. 
'  Minnesota. —  Slater  v.  Advance 
Thresher  Co.,  97  Minn.  305,  107  N. 
W.    133;    Provo   v.   Conrad,   130   Minn. 


412,  153  N.  W.  753.  "The  relation 
between  the  owner  of  an  automobile 
and  the  person  employed  by  him  to 
operate  it  is  that  of  master  and  ser- 
vant, and  liability  for  injuries  to  third 
persons,  caused  by  the  negligence  of 
the  servant  operating  the  same,  differs 
in  no  essential  respect  from  the  rules 
and  principles  of  law  applicable  to 
that  relation.  Efforts  have  been  made 
to  extend  such  rules  of  liability,  by 
statute  and  judicial  decisions,  on  the 
theory  that  the  automobile  is  a  dan- 
gerous instrumentality  requiring  for 
the  protection  of  the  public  a  high 
degree  of  care  in  safeguarding  its  use. 
These  efforts  have  not  met  with  suc- 
cess, and  the  courts  are  practically  uni- 
form in  applying  in  such  cases  the  law 
of  master  and  servant."  Provo  v. 
Conrad,  130  Minn.  412,  153  N.  W.  753. 
Missouri. — Shamp  v.  Lambert,  142 
Mo.  App.  567,  121  S.  W.  770;  Calhoun 
V.  Mining  Co.,  202  Mo.  App.  564,  209 
S.  W.   318. 


Liability  for  Act  of  Driver. 


797 


owner,  it  must  also  appear  that  the  driver  at  the  time  of  the 
accident  in  question  was  acting  within  the  scope  of  his  mas- 
ter's business."  When  the  owner  of  an  automobile  is  sued 
for  damages  on  account  of  an  injury  caused  by  the  machine 
while  driven  by  his  chauffeur,  the  rules  of  law  touching  master 
and  servant  and  the  liability  of  the  former  for  the  acts  of  the 
latter,  are  to  be  applied.^^  A  prima  facie  case  Avhich  will  hold 
the  owner,  unless  counter  evidence  is  produced,  may  some- 
times be  created  on  proof  of  the  ownership  of  the  machine 
and  general  employment  of  the  chauffeur,  but  such  prima 
facie  case  will  be  dispelled  on  proof  that  the  servant  at  the 
time  was  not  acting  within  his  employment.^^  In  deciding 
whether  a  chauffeur  is  the  servant  of  the  defendant  or  of 
some  other  person,  the  manner,  method  and  means  of  the  pay- 


Neto  Jersey. — Cronecker  v.  Hall,  450 
N.  J.  L.  450,  105  Atl.  213. 

New  York. — Reilly  v.  Conn  able,  214 
N.  Y.  586,  108  N.  E.  853;  Freibaum 
V.  Brady,  143  App.  Div.  220.  128  N.  Y. 
Suppl.  121;  Cullen  v.  Thomas,  150 
App.    Div.    475,    135    N.    Y.    Suppl.    22. 

Pennsylvania. — Curran  v.  Lorch,  243 
Pa.  247,  90  Atl.  62. 

Texas. — Christensen  v.  Christiansen 
(Civ.  App.),  155  S.  W.  995;  Gordon  v. 
Texas  &  Pacific,  etc.,  Co.  (Civ.  App.), 
190  S.  W.  748. 

Utah. — Ferguson  v.  Reynolds,  176 
Pac.   267. 

Compare  Southern  Cotton  Oil  Co.  v. 
Anderson    (Fla.),  86   So.   629. 

Defendant  not  owner. — An  em- 
ployer is  not  liable  for  personal  in- 
juries caused  by  an  employee  who, 
while  driving  a  borrowed  automobile, 
ran  into  a  pedestrian  on  the  street 
where  it  appears  that  he  was  never 
employed  to  drive  a  motor  car,  was  not 
a  licensed  chauffeur  and  the  car  was 
not  owned  or  furnished  by  the  defend- 
ant, who  had  no  knowledge  that  it  was 
being  used  by  the  employee,  there  being 
nothing  which  made  it  necessary  for 
iiim  to  drive  the  car.  O'Loughlin  v. 
Mackey,  182  N.  Y.  App.  Div.  637,  169 


N.   Y.   Suppl.   835. 

27.  Section  628. 

28.  Fielder  v.  Davison,  139  Qa.  509, 
77  S.  E.   618. 

When  liable  for  acts  of  servant. — 
"It  appears  that  there  are  three  sets 
of  conditions  under  which  an  employer 
may  be  liable  for  the  tort  of  his  agent, 
to  wit:  (1)  When  the  tortious  act  ia 
done  in  obedience  to  the  express  orders 
or  directions  of  the  master;  (2)  when 
it  is  done  in  the  execution  of  the  mas- 
ter's business  within  the  scope  of  his 
employment;  and  (3)  when  it  is  war- 
ranted by  the  express  or  impiled  au- 
thority conferred  upon  the  servant, 
considering  the  nature  of  the  services 
required,  instructions  given,  and  the 
circumstances  under  which  the  act  was 
done."  Turner  v.  Am.  Dist.  Tel.  &  M. 
Co.,  94  Conn.  712,  110  Atl.  543,  quoted 
in  Stuart  v.  Doyle  (Conn.),  112  Atl. 
653. 

Salesman  of  a  truck  company, 
using  car  under  emplojTuent  for  salary 
and  commissions,  may  be  servant  of 
company  so  as  to  render  it  liable  for 
his  negligence.  Buckley  v.  Harkens 
(Wash.),   195  Pac.   250. 

29.  Section  673. 


798 


The  Law  of  Automobiles. 


ment  for  his  services  may  be  material  in  determining  whether 
he  was  under  the  direction  and  control  of  the  defendant.^^ 

Sec.  628.  Liability  for  conduct  of  chauffeur  —  driver  must  be 
acting  within  scope  of  duty. 
The  general  rule  in  the  law  of  master  and  servant  is  that 
the  owner  of  a  motor  vehicle  is  liable  for  the  acts  of  his 
chauffeur  when  the  latter  is  acting  within  the  scope  of  his 
master's  business.^^  The  reverse  is  also  true,  that  the  owner 
is  not  liable  for  the  conduct  of  the  servant  when  the  latter  is 


30.  Minor  v.  Stevens,  65  Wash.  423, 
118  Pac.  313. 

31.  Alabama. ^So-athern  Garage  Co. 
V.  Brown,  187  Ala.  484,  65  So.  400; 
Barfield  v.  Evans,  187  Ala.  579,  65  So. 
928 ;  Jones  v.  Strickland,  201  Ala.  138, 
77  So.  562. 

Arhansas. — Healey  v.  Cockrill,  133 
Ark.  327,  202  S.  W.  229;  Hughey  v. 
Lennox,  219  S.  W.  323;  Terry  Dairy 
Co.  V.  Parker,  223  S.  W.  6. 

California. — Adams  v.  Weisendan- 
ger,  27  Cal.  App.  590,  150  Pac.  1016; 
Martinelli  v.  Bond  (Cal.  App.),  183 
Pac.  461;  Nussbaum  v.  Traung  Label, 
etc.,  Co.    (Cal.  App.),  189  Pac.  728. 

Delaware. — Grier  v.  Samuel,  27  Del. 
106,  86  Atl.  209;  Wollaston  v.  Stiltz, 
114  Atl.  198. 

Georgia. — Fielder  v.  Davison,  139 
Ga.  509,  77  S.  E.  618;  Rape  v.  Barker 
(Ga.  App.),  103  S.  E.  171. 

Illinois. — Heelan  v.  Guggenheim,  210 

HI.  App.  1. 

Kansas. — Thompson  v.  Aultman  & 
Taylor  Machinery  Co.,  96  Kans.  259, 
150  Pac.  587. 

Kentucky. — Tyler  v.  Stephan  's 
Adm'r,  163  Ky.  770,  174  S.  W.  790; 
Denker  Transfer  Co.  v.  Pugh,  162  Ky. 
818,   173  S.  W.  139. 

Maine. — Karahleos  v.  Dillingham, 
109  Atl.   815. 

Massachusetts. — Fleischner  v.  Dur- 
gin.  207  Mass.  435,  93  N.  E.  801 ;  Rey- 
nolds V.  Denholm,  213  Mass.  576,   100 


N.  E.  1006;  Donnelly  v.  Harris,  219 
Mass.  466,  107  N.  E.  435;  Winslow  v. 
New  England  Co-op.  Soc,  225  Mass. 
576,  114  N.  E.  748;  Regan  v.  John  L. 
Kelley  Contracting  Co.,  226  Mass.  58, 
114  N.  E.  726;  Higgins  v.  Bickford, 
227  Mass.  52,  116  N.  E.  245;  Buckley 
V.  Sutton,  231  Mass.  504,  121  N.  E. 
527. 

Michigan. — Riley  v.  Roack,  163 
Mich.  294,  134  N.  W.  14;  Houseman 
V.  Karicoffe,  201  Mich.  420,  167  N.  W. 
964;  Foster  v.  Rinz,  202  Mich.  601, 
168   N.   W.   420. 

Minnesota. — Thomas  v.  Armitage, 
111  Minn.  288,  126  N.  W.  735;  Provo 
V.  Conrad,  130  Minn.  412,  153  N.  W. 
753. 

Missouri. — Shamp  v.  Lambert,  142 
Mo.  App.  567,  121  S.  W.  770;  Winfrey 
V.  Lazarus,  148  Mo.  App.  388,  128  S. 
W.  276;  Nicholas  v.  Kelley,  159  Mo. 
App.  20,  139  S.  W.  248;  Whimster  v. 
Holmes,  177  Mo.  App.  130,  164  S.  W. 
236;  Wiedeman  v.  St.  Louis  Taxicab 
Co.,  182  Mo.  App.  523,  165  S.  W.  1105; 
Whimster  v.  Holmes  (Mo.  App.),  100 
S.  W.  62;  Vaughn  v.  Davis  (Mo. 
App.),   221   S.  W.   782. 

New  Hampshire. — D  anforth  v. 
Fisher,  75  N.  H.  Ill,  71  Atl.  535.  21 
L.  R.  A.  (N.  S.)  93,  139  Am.  St.  Rep. 
670. 

New  Jersey. — Doran  v.  Thomson  74 
N.  J.  L.  445,  66  Atl.  897;  Bennett 
V.  Busch,  75  N.  J.  L.  240,  67  Atl.  188: 


Liability  fob  Act  of  Driver. 


799 


not  acting  within  the  scope  of  his  employment.^^    It  is,  of 
course,  true  that  the  master  rarely  commands  the  servant  to 


John  M.  Hughes  Sons  Co.  v.  Bergen 
&  Westside  Auto  Co.,  75  N.  J.  L.  355, 
67  Atl.   1018. 

New  York. — O'Brien  v.  Stern  Bros., 
223  N.  Y.  290,  119  N.  E.  550;  Cun- 
ningham V.  Castle,  127  App.  Div.  580, 
111  N.  Y.  Suppl.  1057;  Douglas  v. 
Hewson,  142  App.  Div.  166,  127  N.  Y. 
Suppl.  220;  Pangburn  v.  Buick  Motor 
Co.,  151  App.  Div.  756,  137  N.  Y. 
Suppl.  37;  Fitzsimons  v.  Isman,  166 
App.  Div.  262,  151  N.  Y.  Suppl.  552; 
Lowell  V.  Williams,  183  App.  Div.  701, 
170  N.  Y.  Suppl.  59&;  Parsons  v.  Wis- 
ner,  113  N.  Y.  Suppl.  922;  Dillon  v. 
Mundpt,  145  N.  Y.  Suppl.  975. 

Oregon. — Kahn  v.  Home  Telep.  & 
Teleg.  Co.,  78  Oreg.  308,  152  Pae.  240. 

Pennsylvania. — Kurtz  v.  Tourison, 
241   Pa.  St.  425,  88  Atl.  656. 

TJiode  Island. — Elliott  v.  O'Rourke, 
40  R.  I.   187,   100  Atl.  314. 

Texas. — Lefkowitz  v.  Sherwood  (Civ. 
App).  136  S.  W.  850;  Reid  Auto  Co. 
V.  Gorsczya  (Civ.  App.),  144  S.  W. 
688 ;  Christensen  v.  Christiansen  (Civ. 
App.),  155  S.  W.  995;  Buick  Automo- 
bile Co.  V.  Weaver  (Civ.  App.),  163  S. 
W.  594;  Auto  Sales  Co.  v.  Bland,  194 
S.  W.  1021;  Flores  v.  Garcia  (Civ. 
App.),  226  S.  W.  743. 

Utah. — Ferguson  v.  Reynolds,  178 
Pae.  267. 

Washington. — Hammons  v.  Setzer, 
72  Wash.  550,  130  Pae.  1141;  Prusch 
V.  Greenough  Bros.  Co.,  79  Wash.  109, 
130  Pae.  870;  George  v.  Carstens 
Packing  Co.,  91  Wash.  637,  158  Pae. 
529. 

Wisconsin. — Steffen  v.  McNaughton, 
142  W's.  49,  124  N.  W.  1016,  19  Ann. 
Cns.  1227,  26  L.  R.  A.  (N.  S.)  382; 
Hp swell  v.  Renter,  177  N.  W.  8. 

32.  Alahama.—QnWey  v.  Lewis,  7 
Ala.  App.  593,  61  So.  37. 

California. — Adams  v.  Weisendan- 
gor.  27  Cal.  App.   590,   150  Pae.   1016; 


Martinelli  v.  Bond  (Cal.  App.),  183 
Pae.  461;  Hirst  v.  Morris  Co.  (Cal. 
App.),   187   Pae.   770. 

Georgi.a. — Fielder  v.  Davison,  139 
Ga.  509,  77  S.  E.  618;  Lewis  v.  Amo- 
rou.s,  3  Ga.  App.  50,  59  S.  E.  338; 
Rape  V.  Barker  (Ga.  App.),  103  S.  E. 
171. 

Illinoi'S. — Szszatkowski  v.  People 's 
Gas  Light  &  Coke  Co.,  209  111.  App. 
460. 

Indiana. — Premier  Motor  Mfg.  Co. 
v.  Tilford,  61  Ind.  App.  164,  111  N. 
E.  645;  Martin  v.  Lilly,  188  Ind.  139, 
121   N.  E.   443. 

Kansas. — Halverson  v.  Blosser,  101 
Kans.  683,  168  Pae.  863. 

Keniuclcy. — Tyler  v.  Stephan  's 
Adm'r,   163   Ky.   770,    174   S.   W.   790. 

Louisiana. — Jung  v.  New  Orleans, 
etc.,  Co.,  145  La.  727,  82  So.  870. 

Maine. — Pease  v.  Montgomery,  111 
Me.  582,  88  Atl.  973. 

Maryland.— ^ym'mgton  v.  Sipcs,  121 
■Md.  313,  88  Atl.  134;  State  to  Use  of 
DeCelius  v.  C.  J.  Benson  &  Co..  100 
Atl.    505. 

Massachusetts. — ^Fleischner  v.  Dur- 
gin,  207  Mass.  435,  93  N.  E.  801; 
Hartnett  v.  Gryzniish,  218  Mass.  258, 
105  N.  E.  988;  Santoro  v.  Bickford. 
229  Mass.  357,  118  N.  E.  665;  Miller 
V.  Flash  Chemical  Co.,  230  Mass.  419, 
119  N.  E.  702;  O'Rourke  v.  A-G  Co., 
Inc.,  232  Mass.  129,  122  N.  E.  193; 
McGrath  v.  Wehrle,  233  Mass.  456,  124 
N.  E.  253. 

Michigan. — Riley  v.  Roack.  16S 
Mich.  294,  134  N.  W.  14;  Hill  v. 
HajTies,  204  Mich.  536,  170  N.  W.  685. 

Minnesota.  —  Slater  v.  Advance 
Thresher  Co.,  97  Minn.  305,  107  N".  W. 
133;  Provo  v.  Conrad,  130  Minn.  412, 
153  N.  W.  753.  "It  is  elementary 
that  the  master  is  not  liable  for  in- 
juries occasioned  to  a  third  person  by 
the  negligence  of  his  servant,  while  the 


800 


The  Law  of  Automobiles. 


be  negligent,  or  employs  him  with  the  expectation  that  he  will 
commit  a  negligent  or  wilful  tort,  but  if  the  acts  under  con- 
sideration are  done  in  the  prosecution  of  the  master's  busi- 


latter  is  engaged  in  some  act  beyond 
the  scope  of  his  employment,  for  his 
own  or  the  purposes  of  another,  al- 
though he  may  be  using  the  instrumen- 
talities furnished  him  by  the  master 
with  which  to  perform  the  ordinary 
duties  of  his  employment,  or,  as  ex- 
pressed in  Shear.  &  E.,  Neg.  (3d  Ed.), 
§  63,  that  if  the  act  complained  of  be 
committed  by  the  servant  while  at 
liberty  from  the  service  of  the  master 
and  while  pursuing  his  own  interests 
exclusively,  there  can  be  no  question 
of  the  master's  freedom  from  liability, 
even  though  the  injury  would  not  have 
been  committed  without  the  facilities 
afforded  the  servant  by  his  relation  to 
the  master."  Slater  v.  Advance 
Thresher  Co.,  97  Minn.  305,  107  N.  W. 
133. 

Missouri. — Long  v.  Nute,  123  Mo. 
App.  204,  100  S.  W.  511;  Warrington 
V.  Bird,  168  Mo.  App.  385,  151  S.  W. 
754;  Glassman  v.  Harry,  182  Mo.  App. 
304,  irO  S.  W.  403;  Calhoun  v.  Min- 
ing Co.,  202  Mo.  App.  564,  209  S.  W. 

318;    Michael  v.   Pulliam    (Mo.   App.), 

215  S.  W.  763. 

New        Hampshire. —  Danf  orth        v. 

Fisher,  75  N.  H.  Ill,  71,  Atl.  535,  21 

L.  R.  A.  (N.  S.)   93,  139  Am.  St.  Rep. 

670;  Howe  v.  Leighton,  75  N.  H.  601, 

75   Atl.    102;   Dearborn   v.   Fuller,   107 

Atl.  607. 

New  Jersey. — Doran  v.   Thomsen,  74 

N.  J.  L.  445,  66  Atl,  897. 

New  York. — Reilly  v.  Connable,  214 

N.  Y.  586,  108  N.  E.   853;   Stewart  v. 

Baruch,   103  App,  Div,   577,   93   N,   Y. 

Suppl.  161;  Cunningham  v.  Castle,  127 

App,  Div,  580,  111  N,  Y.  Suppl,  1057; 

Douglas  V.  Hewson,  142  App.  Div.  166, 

127    N.    Y,    Suppl.    220;    Freibaum    v. 

Brady,   143  App.  Div.   220,   128  N.  Y. 

Suppl.   12]  ;   Colwell   v.   Saperston,   149 


App.  Div.  373,  134  N.  Y.  Suppl.  284; 
Cullen  V,  Thomas,  150  App.  Div.  475, 
135  N.  Y.  Suppl,  22;  Bogorad  v,  Dix, 
176  App,  Div.  774,  162  N.  Y.  Suppl. 
992;  Stenzler  v.  Standard  Gas  Light 
Co.,  179  App,  Div,  774,  167  N,  Y, 
Suppl.  282. 

North  Carolina. — Linville  v.  Nissen, 
162  N.  Car.  95,  77  S.  E.   1096. 

OMo.— White  Oak  Coal  Co,  v,  Ri- 
voux,  88  Ohio,  18,  102  N.  E,  302,  46 
L,  R,  A,   (N,  S,)    1091, 

Pennsylvania. — Durham  v.  Strauss, 
38  Pa.  Super,  Ct.  620;  Toy  v,  Mc- 
Clements,  68  Pitts,  Leg.  Journ.  (Pa.) 
680. 

Rhode  Island. — Northrup  v.  Robin- 
son, 33  R.  L  496,  82  Atl.  392;  Col- 
well V.  Aetna  Bottle  &  Stopper  Co., 
33  R.  I.  531,  82  Atl.  388. 

South  Carolina. — Knight  v.  Lau- 
rens Motor  Car  Co.,  108  S.  Car.  179, 
93  S.  E.  869. 

Tennessee. — Goodman  v.  Wilson,  129 
Tenn.  464,  166  S.  W.  752,  51  L.  R.  A. 
(N.  S.)  1116;  Core  v.  Resha,  204  S.  W. 
1149. 

Texas. — Christensen  v.  Christiansen 
(Civ.  App.),  155  S.  W.  995;  Gordon 
v.  Texas  &  Pacific,  etc.,  Co,  (Civ. 
App.),  190  S.  W.  748;  Main  Street 
Garage  v.  Eganhouse  (Civ.  App.),  223 
S.   W.   316. 

Utah. — Fowkes  v,  J,  I,  Case  Thresh- 
ing Mach,  Co,,  46  Utah,  502,  151  Pac. 
53;  Wright  v,  Interraountain  Motorcar 
Co,,   53   Utah,   176,  177  Pac,  237. 

Washington. — Jones  v,  Hoge,  47 
Wash.  663,  92  Pac.  433,  125  Am.  St. 
Rep.  915,  14  L,  R.  A,  (N,  S,)  216; 
Kneff  V,  Sanford,  63  Wash,  503,  115 
Pac,  1040;  Ludberg  v,  Barghoorn,  73 
Wash.  476,  131  Pac.  1165. 

Wisconsin. — Gewanskc  v.  Ellsworth, 
166   Wis.    250,    164  N.    W.    996;    Youn- 


Liability  for  Act  of  Driver. 


801 


ness,  liability  will  ordinarily  attach  to  the  master.^  But, 
if  the  tort  of  the  servant  is  entirely  disconnected  from  the  ser- 
vice or  business  of  the  master,  the  latter  is  not  responsible, 
although  it  may  occur  during  the  general  term  of  the  ser- 


guist   V.    L.    J.    Droese   Co.,    167    Wis. 
458,   167   N.   W.   736. 

Canada. — Halparin  v.  Bulling,  50 
Can.  S.  C.  471,  20  Dom.  L.  R.  598; 
CoUis  V.  Oakley,  20  Dom.  L.  R.  550, 
31  Ont.  L.  R.  603,  6  O.  W.  N.  575. 

Rule  unaffected  by  statute. — It  lias 
been  held  that  Gen.  Laws  of  1909, 
chap.  86,  relating  to  motor  vehicles, 
has  not  changed  the  common  law  rule 
affecting  the  liability  of  a  master  for 
acts  of  a  servant  outside  of  the  scope 
of  his  employment.  Colwell  v.  Aetna 
Bottle  and  Stopper  Co.,  33  R.  I.  531, 
82   Atl.   388. 

"In  tte  course  of  his  employment." 
— "Stress  is  laid  by  counsel  for  plain 
tiff  upon  the  construction  of  the 
phrase  'in  the  course  of  his  employ- 
ment,' and  it  is  contended  that  the 
acts  of  the  agent  on  the  occasion  in 
question  bring  the  case  within  the 
proper  understanding  and  definition  of 
that  expression.  This  phrase  or  ex- 
pression is  found  in  many  of  the  books  ; 
but  it  has  no  particular  magic,  and 
does  not  enlarge  the  rule  of  liability 
in  such  cases.  In  contemplation  of  law 
it  means  simply  while  engaged  in  the 
service  of  the  master,  and  nothing 
more.  It  is  not  used  as  synonymous 
with,  'during  the  period  cO'Vcred  by 
the  employment.'  but  rather  as  ex- 
pressive of  'within  the  scope  of  his 
employment,'  or  during  the  time  when 
the  servant  is  engaged  in  the  perform- 
ance of  the  master's  work."  Slater 
r.  Advance  Thresher  Co.,  97  Minn.  305, 
107  N.  W.  133. 

"  The  universal  test  of  the  master's 
liability  for  the  acts  of  his  servant 
is:  Was  there  authority,  express  or 
implied,  for  doing  the  act?  That  is: 
Was    it   one    done    in    the    course    and 

51 


within  the  scope  of  the  servant's  em- 
plojTnent.  If  so,  the  master  will  be 
liable  for  the  act,  whether  negligent 
fraudulent,  deceitful,  or  an  act  of  posi- 
tive malfeasance.  However,  the  mas- 
ter is  not  liable  for  every  wrong  which, 
the  servant  may  commit  during  the 
continuance  of  the  employment.  The 
liability  can  only  arise  when  the  act 
done  is  within  the  real  or  apparent 
scope  of  the  master's  business.  Hence, 
when  a  servant  steps  outside  of  his  em- 
plojTnent  to  do  an  act  for  himself  not 
connected  with  his  master's  business, 
no  liability  attaches.  The  reason  for 
the  rule  is  that  beyond  the  scope  of 
his  employment  a  servant  is  as  much 
a  stranger  to  his  master  as  a  third 
person.  In  every  such  case  the  proper 
inquiry  is:  Was  fhe  servant  engaged 
in  serving  hia  master?  If  the  act  be 
done  while  the  servant  is  at  liberty 
from  the  service  and  pursuing  his  own 
ends  exclusively,  the  master  is  not  re- 
sponsible." Tyler  v.  Stephan's  Adm'r, 
163   Ky.   770,    174   S.   W.   790. 

33.  Adams  v.  Woisendangcr,  27  Cal. 
App.  590,  150  Pac.  1016;  Fielder  v. 
Davison,  139  Ga.  509,  77  S.  E.  618; 
Albert  v.  Munch,  141  La,  686,  75  So. 
613;  Clawson  v.  Pierce-Arrow  Motor 
Car  Co.,  231  N.  Y.  273 ;  Reid  Auto  Co. 
V.  Gorsczys  (Tex.  Civ.  App.),  144  S. 
W.  688.  "However  it  may  be  in  other 
jurisdictions,  in  this  State  the  test  to 
determine  whether  a  master  is  liable 
to  a  stranger  for  the  consequences  of 
hia  servant's  misconduct  is  to  inquire 
whether  the  latter  was  doing  what  he 
was  employed  to  do  at  the  time  he 
caused  the  injury  complained  of.  If 
he  was,  the  fact  that  he  was  not  doing 
it  in  the  way  expected  is  immaterial. 
Rowell  v.  Railroad,  68  N.  H.  363.    But, 


802  The  Law  of  Automobiles. 

vant's  employment.^*  But,  so  long  as  the  servant  is  acting 
within  the  scope  of  his  employment,  the  owner  is  liable,  though 
the  negligent  act  was  not  necessary  to  the  performance  of  his 
duties,  or  though  it  was  not  expressly  authorized  or  known 
to  the  employer,  or  is  contrary  to  his  instructions.^^  But, 
where  the  chauffeur  was  given  positive  instructions  that  the 
machine  should  not  be  used  except  for  the  purposes  of  its 
owner  and  family  and  when  not  so  used  it  was  to  be  kept  in 
a  certain  garage,  and  it  appeared  that  the  chauffeur  took  the 
family  to  the  theatre  and  was  directed  to  take  the  car  to  the 
garage  and  return  at  the  close  of  the  performance,  but  he  took 
the  car  before  that  time  and  went  to  visit  a  friend  in  a  dis- 
tant part  of  the  city,  it  was  held  that  he  was  not  engaged  in 
the  employment  of  the  master  at  the  time.^^ 

Sec.  629.  Liability  for  conduct  of  chauffeur  —  owner  riding 
in  machine. 

The  serious  problems  of  the  liability  of  the  owner  of  an 
automobile  for  the  negligence  of  his  servant  are  those  which 
arise  from  the  operation  of  the  machine  by  the  servant  in  the 
absence  of  the  master,  and  generally  without  his  knowledge 
or  consent.  When  the  owner  is  riding  in  the  machine  at  the 
time  of  the  commission  of  the  negligent  act  in  question,  the 

if  at  the  time  he  did.  the  act  which  which  he  was  employed."     State,  Use 

caused   the  injury  he   was   not   acting  of  Debelius  v.  C.  J.  Bensont  Co.  (Md.), 

within    the   scope   of   his   employment,  100  Atl.  505. 

the   master  is  not  liable."     Danforti.  34.  Fielder     v.     Davison,     139     Ga. 

V.  Fisher,   75  N.  H.   111.  71   Atl.    535,  509,  77  S.  E.  618 ;   Reilly  V.  Connable, 

21   L.  R.   A.    (N.   S.)    93,   139   Am.   St.  214  N.  Y.  586,  108  N.  E.  853. 

Rep.  670.     "It  is  axiomatic  law  that  35.  Healey  v.  Cockrill,  133  Ark.  327, 

to    render    the    master    liable    for    the  202  S.  W.  229 ;  Rosenstein  v.  Bernhard 

torts  of  his  servant  the  tort  must  have  &  Turner  Automobile  Co.   (Iowa),  180 

been  committed  while  the  servant  was  N.  W.  282;  Shamp  v.  Lambert,  142  Mo. 

acting  in  accordance  with  his  employ-  App.  567,  121  S.  W.  770;  Winfrey  v. 

ment,  or,  as  it  is  generally  expressed,  Lazarus,  148  Mo.  App.  388,  128  S.  W. 

within  the  scope  of  it.     This  does  not  276;   Defoe  v.  Stratton    (N.   H.),   114 

mean    that    the    act    must    have    been  Atl.   29;   Cooper  v.  Knight    (Tex.  Civ. 

done   by   an   express   direction   of    the  App.),   147  S.  W.  349;   Smith  v.  Yel- 

master,  either  under  a  special  or  a  gen-  low  Cab  Co.  (Wis.),  180  N.  W.  125. 

eral  power,  but   that  the  servant  was  36.  Halparin    v.    Bulling,     50    Can. 

at  the  time  engaged  directly  or  indi-  Sup.  471. 
rectly  upon  the  work  or  business  for 


Liability  fok  Act  of  Driver.  803 

courts  ordinarily  have  no  difficulty  in  holding  as  a  matter  of 
law  that  the  driver  or  chauffeur  was  acting  within  the  scope 
of  his  master's  business."     There  is  a  strong  presumption 
that  an  owner  riding  in  his  own  car  has  the  control  of  its 
operation.^^     Moreover,   the  contributory  negligence   of  the 
chauffeur  may  be  imputed  to  the  master  when  the  latter  is 
riding  in  the  machine,  so  as  to  preclude  a  recovery  by  the 
master  of  injury  to  himself  or  the  machine.^    And,  where  the 
master,  who  had  been  driving,  reached  his  place  of  business 
and  stepped  out  of  the  car,  whereupon  his  employee  attempted 
to  turn  the  car  around  and  negligently  caused  injury  to  an- 
other traveler,  it  was  held  that  the  employee  was  serving  the 
employer  within  the  scope  of  his  employment.^*^    The  owner 
of  an  automobile  may,  however,  escape  liability  for  the  negli- 
gence of  the  driver  of  his  automobile,  though  he  is  riding 
therein,  when  he  has  loaned  the  machine  to  others  and  is 
exercising  no  control  over  the  operation  thereof  but  is  merely 
riding  as  the  guest  of  the  persons  to  whom  it  is  loaned.'*^    The 
courts,  in  at  least  one  jurisdiction,  have  permitted  the  owner 
to  escape  liability  when  his  son  was  driving  the  machine  and 
he  was  riding  therein  from  church  on  the  invitation  of  the 
son.^^    And  where  the  mfe  is  the  owner,  but  the  machine  is 
driven  by  a  chauffeur  in  the  pay  of  and  under  the  control  of 
the  husband,  the  wife  may  not  be  liable  for  the  negligence  of 
the  chauffeur,  though  both  she  and  her  husband  are  riding  in 
the  machine  at  the  time.'*^    And,  where  the  car  is  in  the  control 
of  an  independent  contractor  making  repairs   thereto,   the 
owner  may  not  be  liable  for  the  negligence  of  such  contractor, 

37.  Baker   v.   Masoeh,    20   Ariz.   201,  App.  193.  91  S.  E.  219 :  Bastien  v.  Chi- 
179  Pac.  53;  Watkins  v.  Brown.  14  Ga.  capo  Citv  Rv.  Co.,  189  111.  App.  369; 
App.   99,   80   S.    E.    212;    Carpenter   v.  40.  Thomas  v.   Armitage,   111   Minn 
Campbell    Automohile    Co.,    159    Towa,  2RR.  126  N.  W.  73.'). 

52,    140   N.   W.   225;   Dajrefv   v.   Miller  41.  Pea.<;e    v.    Mnntjromery,    111    Me. 

(Iowa),  162  N.  W.  854:  Risser  v.  Parr  582.    88    Atl.    973:    Hartley   v.    Miller, 

(Iowa),    168    N.    W.    865;    Albert    v.  165    Mich.    115.      See    a^so    Reiter    v. 

Munch,     141     La.     686,     75     So.     513;  Grober    rwis.).   181   N.   W.   739.     And 

Pa'nter  v.   Davis.   113   Minn.   217,   129  .see   sections   642-643. 

N.  W.  368.  42.  Zeeb    v.    Bnhnmaier,    103    Kans; 

38.  Lauflenberp:er  v.   Easton   Transit  599.  176  Pac.  3?6.  2  A.  L.  R.  883. 
Co.,  261  Pa.  288,   104  Atl.  588.  43.  Pntts  v.  Pnrdop,   220  N.  Y.  431. 

39.  Lyt.le  v.  Hancock  County,  19  Ga.  116  N.  E.  78,  8  A.  L.  R.  785. 


804 


The  Law  of  Automobiles. 


though  he  is  riding  in  the  machine  at  the  time  the  contractor 
is  testing  it"**  But  it  has  been  thought  that,  if  the  owner  is 
riding  in  the  machine,  it  is  his  duty  to  prevent,  if  possible, 
the  driver  from  operating  it  in  a  dangerous  manner  or  in 
violation  of  law/^ 


Sec.  630.  Liability  for  conduct  of  chauffeur  —  use  of  car 
without  consent  of  owner. 

It  may  be  stated  as  a  general  rule,  that,  when  the  chauffeur 
or  employee  of  the  owner  of  a  motor  vehicle,  or  a  third  per- 
son not  in  his  employ,  uses  the  same  without  the  consent  of 
such  owner,  the  owner  is  not  liable  for  the  negligent  conduct 
of  the  driver.^''    Particularly  is  this  so  when  the  use  of  the  car 


44.  Lafitte  v.  Schunamann,  19  Ga 
App.  799,  92  S.  E.  295. 

45.  Randolph  v.  Hunt  (Cal.  App.), 
183  Pac.  358. 

46.  Alabama. — Galley  v.  Lewis,  7 
Ala.  App.  593,  61  So.  37;  Jones  v. 
Strickland,  201  Ala.  138,  77  So.  562; 
Archer  v.  Sibley,  201  Ala.  495,  78  So. 
849;  Dowdell  v.  Beasley  (Ala.),  87  So. 
18. 

Georgia. — Fielder  v.  Davison,  139 
Ga.  509,  77  S.  E.  618;  Lewis  v.  Amo- 
rous, 3  Ga.  App.  50,  59  S.  E.  338; 
Mclntire  v.  Hartfelder-Garbutt  Co.,  9 
Ga.  App.  327,  71  S.  E.  492;  Wooley 
V.  Doby,  19  Ga.  App.  797,  92  S.  E. 
295. 

Kentucky. — Taylor  v.  Stephan's 
Adm'r,   163   Ky.   770,   174   S.   W.   790. 

Maryland. — Symington  v.  Sipes,  121 
Md.  313,  88  Atl.  134;  State  to  Use  of 
Decelivis  v.  C.  J.  Benson  &  Co.,  100 
Atl.  505;  Dearholt  Motor  Sales  Co.  v. 
Merritt,  133  Md.  323,  105  Atl.  316. 

Massachusetts. — Hartnett  v.  Gryz- 
mish,  218  Mass.  258,  105  N.  E.  988. 

Michigan. — Riley  v.  Roack,  168 
Mich.  294,  134  N.  W.  14;  Brinkman  v. 
Zuckerman,  192  Mich.  624,  159  N.  W. 
316;  Hill  V.  Haynes,  204  Mich.  536, 
170  N".  W.  685. 


Missouri. — Whimster  v.  Holmes,  177 
Mo.  App.  164,  164  S.  W.  236. 

New  Hampshire. — Howe  v.  Leighton, 
75  N.  H.  601,  75  Atl.  102. 

New  York. — O'Brien  v.  Stern  Bros., 
223  N.  Y.  290,  119  N.  E.  550:  Rose  v. 
Balfe,  223  N.  Y.  481,  119  N.  E.  842; 
Cunningham  v.  Castle,  127  App.  Div. 
580.  Ill  N.  Y.  Suppl.  1057;  Bogorad 
V.  Dix,  176  App.  Div.  774,  162  N.  Y. 
992;  Quirk  v.  Worden,  190  App.  Div. 
773,  180  N.  Y.  Suppl.  647;  Donnelly 
V.  Yuille,  197  App.  Div.  59. 

Pennsylvania. — Lotz  v.  Hanlon,  217 
Pa.  St.  339,  66  Atl.  525.  10  Am.  Cas. 
731,  10  L.  R.  A.  (N.  S.)  202;  Curran 
y.  Ix)rch,  243  Pa.  247,  90  Atl.  62;  Solo- 
man  V.  Commonwealth  Trust  Co.  of 
Pittsburg,  256  Pa.  55,  100  Atl.  534; 
Kennedy  v.  Knott,  264  Pa.  St.  26,  107 
Atl.  390. 

Rhode  Island. — ^Northrup  v.  Robin- 
son, 33  R.  I.  496,  82  Atl.  392. 

South  Carolina. — Knight  v.  Laurens 
Motor  Car  Co..  108  S.  Car.  179,  93  S. 
E.  869. 

Texas. — Cbrist^nsen  v.  Cliristiansen 
(Civ.  App.),  155  S.  W.  995;  Nicholson 
V.  Houston  Elec.  Co.  (Civ.  App.),  220 
S.  W.  632;  Henphill  v.  Romano  (Civ. 
App.,)    233  S.  W.  125. 


Liability  for  Act  of  DRiyiER. 


8® 


is  contrary  to  the  express  instructions  of  the  owner,  and  iw 
the  pleasure  or  business  of  the  chauffeur.'*^  And,  in  such  a 
case,  it  is  not  of  controlling  importance  that  the  driver  was 
i^  the  general  employ  of  the  owner  and  had  the  authority  to 
use  the  car  at  certain  times  or  for  certain  purposes/^  Of 
course,  certain  small  details  in  the  management  and  repair 
of  the  automobile  may  justify  the  chauffeur,  acting  within 
the  scope  of  his  authority,  in  using  the  car  without  the  knowl- 
edge of  the  owner.  To  illustrate,  if  the  machine  needs  repairs, 
the  servant  may  be  acting  within  the  scope  of  his  employment 
in  driving  it  to  a  repair  shop,  though  his  employer  has  no 
knowledge  of  the  trip.**^  And  when  the  owner  of  the  auto- 
mobile is  in  a  foreign  country,  he  may  be  liable  for  the  negli- 
gence of  his  chauffeur  running  the  car  within  this  country, 
when  the  chauffeur  is  acting  within  the  scope  of  his  employ- 
ment.^^ Where  the  owner  of  an  automobile  having  his  head- 
quarters at  a  hotel,  but  keeping  the  machine  at  a  garage  sev- 


Virginia.—Kidd  v.  Dewitt,  105  S.  E. 
124. 

Washington  r — Jones  v.  Hoge.  47 
Wash.  663,  92  Pac,  433,  125  Am.  St, 
Rep.  915,  14  L.  R.  A.  (K  S.)  216; 
Prusch  V.  Greeiiough  Bros.  Co.,  79 
Wash.  109,  139  Pac.  870. 

Compare^  Southern  Oil  Co.  v.  Ander- 
son  (Fla.),  86  So.  629. 

47.  Oeorgia. — -Mclntire  v.  Hartfel- 
der-Garbutt  Co.,  9  Ga.  App.  327,  71 
S.  E.  492. 

Kansas. — Toadvine  v.  Sinnet,  178 
Pac.  401. 

Kentucky. — Taylor  v.  Stephan's 
Adm'r,  163  Ky.   770,  174  S.  W.  790. 

Maryland. — Symington  v.  Sipes,  121 
Md.  313,  88  Atl.  134. 

Michigan. — Riley      v.       Roack. 
Mich.  294,  134  N.  W.  14. 

Minnesota. — Provo    v.     Conrad. 
Minn.  412,  153  N.  W.  753. 

Missouri. — Glassman  v.  Harry,  182 
Mo.  App.  304.  170  S.  W.  403. 

New  Jersey. — Reiraers  v.  Proctor 
Pub.  Co,  85  N.  J.  L.  441.  89  Atl.  931: 
Cronecker  V.   Hall,   450   N.   J.   L.    450, 


168 


130 


105  Atl.  21 S;  Eldridge  v.  Calhoun.  li2 
Atl.  340. 

Neto  York. — Rose  v.  Balfe,  22.3  X. 
Y.  481,  119  N".  E.  842;  Stewart  v. 
Baruch,  103  App.  Div.  577,  93  N.  Y. 
Sup.pl.  161. 

Pennsylvania. — Sarver  v.  Mitchell, 
35  Pa.  Super.  Ct.  69;  Durham  v. 
Strauss.  38  Pa.  Super.  Ct.  620. 

Canada. — Halparin  v.  Bulling,  60 
Can.  Sup,  471. 

Workmen's  Compensation  Act. — 
Where  an  employee  takes  his  etu 
ployer's  aiitomobile  conti-ary  to  his  in 
structions,  his  personal  repre.sentativo 
cannot  recover  for  his  death  under  the 
Workmen's  Compensation  Act.  Keini- 
ers  V.  Proctor  Pub.  Co.,  85  N.  J.  L.  441 
89  Atl.  931. 

48.  Mclntire  v.  Hartfelder  Garbutt 
Co..  9  Ga.  App.  327,  71  S.  E.  492. 

49.  »9ee  Cunningham  v.  Castle,  127 
N.  Y.  App.  Div.  580.  Ill  N.  Y.  Suppl. 
1057.     And  see  section  640. 

50.  Winfrey  v.  Lazarus.  148  Mo 
App.  388,  128  S.  W.  276. 


806  The  Law  of  Automobiles. 

eral  blocks  away,  directed  the  chauffeur  to  go  downstairs  in 
the  hotel  and  get  some  oil,  but  the  servant  instead  of  obeying 
the  order  literally,  drove  to  the  garage  for  oil,  it  was  held  to 
be  a  question  for  the  jury  whether  the  chauffeur  was  acting 
within  the  general  scope  of  his  duty  in  thus  going  after  oil.^^ 
But,  where  the  chauffeur  takes  the  machine  against  the  in- 
structions of  the  owner  for  a  pleasure  trip  for  himself  or  his 
friends,  the  owner  is  not  liable  for  his  negligence.^^  And  the 
owner  may  not  be  liable  for  the  conduct  of  the  chauffeur, 
where  he  ordered  him  to  bring  the  machine  from  a  garage  in 
the  rear  of  the  house  to  the  front,  but  instead  went  to  a  nearby 
drug  store  for  some  cigarettes  for  himself.^ 

Sec.  631.  Liability  for  conduct  of  chauffeur  —  private  use  by 
chauffeur  with  consent  of  owner. 

Though  the  opinion  has  been  expressed  that  the  owner  of  a 
motor  vehicle  who  permits  his  chauffeur  to  use  the  machine 
upon  the  personal  business  of  the  latter  may  be  liable  for  the 
negligence  of  such  chauffeur,^*  the  overwhelming  weight  of 
authority  supports  the  view  that  the  owner  is  not  liable  under 
such  circumstances.^    The  fact  that  it  is  the  duty  of  the  driver 

51.  Bennett   v.    Busch,    75    N.    J.    L.       189  Pac.  728. 

240,  67  Atl.  188.  Connecticut. — Adomaites  v.  Hopkins, 

52.  Symington  v.  Sipes,  121  Md.  313,       111  Atl.   178. 

88   Atl.   134;    Lotz   v.  Hanlon,  217   Pa.  Georgia. — Fielder     v.      Davison,    139 

St.  339,  66  Atl.  525,  10  Ann.  Cas.  731,  Ga.  509,  77  S.  E.  618. 

10   L.   R.   A.    (N.   S.)    202;    Sarver   v.  Illinois. — Kitz  v.  Scudder  Syrup  Co., 

Mitchell,  35  Pa.  Super.  Ct.  69;  Knight  199  111.  App.  605;  Reiniek  v.  Smetana, 

V.  Laurens  Motor  C^r  Co.,  108  S.  Car.  205  111.  App.  321. 

179,  93  S.  E.  869.  Indiana. — Premier  Motor  Mfg.  Cb.  v. 

53.  Healey  v.  Cockrill,  33  Ark.  327,  Tilford,  61  Ind.  App.  164,  111  N.  E. 
202  S.  W.  289.  645. 

54.  Anderson  v.  Soutliern  Cotton  Oil  Maryland. — 'See  State  to  Use  of  De 
Co.,  73  Fla.  432,  74  So.  975;  Southern  celius  v.  C.  J.  Benson  &  Co.,  100  Atl. 
Cotton  Oil  Co.  V.  Anderson    (Fla.),  86  505. 

So.   629 ; .  Ingraham  v.   Storkamore,   63  Massachusetts. — O^P^ourke      v.      A-G 

Misc.    (N.  Y.)    114,   118   N.   Y.   Suppl.  Co.,  Inc.,  232  Mass.  129,  122  N.  E.  193: 

399.     See  also  Studebaker  Bros.  Co.  v.  Minnesota. — Mogle    v.    A.    W.    Scott 

Kitts    (Tex.),  152  S.  W.  464.  Co..    144    Minn.    173,    174   N.    W.    832; 

55.  California. — Brimberry  v.  Dud  Menton  v.  L.  Patterson  Co.,  145  Minn, 
field    Lbr.    Co.    (Cal.    App.),    186    Pac.  310,    176  N.   W.  991. 

205,  affirmed  191  Pac.  894;  Nussbaum  Missouri. — Calhoun    v.    Mining    Co., 

V.  Traung  Label,  etc.  Co.    (Cal.  App.).      202  Mo.  App.  564,  209  S.  W.  318;  Val- 


Liability  for  Act  of  Driver. 


807 


to  return  the  machine  to  its  owner  after  its  permissive  use, 
does  not  change  the  situation,  although  the  injury  in  question 


lery  v.  Hesse  Bldg.  Material  ( o.  (  Mo. 
App.),  211  S.  W.  95;  Miller  v.  Uico 
Slix  Dry  Goods  Co.  (Mo.  App.),  323 
S.  W.  437. 

New  York. — KeiUy  v.  Connable,  214 
N.  Y.  586,  108  N.  E.  853;  Cunningham 
V.  Castle,  127  App.  Div.  580,  111  N. 
Y.  Suppl.  1057;  Douglass  v.  Hewson, 
152  App.  Div.  166,  137  N.  Y.  Suppl. 
230;  Ostrander  v.  Armour  &  Co.,  176 
App.  Div.  152,  161  N.  Y.  Suppl.  961; 
Perlrautter  v.  Byrne,  193  .App.  Div. 
769,  184  N.  Y.  Suppl.  580;  Lansing  v. 
Hayes,  196  App.  Div.  671;  Davis  v. 
Anglo-American,  etc.  Co.,  145  N.  Y. 
Suppl.  341.  "The  law,  however,  con- 
tains no  prohibition  against  the  owner 
of  an  automobile  loaning  it  to  his 
chauffeur  or  to  anyone  else  for  any 
lawful  purpose,  and  he  is  not  liable 
for  damages  caused  thereby  wlien  in 
use  by  his  consent  on  the  business  or 
pleasure  of  others."  Bogorad  v.  Dix, 
176  App.  Div.  774,  162  N.  Y.  Suppl. 
993.  "I  do  not  think  the  question  of 
the  ignorance  or  consent  of  the  mas- 
ter has  any  bearing  whatever  upon  his 
liability.  The  fa<;t  that  the  servant 
has  used  the  horses  or  the  automobile 
without  his  consent  has  probative 
force  upon  the  proposition  a.s  to 
whether  or  not  the  servant  was  en- 
gaged in  the  master's  business,  and  was 
acting  within  the  scope  of  his  employ- 
ment. The  question  is  whether  he  was 
or  not.  If  wthout  the  knowledge  of 
his  master,  ho  took  the  car  from  the 
garage  to  a  machine  shop  to  have  it 
fixed  and  an  accident  occurred,  the 
fact  of  the  want  of  knowledge  on  the 
master's  part  would  not  affect  the  lia 
bility,  because  the  act  would  be  with- 
in the  scope  of  the  servant's  employ- 
ment and  in  the  prosecution  of  the 
master's  business.  If  the  chauffeur 
were  granted  a  two  week's  vacation 
and  the  master  said  to  liim:  T  am 
going  off  on  a   tri]>   arul    will    not    iictd 


the  machine;  you  may  take  it  and  u.se 
it  for  your  own  pleasure  while  I  am 
gone,'  I  cannot  think  that  he  would  be 
responsible  for  any  negligence  of  the 
chauffeur  during  that  period."  Cun- 
ningham V.  Castle.  127  App.  Div.  580, 
111  X.  Y.  Suppl.   1057. 

North  Caroline. — ^Reich  v.  Cone,  104 
S.  E.  530. 

Pennsylvania. — Scheel  v.  Shaw,  255 
Pa.  451,  97  Atl.  685,  affirming  60  Pa. 
Super.  Ct.  73  Beatty  v.  Firestone  Tire 
&  Rubber  Co.,  263  Pa.  St.  271,  106  Atl. 
303. 

Texas. — C4ordon  v.  Texas  &  Pacific, 
etc.  Co.   (Civ.  App.),  190  S.  W.  748. 

Utah. — Wright  v.  Intermountain 
Motorcar  Co.,  53  Utah,  176,  177  Pac. 
237. 

Washintjton. — Ludberg  v.  Barghoom, 
73  Wash.  476,  131  Pac.  1165. 

Wisconsin. — Gesvanske  v.  Ellsworth, 
166  \Vis.  250,  164  N.   W.  996. 

"In  order  to  create  a  liability  for 
the  use  of  the  automobile  of  the  mas- 
ter by  the  servant  two  things  must  ap- 
pear: First,  the  use  must  be  with  the 
knowledge  and  consent  of  the  master; 
and,  second,  it  must  be  used  within  the 
scope  of  the  employment  and  to  facili- 
tate the  master's  business.  While  it  is 
true  that  fair  and  generous  treatment 
on  the  part  of  the  master  is  likely  to 
produce  a  corresponding  senae  of  loy- 
alty on  the  part  of  the  servant,  it  can- 
not be  said  that  such  treatment  of  a 
servant  by  a  master  in  any  way  pro- 
motes or  facilitates  the  master's  busi- 
ness in  a  legal  sense.  It  is  to  the  bene- 
fit of  both  master  and  servant  that 
their  relationship  should  be  pleasant 
and  harmonious,  but  the  effort  of  the 
master  to  accommodate  and  assist  the 
servant  does  not  bring  within  the  scope 
of  the  master's  employment  acts  of  the 
servant  otherwise  without  such  scope." 
Oewanski  v.  P311swortli.  166  Wis.  250, 
164  N.   W.  096. 


808  The  Law  of  Automobiles. 

arises  while  he  is  so  returning  the  maehine.^^  The  general 
rule,  however,  may  be  changed  by  statutory  enactment."  The 
reason  for  the  rule  is  that,  when  the  chauffeur  is  using  the 
machine  in  his  private  business,  he  is  not  under  the  control 
of  the  master  and  is  not  acting  within  the  scope  of  his  mas- 
ter's business.^^  The  legal  situation  is  the  same  as  though 
the  machine  had  been  loaned  to  a  friend  for  personal  use,  and 
it  is  well  settled  that  the  owner  is  not  liable  for  negligence 
in  the  operation  of  the  machine  when  it  is  loaned  to  another 
and  is  used  for  the  personal  business  of  the  borrower.^^  Lia- 
bility is  not  imposed  on  the  owner  merely  because  he  per- 
mitted his  servant  to  use  the  machine  for  his  servant's  per- 
sonal pleasure  or  business.^**  Thus,  where  the  chauffeur  took 
the  owner  in  the  machine  to  the  owner's  home,  and  then  ob- 
tained permission  to  take  his  family  home  from  where  they 
were  visiting  in  another  part  of  the  city,  it  was  held  that  on 
such  trip  he  was  not  acting  within  the  scope  of  his  master's 
business,  and  that  the  owner  was  not  liable  for  his  negligence 
on  the  trip.^  But,  it  is  held  that,  where  the  owner  permits 
the  driver  to  take  the  car  for  a  visit  to  a  relative,  but  instructs 
him  to  return  to  a  hotel  to  take  the  owner  home  later  in  thef 
evening,  after  the  visit  and  on  his  return  to  the  hotel,  he  is 
deemed  to  be  in  the  business  of  the  owner.^^  And,  where  the 
owner  asked  a  young  man  to  drive  the  machine  for  a  particu- 
lar trip  and  loaned  him  the  machine  while  he  went  to  secure 
his  father's  permission,  it  was  held  that  on  his  return  he  might 
be  deemed  a  servant  of  the  owner  so  as  to  charge  the  latter 

56.  Brimbeny  v.  Dudfield  Lbr.  Co.  held  that  the  relation  of  master  and 
(Cal.  App.),  186  Pac.  205,  affirmed  servant  continues  during  such  trips. 
191  Pae.  894;  Van  Clease  v.  Walker  Depue  v.  George  D.  Salmon  Co.,  92  N. 
(Tex.  Civ.  App.),  210  S.  W.  767.  J.  Law.  5.50,   106  Atl.  379. 

57.  Section  626.  59.  Section  642. 

58.  Scheel  v.  Shaw,  255  Pa.  451,  97  60.  Scheel  v.  Shaw.  255  Pa.  451,  97 
Atl.    685,   affirming   60   Pa.   Super.    Ct.  Atl.    685,    affirming  60   Pa.   Super.    Ct. 
73;    Kewanski   v.   Ellsworth,   166   Wis.  73;    Ludberg   v.   Barghoorn,    73   Wash. 
250,  164  N.  W.  996.  476.   131  Pac.  1165;   Gewanski  v.  Ella- 
Use  to  enable  driver  to  reach  work  worth,  166  Wis.  250,  164  N.  W.  996. 

earlier. — ^Where  the  employer   permits  61.  Scheel  v.  Shaw,  255  Pa.  451,  97 

the  driver  to  use  the  machine  to  and  Atl.  685,  affirming  60  Pa.  Super.  Ct.  73. 

from  his  home  in  order  that  the  driver  62.  Graham    v.    Henderson.    254    Pa 

may  reach  his  work  earlier,  it  has  been  137,  98  Atl.  870. 


Liability  for  Act  of  Driver. 


809 


with  his  negligence.^  The  fact  that  the  machine  was  defective 
and  dangerous  for  driving  at  night  when  the  owner  permitted 
his  servant  to  use  it,  does  not  make  an  exception  to  the  general 
rule.''^ 


Sec.  632.  Liability  for  conduct  of  chauffeur  —  variance  from 
direct  course. 

When  the  owner  of  an  automobile  directs  his  driver  to  take 
the  car  to  a  certain  place,  but  the  driver  instead  of  following 
the  route  which  it  was  his  duty  to  take,  diverts  therefrom  for 
his  private  purposes,  and,  while  away  from  the  course,  is 
guilty  of  negligence,  a  difficult  question  is  sometimes  presented 
as  to  the  liability  of  the  owner.  The  solution  of  the  question 
frequently  depends  upon  the  degree  of  the  variance  from  the 
proper  course.^^  The  intention  of  the  driver  in  making  the 
deviation  is  .also  important.^^  A  mere  disregard  of  instruc- 
tions and  slight  deviation  from  the  line  of  the  chauffeur's 


63.  Elliott  V.  O'Roinke,  40  R.  I.  187, 
100  Atl.  314. 

64.  Gordon  v.  Texas  &  Pacific,  etc. 
Co.  (Tex.  Qv.  App.).  190  S.  W.  748, 
wherein  it  was  said:  "Apj)ollant's 
contention,  in  substance,  is  that  the 
mere  fact  that  the  automobile  was  de- 
fective and  dangerous  for  driving  at 
night,  and  known  to  be  so  by  the  de- 
fendant, and  that  at  the  time  it  was 
being  driven  by  one  of  defendant's  ser- 
vants, having  been  given  power  to  take 
it  from  the  garage,  creates  a  liability 
on  defendant's  part  for  the  conse- 
quences. We  cannot  approve  so  broad 
a  ground  of  liability  on  the  part  of  au- 
tomobile owaiers.  The  authorities  seem 
uniform  to  the  effect  that  the  owner  of 
;i  car  who  was  not  present  at  the  in- 
fliction   of   the    injury    cannot   be   held 

•  liable,  except  it  be  shown  that  the  per- 
son in  charge,  not  only  was  the  agent 
or  servant  of  the  owner,  but  also  was 
engaged  at  the  time  in  the  business  of 
his  master," 

65.  "The  fact  that  the  servant  acts 
also  for  himself,  while  performing  ser- 


vice for  his  employer,  and  in  doing  so 
diverts  from^  the  usual  route  or  method 
of  performing  the  service,  will  not 
exonerate  the  employer  from  responsi- 
bility for  misconduct  of  the  servant. 
Sometimes  the  extent  of  the  deviation 
may  be  so  slight,  relatively,  that  as  a 
matter  of  law  it  can  be  said  that  it  does 
not  constitute  a  complete  departure 
from  the  master's  service,  while  under 
other  circumstances  the  deviation  may 
be  so  marked  that  it  can  be  said  as  a 
matter  of  law  that  it  does  constitute 
an  abandonment  of  the  master's  ser- 
vice, while  under  still  other  circum- 
stances the  deviation  may  be  so  uncer- 
tain in  extent  or  degree  that  it  leaves 
a  question  of  inference  to  be  drawn  by 
a  trial  jury  as  to  whether  or  not  there 
has  been  sucli  an  abandonment  as  to 
relie%'e  the  master  from  responeibiiity 
for  the  servant's  act."  Hcaley  v. 
Cockrill,  133  Ark.  327,  202  S.  W.  229. 
66.  Mathewson  v.  Edison  Elec. 
nium.  Co..  232  Mass.  576,  122  N".  E. 
743. 


810 


The  Law  of  Automobiles. 


duty,  does  not  necessarily  relieve  the  master  from  responsi- 
bility for  his  negligence.*'^  The  fact  that  the  servant  would 
not  have  been  at  the  place  of  the  accident  but  for  the  devia- 
tion, is  not  controling.^^  On  the  other  hand,  if  the  servant 
departs  so  far  from  the  line  of  his  duty  that  for  the  time 
being  his  acts  constitute  an  abandonment  of  his  service,  the 
master  is  not  liable.®^  Between  extreme  cases  showing  a  slight 
deviation  from  instructions  and  those  showing  clearly  an 
abandonment  of  the  master's  service,  there  are  many  border 


67.  Kentweky. — ■Eakin  v.  Anderson, 
169  Ky.  1,  183  S,  W.  217. 

Massachusetts. — Fleischner  v.  Dur- 
gin,  207  Mass  435,  93  N.  E.  801;  Mc- 
Keever  v.  Ratcliflfe,  218  Mass.  17,  105 
N.  E.  552;  Mathewson  v.  Edison  Elee. 
Ilium.  Co.,  232  Mass.  576,  122  N.  E. 
743.  "The  employer  has  been  held  re- 
sponsible for  wrongs  done  to  third  per- 
sons by  his  driver  during  incidental 
departures  from  the  scope  of  the  au- 
thority conferred  by  the  employment 
and  upon  comparatively  insignificant 
deviation  from  direct  routes  of  travel, 
but  within  the  general  penumbra  of 
the  duty  for  which  he  is  engaged." 
Fleischner  v.  Dnrgin,  207  Mass.  435, 
93  N.  E.  801. 

Missouri. — Guthrie  v.  IToLmes,  272 
Mo.  215,  198  S.  W.  854;  Long  v.  Nute, 
123  Mo.  App.  204,  100  S.  W.  511; 
Whimster  v.  Holmes,  177  Mo.  App.  130, 
164  S.  W.  236. 

New  York. — Fisc'k  v.  Lorber,  95 
Misc.  574,  159  N.  Y    Suppl.  722. 

Pennsylvarmi. — Witte  v.  Mitchell- 
Lewis  Motor  Co.,  244  Pa.  172,  90  Atl. 
528;  Baloy  v.  Rosenbaum  Co.,  260  Pa. 
466,  103  Atl.  882:  Blaker  v.  Philadel- 
phia Elee.  Co.,  60  Pa.  Super.  Ct.  56. 

Washington. — George  v..  Carstens 
Packing  Co.,  91  Wash.  637,  158  Pac. 
529. 

.Wisconsin.- — Thomas  v.  Lockwood  Oil 
Co.,  182  N.  W.  841. 

Operator  of  jitney.— Where  the  op- 
erator of  a  jitney  is  instructed  by  the 
owner    not     to    diverge    from     certain 


streets,  and  he  carries  a  passenger  to 
his  home  on  another  street  where  the 
jitney  is  licensed  to  operate,  the  owner 
is  not  liable  for  injuries  sustained  by 
tlie  passenger  while  outside  of  the  au- 
thorized route.  Youngquist  v.  L,  J. 
Droese  C-o.,  167  Wis.  458.  167  N.  W. 
730. 

68.  Dale  v.  Armstmng,  107  Kans. 
101,  190  Pac.  598. 

69.  Alabama. — Dowdell  v.  Beasley, 
87  So.  18. 

Arkansas. — Healey  v.  Cockrill,  133 
Ark.  327,  202  S.  W.  229. 

California. —  Employer's  Liability, 
etc.  Corp.  v.  Industrial  Ace.  Com,  187 
Pac.  42. 

Kentucky. — Eaken  v.  Anderson,  169 
Ky.  1,  183  S.  W.  217. 

Massachusetts. — Fleischner  v.  Dur- 
gin,  207  Mass.  435,  93  N.  E.  801; 
Mathewson  v.  Edison  Elee.  Ilium.  Co., 
232   Mass.    576,   122    N.   E.   743. 

Michigan. — Drobnecke  v.  Packard 
Motor  Oar  Co.,  180  N.  W.  459. 

New  Jersey. — Cronecker  v.  Hall,  92 
N".  J.  Law,  450,  105  Atl.  213. 

Neiv  York. — O'Brien  v.  Stern  Bros  , 
223  N.  Y.  290,  119  N.  E.  550;  Riley  v. 
Standard  Oil  Co.,  191  N.  Y.  App.  Div. 
490,  181  N.  Y.  Suppl.  573;  Coyne  v. 
Kennedy,  229  N.  Y.  550,  129  N.  E.  911. 

Pennsylvania. — Soloman  v.  Common- 
wealth Trust  Co.  of  Pittsburgh,  256 
Pa.  55,  100  Atl.  534. 

Virginia. — Kidd  v.  Dewitt,  105  S.  E. 
124. 

Errand  for  friend. — A  plaintiff  can- 
not recover  for  the  death  of  his  intea- 


Liability  for  Act  of  Driver.  811 

cases  where  the  question  is  submitted  to  the  jury.'^'  The  fact 
that  the  driver  loiters  on  the  way  so  as  to  avoid  being  sent  on 
another  errand,  does  not  constitute  such  a  departure  from 
service  as  to  relieve  the  master.''  The  proportion  between 
the  length  of  the  trip  as  directed  by  the  master  and  the  dis- 
tance of  the  deviation,  is  sometimes  examined  and  considered 
on  the  question  whether  the  chauffeur  is  acting  within  the 
scope  of  his  employment.'^^  *'A  side  trip  of  several  blocks 
from  a  main  trip  of  sixteen  blocks  may  correctly  be  called  a 
slight  deviation,  whereas  a  side  trip  of  several  blocks  from  a 
main  trip  of  less  than  one  block  might  reasonably  be  regarded 
as  an  entirely  different  proposition.'*'^  Though  the  distance 
of  the  diversion  is  not  great,  if  it  is  considerable  in  comparison 
to  the  course  directed  to  be  taken,  it  may  be  deemed  an  aban- 
donment of  the  master's  service  rather  than  a  deviation. 
Thus,  where  a  chauffeur  was  directed  to  bring  the  car  from 
the  garage  at  the  rear  of  the  house  to  the  front,  and  he  went 
to  a  nearby  drug  store  to  make  a  purchase  for  himself,  the 
deviation  is  not  slight  and  cannot  be  disregarded.^^    Where 

tate  where   it   appears   without    eontrn-  ing  Co..  91  Wash.  637,  158  Pac.  .')29. 

diction  that,  at  the  time  siifh  intestate  71.  Tliomas     v.    T.ockwood     Oil     Co. 

wa.ti   run   over  by   defendant's   antomo  (Wis.).  182  N    W.  841. 

bile,   the   chauffeur   Avas   not    upon    the  72.  Fleisclmer  v.   Durgin.   207   Mass. 

defendant's    business    or    acting   within  435,   93   N.    1"^.    801:    Fisick   v.   Tx)dbeT. 

the   scope  of  his   employment   but   was  05  Misc.   (N.  Y. )   .■>74.  159  N.  Y.  8uppl. 

going  away   from   his  work  and   in   an  722;     Witte    v.    Mitchell-Lewis    Afotor 

opposite  direction  for  a  purpose  of  his  Co.,  244  Pa.  172.  90  Atl.  528. 

own    and    on    an    errand   for   a    friend.  73.  Eakin    v.    Anderson.    160    Ky     1. 

O'Brien  v.    Stern   Brow..  .223  N.   Y.   200  183  S.   W.  217. 

119  N.  E.  550  74    Healy  v.   r,,pknll,   133   Ark.   327. 

70.  Kansas. — Dale  v.   Armstrong.   190  202   S.   W.    220,    wherein    it   was   .'^aid : 

Pac.  598.  "We  do  not  think  that  the  fact.'*  of  the 

Masfachusetts. — McKeever      v.      Ral  present  case   bring  it   within   the   rule 

cliff,    218    Mass.    17,    105    N.    K.    552:  of    slight    deviation    from    the   employ- 

Donohue  v.  Voenbcrg.  227  Mass.  1.  116  er's   service,   or   a   mere   incidental    de- 

N.  E.  246;  Mathewson  v.  Edison  Elec.  parture    from    the    service    to    mingle 

Ilium.   Co.,    232   Mass.   576,   122  N.   E,  with   it  purposes  of  the  servant's  own. 

743;  Lewandowski  v.  Cohen,  129  N.  E.  but  that  it  is  a  case  of  complete  abnnd- 

378.  onment  or  departure  from  the  rmploy- 

Pennsylvania. — ^^faloy  v.    Rosenbaum  er's     business     and     a     stepping    aside 

Co..  260  Pa.  466,  103  Atl.  882:   Blaker  wholly   for  the   servant's   own    purpose. 

V.      Philadelphia    Elec.      Co.,     60     Pa.  The  distance  traveled  by  the  servant  in 

Super.  Ct..  56.  going    upon    his   own    errand    was    not 

Washington. — George  Oarstens  Pack-  verj-  great,  but  if  was  considerably  out 


8.12  .  The:  Law  of  Automobiles. 

the  trip  on  the  .servant's  business  was  eight  times  the  distance 
of  the  trip  he  was  directed  to  take  for  his  employer,  and  at  the 
time  of  the  accident  he  was  still  more  than  three  times  the 
distance  he  was  directed  to  go  away  from  and  beyond  the 
place  he  was  directed  to  go,  it  was  held  that  the  servant  was 
not  acting  in  his  master's  business.'^^  And,  where  the  owner 
employs  one  not  in  his  general  employ  to  drive  a  machine 
from  a  garage  in  Brookline  to  a  shop  less  than  a  mile  away, 
but  without  the  consent  or  knowledge  of  the  owner,  he  takes 
the  machine  to  a  square  not  on  the  direct  course  and  has 
lunch  and  then  with  a  friend  drives  the  car  to  a  shop  in  Boston 
six  miles  farther  out  of  his  way  for  the  purpose  of  getting  a 
chain  for  his  own  use,  and  then  just  after  he  has  turned  to  go 
back  negligently  runs  over  a  traveler  in  Boston,  it  was  held 
that  the  OA\Tier  was  not  liable  for  his  negligence.''^  Similarly, 
when  it  was  the  duty  of  the  servant  to  drive  to  the  post  office 
for  the  mail,  then  to  the  express  office  and  then  back  to  the 
master's  house,  and  after  leaving  the  post  office  he  undertook 
to  oblige  a  third  person  by  carrying  a  note  to  that  person's 
house,  which  was  not  on  his  direct  road  to  the  express  office, 
it  was  held  that  while  so  engaged  the  servant  was  on  an  inde- 
pendent journey  and  the  master  was  not  liable."     On  the 

of  proportion  with  the  distance  neces-  and.  in  order  to  make  that  trip  in  ob- 
sary  to  travel  in  obeying  the  instruc-  soi-x'ance  of  the  traffic  rules,  it  -was 
tions  of  his  employer.  In  other  words,  necessary  for  him  to  travel  the  dis- 
the  relative  distance  was  too  great  to  tance  of  6^  blocks  in  getting  back  to 
be  called  a  slight  deviation,  and  the  de-  the  front  of  his  employer's  residence, 
parture  from  the  line  of  duty  was  so  The  servant,  in  leaving  the  premises 
complete  that  the  connection  with  the  in  order  to  make  the  trip  to  the  store, 
employer's  service  was  completely  was  not  mingling  his  own  business  with 
broken.  In  order  to  perform  the  em-  that  of  his  employer,  but  he  was  step- 
jloyer's  service  it  was  unnecessary  for  ping  aside  entirely  from  the  employer's 
the  servant  to  leave  the  immediate  business  to  go  on  an  errand  of  his 
proximity  of  the  employer's  premises.  own.  and  this  is  true  even  though  he 
He  did  not  even  have  to  cross  any  of  intended  to  dispose  of  the  car,  on  his 
the  streets,  but  his  journey  from  the  return,  in  accordance  with  the  em- 
back  of  the  premises  to  the  front  was  ployer's  direction." 

merely  to  follow  the  same  side  of  the  75.  Eakin   v.    Anderson.    169    Ky.    1, 

street  halfway   around   the  block.     In-  183  S.  W.  217. 

stead  of  following  that  course,  the  ser-  76.  Fleischner  v.  Durgin,  207  Mass, 

vant  left  the  premises  entirely  and  went  435,  93  N.  E.  801. 

ofT  on   an   errand   of  his   own   to  pur-  77.  Northrup   v.    Robinson,   33   R.   I. 

chase   an    article  for  his   private   use,  496,  82  Atl.  392. 


Liability  for  Act  <jf  Driver.  813 

other  hand,  the  case  is  for  the  jury  where  it  apjjears  that  the 
chauffeur  was  in  the  continuous  employment  of  the  defendant, 
that  prior  to  the  accident  in  question  he  had  started  to  return 
to  the  defendant's  garage,  that  on  the  way  he  was  compelled 
to  stop  to  change  his  tire  in  the  rain,  that  his  clothes  were 
wet  and  instead  of  returning  to  the  garage  immediately,  he 
drove  the  machine  to  his  home  in  another  part  of  the  city  and 
had  his  supper  and  changed  his  clothes,  and  that  on  his  re- 
turn to  the  garage  he  went  out  of  his  way  several  blocks  to 
get  some  cigars  when  the  accident  in  question  occurred.'^  In 
this  class  of  cases  it  is  a  very  material  inquiry  whether  the 
servant  started  to  serve  his  own  purposes,  or  whether  the 
trip  was  commenced  and  ended  in  the  master's  service  but  a 
variance  from  the  expected  course  was  made.^'  If  the  jour- 
ney upon  which  the  servant  starts  be  wholly  for  his  own  pur- 
poses, and  without  the  knowledge  or  consent  of  the  master, 
the  latter  will  not  be  liable.^^' 

Sec.  633.  Liability  for  conduct  of  chauffeur  —  returning  to 
employment  after  unlavsrful  divergence. 
When  a  chauffeur  has  used  the  automobile  of  his  employer 
for  his  own  personal  business,  the  question  is  sometimes 
raised  that  when  he  is  returning  the  car  for  the  use  of  his 
em.ployer  he  may  be  operating  it  in  his  master's  business,  and 
hence  the  master  may  be  liable  for  his  negligence  on  such 
return  trip.  It  is  true  that  when  the  servant  has  temporarily 
diverged  from  the  course  which  he  should  have  taken,  he  may 
properly  be  said  to  have  resumed  the  master's  business  when 
he  is  returning  to  the  proper  course.^i  Thus,  where  a  servant 
was  engaged  to  drive  an  automobile  truck  for  a  bakery  over 

78.  Blakor  v.  Pliiladelphia  Elec.  Co.,  Slotliower  v.  Clark.  191  Mo.  App  105 
60  Pa.  Super.  Ct.  56.  179   S.   W.   55:    Rilov   v.    Standard   Oil 

79.  Fakin  v.  Anderson,  169  Ky.  1,  183  Co.,  231  N.  Y.  301 ;  George  v.  Carstens 
^   ^^-  ^''^-  Packincr   Co..   91    Wash.   637,    158   Pac. 

80.  Enkin  v.  Anderfon,  169  Ky.  1,  62!).  See  also  Donahue  v.  Vorenberg, 
183  .S.  W.  217.     And  see  section  630.  227   Mass.   1.    116   N"    E.    246;   Goff  v. 

81.  TToplan  v.  Gnggenleim.  210  111.  Clarksburg  Dairv  Co.  (W.  Va).  103 
Apn.  1:  Rudd  v.  Fo^,  112  Minn.  477,  S.  E.  58.  Co^n'pare  Gous^-e  v.  Lowe 
128  K  W.  675;  Whimst-r  v.  Holn^es.  (Oil.  App).  183  Pac.  295:  Credv  v. 
177    Mo.    App.    130,    164    S.    W.    236;  Greer.  183  Ky.  675,  210  S.  W.  167.^ 


814  The  Law  of  Automobileb. 

a  certain  route,  and  contrary  to  the  instructions  of  his  em- 
ployer, he  made  a  trip  off  his  route  to  take  a  party  home,  and 
after  having  done  so  was  returning  to  the  bakery  when  he 
ran  over  a  boy  in  the  street,  it  was  held  that  at  the  time  of 
the  accident  the  servant  was  driving  the  truck  in  the  regular 
line  of  his  employment.^^    g^t,  when  the  use  of  the  car  by 
the  driver  is  entirely  unauthorized,  the  entire  use  thereof, 
both  in  going  and  in  returning,  is  not  in  the  furtherance  of 
the  master's  business,  and  the  owner  should  not,  according 
to  the  better  authority,  be  liable  for  the  negligent  acts  of  the 
chauffeur  when  on  the  return  trip.^    Thus,  where  a  chauffeur 
was  directed  to  take  the  car  from  the  garage  at  a  stated  time 
and  call  at  a  certain  house,  but,  starting  an  hour  earlier,  he 
went  on  an  errand  of  his  own  a  distance  further  than  that 
between  the  garage  and  the  house  to  which  he  had  been  di- 
rected to  go,  and  then  started  from  the  place  of  his  personal 
errand  towards  the  house  where  his  master  had  told  him  to 
go,  and  by  a  different  route  than  that  by  which  he  had  come, 
when  the  accident  happened,  it  was  held  that  the  master  was 
not  liable.^*    And,  where  a  servant  was  ordered  to  take  the 
automobile  from  one  garage  of  the  defendant  to  another,  and 
there  to  wash  it  and  put  it  up  for  the  night,  but  after  driving 
the  car  to  the  garage  as  directed,  he  took  the  machine  to  carry 
another  employee  to  Ms  home,  and  after  driving  to  a  restau- 
rant for  his  supper  was  returning  to  the  garage  when  the 
accident  in  question  happened,  it  was  held  that  the  servant 
was  not  acting  mthin  the  scope  of  his  employment  at  the 
time.^    But,  when  the  owner  directs  the  chauffeur  to  be  at  a 
certain  place  at  a  certain  time,  but  in  the  meantime  permits 
him  to  use  the  machine  for  his  personal  ends,  when  the  chauf- 
feur is  returning  to  the  designated  place,  he  may  be  said  to 

82.  Devine  v    Ward  Baking  Co,  188      20  Ann.  Ca8.  1291;  Brinkman  v.  Zuck- 
111.  App.  588.  erman,  192  Mich.  624,  159  N.  W.  316; 

83.  Gousse  v.  Lowe   (Cal.  App.),  183      Hill  v.  Staats    (Tex.),  189  S.  W.  85. 
Pac.    295;    Tyler    v.    Stephen's   Adm'r,  84.  Eakin    v.    Anderson,    169   Ky.    1, 
163  Ky.  770.  174  S.  W.  790;   Eakin  v        183  S.  W.  217. 

Ai(!eison,  169  Ky.   1,   183   S    W.   217;  85.  Colwell   v.   Aetna  Bottle  &  Stop- 

FleSschner   v.    Durgin,   207   Mass.    435.      per  Co.,  33  R.  I.  531,  388. 
93  ¥!  E.  801,  33  L.  R.  A.   (N.  S.)    79, 


Liability  for  Act  of  Driver,  815 

be  acting  within  the  master's  employment.^  The  situation  is 
different  where  the  servant  is  not  permitted  to  use  the  ma- 
chine for  his  benefit  during  the  interval  before  he  is  required 
to  act  for  his  owner.  Thus,  where  the  chauffeur  w^as  directed 
to  get  his  supper  and  be  at  a  certain  hotel  at  a  certain  time, 
but,  after  eating  his  supper,  instead  of  taking  the  machine  to 
the  hotel,  he  drove  to  a  place  a  mile  or  so  distant  to  call  upon 
a  friend,  it  was  held  that  the  master  was  not  liable  for  his 
negligence  on  returning  from  his  call  to  the  hotel.^^  The 
decisions  are  by  no  means  harmonious  on  the  liability  of  the 
master  under  varying  circumstances.  Thus,  in  one  case,  it 
was  held  that  the  master  was  liable  where  his  chauffeur  took 
him  to  church  and  was  then  directed  to  go  to  another  build- 
ing for  the  owner's  son  and  then  to  return  to  the  church,  but 
the  chauffeur  instead  of  following  the  directions  went  in  the 
opposite  direction  to  collect  a  debt  due  to  him  and  injured  an- 
other traveler  on  his  return,  it  was  held  that  a  judgment 
against  the  owner  could  be  sustained.^^ 

86.  McKiernan  v.  Ivehaier,  85  Conn.  the  chaufl'eur  in  driving  the  car  could 
in,  81  Atl.  969;  Graham  v.  Render-  be  engaged  about  his  master's  business 
son,  254  Pa.  137,  98  Atl.  870.  "If  the  and  not  his  own.  Was  the  relation  re- 
chauffeur  in  using  the  ear  to  make  a  sumed  at  once  upon  his  accomplishing 
visit  to  his  brother  was  doing  so,  not  his  visit  to  his  brother,  and  was  the 
only  without  the  consent  of  the  owner,  chauffeur  thereafter  in  making  his  re- 
but in  disregard  of  the  orders  he  had  turn  drive  acting  as  servant,  perform- 
received,  then  it  would  follow  that  dur-  ing  a  duty  he  owed  the  master  because 
ing  the  time  he  employed  the  car,  down  of  the  relation  ?  or  was  he  still  a 
to  the  time  he  returned  it  to  its  proper  licensee  of  the  ear?  We  are  of  opinion 
place,  the  relation  of  master  and  ser  that  the  license,  if  given,  expired  when 
vant  between  him  and  the  defendant  the  visit  to  the  brother  was  accom- 
was  wholly  suspended,  and  the  latter  plished  and  that  on  the  return  drive, 
would  not  be  liable  for  any  negligence  when  the  accident  happened,  the  chauf- 
of  his  resulting  in  injury  to  a  third  feur  was  acting  not  on  his  own,  but  on 
party.  If  on  the  other  hand,  permis-  his  master's  business."  Graham  v. 
sion  had  been  given,  while  it  might  be  Henderson.  254  Pa.  St.  137,  98  Atl. 
argued   that  this  also  would   result  in  870. 

an  interruption  of  the  relation  of  mas-  87.  Danforth  v.  Fisher,  75  N".  H.  Ill, 

ter    and    servant,    a    further    question  71   Atl.  535,  21  L.  R.  A.    (N.  S. )    93, 

would    require    answer,    namely,    when  139  Am.  St.  Rep.  670. 

was   the  relation   resumed?    for.    when-  88.  Slothower  v.  Clark,  191  Mo.  App. 

ever  resumed,  from   that  time   forward  105,  179  S.  W.  55. 


816  The  Law  of  Automobiles. 

Sec.  634.  Liability  for  conduct  of  chauffeur  —  chauffeur  act- 
ing under  direction  of  owner's  family. 
A  chauffeur  in  the  general  employ  of  the  owner  of  an  auto- 
mobile may  be  acting  within  the  scope  of  his  employment  and 
within  his  master's  business,  when  he  is  operating  the  machine 
at  the  request  of  a  member  of  the  owner's  family .^^  It  may 
be  said  that  the  owner  has  made  it  a  part  of  his  business  to 
furnish  pleasure  and  transportation  to  the  members  of  his 
family,  so  that  one  driving  the  car  for  the  carriage  of  such 
persons  is  acting  within  the  owner's  business.^^  Especially 
is  this  true  when  the  chauffeur  has  general  directions  to  use 
the  car  as  required  by  the  members  of  the  owner's  family .^^ 
The  right  of  the  members  of  the  family  to  give  instructions  to 
the  owner's  servant  cannot  be  based  merely  upon  the  relation- 
ship, but  there  must  exist  an  authority  in  the  one  giving  the 
direction  or  the  owner  must  subsequently  ratify  the  direc- 
tion.^2  The  authority  may  be  given  expressly  or  may  be  found 
by  implication,  as  when  similar  directions  have  been  given  in 
the  presence  of  the  owner  or  have  continued  so  as  to  con- 
stitute a  source  of  conduct.^^  Moreover,  the  circumstances 
may  be  such  as  to  charge  the  owner  of  an  automobile  with  the 
negligence  of  the  chauffeur  when  running  the  machine  pur- 
suant to  the  directions  of  his  guests.®* 

Sec.  635.  Liability  for  conduct  of  chauffeur — testing  machine. 

A  chauffeur  employed  to  run  and  repair  an  automobile  may 

be  authorized  to  test  the  running  of  the  engine  after  repairs 

89.  Connecticut.— Carrier     v.     Dono-       Mich.   420,   167  N.   W.   964;    Crouse  v. 
van,  88  Conn.  37,  89  Atl.  894.  Lubin,    260    Pa,    329,     103    Atl.    725; 

Missouri. — Winfrey   v,   Lazarus,    148  Flores  v.  Garcia    (Tex.  Civ.  App  ),  226 

Mo.  App.  388,  128  s".  W.  276.  S.  W    743.     And  see  ssetions  657,  660. 

2Veio  Yorfc,— McHarg  V.  Adt,  163  App.  91.  Freeman    v.    Green    (Mo.    App), 

Div.  782,  149  N.  Y.  Siippl.  244;   Cohen  186  S.  W.  1166;   Cohen  v.  Bargenecht, 

V.   Bargenecht,  83  Misc.  28,   144  N.  Y.  83  Misc.   (N.  Y.)   28,  144  N.  Y.  Suppl. 

Suppl.  399.  399. 

Pennsylvania. — Moon     v.    Matthews,  92.  Carrier  v.  Donavan.  88  Coim.  37, 

227  Pa.  St,  488,  76  Atl,  219,  29  L,  R,  89  Atl.   894. 

A.    (N.  S.)    856;   Hazzard  v.  Carstair?,  93.  Carrier  v.  Donovan,  88  Conn.  37, 

244  Pa.   St.   122,   90   Atl.   556;   Crouse  89  Atl.  894, 

V.  Lubin,  260  Pa.  329,   103  Atl.  725.  94.  Campbell    v.    Arnold,    219    Mass 

90.  Houseman        v,     Karicoffe,     201  160,  106  N.  E.  599, 


Liability  for  Act  of  Driver.  817 

thereto  have  been  made ;  and,  while  such  tests  are  being  made, 
the  master  will  be  liable  for  the  driver's  negligence  though 
he  had  no  knowledge  that  the  machine  was  being  operated.^^ 
Where  the  machine  is  operated  by  a  person  who  had  repaired 
the  brakes,  the  fact  that  such  person  on  various  occasions  had 
driven  the  car  in  company  with  the  owner,  does  not  show  a 
special  agency  for  driving  the  car  for  the  purpose  of  testing 
the  brakes.^^ 

Sec.  636.  Liability  for  conduct  of  chauffeur  —  chauffeur  after 
personal  laundry. 
Where  in  an  action  to  recover  for  injuries  to  a  pedestrian 
caused  by  an  automobile,  it  appears  that  at  the  time  of  the 
accident  it  was  being  used  by  the  defendant's  chauffeur  for 
the  purpose  of  carrying. his  owm  laundry  to  another  town, 
although  he  had  been  directed  by  the  defendant  not  to  use  the 
machine  without  express  orders,  except  that  he  might  use  it 
when  going  to  and  from  his  meals,  the  chauffeur  was  not  act- 
ing in  his  employer's  business  or  ^vithin  the  scope  of  his  em- 
ployment." But  the  circumstances  may  be  such  as  to  present 
a  question  for  the  jury  whether  the  procurement  of  his  laun- 
dry by  a  chauffeur  is  a  mere  incident  in  his  emplo^onent,  as 
where  the  chauffeur  slept  at  the  house  of  his  employer  and 
had  no  fixed  hours  of  employment,  and  the  employer  paid  for 
his  laundry  as  a  part  of  his  wages  and  permitted  him  to  use 
the  car  to  get  it.^^ 

Sec.  637.  Liability    for    conduct    of    chauffeur  —  chauffeur 
taking-  car  for  meals. 

Ordinarily  when  the  chauffeur  is  using  his  employer's  auto- 
mobile for  the  purpose  of  procuring  his  meals,  he  is  not  en- 
gaged in  his  master's  business,  and  the  master  is  not  liable 
for  his  negligent  acts  on  such  a  trip.^^    But  a  different  ques- 

95.  Calley  v.  Lewis.  7  Ala.  App.  593,  97.  Douglass   v.    Hew«on.    142   N.   Y. 
61  So.  37:  Edwards  v.  Yarbroujjh   (Mo.  App.  Div.  166,  127  N.  Y.  Piiprl    220 
App  ),  201  S.  W.  972;  Curran  v.  Tx)rch.  98.  Reynolds  v.   Donholni,   21.3   Mass. 
243  Pa.  St.   247,  90  Atl.   62.  .576,  100  N.  E.   1006. 

96.  Brickor  v.  Dahmus,  211  111.  App.  99.  Nusshaum   v.   Traun?  Labol.   etc. 


103. 

52 


Co.  (Cal.  App.).  189  Pae.  728:  Hartnett 


818  The  Law  of  Automobiles. 

tion  is  presented  when  a  special  trip  is  not  made  to  get  the 
meal,  but  the  driver  merely  diverges  from  the  course  directed 
by  the  owner  and  stops  to  procure  the  meal.^  Thus,  the  fact 
that  the  chauffeur  by  the  permission  of  his  employer  stops  at 
his  own  home  for  supper  on  the  way  to  the  garage  with  the 
car  does  not  remove  him  even  temporarily  from  his  employ- 
ment.2  And,  in  an  action  for  injuries  received  by  an  employee 
in  the  street  struck  by  a  taxicab  used  by  the  driver  thereof  to 
go  to  his  supper,  where  there  was  evidence  that  there  was  no 
regulation  prohibiting  the  use  of  the  cars  by  drivers  for  that 
purpose,  and  that  they  were  sometimes  used  for  such  purpose 
without  objection,  it  was  held  that  a  judgment  against  the 
taxicab  company  could  be  sustained.^  And,  if  the  servant  is 
directed  to  use  the  machine  in  order  that  he  may  return  to  his 
work  sooner,  a  finding  that  he  is  acting  in  the  owner's  busi- 
ness in  so  doing  may  be  justified.* 

Sec.  638.  Liability  for  conduct  of  chauffeur  —  chauffeur 
taking  passenger. 
The  driver  of  a  motor  vehicle  sent  on  a  particular  mission 
by  the  owner  of  the  machine  is,  as  a  general  proposition,  act- 
ing beyond  the  scope  of  his  authority  when  without  the  knowl- 
edge of  his  employer  he  invites  another  person  to  ride  with 
him.^  If  such  a  passenger  is  injured  through  the  mere  negli- 
gence of  the  driver  of  the  machine,  the  owner  thereof  will  not 
generally  be  liable.^    The  passenger  is  in  the  position  of  a 

V.  Gryzmish,  218  Mass.  258,  105  N.  E.  Wash.  676,  120  Pac.  519. 

988;  Hill  v.  Haynes,  204  Mich.  536,  170  4.  Snyder   v.    Eriksen     (Kans.),    198 

N".  W.  685 ;  Calhoun  v.  Mining  Co.,  202  Pac   1080. 

Mo.  App.  564,  209  S.  W.  318;  Reilly  v.  5.  Waller  v.  Southern  Ice  &  Coal  Co, 

Connable,    214   N.   Y.    586,    108   N.    E.  144  Ga.   695,  87  S.  E.   888;   Wiilker  v. 

853;    Steffen  v.  MeNaughton,   142  Wis.  Fuller,  223  Mass.  566.  112  N.  E.  230; 

49.  124  N.  W.  1016,  19  Ann.  Cas.  1227,  Dearborn   v.   Fuller    (N.   H.),   107   Atl. 

26  L.  R.  A.   (N.  S.)   382.  607;   Roefe  v.   Hewitt,  227  N    Y.   486, 

1.  Section  632.  125  N.  E.  804;  Christensen  v  Christian- 

2.  Ferris  v.  McAidle,  92  N.  J.  L.  580,  sen  (Tex.  Civ.  App.),  155  S.  W.  995; 
106  Atl.  460;  Fisick  v.  Lorber,  95  Misc.  McQueen  v.  People's  Store  Co.,  97 
(N.  Y  )   574,  159  N.  Y.  Suppl.  722.  See  Wash.  387,  166  Pac.  626. 

also  Moore  v.  Reddle,   103   Wash.   386,  8.  Barker    v.    Dairynipn's   Milk   Pro- 

174  Pac.  648.  ducts   Co.    (Ala.),  88  So.  588;   Wa'br 

3.  Burger  v.  Taxicab  Motor  Co.,   66      v.   Southern   Ice  &   Coal   Co,   144   Ga. 


Liability  for  Act  of  Driver.  819 

trespasser  or  mere  licensee  as  to  whom  there  is  ordinarily  no 
duty  except  to  refrain  from  wilful  or  intentional  wrongJ 
Especially  is  the  rule  applicable,  when  the  car  is  taken  from 
the  garage  without  the  knowledge  or  consent  of  the  owner.^ 
When  the  person  injured  is  a  traveler  other  than  the  unau- 
thorized guest,  there  may  be  a  question  for  the  jury  whether 
the  driver  at  the  time  he  is  carrying  the  guest  is  acting  for 
his  employer  or  for  his  private  purposes.'  If  the  machine  in 
question  is  a  taxicab,  it  is,  of  course,  the  duty  of  the  driver  to 
procure  passengers,  and  a  different  question  is  presented.^*^ 

Sec.  639.  Liability  for  conduct  of  chauffeur—  chauffeur  per- 
mitting another  to  run  machine. 

Where  a  chauffeur  intrusted  with  the  running  of  a  motor 
vehicle  permits  another  person  to  operate  the  machine  with- 
out the  knowledge  or  express  consent  of  the  owner,  there  is 
some  conflict  of  authority  on  the  question  whether  the  owner 
is  liable  for  the  negligent  act  of  such  substituted  driver.  The 
solution  of  the  question  in  some  jurisdictions  hinges  on  the 
express  or  implied  authority  of  the  chauffeur  to  permit  an- 
other to  drive  the  car.  Thus,  if  a  master  sends  a  servant  to 
bring  to  his  place  of  business  an  automobile  for  the  purpose 
of  having  it  repaired,  and  the  servant  procures  another  to 
take  the  machine  to  its  destination,  the  master  is  not  liable 

695,   87   S.    E.   888;    Walker  v.    Fuller.  Co.,  98   Misc.    (N.   Y.)    631,   163  N.   Y. 

223   Mass.   566,    122  N.   E.    230;    Dear-  Siippl.  197. 

born  V.  Fuller  (N.  H.),  107  Atl.  607;  Wilful  injury,— The  owner  may  be 
Rolfe  V.  Hewitt,  227  N.  Y.  486,  125  N.  liable  if  the  driver  without  authority 
E.  804:  Gresh  v.  Wanamaker,  237  Pa.  takes  a  passenger,  but  such  passenger 
St.  13.  84  Atl.  1108;  Hughes  v.  Mur  is  injured  by  a  wanton  or  wilful  act 
doch  Storage  &  Transfer  Co.,  68  Pitts  within  the  scope  of  the  driver's  employ- 
Leg.  Journ.  (Pa.)  476,  affirmed  (Pa.)  ment.  Higbee  Co.  v.  Jackson  (Ohio), 
112     Atl.    Ill;     McQueen    v.     People's  128  N.  E.  61. 

Store  Co.,  97  Wash.  387,  166  Pac.  626;  8.  Christensen  v.   Christiansen    (Tex. 

Seidl  V.  Knap    (Wis.),  182  N.  W.  980.  Civ   App.),  155  S.  W.  995. 

See  also   Carroll   v    City  of   Yonkers,  9.  Donahue  v.  Vorenberg,  227  Mass. 

193  N.   Y.   App.   Div.    655,   184   N.   Y.  1,  116  N.  E.  246.     See  also  Howard  v. 

Suppl.   847;    Rook  v.   Schultz    (Or^. ),  Marshall  Motor  Co.,  106  Kans.  775.  190 

198  Pae.  234.  Pac.  11:  Kennedy  v.  Knott.  264  Pa.  St. 

7.  Walker  v.   Fuller,   223  Mass.   566.  26,  107  Atl.  390. 

112  N.  E.  230.    Compare  Royal  Indemn-  10.  Swancutt   v.   Trout   Auto   Livery 

ity  Co.   V.   Piatt  &  Washburn   Refining  Co.,  176  111.  App.  606. 


820 


The  Law  of  Automobiles. 


for  the  negligence  of  such  person,  unless  the  servant  has  au- 
thority, express  or  implied,  to  emploj^  him,  or  unless  the  em- 
ployment is  ratified  by  the  master."  But  where  it  is  the  duty 
of  a  chauffeur  to  demonstrate  an  automobile  for  the  benefit  of 
a  proposed  purchaser  thereof,  he  is  acting  within  the  scope 
of  his  employment  when  he  permits  the  servant  oi*  the  pro- 
posed purchaser  to  run  the  car.^^  ^^(j  one  to  whom  the  driver 
has  intrusted  the  operation  of  the  machine  while  the  driver 
takes  another  position  to  ascertain  the  trouble  with  the  opera- 
tion of  the  machine,  may  be  classed  as  a  servant  of  the  owner 
so  far  as  third  persons  are  concerned.^^  In  some  States  the 
rule  is  applied  that,  when  the  master  intrusts  the  perform- 
ance of  an  act  to  a  servant,  he  is  liable  for  the  negligence  of 
one  who,  though  not  a  servant  of  the  master,  in  the  presei\ce 
of  his  servant  and  with  his  consent,  negligently  does  the  act 
which  was  intrusted  to  the  servant.^* 


11    White  V.  Levi  &  Co.,  137  Ga.  269, 
73  S.  E    376. 

Helper. — Where  in  an  action  to  re- 
cover for  personal  injuries  received  by 
the  plaintiff,  whose  pushcart  was  struck 
and  overturned  by  the  descendant's  au- 
tomobile truck,  it  appears  that  the  de- 
fendant's truck,  which  was  used  to  de- 
liver express  packages,  was  in  charge 
of  a  licensed  chauffeur  who  alone  was 
authorized  to  drive  the  same  and  that 
a  helper  who  rode  upon  the  truck  was 
forbidden  by  the  defendant's  rules  from 
operating  the  truck,  the  defendant  can- 
not be  held  liable  for  the  negligence  of 
the  helper  who  was  driving  the  truck 
at  the  time  of  the  accident.  But  where 
it  appears  that  the  licensed  chauffeur 
mounted  the  truck  and  allowed  the 
helper  to  drive  it  unskillfully  for  a  dis- 
tance of  sixty  feet  before  the  accident 
and  did  nothing  to  prevent  the  helper 
from  operating  the  machine  except  to 
tell  him  to  stop,  a  recovery  can  be 
predicated  upon  the  negligence  of  the 
licensed  chauffeur.  Esposito  v.  Ameri- 
can Rep.  Exp.  Co.,  194  N.  Y.  App.  Div. 
3t7,  185  N.  Y.  Suppl.  353. 

12.  Wooding    v.    Thorn,    148    N.    Y. 


App.  Div.  21,  132  N.  Y.  Suppl.  50. 

Liability  of  proposed  purchaser. — 
Where  one  contemplating  the  purchase 
of  an  automobile  sends  his  servant, 
who  is  a  man  of  all  work,  to  the  ga- 
rage to  examine  the  engine  of  the  car 
and  report  its  condition,  he  is  not  liable 
for  injuries  occasioned  by  the  running 
of  the  machine  by  stieh  ser^'ant.  Wood- 
ing V.  Thorn,  148  N.  Y.  App.  Div.  21. 
132  K  Y.  Suppl    50. 

13.  Thomas  v.  Lockwood  Oil  Co. 
(Wis.).  182  N.  W.  841. 

14.  Geiss  V.  Twin  City  Taxicab  Co., 
120  Minn.  368,  139  N.  W.  611;  Sloth- 
wer  V.  Clark.  191  Mo.  App.  105,  179  S. 
W.  55;  Dillon  v.  M'undet.  145  N.  Y. 
Suppl.  975. 

Coacbman  permitting  son  of  owner 
to  run  car.— In  an  action  brought  to 
recover  damages  for  personal  injuries 
sustained  by  the  plaintiff  in  conse- 
quence of  the  alleged  negligent  man- 
agement of  an  automobile  owned  by 
the  defendant,  it  appeared  that  im- 
mwliately  before  the  accident  the  de- 
fendant, accompanied  by  his  son  and 
his  coachman,  had  gone  to  the  railway 
station     in    the    automobile    and    had 


Liability  for  Act  of  Driver.  821 

Sec.  640.  Liability  for  conduct  of  chauffeur  —  procurement 
of  repairs  to  machine. 

A  chauffeur  directed  to  take  steps  for  the  repair  of  the  ma- 
chine may  be  authorized  to  operate  it  to  the  extent  reasonably 
necessary  to  carry  out  such  instructions ;  and  the  fact  that  he 
becomes  intoxicated  and  makes  a  trip  to  the  garage  which  is 
not  strictly  necessary,  does  not  relieve  the  master  from  lia- 
bility for  his  negligence.'^  But  a  chauffeur  in  charge  of  his 
employer's  car  has  no  implied  or  apparent  authority  to  order, 
upon  the  credit  of  his  employer,  permanent  repairs  thereto, 
or  any  repairs  other  than  such  as  are  necessary  to  enable  him 
to  proceed  upon  his  journey.^''  It  would  seem  that  supplies 
purchased  by  a  chauffeur  which  are  reasonably  necessary  for 
the  purpose  of  continuing  his  journey,  which  in  itself  is  au- 
thorized, may  be  purchased  by  him,  and  his  employer  will  be 
compelled  to  pay  the  bills.  The  theory  of  this  rule  is  that 
the  chauffeur,  having  been  ordered  to  proceed  to  a  certain 
place,  necessarily  must  have  authority  to  buy  the  things  neces- 
sary to  carry  him  there,  such,  for  instance,  as  gasoline,  oil 
and  probably  parts  of  the  car  which  have  become  lost  or 
broken.  But  there  is  no  authority  to  make  any  permanent  re- 
pairs to  the  car.  Most  certainly  a  chauffeur  would  not  have 
authority  to  have  a  car  repainted,  unless  he  were  expressly 
given  the  power  to  do  so,  or  to  have  new  shoes  put  on  the  car. 
However,  the  chauffeur's  authority  in  these  respects  might 

there  left  the  automobile;  that  at  the  neglected  his  duty  in  that  regard  and 
time  the  accident  occurred  the  defend-  allowed  the  son  to  run  the  machine, 
ant's  son  and  coachman  were  the  occu-  and  by  the  negligence  of  the  son  the 
pants  of  the  automobile  and  that  the  accident  occurred,  without  contribu- 
8on  was  guiding  and  controlling  it.  It  tory  negligence  on  the  plaintiff's  part, 
was  a  disputed  question  whether  the  then  in  either  case  the  defendant  is 
defendant  on  leaving  the  machine  had  responsible  and  liable  for  tliat  un- 
committed the  custody  thereof  to  his  ligenco  and  its  consequences.  Collard 
son  or  to  his  coachman.  It  was  held.  v.  Beach,  81  N.  Y.  App.  Div.  ."582,  81 
that  the  court  might  properly  charge:  N.  Y.  Suppl.  619. 

"If  the  jury  find   either  that  the  de-  15.  Whimster       v.       Holmes       (Mo. 

fendant  left  the  automobile  in  charge  App.),  190  S.  W.  62. 
of    hist   ison    to    take    it    home,    or    in  16.  Gage  v.    Callanan.   57  Misc.    (N. 

charge    of    his    son    and    coachman    to-  Y.)   479,  109  N.  Y.  Suppl.  844.  reverse*! 

gether  to  take  it  home,  or  in  charge  of  on  other  grounds.  128  N.  Y.  App   Div. 

the  coachman  alone,  and  the  coachman  752,  113  N.  Y.  Suppl.  227. 


822  The  Law  of  Automobiles. 

be  presumed  by  law,  where,  according  to  the  custom  of  deal- 
ing between  the  supply  man  and  the  owner,  the  chauffeur  has 
been  given  full  authority  to  order  whatever  is  necessary  for 
the  car,  as  though  he  were  the  owner.  In  such  a  case  custom 
would  broaden  the  authority  of  the  agent.  The  tendency  of 
the  court  decisions  is  to  hold  that  the  owner  is  not  responsible 
for  the  acts  of  his  chauffeur,  unless  it  is  alleged  and  proved 
that  at  the  time  of  the  commission  of  an  injury  the  chauffeur 
was  acting  for  the  master. 

Sec.  641.  Liability  for  conduct  of  chauffeur  —  chauffeur  fur- 
nished by  another. 

A  master  may  lend  his  servant  to  another  person  so  that  in 
a  particular  transaction  the  former  relation  of  master  and 
servant  is  temporarily  discontinued,  and  such  person  rather 
than  the  former  master  is  responsible  for  the  negligent  acts 
of  the  servant.^'  Thus,  the  fact  that  ordinarily  the  driver  of 
an  automobile  is  in  the  general  employ  of  another  person  will 
not  absolve  the  owner  from  liability  in  a  particular  transac- 
tion where  he  has  borrowed  the  servant  to  drive  the  machine 
in  his  own  business.^^  Where  an  automobile  company  stores 
the  machine  of  an  owner  and  furnishes  a  driver  to  such  owner 
upon  request  as  needed  to  operate  the  car.  such  driver  is 
deemed  a  servant  of  the  owner  while  driving  the  car  pur- 
suant to  his  instructions,  and  the  ow'ner  is  liable  for  his  negli- 
gence.^^   The  situation  may  be  somewhat  diffei-ent  when  the 

17.  Janik  v.  Ford  Motor  Co.,  180  the  servant  nt  defendant  as  long  as 
Mich.  557,  147  N.  W.  510,  52  L.  R.  he  had  charge  of  and  was  operating 
A.  (N.  S. )  294;  McHarg  v.  Adt,  163  the  latter's  car  on  the  morning  of  the 
N.  Y.  App.  Div.  782,  149  N.  Y.  Suppl.  accident.  A  person  may  be  in  the  em- 
244;  Grouse  v.  Lubin.  260  Pa.  329,  103  ployment  and  pay  of  another  person 
Atl.  725.  See  also  Rtissell  v.  Scharfe  and  yet  not  necessarily  make  the  lat- 
(Ind.),  130  N.  E.  437.  ter  the  master  and  responsible  for  his 

18.  Wennell  v.  Dowson,  88  Conn.  acts  .  The  master  is  the  person  in 
710,  92  Atl.  663;  Grouse  v.  Lubin,  260  whose  business  he  is  engaged  at  the 
Pa.  329.  103  Atl,  725.  time,  and  who  has  the  right  to  control 

19.  Jimmo  v.  Frick,  255  Pa.  St.  353,  and  direct  his  conduct.  .  .  .  The 
99  Atl.  1005,  wherein  it  wa,s  said:  relation  of  master  and  ser\iant  was 
"It  is  clear,  we  think,  that,  while  Gan-  created  between  the  defendant  and  the 
Don  was  in  the  general  employment  chauffeur,  and,  &s  Gannon  was  driving 
of   the    automobile    <^'ompany,    l.c    was  the  car  on  Frick's  business  at  the  time 


Liability  for  Act  of  Driver.  823 

automobile  company  sends  its  servant  with  the  owner's  ma- 
chine to  the  residence  or  place  of  business  of  the  owner  or  is 
taking  it  back  for  storage;  while  making  such  trip,  the  driver 
is  in  the  employ  of  the  automobile  company  and  not  in  the 
service  of  the  owner.^*'  In  such  a  case,  the  company  may  be 
liable  for  the  negligence  of  the  driver  it  furnishes.^^  ]\[ore- 
over,  where  a  garage  company  or  automobile  company  stores 
an  owner's  car  and  furnishes  a  driver  as  needed  by  the  owner, 
the  driver  may  be  deemed  the  servant  of  such  company  dur- 
ing the  time  he  is  driving  the  owner,  where  such  owner  does 
not  assume  to  control  the  manner  or  method  of  the  driving 
further  than  to  tell  the  driver  where  to  go}^  Where  a  person 
took  his  automobile  to  an  antomobile  company  to  have  a 
** rattle"  in  the  car  located,  and  an  employee  of  the  company 
got  into  the  car  and  rode  with  the  owner,  and  later,  at  the 
suggestion  of  the  owner,  the  employee  drove  the  machine 
until  it  collided  with  a  street  car  and  the  o^vner  was  injured, 
it  was  held  that  the  negligence  of  the  driver  could  )iot  be  im- 
puted to  the  company,  it  appearing  that  the  company  had  no 
authority  to  control  the  employee  in  driving  it  and  that  the 
company  had  not  assumed  the  service  of  driving  or  operating 
it.23 

af  the  accident  and  was  under  Friek's  trol.'  "     See  also  Buk.T  v.  Honieopatliic 

control,  the  latter  was  responsible  for  Hospital,   190  App.  Div.   39,  179  N.  Y. 

the   chauffeur's   negligence.      The   prin-  Suppl.  675,  modified  231  N.  Y.  8. 

ciple   controlling  the   case   is   well   set-  20.  Sweetman    v.    Snow,    187    Mich, 

tied  by  many  authorities,  and  it  is  cor-  169,   158  N.  W.  770;  Neff  v.  Brandeis, 

rectly'  stated   in   Kimball   v.   Cushman.  ,91  Neb.  11,  135  N.  VV.  232,  39  L.  R.  A. 

103  Mass.   194.  4  Am.  Rep.  528,  where  (N.  S.)   933;   Luckett  v.  Reighard,  248 

it   is   said:      'It  is   not   necessary   that  Pa.  St.  24,  93  Atl.  773,  Ann.  Cas.  1916 

he  should  l>e  shown  to  have  l>e('n  in  the  A.  662. 

general  emploj^ent  of  the  defendant,  21.  Luckett  v.  Reighard,  248  Pa.  24, 
nor  that  he  should  be  under  any  93  Atl.  773,  Ann.  Cas  1916  A.  662. 
special  engagement  of  senice  to  him,  22.  Dalrymple  v.  Covey,  etc.,  Co.. 
or  entitled  to  .  .  .  compensation  66  Oreg.  533,  135  Pac.  91,  48  L.  R.  A. 
from  him  directly.  It  is  enough  that,  (N.  S.)  424;  Oulette  v.  Superior  Mo- 
at the  time  of  the  accident,  he  was  in  tor  &  M.  Works,  157  Wis.  531.  147  N. 
charge  of  the  defendant's   property   by  W.   1014. 

his    assent   and    authority,    engaged    in  23.   Bastion   v.    Ford   Motor   Co..    189 

his   business,    and,    in    respect    to   that  Til.   .-Vpp.  367. 

property  and   business,   under   his   eon-  , 


824 


The  Law  of  Automobiles. 


Sec.  642.  Liability  for  conduct  of  chauffeur  —  car  loaned  to 
third  person. 

Although  the  rule  may  be  changed  by  statute,^*  it  is  gen- 
erally held  that  the  owner  of  a  motor  vehicle  may  loan  the 
machine  to  another  person,  and,  while  the  latter  uses  it  for 
his  own  purposes,  the  owner  is  not  liable  for  the  negligence 
of  the  driver.^^  Thus,  if  one  rents  his  automobile  to  another 
who  furnishes  a  driver  and  uses  it  for  his  own  purposes,  lia- 
bility is  not  imposed  on  the  owner  for  the  negligent  acts  of  the 
driver.^''  Nor  is  the  negligence  of  the  bailee  imputed  to  the 
owner  so  as  to  defeat  the  owner's  right  of  action  against  a 
third  person  negligently  injurying  the  machine.^'  The  prin- 
ciple involved  is  the  same  as  when  the  owner  loans  his  ma- 
chine to  his  own  chauffeur  for  private  purposes  of  the  latter, 
and  the  liability  of  the  master  is  avoided  for  the  same  rea- 


24.  Wolf  V.  Sulik,  93  Conn.  431,  106 
Atl.  443,  4  A.  L.  R.  356;  Stapleton  v. 
Independent  Brewing  Co.,  198  Mich. 
170,  164  N.  W.  520  L.  R.  A.  1918  A. 
916.     And  see  section  626. 

25.  Alabama. — Seville  v.  Taylor,  202 
Ala.  305,   80  So.   370. 

California. — Stoddard  v.  Fiske,  35 
Cal.  App.  607,  170  Pac.  663;  Brown  v. 
Chevrolet  Motor  Co.,  39  Cal.  App.  738 
179  Pac.  697;  Gates  v.  Pendleton 
(Oal.),  195  Pac.  664. 

Illinois. — Arkin  v.  Page,  287  111. 
420,  123  N.  E.  30. 

Kansas. — Halverson  v.  Blosser,  101 
Kans.  683,  168  Pac.  863:  MaruUo  v. 
St.  Pasteur,  144  La.  926,  81  So.  403. 

Massachusetts. — Kennedy  v.  R.  &  L. 
Co.,  224  Mass.  207,  112  N.  E.  872; 
Phillips  v.  €k)okin,  231  Mass.  250,  120 
N.  E.  691. 

Michigan. — Eberle  Brewing  Co.  v. 
Briscoe  Motor  Co.,  194  Mich.  140.  160 
N".  W.  440. 

Minnesota. — Mogle  v.  A.  W.  Scott 
Co.,  144  Minn.  173,  174  N.  W.  832; 
Menton  v.  L.  Patterson  Co.,  145  Minn. 
310,  176  N.  W.  991. 

Missouri. — ^AUen     v.     Ooglizer,      Mo. 


App.  208  S.  W.   102. 

New  Jersey. — ^Doran  v.  Thomson,  74 
N.  J.  L.  445,  66  Atl.  897. 

New  York. — ^Stenzler  v.  Standard 
Gas  Light  Co.,  179  App.  Div.  774,  167 
N.  Y.  Suppl.  282;  Seigel  v.  White  Co., 
81  Misc.  171,  142  N.  Y.  Suppl.  318; 
ffornstein  v.  Southern.  Boulevard  R. 
Co..  79  Misc.  34,  138  K  Y.  Suppl. 
1080;  Limbacher  v.  Fannon,  102  Misc. 
703,  169  N.  Y.  Suppl.  490. 

Pennsylvania. — Dunmore  v.  Padden, 
262  Pa.   436,   105  Atl.   559. 

Tennessee. — ^Core  v.  Resha,  204  S. 
W.  1149. 

Utah. — Wright  v.  Intermountain 
Motorcar  Co.,  53  Utah,  176,  177  Pac. 
237. 

Canada. — ^See  Lane  v.  Crandell 
(No.  2),  10  Dom..  L.  R.  (Canada)  763, 
5  A.  L.  R,  42,  23  W.  L.  R.  69. 

26.  Hornstein  v.  Southern  Boule- 
vard R.  Co.,  79  Misc.  (N.  Y.)  34,  138 
N.  Y.  Suppl.  1080 

27.  Fischer  v.  International  Ry.  Co., 
112  Misc.  (N.  Y.)  212,  182  N.  Y. 
Suppl.  313;  Lloyd  v.  Northern  Pac.  R. 
Co.,  107  Wash.  57,  181  Pac.  29,  6  A. 
L.  R.  307 


Liability  fob  Act  of  Driver.  825 

sons.2«  A  presumption  of  liability  may  arise  from  the  owner- 
ship of  the  vehicle,^  but,  in  such  a  case,  the  presumption  is 
deemed  to  be  overcome  by  facts.^"  Where  it  appears  that  at 
the  time  one  was  injured  by  an  automobile  o^vned  by  the  de- 
fendant, it  was  in  charge  of  a  designer  employed  by  defend- 
ant, to  whom  the  automobile  had  been  loaned  on  request  of  tho 
designer  for  his  purposes  only,  defendant  is  not  responsible 
for  the  negligence  of  the  designer.^^  And  where  a  corporation 
loaned  the  use  of  its  motor  truck  to  a  social  organization  of 
its  employees  to  be  used  to  carry  them  to  and  from  a  picnic 
which  the  employees  had  organized,  and  the  person  driving 
the  truck,  who  was  one  of  the  employees,  while  returning 
members  of  the  party  to  their  homes  on  his  way  to  the  garage, 
collided  with  a  vehicle  driven  by  the  plaintiff,  the  defendant 
is  not  liable  for  damages  as  a  matter  of  law,  as  the  truck  at 
the  time  was  not  being  used  in  the  business  of  the  employer. 
And  this  is  true  although  the  defendant's  superintendent  told 
the  driver  of  the  truck  to  take  members  of  the  party  to  their 
homes.^2  The  fact  -that  the  owner  of  the  car  or  some  of  his 
family  is  riding  therein  does  not  render  him  liable  for  the 
negligence  of  the  driver  where  he  is  riding  merly  as  a  guest 
of  the  persons  to  whom  it  is  loaned  and  exercises  no  control 
over  its  operation.^  If  the  person  to  whom  the  machine  is 
loaned  is  an  incompetent  driver,  it  may  be  that  the  owner  can 
be  charged  with  negligence,  but  it  is  necessary  in  such  a  case 
that  the  injured  person  assume  the  burden  of  showing  that 
the  driver's  want  of  skill  was  known  to  the  owner.^* 

Sec.  643.  Liability  for  conduct  of  chauffeur  —  car  and  driver 
loaned. 

In  the  case  of  the  loan  of  a  vehicle,  liability  is  not  imposed 
on  the  owner  merely  because  the  driver  of  the  machine  is  in 

158.  Section  631.  Oo..   179  N.  Y.  App.  Div.  774,  167  N. 

29.  Section  673.  Y.   Suppl.   282. 

30.  Hornatein  v.  Southern  Boule-  33.  Halverson  v.  Blosser,  101  Kans. 
vard  R.  Co.,  79  Misc.  (N.  Y.)  34,  138  683,  168  Pac.  863;  Pease  v.  Montgom- 
N.  Y.  Suppl.   1080.  ery,  111  Me.  .'582,  88  Atl.  973. 

31.  Seigel  t.  Wliite  Co.,  81  MiPC.  34.  Berille  v.  Taylor.  202  Ala  305. 
(N.  Y.)    171,  142  N.  Y.  Suppl.  318.  80  So.  370. 

32.  Stenzler    v.    Standard   Gae    Light 


826  The  Law  of  Automobiles. 

his  general  employ .^^  The  master  is  not  ordinarily  liable  for 
the  negligence  of  his  servant  when  acting  under  the  control 
of  another  person  and  engaged  solely  in  the  private  business 
of  such  person.^  Servants  who  are  employed  and  paid  by  one 
person  may  nevertheless  be  ad  hoc  the  servants  of  another  in 
a  particular  transaction.^''  The  test  of  liability  is  generally 
the  control  of  the  driver  at  the  time  of  the  particular  occasion 
under  investigation;  if  the  owner  has  the  control,  he  may  be 
liable;  if  not,  the  person  injured  should  look  to  another  for 
recompensed^  Thus,  the  owner  of  a  car  may  loan  the  machine 
and  his  chauffeur  to  a  relative,  and  while  the  machine  is  used, 
for  purposes  other  than  the  owner's  business,  he  is  not  liable 
for  the  negligence  of  the  driver.'^  Where  two  brothers  owned 
motor  cars  and  agreed  that  either  could  use  the  car  of  the 
other  as  he  desired,  the  owner  of  one  car  is  not  liable  for  in- 
juries to  a  pedestrian  occurring  through  the  negligence  of  the 
chauffeur  while  the  car  was  being  used  by  his  brother  in  his 
own  business,  even  if  the  chauffeur  driving  the  ear  were  em- 
ployed and  paid  by  the  owner.***  Or  the  owner  may  lend  his 
car  and  driver  to  his  guests  so  that  while  they  are  using  it 
tho  owner  is  relieved  from  liability  for  the  driver's  negli- 
gence; but  such  a  case  is  to  be  carefully  distinguished  from 
the  situation  where  the  machine  is  not  loaned  but  the  owner 
is  attempting  to  furnish  transportation  and  pleasure  to  his 

35.  Kennedy     v.    E.    &    L.    Co.,    224       Minn.  68,  140  N.  W.  184. 

Mass.    207,    112    N.    E.    872;    Clark   v.  38.  Hutchinson    v.    Fawkos    (Minn.), 

Buckmobile   Co.,    107  N.  Y.  App.   Div.  180  N.  W.   116;   Colwell  v.  Saperston, 

120.  94  N.  Y.  Suppl.  771;  Cunningham  149   App.   Div.   373,    134  N.  Y.    Suppl. 

V.  Castle,  127  N.  Y.  App.  Div.  580,  111  284;   McHarg  v.  Adt,   163  N.  Y.   App. 

N.   Y.   Suppl.    1057;    Dunmore  v.    Pad  Div.   782,  149  N.  Y.  Suppl    244;  Nor- 

den,  262  Pa.   486,   lOo  All.  559.  wegian  News   Oo.   v.    Simokovitch,   112 

36.  Carr  v.  Burke,  183  N.  Y.  App  Misc.  (N.  Y.)  141,  182  N.  Y.  Suppl. 
Div.  361,  169  Suppl.  981.  595. 

37.  Pease  v.  Gardner,  113  Me.  264.  39.  Burns  v.  Jackson  (Oal.  App.), 
93  Atl.  550;  Ounningiiam  v.  Castle,  200  Pae.  80;  Shevlin  v.  Schneider,  193 
127  N.  Y.  App.  Div.  580.  Ill  N.  Y.  N.  Y.  App.  Div.  107,  183  N.  Y.  Suppl. 
Suppl.  1057;  Freibauni  v.  Brady,  143  178;  Rex  v.  .Jacques.  10  D.  L.  R. 
N.  Y.  App.  Div.  220.  128  N.  Y.  Suppl.  (Canada)   763. 

121;    McHarg  v.   Adt,   163   N.  Y.   App.  40.  Freibaum    v.     Brady,     143    App. 

Div.   782,   149  N.  Y.   Suppl.    244.     See      Div.  220.   128  N.  Y.  Suppl.   121 
also  Movers  v.  Tri-State  Auto  Co..  121 


Liability  fou  Act  of  Driver.  827 

guests.^^  In  the  latter  case  it  may  be  said  that  the  driver  is 
operating  the  car  within  the  scope  of  the  master's  business, 
and  the  liability  of  the  owner  may  continue  though  he  is  not 
riding  in  the  machine/" 

Sec.  644.  Liability  for  conduct  of  chauffeur  —  owner  letting 
car  for  hire. 

When  the  owner  of  a  motor  vehicle  rents  the  same  to  an- 
other person  and  the  latter  furnishes  his  own  chauffeur,  the 
chauffeur  is  thought  to  be  in  the  employ  of  the  hirer  rather 
than  of  the  owner,  and  the  owner  is  not  liable  for  his  negli- 
gence when  following  the  directions  of  the  hirer.*-''  The  situa- 
tion is  the  same  if  the  hirer  himself  drives  the  vehicle.''*  But 
the  situation  is  different  when  the  owner  of  a  vehicle  rents 
for  hire,  not  only  the  machine,  but  also  a  driver.  If  the  hirer 
exercises  no  control  or  supervision  over  the  driver  as  to  the 
management  of  the  machine,  except  to  direct  him  as  to  the 
route  and  direction  and  similar  matters,  the  owner  is  respon- 
sible for  the  negligence  of  the  driver.'-^     The  fact  that  the 

41.  Campbell  v.  Arnold.  2H>  Mass  Massachusetts. — Tornroos  v.  R.  H. 
160,  106  N.  E.  599;  Kennedy  v.  R.  eV^  White  Co.,  220  Mass.  336,  107  N.  E. 
L.  Co..  224  Mass.  207,  112  N.  E.  872.  lOlS;    Sliepard    v.    Jacobs,    204    Mass. 

42.  Campbell  v.  Arnold,  219  Mass.  UO.  90  N.  E.  392,  26  L  R.  A.  (N.  S.) 
160,   106  N.  E.   599;    Kennedy  v.   R.  &  !42. 

L.  Co.,  224  Mass.  207,  112  N.  E.  872.  Minnesota. —   Meyers      v.      Tri-State 

43.  Neubrand  v.  Kra-ft,  169  Iowa,  Auto  Co.,  121  Minn.  68,  140  N.  W. 
444,   151  N.  W.  455,  L.  R.  A.   1915  D.       184,  44  L.  R.  A.    (N.  S.)    113. 

691;   Hornstein  v.  Southern  Boulevard  Missouri. — Fitzgerald      v.      Cardwell 

R.  Co.,  79  Misc.   (N.  Y.)   34,  138  N.  Y.  (Mo.  App.),  226  S.  W.  971. 

Snppl.   1080.  ^eio  Jersey. — Rodenburg   v.    Clinton 

44.  Atkins  v.  Points,  148  I>a.  — ,  88  Auto  &  Garage  Co.,  85  N.  J.  L.  729, 
So.  23 J.  SI  Atl.  1070. 

45.  Arkansas. — Forbes  v.  Reinman,  A'eir  York. — MoMamara  v.  Leipzig, 
112  Ark.  417,  166  S.  W.  563,  51  L.  R.  227  N.  Y.  291,  125  N.  E.  244,  8  A.  L. 
A.    (N.  S.)    1164.                                             R.    480;     Schweitzer    v.    Thompson    & 

/iHwois.— Johnson    v.    C^y,    237    111.  Norris   Co.,   229   N.   Y.   97,    127   N.   E. 

88,  86  N.  E.  678,  21  L.  R.  A.   (N.  S.)  904;    Harding   v.    City   of   New   York, 

81;  Dunne  v.  Boland,  199  111.  App.  308.  181   N.   Y.   App.   Div.    251,    168   N.   Y. 

Indiana. — Sargent      Paint      Co.      v.  Suppl.   265;    Grastataro  v.   Brodie,   189 

Petrovitsky     (Ind.    App.),     124    N.    E.  App.    Div.   779,    179   N.   Y.   Suppl.   324; 

fiSl.  Wagenor     v.      Motor     Truck      Renting 

Louisiana. — Wilkinson       v.       Myatt-  (  orp..    197    App.    l>iv.    371;    Norwegian 

Dicks   Motor   Co.,    136  I^.   977,   68   So.  News  Co.  v.  Simkovitch,  112  Misc.   (N. 

96.  V.)    141,   182  N.  Y.   Suppl.   595;   Wald- 


828 


The  Law  of  Automobiles. 


owner  only  occasionally  lets  automobiles  for  hire  is  not  im- 
portant, for  the  rule  does  not  depend  on  the  frequency  with 
which  the  act  is  done.'"'  But  if  the  machine  and  its  driver  are 
hired  for  a  particular  purpose  or  to  go  to  a  particular  place, 
the  owner  may  not  be  liable  for  the  act  of  the  driver  while 
diverging  from  the  purpose  for  which  the  car  was  hired.*^^ 
And,  if  the  hirer  exercises  the  sole  control  over  the  machine 
and  the  driver,  the  hirer,  not  the  owner,  is  liable  for  the 
driver's  negligence.*'    The  question  necessarily  depends  upon 


man  v.  Picker  Bros.,  140  N.  Y.  Suppl. 
1019. 

Pennsylvania. — Wallace  v.  Keystone 
Automobile,  239  Pa.  St.  110.  86  Atl. 
699;  Neumiller  v.  Acme  Motor  Car 
Co.,  49  Pa.  Super.  Ct.  183. 

Texas. — Routledge  v.  Rambler  (Civ. 
App.),  95  S.  W.  749. 

Wisconsin. — Gerretson  v.  Rambler, 
149  Wis.  528.  136  N.  W.  186,  40  L.  R. 
A.  (N.  S.)  457.  See  also  Wagner  v. 
Larsen,  182  N.  W.  336. 

And  see  chapters  IX  and  X,  as  to 
the  hire  of  motor  vehicles. 

46.  Meyers  v.  Tri-State  Auto  Co., 
121  Minn.  68,  140  N.  W.  184. 

46a.  Fritz  v.  F.  W.  Hochspeier  Co., 
287  111.  574,  123  N.  E.  51. 

47.  California.. Burns  v.  South- 
ern Pac.  Co.  (Oal.  App.),  185  Pac.  875. 

Georgia. — Greenburg  &.  Bond  Co.  v. 
Yarborough  (Ga.  App.),  106  S.  E.  624. 

Indiana. — 'Sargent  Paint  Co.  v. 
Petrovitsky  (Ind.  App.).  124  N.  E. 
881. 

Massachusetts. —   Melchionda  v. 

American  Locomotive  Ck).,  229  Mass. 
202,  118  N.  E,  265. 

Missouri. — Simmons  v.  Murray  (Mo. 
App.),  232  S.  W.  754. 

Tfew  York. — ^McNamara  v.  Leipzig, 
180  N.  Y.  App.  IMv.  515,  167  N.  Y. 
Suppl.  981.  8  A.  L.  R.  480;  Carr  v. 
Burke,  183  N.  Y.  App.  Div.  361,  169 
N,  Y.  Suppl.  981;  De  Perri  v.  Motor 
Haulage  Co.,  185  N.  Y.  App.  Div.  384, 
173  N.  Y.  Suppl.  189;  Finnegan  v. 
Piercy  Contracting  Co.,  189  N.  Y.  App. 


Div.  699,  178  N.  Y.  Suppl.  785;  Brax- 
ton V.  Mendelson,  190  N.  Y.  App.  Div. 
278,  179  N.  Y.  Suppl.  845;  Diamond 
V.  Sternburg,  etc,  Co.,  87  Misc.  305. 
149  N.  Y.  Suppl.  1000. 

"The  vexed  question  as  to  when  and 
under  what  circumstances  the  servant 
of  one  master  is  transferred  to  the 
service  of  another  is  the  subject  of 
many  decisions  which  are  in  apparent 
conflict  one  with  the  other.  It  seems 
plain  that  the  owner  of  a  car,  who 
gratuitously  lends  his  car  with  his 
chauffeur  to  another  person,  with  the 
consent  of  the  chauffeur,  express  or 
implied,  is  thereby  absolved  from  all 
acts  of  the  chauffeur  while  he  is  in  the 
service  of  the  new  master.  The  mo- 
ment, however,  a  bailment  of  the  car 
and  services  of  the  chauffeur  are  made 
for  a  money  consideration,  the  same 
moment  difficulty  ensues  in  determin- 
ing in  and  about  whose  business  the 
chauffeur  is  then  acting.  Clearly, 
when  he  is  earning  money  for  his 
original  master  and  owner  of  the  car, 
he  is  about  his  master's  business;  the 
master's  liability  for  his  servant's  acts 
should  not  cease  unless  it  is  clearly 
apparent  that  entire  dominion  and  con- 
trol of  the  car  and  the  servant  are  no 
longer  present  in  the  owner.  As  has 
been  repeatedly  stated,  the  8er\'ant 
must,  in  the  course  of  the  master's  em- 
ployment, be  doing  the  work  of  the 
master  under  the  will,  direction  and 
control  of  the  master  throughout  all 
the  details  of  the  work. ' '     Norwegian 


Liability  for  Act  of  Drivee. 


829 


whether  the  owner  or  the  hirer  is  the  party  in  control  of  the 
driver;  the  contract  of  hiring  may  be  made  either  way,  gen- 
erally hinging  on  the  use  the  hirer  desires  of  the  machine  and 
its  operator.  Thus  frequently  a  question  may  be  presented 
within  the  province  of  the  jury.^^  The  same  troublesome  ques- 
tion arises  Avith  reference  to  whether  the  negligence  of  the 
driver  shall  be  imputed  to  the  hirer  in  case  of  an  injury  to 
the  latter;  if  the  hirer  has  control  of  the  driver,  negligence 


News  Co.  V.  Simkovitch,  112  Misc.    (N. 
Y.)    141,  182  N.  Y.  Suppl.  595. 

Washington. — Olson  v.  Veness,  105 
Wash.  599,  178  Pac.  822;  Olson  v. 
Clark,  191  Pac.  810. 

Rent  of  machine  by  garage. — Wliere, 
in  an  action  to  recover  damaj^es  for 
the  death  of  plaintifT's  intestate,  a  boy 
eight  years  of  age,  wlio  was  struck 
and  killed  through  the  negligence  of 
the  chaufTeur  of  an  automohlle  in 
which  the  defendant  was  ridirg,  it  ap- 
pearerd  that  a  garage  company  had, 
under  a  written  agreement,  rented  and 
turned  over  to  the  defendant  for  a 
period  of  three  months  an  automobile 
and  the  services  of  a  chaufTeur,  and 
had  exercised  no  control  either  over 
the  automobile  or  the  chauffeur  dur- 
ing the  period  of  the  agreement,  and 
had  instructed  the  chauffeur  to  take 
his  orders  from  the  defendant,  and  the 
defendant  not  only  gave  the  chauffeur 
all  of  his  orders  but  actually  inter- 
fered with  the  operation  of  the  auto- 
mobile by  8ul)stituting  his  judgment 
for  that  of  the  chauffeur  as  to  the 
route  to  be  taken  on  the  occasion  of 
the  accident,  said  chauffeur,  although 
in  the  general  employment  of  the  ga- 
rage companj',  had  become  pro  hoc  mce 
the  servant  of  the  defendant,  so  as  to 
render  him  liable  for  the  negligence. 
McNamara  v.  Leipzig,  180  N.  Y.  App. 
Div.  515,  167  N.  Y.  Suppl.  981,  8  A. 
L.  R.  480. 

Agreement     that     owner     shall     be 
deemed    master. — Where     a     company 


tomobile  trucks  agreed  with  its  lessee 
that  tlie  employees  on  the  trucks 
would  he  furnished  by  the  lessor  and 
should  he  under  its  control  and  that 
the  relation  of  master  and  senant 
should  not  exist  between  such  em- 
ployees and  the  lessee  so  that  no  claim 
for  damages  could  be  made  against  the 
lessee,  and  ib  was  further  provided 
that  the  lessor  would  indemni''y  the 
lessee  for  any  legal  liability  arising 
through  the  acts  of  the  chauffeurs 
furnished  by  the  lessor,  which  also 
agreed  to  take  out  indemnity  insur- 
ance for  the  benefit  of  the  lessee,  such 
agreement  does  not  inure  to  the  bene- 
fit of  a  person  who  was  injured  by  a 
motor  truck  while  engaged  in  deliver- 
ing the  goods  of  the  lessee,  the  chauf- 
feur being  at  the  time  subject  to  the 
directions  and  orders  of  the  lessee. 
Irrespective  of  the  ultimate  liability 
as  between  lessor  and  lessee  the  lia- 
bility for  the  injury  to  the  third  per- 
son depends  upon  the  question  as  to 
who  had  the  direction  and  control  of 
the  chauffeur  at  the  time  of  the  acci- 
dent and  in  wliose  business  he  was 
then  engaged,  and  recourse  to  the  con- 
tract can  be  had  to  determine  these 
questions.  Knnegan  v.  Piercy  Con- 
tracting Co.,  189  N.  Y.  App.  Div.  699, 
178  N".  Y.  Suppl.  785. 

48.  Sargent  Paint  Co.  v.  Petrovitsky 
(Ind.  App),  124  N.  E.  881;  Conroy  v. 
Murphy  Transfer  Co.  (Minn.),  180  N. 
W.  704;  M'cCale  v.  Lynch  (Wash.), 
188  Pac.  517;  Olson  v.  Clark  (Wash.) 
191  Pac.  810. 


830  The  Law  of  Automobiles. 

may  be  imputed;  if  he  does  not  have  such  control,  the  driver's 
negligence  is  not  generally  imputed/^ 

Sec.  645.  Liability  for  conduct  of  chauffeur  —  independent 
contractor  having  possession  of  machine. 

When  one,  who  is  classified  by  the  law  as  an  independent 
contractor  has  possession  of  an  automobile,  the  owner  is  not 
generally  liable  for  his  negligence  in  operating  it.^'^  Thus, 
where  the  owner  of  an  automobile  delivers  it  to  a  mechanic 
for  repairs  and  surrenders  the  entire  control  thereof  to  him, 
such  mechanic  is  not  a  servant  of  the  owner  but  is  an  inde- 
pendent contractor,  and  the  owner  is  not  liable  for  the  negli- 
gence of  the  contractor  or  servant  in  running  the  car.^^  And 
this  may  be  true  though  the  owner  is  riding  in  the  machine 
at  the  time  the  mechanic  is  testing  it.^^  Where  the  adminis- 
trator of  an  estate  employes  a  garage  man  to  repair  auto- 
mobiles belonging  to  the  estate  for  the  purpose  of  a  public 
sale,  he  is  not  personally  liable  to  a  third  person  for  personal 
injuries  caused  by  a  garage  man  in  running  the  machines  to 
and  from  the  premises  of  the  estate.^  The  fact  that  an  owner 
who  is  engaged  in  carrying  passengers  for  hire  gives  the 
driver  a  share  of  the  receipts,  does  not  establish  that  such 
driver  is  an  independent  contractor,  and  the  owner  may  be 
liable  for  his  negligence.^*    But  where  the  purchaser  of  an 

49    Harding   v.    City    of   New   York,  App.    799.    92    S.    E.    295;    Whalen    v. 

181    N.    Y.   App.   Div.   251,    168   N.   Y.  Sheehan     (Mass.),     129     N.     E.     379; 

Sup-1    265.     And  see  sections  679-687.  Woodcock  v.   Sartle,  84  Misc.    (N.  Y.) 

50.  Whalen  v.  Sheehan    (Mass.),  129  488,    146   N.   Y.    Suppl.    540;    Perry   v, 

N.    E.    379;    Bosso   v.   Boston    Store  of  Fox.  93   Misc.    (N.  Y.)    89,   156  K   Y. 

Chicago,   195   111    App.   133;    Woods  v.  Suppl.   369. 

Bowman,    200    111.    App.    612;     Terry  52.  Lafitte    v.    Schunamann,    19    Ga. 

Dairy    Co.    v.    Parker     (Ark.),    223    S.  App.   799,   92   S.  E.  295. 

W.    6;    Luckie    v.    Diamond    Coal    Co.  53.  Woods  v.  Bowman,  200  111.  App. 

(Cnl.    App.),   183  Pac.   178;   Barton  v.  612. 

Sttidcbaker     Corp.     (Cal.     App.),     189  54.  Edwards     v.      Yarbrough      (Mo. 

Pac.     1025;     Gall    v.    Detroit    Journal  App.),    201    S.    W.    972;    Fitzgerald   v. 

Co.,    191    Mich.    405    158    N.    W.    36;  Cardwell    (Mo.  App.).  226   S.  W.  971; 

Wordeoek  v.   Sartle.   84  Misc.    (N.  Y.)  King   v.   Breham   Auto   Co.    (Tex.   Civ. 

488     146  N.  Y.   Suppl.    540.     See   also  App.),    145    S.    W.    278;    McDonald    v. 

Nntional    Cash    Register    Co.    v.    Wil-  Lawrence,    170    Wash.    576,    170    Pac. 

)if>ms.  161  Ky.   550,  171  S.  W.  162,  576 

51    LafrHp    v     ScJiuramann,    39    Ga, 


Liability  for  Act  of  Driver.  83L 

automobile  delivers  it  to  another  to  drive  under  an  agreement 
that  such  driver  is  to  use  it  for  hire  and  to  pay  the  price  to 
such  purchaser  out  of  the  money  derived  from  its  use,  and 
such  purchaser  never  has  any  control  over  the  machine  after 
it  leaves  his  possession  and  never  rides  in  it,  and  such  driver 
is  not  in  the  employ  or  under  the  control  of  such  purchaser, 
the  purchaser  is  not  chargeable  with  the  negligence  of  such 
driver.^^  A  salesman  working  on  a  commission,  using  his 
own  machine,  and  having  complete  choice  of  routes  within  his 
territory,  may  be  an  independent  contractor.^^  One  employed 
to  go  to  a  place  to  get  an  automobile  for  the  o^vner  thereof 
may  be  an  independent  contractor  or  may  not,  depending  on 
the  control  which  the  owner  reserves  over  the  conduct  of  the 
driver/''  The  evidence  may  present  a  question  for  the  jury 
as  to  whether  a  driver  is  an  independent  contractor.^^ 

Sec.  646.  Liability  for  conduct  of  chauffeur  —  garage  keeper 
or  bailee  having  possession  of  automobile. 

It  is  clear  that,  when  the  owner  of  an  automobile  permits 
another  to  have  the  possession  and  use  of  it  as  a  bailee,  the 
owner  is  not  liable  for  the  negligent  conduct  of  such  bailee.^^ 
Thus,  if  he  loans  the  machine  to  another,®**  or  lets  it  for  hire,®^ 
and  such  bailee  drives  it  or  furnishes  his  own  driver,  the 
owner  is  not  responsible  for  the  negligent  operation  of  the 
machine.  Where,  in  an  action  to  recover  damages  to  plain- 
tiff's automobile,  the  result  of  a  collision  with  the  defendant's 
automobile,  it  appears  that  the  driver  of  the  defendant's  car 
was  a  garage-keeper  for  the  repair  of  cars  to  whom  the  de- 
fendant had  delivered  his  car  for  repair,  the  relation  between 

55.  Braverman    v.    Hart,    105    N.    Y.  N.  E.  379;  Emery  v.  McComhs,  180  N. 
SiiTvpl.  107.  Y.    App.    Div.    225,    167    K    Y.    Suppl. 

56.  Aldrich     v.     Tyler     Grocery    Co.  474;    Perry   v.   Fox.   93   Misc.    (N.   Y.) 
(Ala.).  89  So.   289.  Rep.  89    156  N.  Y    369. 

57.  Warns  v.  Moore,  86  N.  J.  L   710,  Statutory    enactments    may    cliange 
94  .^tl    307.  the    rule    in    some    states.      Wolf    v. 

58.  Terry      Dairy      Co.      v.      Parker  Sulik.    93    Conn.   431,   106    Atl.    443.   4 
(Ark.^.  223  S.  W.  6 :  Vaughn  v.  Davis  A.  L.  R.  356. 

(Mo    App  ).  221  S.  W.  782.  60.  Section   642. 

59.  Woods  V.  Bowman.  200  111.  App.  61.  Section  644. 
612;   \Yhalen  v.  Sheehan    (Mass.).  129 


832  The  Law  of  Automobiles. 

the  two  is  that  of  bailor  and  bailee,  and  for  the  negligence  of 
the  bailee  in  driving  the  defendant's  machine,  the  defendant 
is  not  liable.^2  g^^  too,  where  the  owner  sent  his  machine  in 
charge  of  his  chauffeur  to  a  repair  shop  to  have  it  painted, 
and  the  manager  of  the  shop  told  the  chauffeur  to  run  the  car 
upon  an  elevator  to  raise  it  to  the  third  floor,  and  while  run- 
ning the  machine  in  the  paint  shop  on  that  floor  an  injury  was 
caused  by  a  collision  with  another  car,  it  was  held  it  was  a 
jury  question  whether  at  the  time  of  the  accident  the  chauffeur 
had  ceased  to  be  the  agent  of  his  master  and  was  acting  for 
the  repair  company.^^  Likewise,  where  a  driver  employed  by 
a  garage  after  making  repairs  to  the  machine  is  testing  the 
machine  in  company  with  the  owner,  a  finding  that  he  was 
then  acting  as  a  servant  of  the  garageman  will  not  be  dis- 
turbed.^* Or  the  garage  employee,  under  similar  circum- 
stances may  be  found  to  be  the  servant  ad  hoc  of  the  owner 
and  acting  on  his  behalf  in  the  testing  of  the  machine.*^^  If 
the  garage  employee  is  using  the  machine  without  the  scope 
of  his  employment,  the  garage  owner  is  not  liable.^^ 

62.  Woodcock  v.  Sartle,  84  Misc.  shop  been  on  the  first  floor  and  the 
(N.  Y.)  488,  146  N.  Y.  Suppl.  540;  chauffeur  been  asked  to  take  the  car 
Perry  v.  Fox,  93  Misc.  (N.  Y.)  89.  to  it.  the  case  would  be  equivalent. 
156  N.  Y.  Suppl  369.  See  also  Wha-  There  is  no  presumption  of  law  tliat 
len  V.  Sheehan   (Mass.),  129  N.  E.  379.  when    a    car    stops   upon    its    first    en- 

63.  Zorn  v.  Pendleton,  163  N.  Y.  trance  a  delivery  is  effected.  It  is 
App.  Div.  33,  148  N.  Y.  Suppl.  370,  quite  as  much  as  is  due  the  defendant 
wherein  it  was  said:  "When  a  person  to  submit  to  the  jury  the  question 
takes  bis  car  to  a  place  for  repairs,  whether,  at  the  time  the  chauffeur 
the  proposed  bailee  may  indicate  where  started  the  car  forward  on  the  third 
he  wishes  it  delivered,  and  if  the  owner  floor,  he  had  for  the  purposes  of  the 
comply,  in  the  absence  of  overrulinj]:  acts  ceased  to  be  defendant's  agent  crd 
circumstances,  he  presumably  remains  servant,  and  had  become  the  servant 
in  the  custody  and  control  of  the  car  of  the  Ormond  Company." 

and    responsible    for    its    usual    opcia-  64.  Mulroy    v.    Tarrilli.    190    N.    Y. 

tion.     T  conceive  of  no  different   lo'/nl  App.  Div.  637,  180  N.  Y.  Suppl.  427. 

conclusion    if    the    owner    commit    the  65.  Clute   v.    Morey    134    Mass.    387, 

car  to  his  chauffeur.     The  car  in  the  125  N.  E.  574. 

present  instance  was  carried  to  a  pa*nt  66.  Patton    v.    Woodward    Co.    (Cal. 

shop  on  the  third  floor.     Had  the  paii.t  App.),   197  Pac.  368. 


Liability  for  Act  of  Driver.  833 

Sec.  647.  Liability  for  conduct  of  chauffeur  —  seller's  agent 
accompanying  purchaser. 

WTiere,  on  the  sale  of  a  motor  vehicle,  a  servant  of  the  seller 
accompanies  the  purchaser  to  instruct  him  in  the  operation 
of  the  machine  or  for  some  other  purpose,  and  such  servant 
is  guilty  of  negligence  contributing  to  injuries  received  by 
another  traveler,  a  difficult  question  sometimes  arises  as  to 
whether  such  servant  is  then  acting  in  the  employment  of  the 
seller  or  of  the  purchaser.  In  some  cases,  it  has  been  held 
that  the  seller  of  the  vehicle  is  liable  for  the  negligence  of 
such  a  driver.^^  In  an  English  case,  where  it  appeared  that 
the  defendant  purchased  and  paid  for  a  motor  car  in  London 
and  the  vendor  agreed  to  provide  a  driver  to  drive  the  car  to 
a  certain  place  outside  of  the  city  and  deliver  it  there,  as  the 
defendant's  driver  did  not  know  the  locality  and  had  no  ex- 
perience with  the  class  of  car  purchased;  and,  while  the  car 
was  being  driven  by  the  driver  supplied  by  the  vendor,  it 
collided  with  a  motorcycle,  it  was  held  that  the  driver  of  the 
car,  though  he  was  in  the  general  employ  of  the  vendor,  was 
at  the  time  under  the  control  of  the  defendant  and  the  latter 
was  liable  for  his  negligence.^ 

Sec.  648.  Liability  for  conduct  of  chauffeur  —  agent  trying 
to  sell  machine. 
One  having  possession  of  an  automobile  as  an  agent  of  the 
owner  for  the  purposes  of  selling  the  same,  has  implied  au- 
thority, unless  forbidden,  to  run  the  machine  to  demonstrate 
it  to  a  proposed  purchaser.^    If  guilty  of  negligence  in  so 

67.  Section  665.  tor  car,  who  has  placed  the  same  in  the 

68.  Perkins  v.  Stead,  23  Times  L.  possession  of  the  keeper  of  a  garage, 
Rep.   (Eng  )   433.  either  as  a  prospective  buyer  or  as  a 

69.  Hoffman  v.  Liberty  Motors  '""o.,  factor  or  sales  agent,  is  not  liable  for 
234  Mass.  437.  125  N.  E.  S45;  Beit-  the  negligence  of  said  garage  keeper 
rand  v.  Hunt,  89  Wash.  475.  154  Pac.  while  driving  the  car  for  demonstra- 
804.  See  also  Rollins  v.  City  of  Win-  tion,  there  being  no  relation  of  master 
ston-S:ilem,  176  N".  Car.  411,  97  S.  E.  and  servant  or  any  other  relation 
211.  But  see  Emery  v.  M'cCombs.  180  justifying  the  imputation  of  the 
N.  Y.  App.  Div.  225.  167  N.  Y.  Suppl.  driver's  negligence. 

474,   holding  that  the  owner  of  a  mo- 

53 


834  The  Law  of  Automobiles. 

running  it,  the  owner  may  be  liable  for  injuries  proximately 
resulting  from  such  negligence.  The  agent,  however,  cannot 
use  the  car  for  his  own  private  purposes,  and  his  negligence 
when  so  using  the  machine  cannot  be  chargeable  to  the  ownerJ* 
Where  an  automobile  sales  company,  in  order  to  demonstrate 
the  efficiency  of  a  truck  to  a  prospective  purchaser,  sends  it 
to  deliver  goods  under  the  care  and  control  of  its  own  driver, 
it  is  solely  liable  for  the  negligence  of  its  driver,  although  an 
employee  of  the  purchaser  accompanies  the  truck  in  order  to 
direct  the  driver  where  to  stop."^  And,  one  selling  a  machine 
may  be  liable  for  the  act  of  his  servant,  though  at  the  time  of 
the  accident  in  question  the  proposed  purchaser  was  running 
it.'^  But,  it  has  been  held  in  such  a  case,  that,  where  the 
agent  of  the  seller  permits  the  servant  of  the  purchaser  to 
run  the  machine,  it  is  a  question  for  the  jury  whether  such 
servant  was  the  agent  of  the  purchaser  for  that  purpose.'^^ 

Sec.  649.  Liability  for  conduct  of  chauffeur  —  school  giving" 
instruction. 

A  school  which  is  engaged  in  the  business  of  teaching  auto- 
mobile driving  may  be  liable  for  injuries  received  by  another 
traveler,  where  the  servant  of  the  school  permits  a  student  to 

70.  Hoffman  v.  Liberty  Motors  Co  ,  benefit  of  his  general  employer,  the 
234  Mass.  437,  125  N.  E.  845;  Evans  purchase  either  of  that  truck  or  other 
V.  Dyke  Automobile  Supply  CO.,  121  by  Greenhut  &  Go.  from  his  general 
Mo.  App.  266,  101  S.  W.  1132;  Wright  employer.  It  seems  to  me  unquestion- 
V.  Intermountain  Motorcar  Co.,  53  able  that  during  every  part  of  this  per- 
Utah,   176,   177   Pac.   237.  formance    he   was    primarily    and    par- 

71.  MoGuire  v.  Autocar  Sales  Co.,  ticularly  the  servant  and  agent  of  his 
150  N.  Y.  App.  Div.  278,  134  N.  Y.  general  employer.  To  hold  otherwise 
Suppl.  702,  wherein  it  was  said:  it  would  follow  that  every  time  one 
"While  in  one  sense  he  was  doing  this  takes  passage  in  a  motor  car  when  it 
work  for  Greenhut  &  Co.,  yet  the  do-  is  under  demonstration  for  the  purpose 
ing  of  this  work  was  but  incidental  to  of  inducing  a  sale  or  purchase  he  shall 
a  larger  work  which  he  was  doing  for  become  liable  for  the  negligent  opera- 
the  defendant  appellant,  and  which  tion  of  the  car  by  the  driver  furnished 
was   the   main   purpose   of   his   operat-  by  the   intending  vendor." 

ing  the  machine.     That   is   to  say,   he  72.  Holmbrae    v.    Morgan,    69    Oreg. 

was    demonstrating   by    actual    experi-  395,  138  Pac.   1084. 

ence  on  behalf  of  the  defendant  appel-  73.  Hammons    v.    Setzer,    72    Wash. 

lant  the  elTectiveness  of  its  auto  truck,  550,   130  Pac.   1141. 

for   the   purpose    of    inducing,    for   the 


Liability  for  Act  of  Driver.  835 

operate  the  machine  and  his  inexperience  is  a  proximate  cause 
of  the  injury. ^^ 

Sec.  650.  Liability    for    conduct    of    chauffeur  —  chauffeur 
teaching  operation  of  automobile. 

Where,  upon  the  sale  a  motor  vehicle,  one  of  the  terms  of 
the  contract  is  that  the  seller  shall  give  the  purchaser  instruc- 
tion in  driving  the  machine,  it  is  generally  held  that  the  seller, 
not  the  purchaser,  is  liable  for  the  negligence  of  his  employee 
while  instructing  the  purchaser  in  the  use  of  the  machine.'^ 
Where  the  contract  of  sale  of  an  automobile  provided  that  an 
instructor  should  be  furnished  by  the  company  selling  the  ma- 
chine to  give  lessons  in  its  operation  to  the  purchaser  and 
that  the  instructor  Avould  adjust  and  test  the  machine  until 
the  lessons  were  completed,  the  company  was  held  to  be  re- 
sponsible to  the  purchaser  for  any  damage  to  the  automobile 
through  the  negligence  of  the  instructor  while  the  latter  was 
acting  within  the  scope  of  his  duties.    But  it  was  held  that 
the  owner  could  not  recover  damages  from  the  company  for 
the  detention  of  the  automobile  while  it  was  being  repaired 
where  he  offered  no  proof  as  to  the  market  rate  of  hire  of  a 
similar  machine.''^     And  where  the  demonstrator  was   sent 
with  an  automobile  to  an  intending  purchaser  and  permitted 
him,  with  an  assurance  that  he  could  do  it,  to  attempt  to  crank 
the  car  without  warning  him  of  the  danger  which  inhered  in 
the  process  of  cranldng,  it  was  held-  that  he  was  not  a  mere 
volunteer  or  licensee,  that  it  was  within  the  apparent  au- 
thority of  the  demonstrator  to  either  expressly  or  impliedly 
invite  him  to  crank  the  car  himself,  and  that,  where  such  in- 
tending purchaser  was  injured  by  reason  of  the  fovcv  of  the 
engine  releasing  the  crank  from  his  hand,  the  company  was 
liable  therefor  by  reason  of  the  demonstrator  having  failed 

74.  Easton    v.   United   Trades   School  tomobile    Co.     v.     Weaver     (Tex.    Civ. 

Contracting  Co.,  173  Cal.  199,  159  Par.  App).    163   S.    W.    594.      And   see   sec- 

597.  tion  665. 

75    Tornroos     v.      White     Co.,      220  76.  Burnham   v.    Central    Aut<niol,ilP 

Mass.  336.  107  N.  E.   1015;   Buick  Au-  Exchange   (R.  I.).  67  Atl.  429. 


836  The  Law  of  Automobiles. 

to  warn  him  of  such  danger.''^  In  another  case  where  a  chauf- 
feur was  employed  to  teach  the  owner's  son  to  run  an  automo- 
bile for  the  family  use,  it  was  held  that  the  relation  of  master 
and  servant  existed  so  as  to  hold  the  owner  liable  for  the  neg- 
ligence of  the  chauffeur  in  causing  injury  to  a  pedestrian.'^ 

Sec.  651.  Liability  for  conduct  of  chauffeur — driver  employed 
to  tow  automobile. 
Where  a  motor  vehicle  becomes  disabled  and  another  ma- 
chine is  employed  to  tow  it,  the  driver  of  the  assisting  machine 
is  generally  deemed  to  be  in  the  employ  of  the  owner  or  pos- 
sessor of  the  disabled  car."*^  But  the  owner's  son  who  is  steer- 
ing the  disabled  machine  is  not  liable  for  the  negligence  of 
owner's  chauffeur  who  is  driving  the  forward  vehicle.^" 

Sec.  652.  Liability  for  conduct  of  chauffeur  —  fellow  servants 
of  chauffeur. 

Under  the  common  law  rules  relating  to  the  master  and 
servant,  the  master  is  not  generally  liable  for  injuries  caused 
by  the  negligence  of  one  servant  to  a  fellow  servant.^^  Thus, 
it  has  been  held  that  a  maid  who  accompanies  her  employer's 
wife  on  an  automobile  trip  is  a  fellow  servant  of  the  hus- 
band's chauffeur,  and  cannot  recover  of  her  employer  for  in- 
juries caused  by  the  chauffeur's  negligence.^^    But  it  has  been 

77.  Martin  v.  Maxwell-Biisco  Motor  trip  the  fair  inference  is  that  she  went 
Vehicle  Co.,  158  Mo.  App.  188,  138  S.  along  in  the  capacity  of  maid  to  the 
W.  65.  wife  and  the  question  involved  on  this 

78.  Hiroux  v.  Bauni,  137  Wis.  197,  appeal  is  whether  she  and  the  chauf- 
118  N.  W.  533,  19  L.  R.  A.  (N.  S  )  feur  were  fellow  servants.  .  .  .  As- 
332.  Sliming,    as   we   must,   that  the   plain- 

79.  McLaughlin  v.  Pittsburgh  Rys.  tiff's  presence  in  the  automobile  wad 
Co.,  252  Pa,  St.  32,  97  Atl.   107.  incident  to  her  employment,  it  is  dif- 

80.  Titus  v.  Tangeman,  116  N.  Y.  ficult  to  understand  why,  within  the 
App.  Div.  487,  101  N.  Y.  Suppl.  1000.  principle  of  all  the  cases   on   the  «:ub- 

81.  Brooks  v.  Central  Sainte  Jeanne,  ject,  she  did  not  assume  the  risk  of  the 
228  U.  S.  688,  33  S.  Ct.  700,  affirming  chauffeur's  negligence.  Certainly  her 
6   Porto   Rico   Red.    Rep    281.  employment  subjected  her  to  thit  risk. 

82.  Erjanschek  v.  Kramer.  141  N.  The  fact  that  her  duty  difl'ered  from 
Y.  App.  Div.  545,  126  N.  Y.  Suppl.  that  of  the  chauffeur  is  of  no  conse- 
289,  wherein  it  was  said:  "While  the  quence.  The  controling  fact  is  that,  in 
evidence  does  not  plainly  show  hew  the  the  performance  of  her  duty,  she  in- 
plaintiff  came  to  accompany  the  de-  curred  the  risk  of  injury  from  the 
fendant  and  his  wife  on  the  automobile  chauffeur's  negligence." 


Liability  for  Act  of  Drivek.  837 

held  that  a  domestic  servant  whose  contract  includes;  the  right 
to  be  transported  to  church  in  the  employer's  automobile,  does 
not  retain  during  such  transportation  the  relation  of*  servant 
to  the  master  so  as  to  be  considered  a  fellow  servant  of  the 
driver  of  the  machine,  within  the  meaning  of  the  fellow  ser- 
vant rule.^^ 

Sec.  653.  Liability  for  conduct  of  chauffeur  —  pleading. 

Where  a  complaint  in  an  action  by  one  injured  by  the  negli- 
gent operation  of  the  defendant's  automobile  alleges  that  the 
machine  w^as  run  by  a  chauffeur  or  another  person  not  the 
owner,  it  is  generally  required  that  it  allege  that  the  driver 
was  a  servant  of  the  owner  and  was  acting  within  the  scope 
of  his  employment  at  the  time  of  the  accident.^^  But  an  alle- 
gation that  the  machine  was  driven  by  a  person  to  whom  its 
operation  was  intrusted  by  the  owner,  may  be  construed  as  a 
sufficient  statement  that  the  chauffeur  w^as  acting  within  the 
scope  of  his  employment.*^  Generally,  the  plaintiff  is  per- 
mitted to  allege  merely  that  the  injury  was  caused  by  the 
negligence  of  the  defendant,  without  alleging  the  name  of  the 
servant  or  other  facts  showing  agency  of  the  driver.^*^ 

Sec.  654.  Liability  for  conduct  of  chauffeur  —  admissibility 
of  statements  of  driver. 

As  a  general  rule,  before  statements  of  an  agent  may  be 
received  as  evidence  against  the  principal,  it  is  essential  that 

83.  O'Beirne  v.  Stafford,  87  Conn.  ants."  is  insufficient  to  charge  the  de- 
354,  87  Atl.  743,  46  L.  R.  A.  (N.  S.)  fondant  with  the  negligence  of  th.« 
1183.  driver,    for   there   is    no   allegation    or 

84.  Lewis  v.  Amorous,  3  Ga.  App.  proof  that  the  driver,  although  he  may 
50,  59  S.  E.  338;  Cullen  v.  Thomas,  have  been  the  defendant's  ser\'ant.  was 
150  N.  Y  App.  Div.  475.  135  N.  Y.  engaged  upon  his  master's  business 
Suppl.  22;  Rubin  v.  Burman,  87  Misc.  and  acting  within  the  scope  of  his  tm 
(N.  Y.)  174,  149  N".  Y.  Suppl.  483.  plovment,  and  ?ome  proof  to  this  eflect 
See  also  Edwards  v.  Yarbrougli  (Mo.  is  necessary  in  order  to  charge  the 
App.),  201  S.  W.  972.  master  with   his   servant's   negligence." 

Sufficiency  of  complaint. — In  an  ac-  Cullen  v.  Thomas,  150  N.  Y.  App.  Div. 

tion  for  damages  brought  by  one  who  475.  135  N.  Y.  Suppl.  22. 

was  run  over  by  an  automobile,  an  al-  85.  Jones    v.     Strickland.     201     Ala. 

legation  in  the  complaint  that  "plain-  138.  77  So.  562. 

tiff  was  struck  and  run  over  by  an  au-  86.   See    Pangbum    v.    Buick    ^Totor 

tomobile  operated    by   the    agents   and  Co.,  151  N.  Y.  App.  Div.   756.   137  X. 

servants    of    the    above-named    defend-  Y.  Suppl.  37. 


838  The  Law  of  Automobiles. 

it  be  shown  by  other  relevant  evidence  that  the  relation  of 
principal  and  agent  existed  and  that  the  statements  were 
made  in  the  conrse  of  the  principal's  business.^^  Statements 
made  by  defendant's  chauffenr,  while  he  was  disobeying  de- 
fendant's instructions  and  was  not  engaged  in  the  business 
of  his  employer,  are  generally  regarded  as  hearsay.^  And 
statements  made  by  him  before  the  accident  in  question  that 
he  was  going  to  use  the  machine  for  his  own  purposes  are 
also  inadmissible.^^  And  evidence  that  before  the  injury  the 
chauffeur  visited  an  inn  and  invited  a  person  there  to  ride 
with  him  is  not  competent  as  part  of  the  res  gestae?^  But 
statements  or  exclamations  made  by  the  driver  at  the  time  of 
the  accident  or  immediately  thereafter,  may  be  received  as 
part  of  the  res  gestae}^  If  made  subsequent  to  the  accident, 
at  a  time  when  they  may  have  been  inspired  by  retrospection 
or  deliberation,  they  are  not  part  of  the  res  gestae.^  Admis- 
sions made  by  the  owner  of  an  automobile  as  to  his  liability 
for  an  injury  occasioned  by  the  driving  thereof  by  a  member 
of  his  family,  may  be  received  in  evidence  against  him.^^ 

Sec.  655.  Liability  based  on  control  of  machine. 

Liability  for  the  operation  of  a  motor  vehicle  is  imposed  on 
the  person  having  "control"  of  its  movements.^*    Primarily, 

87.  Dearholt  Motor  Sales  Co.  v.  Mer-  Samuels  v.  Hiawatha,  Holstein  Dairy 
rit,  133  Md.  323,  105  Atl.  316;   Pvollins       Co.    (Wash.),   197   Pac.   24. 

V.  City  of  Winston-Salem,  176  N.  Car.  92.  Beville  v.  Taylor,  202   Ala.   305, 

411,  97  S.  E.  211;  Tow  v.  McClements,  80  So.  370;  Benton  v.  Regeser,  20  Ariz. 

68  Puts.  Leg.  Journ.   (Pa.)   680;  Frank  273,    179    Pac.   966;    Frank   v.    Wright, 

V.   Wright,    140   Tenn.   535,   205   S.   W.  140  Tenn.    535,   205   S.   W.   434;   Main 

434;     Parmele    v.     Abdo     (Tex.     Civ.  Street  Garage  v.  Eganhouse   (Tex.  Civ. 

App.),  215  S.  W.  369.  App.),  223  S.  W.  316. 

88.  Riley  v.  Roach,  168  Mich.  294.  93.  Salinen  v.  Ross.  185  Fed.  997. 
134N.  W.'l4.  Compare  Levine  V.  Fer  See  also  Reid  Auto  Co.  v.  Gorsczya. 
lisi,  192  Ala.  362,  68  So.  269.  (Tex.  Civ.  App.),  144  S.  W.  688. 

89.  Whimster  v.  Holmes,  177  Mo.  94.  Windham  v.  Newton,  200  Ala. 
App.  164,  164  S.  W.  236.  258,    76    So.    24;    Penticost    v.    Massey, 

90.  Donnelly  v.  Harris,  219  Masv  201  Ala.  261,  77  So.  675;  Houseman  v. 
466,  107  N.  E.  435.  Karicoffe,    201   Mich.    420,    167    N.    W. 

91.  Denver  Omnibus  k  Cab  Co.,  255  964;  Williams  v.  Blue,  173  N.  C.  452, 
Fed.    543;    Offner    v.    Wilke.    20«    111.  92  S.  E.  270. 

App.  463;   Reid  Auto  Co.  v.  Gorsczya  Objection  on  appeal.— The  objection 

(Tex:.    Civ.    App.).    144    S.  -  W.    688;       that    tlio   plaintiff  has   not   shown  the 


Liability  for  Act  of  Driver. 


839 


this  is  the  chauffeur,  and  he  is,  of  course,  charged  with  his 
personal  negligence.  But  liability  may  go  farther  than  a  per- 
sonal judgment  against  the  driver,  for  the  doctrine  of  respon- 
deat superior  may  charge  his  employer  or  the  owner  of  th^ 
machine  with  liability.  The  negligence  of  the  driver,  more 
over,  may  be  imputed  to  one  having  control,  though  such  per- 
son is  not  the  owner  of  the  machine  or  the  employer.^''  One 
assisting  in  the  operation  of  the  machine  may  be  liable  for  in- 
juries sustained  in  a  collision.^ 

Sec.  656.  Machine   driven  by  member  of  owner's  family  — 
relation  of  parent  and  child  does  not  determine 
liability  of  owner. 
The  mere  fact  that  a  son  or  daughter  of  the  owner  of  an 
automobile  was  driving  the  machine  at  the  time  of  an  injury 
to  another  traveler,  and  that  such  child  was  guilty  of  negli- 
gence contributing  to  the  injury,  does  not  necessarily  render 
the  owner  liable  for  the  injuries."    It  is  a  broad  general  rule 


defendant's  owmership  or  control  of  the 
machine,  cannot  be  raised  for  first  time 
upon  appeal.  Rubin  v.  Whan.  188  N. 
Y.  App.  Div.   16,  176  K  Y.  Suppl.  385. 

95.  Windham  v.  Newton  (Ala.),  76 
So.  24;  Morken  v.  St.  Pierre  (Minn  ), 
179  N.  W.  681. 

96.  Williams  v.  Blue,  173  N.  V.  4.52. 
92  S.  E.  270. 

97.  United  States. — Denison  v.  Mc- 
Norton,  288  Fed.  401,  142  C.  C.  A.  631. 

Alabama. — Parker  v.  Wilson.  179 
Ala.  361,  60  So.  150,  43  L.  R.  A.  (N. 
S.)  87;  Erlick  v.  Heis,  193  Ala.  669, 
69  So.  530. 

California. — Crittenden  v.  Murphy, 
36  Cal.  App.  803,  173  Pac.  595;  Spence 
V.   PMsher    (Cal.),  193  Pac.  255. 

Georgia. — Griffin  v.  Russell,  144  Ga. 
275,  87  S.  E.  10,  L.  R.  A.  1916  F.  216, 
Ann.  Cas.  1917  D.  994;  Dougherty  v. 
WoodAvard,  21  Ga.  App.  427,  94  S.  E. 
636. 

/iHnoi9— Arkin  v.  Page,  287  111. 
420,  123  N".  E.  30;  Kitflicn  v.  Weather- 
by,  205  111.  App.  10. 


lorwa. — Dirks  v.  Tonne,  183  Iowa, 
403,  167  N.  W.  103;  Lemkc  v.  Ady, 
159  N.   W.   1011. 

Kansas. — Zeeb  v.  Babnmaier,  103 
Kans.  599,  176  Pac.  326,  2  A.  L.  R.  883. 

Maryland. — Buckey  v.  White  111 
Atl.  777. 

Massachusetts. — Smith  v.  Jordan, 
rill   Mass.   269,  97  N.  E.  761. 

Michigan. — Loehr  v.  Abell,  174 
Mich.  590,  140  N.  W.  926;  Johnston 
V.  Cornelius,  193  Mich.  115,  159  N.  W. 
318. 

Mississippi. — Woods  v.  Clements, 
113  Miss.  720,  74  So.  422:  Woods  v. 
Clements,  114  Miss.  301.  75  So.  119; 
Dempaey  v.  Frazier,  119  Miss.  1,  80  So. 
341. 

Missouri. — Hays  v.  Hogan,  273  Mo. 
1,  200  S.  W.  286,  L.  R.  A.  1918  C.  715, 
Ann.  Cas.  1918  E.  1127;  Daily  v.  Max 
well,  152  Mo.  App.  415,  133  Nev.  351; 
Marshall  v.  Taylor,  168  Mo.  App.  240, 
153  S.  W.  527;  Mayes  v.  Fields  (Mo. 
App. ) .  217  S.  W.  589 ;  Buskie  v.  Janu- 
chowsky   (Mo.  App.),  218  S.  W.  696. 


840 


The  Law  of  Automobiles. 


in  the  law  of  torts  that  a  parent  is  not  liable  for  the  wrongful 
acts  of  his  children,  whether  they  are  minors  or  adults.  In 
order  to  charge  the  parent  with  responsibility,  he  must  be 
connected  with  the  wrongful  acts.^^  Generally,  it  must  be 
shown  that  he  induced  or  approved  the  acts  or  that  the  rela- 
tion of  master  and  servant  existed  between  the  parent  and 
the  child.^^    If  the  machine  does  not  belong  to  the  father  and 


Montana. — Lewis  v.  Steel,  52  Mont. 
300,  157  Pae.  575. 

New  Jersey. — Doran  v.  Thompson, 
76  N.  J.  L.  754,  71  Atl.  296,  19--L.  E. 
A.    (K  8.)    335,  131  Am.  St.  Hep.  677. 

New  Mexico. — Bees  v.  Haw  ell,  24  N. 
Mex.  142,  173  Pac.  966,  L.  R.  A  1918 
F.  288. 

Nfio  York. — ^Maher  v.  Benedict.  123 
App.  Div.  579,  108  N.  Y.  Suppl.  228; 
Legenbauer  v.  Esposito,  187  App.  Div. 
811,  176  N.  Y.  Suppl.  42;  Schultz  v. 
Modrison,  91  Misc.  248,  154  N.  Y. 
Suppl.  257. 

North  Carolina. — Linville  v.  Nissen, 
162  N.  Car.  95,  77  S.  E.  1096;  Taylor 
V.  Stewart,  172  N.  C.  203,  90  S.  E. 
134;  Wilson  v.  Polk,  175  N.  Car.  490, 
95  S.  E.  849;  Bilyeu  v.  Beck,  100  S. 
E.  891;  Tyree  v,  Tudor,  106  S.  E.  675. 

OAio.— Elms  v.  Flick,  126  N.  E.  66. 

South  Carolina. — Davis  v.  Little- 
field,  97  S.  Car.  171,  81  S.  E.  487. 

Tennessee. — King  v.  Smythe,  104 
Tenn.  217,  204  S.  W.  296,  L.  R.  A. 
1918  F.  293. 

Texas. — Allen  v.  Bland  (Civ.  App.), 
168  S.  W.  35. 

Utah. — ^McFarlane  v.  Winters,  47 
Utah,  598,  155  Pac.  437. 

Virginia. — Cohen  v.  Meador,  119  Va. 
429,  89  S.  E.  876;  Blair  v.  Broad- 
water, 121  Va.  301,  93  S.  E.  632,  L.  R. 
A.  1918  A.  1011. 

Washington. — Warren  v.  Norguard, 
103  Wash.  284,  174  Pac.  7, 

Canada. — Walker  v.  Martin,  450  L. 
R.  504,  460  L.  R.  144. 

98.  Parker  v.  Wilson,  179  Ala.  361, 
60    So.    150,   43   L.   R.   A.    (N.   S.)    87; 


Gardiner  v.  Solomon,  200  Ala.  115,  75 
So.  621 ;  Griffin  v.  Russell,  144  Ga.  275, 
87  S.  E.  10,  L.  R.  A.  1916  F.  216,  Ann. 
Cas.  1917  D.  994;  Dougherty  v.  Wood- 
ward, 21  Ga.  App.  427,  94  S.  E.  636; 
Kitchen  v.  Weatheiby,  205  111,  App. 
10;  Smith  v.  -Tordan,  211  Mass.  269, 
97  N.  E.  761;  Woods  v.  Qements,  114 
Miss.  301,  75  So.  119;  Dempsey  v. 
Frazier,  119  Miss.  1,  80  So.  341;  Hays 
V.  Hogan  (Mo.),  200  S.  W.  286;  Daily 
V.  Maxwell,  152  Mo.  App.  415,  133  S. 
W.  351;  Lewis  v.  Steel,  52  Mont.  300, 
157  Pac.  575;  Linville  v,  Nissen,  162 
ISr.  Car.  95,  77  S.  E.  1096;  Taylor  v. 
Stewart,   172  N.  C.   203,  90   S.  E.   134. 

99.  United  States. — Denison  v.  Mc- 
Norton,  288  Fed.  401,  142  C.  C.  A.  631. 

California. — ^Spence  v.  Fisher,  193 
Pac.  255;  Crittenden  v.  Murphy,  36 
Cal.  App.  803,  173  Pac.  595. 

Iowa. — "The  general  rule  is  that  a 
parent  is  not  liable  for  the  torts  of 
his  minor  child,  even  though  the  child 
lives  with  the  parent  and  is  under  his 
control,  when  such  acts  are  done  with- 
out his  authority,  knowledge,  or  con- 
sent, have  no  connection  with  his  busi- 
ness, are  not  ratified  by  him,  and  are 
no  benefit  to  him."  Sultzbach  v. 
Smith,  174  Iowa,  704,  156  N.  W,  673. 

Kansas. — Zeeb  v.  Bahnmaier,  176 
Pac.  326. 

Massachtcsetts. — Smith  v.  Jordan, 
211  Mass.  269,  97  N.  E.  761. 

Michigan. — ^Tohnston  v.  Cornelius. 
193  Mich.  115,  159  N.  W.  318;  Foster 
v.  Rinz,  202  Mich.  601,  168  N.  W.  420. 

North  Carolina. — ^Linville  v.  Nissen, 
162  N.  Car.  95,  77  S.  E.  1096. 


Liability  for  Act  ov  Driver. 


841 


he  has  no  control  over  its  operation,  there  is  no  ground  to 
charge  him  for  the  misconduct  of  his  son  who  drives  it.^  Statu- 
tory provisions  may  change  the  common  law  rules  to  some 
extent.^  Thus,  positive  law  may  render  the  owner  liable  when 
his  machine  is  driven  by  a  minor  child,'^  or  other  immediate 
member  of  his  farnilv.* 


Sec.  657.  Machine  driven  by  member  of  owner's  family  — 
relation  of  master  and  servant. 

Though  the  mere  relationship  existing  between  the  owner 
of  a  motor  vehicle  and  a  member  of  his  family  who  is  driving 
the  same  is  not  sufficient  to  render  the  owner  responsible  for 
the  negligent  conduct  of  such  relative,  it  is  clear  that,  if  the 
relationship  of  master  and  servant  exists  between  them  as  to 
the  driving  of  the  machine  on  the  occasion  in  question,  the 
owner  may  be  liable.^    That  is  to  say,  a  relative  may  be  a  ser- 


Tennessee. — King  v.  Smythe.  104 
Tenn.  217,  204  S.  W.  296,  L.  R.  A. 
1918  F.  293. 

Virfinia. — Blair  v.  Broadwater,  121 
Va.  301.  03  S.  E.  632,  L.  R.  A.  1918 
A.  1011. 

Washington,. — Warren  v.  Norgnard, 
103  Wash.  284,   174  Pac  7. 

1.  Holland  v.  Goode,  188  Ky.  .525, 
222  S.  W.  950. 

2.  Section  626. 

3.  Ci-ittenden  v.  Murphy,  36  Cal. 
App.  803,   173  Pac.  595. 

4.  Hatter  v.  Dodge  Bros.,  202  Mich. 
97,  167  N.  W.  935;  Hawkins  v.  Erma- 
tinger    (Mich.).  179  N.  W!  249. 

5.  United  States. — Deni&on  v.  Mc- 
Norton,  228  Fed.  401,  142  C.  C.  A.  631. 

Alabama. — Irvine  v.  Ferlisi,  192 
Ala.  362,  68  So.  269;  Erlick  v.  Heis. 
193  Ala.  669,  69  So    530. 

Arizona. — Benton  v.  Regeaer,  20 
Ariz.  273,  179  P;ie.  966. 

Califorv/ia. — House  v.  Fry,  30  Cal. 
App.  157,   157  Pac.  500. 

Connecticut. — 'Ruaso  v.  McA\'1ney, 
112  Atl.  657. 

Georgia. — Griffin  v.  Rusaell,  144  Ga. 
275,  87  S.  E.  10,  L.  R,  A.  1916  F.  216, 


Ann.  Oas.  1917  D.  994;  Lacey  v.  Fore- 
band  (Ga.  App.),  108  S.  E.  247. 

Iowa. — Crawford  v.  McElhinney.  171 
Iowa,  606,  154  N.  W.  310;  Collison  v. 
Cutter,  186  Iowa.  276,  170  N.  W.  420. 

Maine. — Farnham  v.  Clifford,  106 
Me.  299,  101  Atl.  468. 

Massachusetts. — Smith  v.  Jordan, 
211   Mass.  269,  97  N.  E.  761. 

Minnesota. — Kayser  v.  Van  Nest, 
125  Minn.  277,  146  K  W.  1091,  51  L. 
R.  A.   (N.  S.)   970. 

Mississippi. — Winn  v.  Haliday.  109 
Miss.  691,  69  So.  685;  Wowls  v.  Cle- 
ments,  113  Miss.  720,  74  So.  422. 

Missouri — Marshall  v.  Taylor,  168 
Mo.  App.  240,  153  S.  W.  527;  Hays 
V.  Hogan,  180  Mo.  App.  237,  165  S. 
W.  1125;  Hufft  V.  Dougherty,  184  Mo 
App.  374,  171  S.  W.  17. 

Montana.. — Tjcwis  v.  Steel,  52  Mont. 
300,  157  Pac.  575. 

North  Carolina. — 'Clark  v.  Sweaney, 
176  N.  Oar.  529,  97  S.  E.  474. 

Oklahoma. — McNeal  v.  McKain.  33 
Okla.  449,  126  Pac.  742,  41  L.  R.  A. 
(N.  S.)   775. 

Pennsylvania. — Raub  v.  Donn,  254 
Pa.  St.  203,  98  Atl.  861. 


842 


The  Law  of  Automobiles. 


vant  of  the  owner  in  a  particular  transaction  with  similar 
legal  effect  as  if  lie  were  a  paid  chauffeur.^  But,  even  if  the 
driver  can  be  classed  as  the  servant  of  the  owner,  it  is  held 
that  the  latter  is  not  liable  for  his  negligent  conduct,  unless 
at  the  time  of  the  accident  under  consideration  he  was  acting 
in  the  scope  of  his  employment  and  in  regard  to  the  master's 
business.'^    The  relation  of  master  and  servant  is  not  to  be 


South  Carolina. — Da\as  v.  Littlefield, 
97  S.  Car.  171,  81  S.  E.  487.  '-When 
a  master  sends  his  servant  to  town  on 
the  master's  business,  we  know  of  no 
court  that  has  held  that,  if  the  servant 
is  induced  to  go  mainly  because  he 
wants  to  make  purchases  for  himself, 
the  private  purpose  of  the  servant  will 
relieve  the  master  from  liability  for 
the  negligence  of  his  servant  in  the 
conduct  of  the  master's  business.  The 
parent  is  not  liable  for  the  negli- 
gence of  the  child  by  reason  of 
the  relation  of  parent  and  child,  yet 
if  the  child  is  the  agent  of  the  father, 
then  the  existence  of  the  relation  of 
parent  and  child  does  not  destroy  the 
liability  of  the  principal  for  the  acts 
of  the  agent.  So  here  the  non-liability 
of  the  father  for  the  acts  of  the  son 
does  not  destroy  the  liability  of  the 
master  for  the  acts  of  his  servant  done 
in  the  course  of  his  employment.'" 
Davis  V.  Littlefield.  97  S.  Car.  171,  81 
S.  E.  487. 

Texas. — ^Allen  v.  Bland  (Civ.  -^pp. ), 
168  S.  W.  35. 

Virginia. — Cohen  ^.  Meador,  llH.Va. 
429,  89  S    E.  876. 

Washington. — Guignon  v.  Canipbell, 
80   Wash.   54.3.   141   Pac.    1031. 

Wisconsin. — Hiroirx  v.  Bauiv,  137 
Wis.  197,  lis  N.  W.  533,  19  L.  f!.  A. 
(N.  S  )    332. 

6.  Parker  v.  Wilson,  179  Ala.  361, 
60  So.  150,  43  L.  R.  A.  (N.  S.  1  87; 
Offner  v.  Wilko.  208  111.  App.  463: 
Smith  V.  Jordan,  211  Mass  269,  97  N. 
E.  761;  Doran  v.  Thompson,  76  N.  J. 
L.  754,  71  Atl.  296,  19  L.  R.  A.  (N. 
S.)    335,   131   Am.   St.   Rep.   677.     "To 


constitute  the  relation  of  master  and 
servant  as  to  thiixl  persons,  it  is  not 
essential  that  any  actual  contract 
should  subsist  between  the  parties,  or 
tliat  compensation  should  be  expected 
by  the  servant.  While  the  relation  of 
master  and  servant  in  its  full  sense 
invariably  and  only  arises  out  of  a 
contract  between  the  servant  and  the 
master,  yet  such  contract  may  be 
either  express  or  implied."  Doran  v. 
Thomson,  76  N".  J.  L.  764,  71  Atl.  296, 
19  L.  R.  A.  (N.  S.)  335,  131  Am.  St. 
Rep.   677, 

7.  Alabama. — Gardiner  v.  Solomon, 
200  Ala.  115,  75  So.  621. 

Georgia. — Dougherty  v.  Woodward, 
21   Ga.   App.   427,  94  S.   E.   636. 

Iowa. — Reynolds  v.  Buck,  127  Iowa, 
601,  103  N.  W.  946;  Lemke  v.  Ady, 
159  N.  W.  1011. 

Michigan. — Johnston  v.  Cornelius, 
193  Mich.  115,  159  N.  W.  318. 

Minnesota. — Wilde  v.  Pearson,  140 
Minn.  394,  168  N.   W,  582. 

Mississippi. — Woods  v.  Clements,  113 
Miss.  720,  74  So.  422;  Woods  v.  Clem- 
ents, 114  Miss.  301,  75  So.  119. 

Missouri. — Bolman  v.  Bullens,  200  S. 
W.  1068;  Daily  v.  Maxwell,  152  Mo. 
App.  415,  133  S.  W.  351;  Mayes  v. 
Fields    (Mo.  App.),   217   S.  W.  589. 

Neio  Jersey. — Doran  v.  Thompson,  76 
N.  J.  L.  754,  71  Atl.  296,  19  L.  R.  A. 
(N.  S.)    335,   131  Am.  St.  Rep.  677. 

A'cMj  York. — ^Maher  v.  Benedict.  123 
App.  Div.  579,  108  N.  Y.  Suppl.  228. 

North  Carolina. — Linville  v.  Nissen, 
162  N.  Car.  95,  77  S.  E.  1096;  Wilson 
v.  Polk,  173  N.  Car.  78,  95  S.  E.  849. 


Liability  for  Act  of  Driver. 


843 


inferred  merely  from  the  circumstance  that  the  driver  is  a 
son  or  other  member  of  the  owner's  family.^  Where  one  pur- 
chased a  machine  and  employed  a  chauffeur  to  instruct  his 
daughter  in  the  management  of  the  machine  for  the  conven- 
ience of  the  family,  and  while  driving  the  machine  with  the 
aid  of  the  instructor  collided  with  another  vehicle,  the  jury 
may  find  that  the  relation  of  master  and  servant  was  in  force 
between  the  owner  and  the  daughter  at  the  time  of  the  injury.' 


Sec.  658.  Machine  driven  by  member  of  owner's  family  — 
use  without  consent  of  owner. 

As  in  the  case  of  a  paid  chauffeur  sustaining  no  family 
relationship  to  the  owner  of  an  autoniobile,^'^  if  a  member  of 
an  owner's  family  uses  his  automobile  without  his  consent  or 
knowledge,  the  owner,  as  a  general  proposition,  is  not  respon- 
sible for  his  negligence."    Especially  is  this  so,  when  the  raa- 


Oregon. — Smith  v.  Burns,  71  Oveg. 
133,  142  Pac.  352. 

Tennessee. — King  v.  Smythe,  104 
Tenn.  217,  204  S.  W.  296.  L.  R.  A. 
1918  F.   293. 

Utah. — McFarlane  v.  Winters,  47 
Utah,  598,  155  Pac.  437. 

Virginia. — Cohen  v.  Meador.  119  Va. 
429,  89  S.  E.  876. 

8.  Knight  v.  Cossitt,  102  Kans.  764. 
172  Pac.  533;  Maher  v.  Benedict,  123 
N.  Y.  App.  Div.  579.  108  N.  Y.  Suppl. 
228;  McFarlane  v.  Winters,  47  Utah. 
598,  155  Pac.  437;  Blair  v.  Broad- 
water, 121  Va.  301,  93  S.  E.  632.  L.  R. 
A.    1918   A.    1011. 

9.  William?  v.  May  (N.  C).  91  P 
E.  604. 

Son  learning  to  run  machine. — 
Where  a  father  purchases  an  automo- 
bile largely  upon  the  solicitation  of 
his  son  who  is  to  learn  to  run  it  for 
the  benefit  of  the  family,  the  father  is 
liable  for  his  negligence  while  receiv- 
ing instructions.  Hiroux  v.  Baum.  137 
Wis.  197,  118  N.  W.  533,  19  L.  R.  A. 
(N.  S.)    332. 

10.  Section   630. 


11.  Alabama. — Gardiner  v.  Solomon, 
200  Ala.  115,  ?5  So.  621. 

(leorgia. — Dougherty  v.  Woodward, 
21  Ga.  427,  04  S.  E.  636. 

Illinois. — Kitchen  v.  Weathcrby,  205 
111.  App.  10. 

loion. — Reynolds  v.  Buck,  127  Iowa. 
601,  103  N.  W.  946. 

Massachusetts. — Weiner  v.  Mairs, 
234  Mass.  156,  125  N.  E.  149. 

Minnesota. — Wilde    v.    Pearson. 
Minn.  394,  168  N.  W.  582. 

Missouri. — Hays  v.  TTogan,  273 
1.  200  S.  W.  286,  L.  R.  A.  1918  C. 
Ann.  Cas.  19,  18  E.  1127;  Daily  v. 
Maxwell.  152  Mo.  App.  415,  133  S.  W. 
351. 

^fontana. — Lewis  v.  Steel,  52  ^font 
:<00.    157  Pac.   575. 

North  Carolina. — Linville  v.  Nissen. 
162  N.  Oar.  95,  77  S.  E.  1096. 

Oregon. — Smith  v.  Burns.  71  Orep. 
133.  142  Pac.  352. 

Machine  delivered  by  child  to  third 
person.-  Where  the  daughter  of  the 
owner  of  an  automobile  takes  the  same 
from  the  garage  without  the  consent  or 
knowledge  of  the  owner,  and  delivers  it 


140 

Mn. 

715. 


844  The  Law  of  Automobiles. 

chine  is  used  contrary  to  express  prohibition  of  the  owner." 
But  the  knowledge  of  the  owner  as  to  the  use  of  the  machine 
is  not  always  essential  to  fasten  liability  on  the  owner.  If 
the  machine  is  used  in  the  prosecution  of  his  business,  the 
owner  will  be  liable  for  the  negligence  of  the  driver,  though 
he  had  no  knowledge  of  the  particular  trip  in  question."  Thus, 
where  a  machine  is  furnished  for  family  purposes,  the  owner 
may  be  liable  for  injuries  resulting  from  the  negligence  of  a 
son  taking  a  servant  to  a  street  car,  though  the  owner  had  no 
knowledge  of  the  particular  use  of  the  machine.^* 

Sec.  659.  Machine  driven  by  member  of  owner's  family  — 
use  for  carriage  of  owner's  family. 

Where  an  automobile  was  purchased  for  the  pleasure  of  the 
owner's  family,  it  is  not  essential  to  the  owner's  liability  that 
he  be  enjoying  the  journey  when  an  injury  is  occasioned  to 
another  traveler  from  the  negligent  operation  of  the  machine. 
The  owner  is  liable  for  the  negligence  of  his  child  or  other 
member  of  the  family  who  is  driving  the  car  for  the  conven- 
ience or  pleasure  of  other  members  of  the  family.^^  The 
*' business"  of  the  owmer  in  such  a  case  is  the  furnishing  of 
pleasure  to  his  family,  and  the  driver  is  acting  for  him  in  the 
scope  of  his  "business"  when  he  is  driving  the  machine  for 

to   a  third   person   who  runs   the  same  Nebraska. — Stevens    v.    Luther,     180 

negligently,  even  the  daughter  being  ab-  N.  W.  87. 

sent  at  the  time,  the  owner  is  not  lia-  New   Jersey. — Missell    v.    Hayes,    86 

ble.     Wilde  v.  Pearson    (Minn.)    168  N.  N.  J.  L.  348,  91  Atl.  322. 

W.  582.  North  Carolina. — Clark   v.    Sweaney, 

12.  Sultzbaoh    v.    Smith,    174    Iowa,  175  N.  Car.  280,  95  S.  E.  568. 

704.  156  N.  W.  673;  Linville  v.  Nissen,  Washington. — Guignon    v.    Campbell, 

162  N.  Oar.  95,  77  S.  E.  1096;   Wilson  80  Wash.  543,  141  Pac.  1031. 

V.  Polk,  175  N.  Oar.  490,  95  S.  E.  849.  Contrary     decision. — ^In     a     case     in 

13.  House  V.  Fry,  30  Oal.  App.  157,  New  York,  it  has  been  held  that  the 
157  Pac.  500.  authority  given  by  the  owner  of  a  car 

14.  Guignon  v.  Campbell,  80  Wash.  to  his  brother  to  take  the  same  out 
543,  141  Pac.  1031.  And  see  section  whenever  his  mother  wanted  to  go,  does 
659.  not  render  the  owner  liable  for  an  ac- 

15.  United  States. — Denison  v.  Mc-  cident  resulting  from  the  negligence  of 
Norton,  228  Fed.  401.  142  0.  C.  A.  631.  the  brother  while  ysing  the  car  at  the 

Massachusetts. — Smith      v.      .Jordan,  request  of  the  mother  and  without  fur- 

211  Mass.  260,  97  N.  E.  761.  ther   authority   from   or   notice  to   the 

Mississippi. — Winn    v.    Haliday,    109  owner.      DeSmet   v.    Niles,    175    N.    Y. 

Miss.  691.  69  So.  685.  App.  Div.  822,  161  N.  Y.  Suppl.  566. 


Liability  for  Act  of  Driver. 


845 


such  purpose.^*^  The  fact  that  during  business  hours,  the  ma- 
chine is  used  in  the  mercantile  business  of  the  owner,  does  not 
afford  an  exception  to  the  general  rule."  Thus,  the  owner  is 
liable  when  the  car  is  driven  by  his  child  furnishing  trans- 
portation to  the  wife  of  such  owner.^^  Similarly,  a  son  of 
the  owner,  in  taking  his  brother  or  sister  for  a  ride  in  the  ma- 
chine, may  be  acting  as  agent  for  the  owner.^^     And  in  the 


16.  Missell  V.  Hayes,  86  N.  J.  L.  348, 
91  Atl    322. 

17.  Denison  v.  McNorton,  228  Fed. 
401,  142  C.  C.  A.  631. 

18.  Erlick  v.  Heis,  193  Ala.  669,  69 
So.  530;  Lemke  v.  Ady  (Iowa),  1.59  N. 
W.  1011;  Collison  v.  Cutter,  186  Iowa, 
276,  170  N.  W.  420;  .Smith  v.  Jordan, 
311  Mass.  269,  97  N.  E.  761;  Missell 
V.  Hayes,  86  N.  J.  L.  348,  91  Atl.  322; 
Clark  V.  Sweaney  (N.  Car.).  97  S.  I'l. 
474.  Compare  Dougherty  v.  Wood- 
ward, 21  Ga.  App.  427,  94  S.  E.  636. 
"The  boy  was  not  running  it  for  any 
purpose  of  his  own,  but  for  the  con- 
venience of  his  mother  and  by  her  ex- 
press direction,  for  whose  use  in  com- 
mon with  the  rest  of  the  family  it  had 
been  purchased  by  bis  father.  If  the 
father  had  employed  a  chaufTeur  out- 
bide  the  family  at  a  stated  comj'ensa- 
tion.  it  could  not  be  contended  seriously 
that  taking  the  wife  out  for  an  after- 
noon call  was  not  the  business  for 
which  lie  had  been  employed  If,  in- 
stead of  hiring  a  stranger,  the  father 
chose  to  have  the  same  work  performed 
by  his  minor  son  to  whose  time  and 
services  he  was  entitled  as  a  matter  of 
law,  it  could  not  be  ruled  as  a  matter 
of  law  that  a  jury-  might  not  find  the 
business  to  be  that  of  the  fatlier.  This 
is  not  a  case  of  mere  permissive  use  of 
the  father's  vehicle  by  the  son  for  his 
oAvn  pleasure.  Although  the  father  had 
no  knowledge  of  the  particular  journey 
which  was  taken  on  the  occasion  of  the 

"accident,  his  knowledge  that  on  pre- 
vious occasions  tlie  wife  had  used  the 
car  and  liis  testimony  of  the  purpose 
for  which   it  was    bougiit   and   that    it 


was  not  customary  when  the  wife  was 
going  on  errands  with  the  automobile 
to  ask  his  permission  were  enough  to 
support  a  finding  tliat  the  trip  was  au- 
thorized by  him.  The  fact  that  the 
son  was  the  only  person  in  the  family 
who  could  legally  operate  the  car  had 
some  tendency  in  tliat  direction.  The 
relation  of  husband  and  wife  is  such 
that,  when  the  former  has  purchased 
an  automobile  for  family  use,  a  ride 
by  the  wife  in  it  with  his  general  per- 
mission is  not  as  matter  of  law  the 
business  of  the  wi'e,  but  may  be  found 
1o  be  that  of  the  husband."  Smith  v. 
-fordan,  211  Mass.  269,  97  N.  E.  761. 

19.  Denison  v.  McNorton,  228  Fed. 
401,  142  C.  C.  A.  631;  Dirks  v.  Tonre, 
183  Iowa,  403,  167  N.  W.  103;  Stowe 
V.  Morris,  147  Ky.  386,  144  S.  W.  52, 
39  L.  R.  A.  (N.  S  )  224;  Uphoff  v.  Me- 
Cormick,  139  Minn.  392,  166  N.  W. 
788;  Missell  v.  Hayes,  86  N.  J.  L.  348, 
91  Atl.  322;  McXeal  v.  McKain.  33 
Okla.  449,  126  Pac.  742,  41  L.  R.  A. 
(N.  S.)  775;  Lynde  v.  Browning,  2 
■J'enn.  C.  C.  A.  262;  Jaeger  v.  Salen- 
tine  (Wis.),  177  K  W.  886.  Compare 
Cohen  v.  Meador,  119  Va.  429,  89  S. 
E.  876.  "'We  have  been  unable  to  find 
any  case  holding  that  wliere  the  father 
bought  an  automobile  to  be  used  for 
the  purpose  of  the  pleasure  of  his  fam 
ily,  and  a  minor  child,  who  was  a  inem- 
ber  of  his  family,  either  with  the  ex- 
press or  implied  consent  of  the  father, 
took  the  automobile  out  and  drove  it, 
ea^rrying  therein  members  of  the  fam- 
ily, iiK'iuding  guests  of  said  family, 
tlie  child  wlio  drove  that  machine  was 
not  tlio  servant,  expressly  or  impliedly. 


846  The  Law  of  Automobiles. 

carriage  of  guests,  a  son  or  daughter  of  the  owner  may  be 
deemed  acting  within  the  scope  of  the  father's  business,  so 
that  liability  will  fall  on  such  owner  for  the  negligent  opera- 
tion of  the  machine.2o  ^^d,  although  at  the  time  of  the  injury 
in  question,  the  driver  is  unaccompanied,  the  parent  may  be 
liable  if  the  driver  is  seeking  a  member  of  fhe  family,  or  is 
returning  home  after  an  unsuccessful  quests 

Sec.  660.  Machine  driven  by  member  of  owner's  family  — 
use  for  private  purposes  of  driver. 
Where  the  head  of  a  house  provides  an  automobile  for  the 
pleasure  purposes  of  himself  and  the  members  of  his  family, 
it  is  clear  that  the  running  of  the  machine  by  a  child  to  carry 
other  members   of   the   family   is  within   the   scope   of   the 
owner's  "business"  so  that  he  is  liable  for  the  negligence  of 
such  child  on  the  theory  that  the  relation  of  master  and  ser- 
vant existed  between  him  and  the  driver.^^    But  it  is  a  more 
troublesome  question  to  determine  whether  a  child  is  acting 
in  his  father's  business  when  such  child  is  running  the  car 
for  his  own  pleasure  or  to  take  his  own  friends  on  a  trip. 
The  decisions  are  not  harmonious.    On  the  one  hand,  in  some 
jurisdictions  the  view  is  taken  that,  when  an  automobile  is 
procured  for  the  pleasure  and  entertainment  of  the  members 
of  his  family,  the  "business"  of  the  owner  is  the  running  of 
the  machine  for  their  purposes,  and  the  operation  of  the  ma- 
chine by  a  member  of  the  family  is  deemed  within  the  scope 
of  the  owner's  business,  though  the  operator  is  not  taking 
other  members  of  the  family  on  a  trip  but  is  using  it  for  the 
pleasure  of  himself  and  his  own  friends.'^    On  the  other  hand, 

':f:        1 

of  the  father."     McNeal  v.  McKain.  33  23.  Colarado. —Hutchins    v.    HafTner, 

Okla.   449,   126   Pac.   742,  41   L.   R.   A.  63   Colo.   365,    167   Pac.   966,   L.   R.   A. 

(N.  S.)    775.  1918  A.  1008. 

20.  Lewis  \.  StetQe,  52  Mont.  300,  Georgia.— Griffin  v.  Russell.  144  Ga. 
157  Pac.  575.  See  also  Johnson  v.  375,  87  S.  E.  10,  L.  R.  A.  1916  F.  216, 
Smith.  143  Minn.  350,  173  N.  W.  675;  Ann.  Oas.  1917  D.  994.  Compare 
MclSTeal  v.  MoKain,  33  Okla.  449,  126  Dougherty  v.  Woodward,  21  Ga.  Ajp. 
Pae.  742,  41  L.  R.  A.   (N.  S.)   775!  427.  94  S.  E.  636. 

21.  Benton  v.  Regeser,  20  Ariz.  27.3.  /otw.— Fullerton  v.  U.  S.  Casualty 
179  Pae.  966.  Co.,   167  N.  W.   700;    Landry   v.   Over- 

22.  Section  659.  sen,  174  N.  W.  255.    Compare  Reynolds 


Liability  for  Act  of  Driver. 


847 


in  some  jurisdictions  it  is  held  that,  when  a  child  or  other 
member  of  an  owner's  family  uses  such  a  vehicle  solely  for 
his  own  ijurposes  or  for  the  entertainment  of  his  own  friends, 


V.  Bucl<,  127  Iowa,  601,  103  N.  W.  946. 
Kenttickij.— Miller  v.  Week,   186  Ky. 
552,  217  S.  VV.  904. 

Massachusetts. — Flynn  v.  Lewis.  231 
Mas.s.  550.  121  N.  E.  493,  2  A.  L.  R. 
876. 

Minnesota. — Kayser  v.  Van  Nest,  125 
Minn.  277,  146  N.  W.  1091,  51  L.  R.  A. 
(N.  S.)  970;  Uphoff  V.  McCbrmick,  139 
Minn.  392,  166  N.  W.  788;  Johnson  v. 
Evans,  141  Minn.  356,  170  N.  W.  220, 
2  A.  L.  R.  891;  Johnson  v.  Smith,  143 
Minn.  350,  173  N.  W.  675;  Moglc  v.  A. 
W.  Scott  Co.,  144  Minn.  173,  174  N.  W. 
832.  See  also  Morken  v.  St.  Pierre, 
179  ISr.  VV.  681. 

Montana. — Lewis  v.  Steele.  52  Mont. 
300,   157  Pac.  575. 

New  Mexico. — Boes  v.  Howell,  24  N. 
Mex.  142,  173  Pac.  966,  L.  R.  A,  1918 
F.  288. 

North  Carolina-. — Tyrell  v.  Tudor, 
106  S.  E.  675.  Compare  Linville  v. 
Nissen,  162  N.  Car.  95,  77  S.  E.  1096; 
Bilyeu  v.  Beck,  178  N.  Car.  481,  100 
S.  E.  891. 

Pennsylvania. — Ruskover  v.  Linder, 
67  Pitts.  Leg.  Journ.    (Pa.)    144. 

South  Carolina. — Davis  v.  Littlefield, 
97  S.  Car.  171,  81  S.  E.  487. 

Tennessee. — King  v.  Smythe,  104 
Tenn.  217,  204  S.  W.  296,  L.  R.  A.  1918 
F.  293,  wherein  it  is  said:  "If  a 
father  purchases  an  automobile  for  the 
pleasure  and  entertainment  of  his  fam- 
ily, and,  as  Dr.  Smythe  did,  gives  hia 
adult  son,  who  is  a  member  of  his  fam- 
ily, permission  to  use  it  for  pleasure, 
except  when  needed  by  the  father,  it 
would  seem  perfectly  clear  that  the  son 
is  in  the  furtherance  of  this  purixjse 
of  the  father  while  driving  tlie  car  for 
his  own  pleasure.  It  is  iiuniaterial 
whether  this  purpose  of  the  father  be 
called  his  business  or  not.  The  law  of 
agency     is     not     confined     to    busine->3 


transactions.     It  is  true  that  an  auto- 
mobile is  not  a  dangerous  instrumen- 
tality so  as  to  make  the  owner  liable, 
as  in  the  case  of  a  Avild  animal  loose  on 
the  streets;   but,  as  a  matter  of  prac- 
tical justice  to  those  who  are  injured, 
we   cannot   close  our   eyes   to   the    fact 
that  an  automobile  possesses  excessive 
weight,   that   it   is   capable  of   running 
at  a  rapid  rate  of  speed,  and  when  mov- 
ing   rapidly    upon    the    streets    of    a 
jxtpulous  city,   it  is  dangerous  to  life 
and   limb  and   must  be  operated   with 
care.      If    an    instrumentality    of    this 
kind  is  placed  in  the  hands  of  his  fam- 
ily by  a  father,  for  the  family's  pleas- 
ure,   comfort,    and    entertainment,    the 
dictates   of   natural   justice   should    re- 
quire that  the  owTier  should  be  respon- 
sible   for    its   negligent    operation,    be- 
cause  only  by  doing  so,  as  a  general 
lule,    can    substantial    justice    be    at- 
tained.       A     judgment     for     damages 
against   an   infant   daughter  or   an   in- 
fant son.  or  a  son  without  supix>rt  and 
witliout   property,   who   is   living  as   a 
n^ ember    of    the    family,    would    be    an 
empty  form.     The  father,  as  owner  of 
the  automobile  and  as  head  of  the  fam- 
ily,  can   prescribe  the  conditions   upon 
Aliich   it  may  be  run  upon  the  roads 
and  streets,  or  he  can  forbid  its  use  al- 
togetlier.      He   must    know   the    nature 
of  the  instrument  and   the  probability 
that   its   negligent   operation   will    pro- 
duce injury  and  damage  to  others.    We 
think   the    practical  administration    of 
justice  between  the  parties  is  more  the 
duty  of  the  court  than  the  preservation 
of  some  esoteric  theory  concerning  the 
htw  of   principal   and   agent.      If   own- 
ers of  automobiles  are  made  to  under- 
stand that  they  will  be  held  liable  for 
injury    to    person    and    property    occa- 
sioned by  their  negligent  operation  by 
infants  or   others   who  are  financially 


848 


The  Law  of  Automobiles. 


the  machine  is  not  heing  used  in  the  scope  of  the  owner's 
business,  and  consequently  he  escapes  responsibility  for  the 
negligence  of  the  driver.^*    In  its  ultimate  deduction,  the  ques- 


irresponsible,  they  will  doubtless  exer- 
cise a  greater  degree  of  care  in  select- 
ing those  who  are  permitted  to  go  upon 
the  public  streets  with  such  dangerous 
instrumentalities.  An  automobile  can- 
not be  compared  with  golf  sticks  and 
other  small  articles  bought  for  the 
pleasure  of  the  family.  They  are  not 
used  on  public  highways,  and  are  not 
of  the  same  nature  of  automobiles." 

Washington.- — Birch      v.      Abererom- 
bie,  74  Wash.  486,  133  Pac.  1020,  50  L. 
R.  A.  (N.  S.)  59.    "The  daughter  was 
using  the  machine  for  the  very  purpose 
for  which  the  father  owned  it,  kept  it, 
and  intended  that  it  should  be  used.   It 
was  be'ng  used  in  furtherance  of  the 
very  purpose  of  his  ownership,  and  by 
one  of  the  persons  by  whom  he  intended 
that  purpose  should  be  carried  out.    It 
was  in  every  just  sense  being  used  in  his 
business  by  his  agent.     There  is  no  pos- 
sible distinction,  either  in  sound  reason, 
sound  morals,  or  sound  law,  between  her 
legal  relation  to  the  parent  and  that  of 
a   chauifeur  employed  by   him   for   the 
same  purpose.    The  fact  that  the  agency 
was  not  a  business  agency,  nor  the  ser- 
vice   a    remunerative    service,    has    no 
bearing  upon  the  question  of  liability. 
.     .     .     In  running  his  vehicle,  she  was 
carrying   out   the   general   purpose   for 
which   he    owned   it   and   kept   it.      No 
other  element  is  essential  to  invoke  the 
rule    Ecspondeat    superior.    ...     It 
seems  too  plain  for  cavil  that  a  father 
who  furnishes  a  vehicle  for  the  custom- 
ary conveyance  of  the  members  of  his 
family  makes  their  conveyance  by  that 
vehicle  his  affair,  that  is,  his  business, 
and   any  one  driving  the  vehicle  for  that 
purpose  with  his  consent,  express  or  im- 
plied, whether  a  member  of  his  family 
or  another,  is  his  agent.     The  fact  that 
only  one  member  of  the  family  was  in 


the  vehicle  at  the  time  is  in  no  sound 
sense  a  differentiating  circumstance  ab- 
rogating the  agency.  It  was  within  the 
general  purpose  of  the  ownership  that 
any  member  of  the  family  should  use  it, 
and  the  agency  is  present  in  the  use  of 
it  by  one  as  well  as  by  all."  Birch  v. 
Abercrombie,  74  Wash.  846,  133  Pac. 
1020,  50  L.  B.  A.    (N.  S.)   59. 

24.  Alabama. — Parker  v.  Wilson,  179 
Ala.  361,  60  So.  150,  43  L.  R.  A.  (N. 
S.)  87;  Erlick  v.  Heis,  193  Ala.  669,  69 
So.  530;  Gardiner  v.  Soloman,  200  Ala. 
115,  75  So.  621. 

Arkansas. — Norton  v.  Hall,  232  S.  W. 
934. 

California. — Spence  v.  Fisher,  193 
Pac.  255,  overruling,  Crittenden  v. 
Murphy,  36  Cal.  App.  803,  173  Pac. 
595. 

Illinois.— Avkin  v.  Page,  287  111.  420, 
123  N.  E.  30,  reversing,  212  111.  App. 
282.  Compare,  Smith  v.  Tappen,  208 
111.  App.  433. 

Kansas. — Knight  v.  Cossitt,  102 
Kans.  764,  172  Pac.  533;  Watkin  v. 
Clark,  103  Kans.  629,  176  Pac.  131. 
"The  development  of  the  law  on  this 
subject  has  been  attended  by  a  rather 
slow  process  of  clarification.  When  the 
automobile  was  new  and  strange,  ajid 
was  regarded  with  some  wonder  and 
considerable  fear,  there  was  a  tendency 
to  look  upon  it  as  a  dangerous  thing, 
fraught  with  such  possibility  for  harm 
that  the  owner  should  always  be  held 
responsible  for  its  use.  When  it  com- 
menced to  take  the  place  of  the  family 
horse,  this  view  hod  to  be  abandoned. 
The  notion,  however,  of  general  liability 
on  the  part  of  the  owner  for  use  of  hla 
car  having  been  planted  in  the  mind, 
it  lingered  there  like  a  superstition. 
Courts  were  reluctant  to  ignore  it,  and 
as  a  result,  an  adaptation  of  the  law  of 


Liability  for  Act  of  Driver. 


849 


tion  seems  to  be  whether  the  master's  business  includes  the 
operation  of  the  machine  by  one  member  of  the  family,  when 


master  and  servant,  and  principal  and 
agent,  was  resorted  to,  to  explain  the 
liability.  If  a  man  purchased  an  auto- 
mobile and  allowed  his  wife  and  his  son 
and  his  daughter  to  use  it,  the  use  was 
his  by  virtue  of  representation,  whether 
representation  existed  in  fact  or  not. 
The  deduction  was  facilitated  by  em- 
ployment of  the  fine  art  of  definition — 
putting  into  the  definition  of  the  terra 
'business'  the  attributes  necessary  to 
bolster  up  liability.  So,  if  daughter 
took  her  friend  riding,  she  might  think 
she  was  out  purely  for  the  pleasure  of 
herself  and  her  friend,  but  she  was  mis- 
taken ;  she  was  conducting  father 's 
'business'  as  his  'agent.'  As  this  in- 
congruity became  more  and  more  ap- 
parent, a  further  concession  was  some- 
times made.  If  the  owner  allowed  a 
member  of  his  family  to  use  the  auto- 
mobile, he  might  not  be  liable,  but  it 
was  'presumed'  the  use  was  his  by  rep- 
resentation. If  a  son  took  his  best  girl 
riding,  privia  facie  it  was  father's  little 
outing  by  proxy,  and  if  an  accident  ha<p- 
pened,  priiua  facie  father  was  liable. 
Some  courts  were  inclined  to  get  rid  of 
the  difficulty  of  resting  liability  on  the 
one  existing  fact,  ownership  of  the  car, 
by  declaring  that  the  question  of 
'  agency '  was  one  for  the  jury,  a  process 
known  in  some  quarters  as  'passing  the 
buck.'  The  sooner  the  courts  settle 
down  and  deal  on  the  basis  of  fact  ond 
actuality  with  a  vehicle  which  has  revo- 
lutionized the  business  and  the  pleasure 
of  the  civilized  world,  the  better  it  will 
be,  not  only  for  society,  but  for  the 
courts."  Watkins  v.  Clark,  103  Kans. 
629,  176  Pac.  131. 

Maine. — Farnum  v.  Clifford,  118  Me. 
145,  106  Atl.  344;  Pratt  v.  Cloutier,  110 
Atl.  353,  10  A.  L.  R.  1434.  See  also, 
Farnum  v.  Clifford,  116  Me.  299,  101 
Atl.  468. 

54 


Massa-chusctts. — Weiner  v.  Mairs,  234 
Mass.  156,  125  N.  E.  149.  See  also. 
Flynn  v.  Lewis,  231  Mass.  550,  121  N. 
E.  493,  2  A.  L.  R.  896. 

Michigan. — Loehr  v.  Abell,  174  Mich. 
590,  140  N.  W.  926. 

Mississippi. — Woods  v.  Clements,  113 
MisF.  720,  74  So.  422;  Woods  v. 
Clements,  114  Miss.  301,  75  So.  119. 
"If  the  relation  of  master  and  servant 
is  sufficiently  established,  then  the  doc- 
trine of  respondeat  superior  applies, 
and  the  negligence  of  Miss  Majorie  at 
the  time  of  the  collision  in  question 
would  be  the  negligence  of  the  master. 
To  constitute  this  relation  there  need 
not  bo  either  an  express  contract  or 
compensation.  The  relationship  may 
arise  from  an  implied  agreement.  Most 
of  the  adjudicated  cases  brought  to  our 
attention  grew  out  of  the  alleged  neg- 
ligence of  minor  children.  It  is  ele- 
mentary that  the  father  has  a  right  to 
the  services  of  his  minor  son;  a  right, 
to  a  large  extent,  to  control  his  actions 
nr  movements.  It  may  be  conceded 
that,  if  the  father  supplies  h's  family 
with  an  automobile  to  be  used  for  the 
pleasure  and  entertainment  of  the  en- 
tire family,  he  may  be  held  liable  for 
the  negligent  operation  of  the  car  by 
one  of  the  minor  children  selected  to 
run  or  operate  the  machine.  If  the 
father  should  turn  the  car  over  to  a 
ch'ld  inexper'enced  in  driving  or  incom- 
petent to  handle  so  powerful  a  machine, 
he  might  be  liable  upon  another  theory. 
Each  case  must  turn  upon  its  own  pe- 
culiar facts.  The  authorities  are  in  ac- 
cord that  an  automobile  is  not  per  se  a 
dangerous  agency.  McNcal  v.  McKain. 
33  Okla.  449,  126  Pac.  742.  41  L.  R.  A. 
(N.  S.)  775,  and  authorities  cued.  Re- 
sponsibility in  this  case,  then,  turns 
upon  the  negligence  of  the  driver  and 
the     further     and     important     inquiry 


850 


The  Law  of  Automobiles. 


such  use  does  not  inure  to  the  pleasure  or  benefit  of  other 
members.  When  the  machine  is  driven  by  an  adult  son  who 
is  not  a  member  of  the  owner's  family,  the  rule  under  con- 
sideration does  not  impose  liability  on  the  owner.^^ 


whether  the  driver  could  be  regarded  as 
a  family  chauffeur  or   servant  at  the 
particular    time    of    the    accident.      It 
appears  that  she  was  on  no  mission  for 
her  father  and  the  proof  fails  to  show 
that  the  father  even  knew  his  daughter 
intended  to  use  the  car  on  the  pleasure 
trip,  here  m.arred  by  an  unfortunate  ac- 
cident.     The   proof,   in   our  judgment, 
fails   to    establish    the    relationship    of 
master  and  servant.     This  is  not  a  case 
where  the   father  is  presumed  to  have 
use  of  his  child's  services,  and  it  would 
be  going  far  to  say  that  the  unmarried 
adult  daughter  of  the  family  could  on 
the  occasion  in  question  be  classed  as  a 
servant.    Tlie  car  was  not  purchased  or 
maintained   primarily   for   the  pleasure 
of  the  family.    The  father  was  not  even 
the  sole  owner  of  the  car.     Under  the 
facts,  we  think  appellant  was  entitled 
to  a  peremptory  instruction.     The  only 
previous    announcement    of    our    court 
anywise    in    point    is    to    be    found    in 
Winn    V.    Haliday,    109    Miss.    691,    69 
South  685,  the  holding  in  which  fully 
accords  with  the  views  now  expressed. ' ' 
Woods  v.   Clement,   113   Miss.   720,   74 
So.  422. 

Missouri.— B.ays  v.  Hogan,  273  Mo.  1, 
200  S.  W.  286,  L.  R.  A.  1918G,  715, 
Ann.  Cas.  1918E,  1127;  overruling 
Daily  v.  Maxwell,  152  Mo.  App.  415, 
133  S.  W.  351 ;  Marshall  v.  Taylor,  168 
Mo.  App.  240,  153  S.  W.  527;  Hays  v. 
Hogan,  180  Mo.  App.  237,  165  S.  W. 
1125.  See  also  Bolman  v.  Bullene,  200 
S.  W.  1068;  Mast  v.  Hirsh,  199  Mo. 
App.  1,  202  S.  W.  275;  Bright  v. 
Thacher,  202  Mo.  App.  301,  215  S.  W. 
789;  Mayes  v.  Fields  (Mo.  App.),  217 


S.  W.  589 ;  Bushie  v.  Januchowsky  (Mo. 
App.),  218  S.  W.  696. 

Nciu  Jersey. — Doran  v.  Thompson,  76 
N.  J.  L.  754,  71  Atl.  296,  19  L.  R.  A. 
(N.  S.',  335.  131  Am.  St.  Rep.  677 ;  Mis- 
sell  V.  Hayes,  86  N.  J.  L.  348,  91  Atl. 
323. 

Xew  York. — Van  Blaricom  v.  Dodg- 
.son,  220  N.  Y.  Ill,  115  N.  E.  443,  L. 
R.  A.  1915F,  363;  Maher  v.  Benedict, 
123  N.  Y.  App.  Div.  579,  108  N.  Y. 
Suppl.  228;  Tanzer  v.  Read,  160  N.  Y. 
App.  Div.  584,  145  N.  Y.  Suppl.  708. 
Heissenbuttel  v.  Meigher,  162  N.  Y. 
App.  Div.  752,  147  N.  Y.  Suppl.  1087 ; 
DeSmet  v.  Niles,  175  N.  Y.  App.  Div. 
822,  161  N.  Y.  Suppl.  566;  Roberts  v. 
Schanz,  83  Misc.  139,  144  N.  Y.  Suppl. 
824. 

0/wo.— Elms  V.  FUck,  126  N.  E.  66. 
Ore^oH.^Smith   v.    Burns,    71    Oreg. 
133,  142  Pac.  352. 

Utah. — McFarlane  v.  Winters,  47 
Utah,  598,  155  Pac.  437,  L.  R.  A. 
1916   D.  618. 

Virgim<t: — Cohen  v.  Meador,  119  Va. 
429,  89  S.  E.  876 ;  Blair  v.  Broadwater, 
121  Va.  301,  93  S.  E.  632,  L.  R.  A. 
1918   A.   1011. 

Express  prohibition. — If  the  owner 
of  a  motor  vehicle  expressly  prohibits 
the  use  thereof  by  his  son  for  the  pur- 
poses of  such  son  and  his  friends,  an 
implied  consent  for  such  use  cannot  be 
found,  and  the  owner  will  not  be  liable 
for  the  son's  negligence  when  wrong- 
fully using  the  machine.  Sultzbach  v. 
Smith,  174  Iowa,  704,  156  N.  W.  673. 
25.  Warren  v.  Norguard,  103  Wash. 
284,  174  Pac.  7. 


Liability  for  Act  of  Driver. 


851 


Sec.  661.  Machine  driven  by  member  of  owner's  family  — 
husband  and  wife. 

Under  the  modern  system  of  the  law  of  domestic  relations, 
a  husband  is  not  generally  liable  for  the  torts  of  his  wife 
merely  because  of  the  relationship.-"  But,  if  he  permits  her 
to  operate  his  automobile  and  she  is  guilty  of  negligence  re- 
sulting in  injury  to  another  traveler  he  may  be  liable  on  the 
theory  that  she  is  acting  as  his  agent  in  the  running  of  the 
machine."  In  some  jurisdictions,  however,  if  the  wife  is 
operating  the  machine  for  her  own  pleasure  and  not  on  any 
business  of  her  husband  and  he  is  not  riding  in  the  machine, 
he  is  not  liable.^^  The  rule  is  the  same  when  it  is  sought  to 
charge  the  wife  with  liability  for  the  acts  of  her  husband  driv- 


26.  Bourland  v.  Baker  (Ark.),  216  S. 
W.  707;  Hutchins  v.  Haffner  (Colo.), 
167  Pac.  966 ;  Crawford  v.  McElhinney, 
171  Iowa.  606,  154  N.  W.  310;  Mast 
V.  Hirsh,  199  Mo.  App.  1,  202  S.  W. 
275;  Tanzer  v.  Read,  160  N.  Y.  App. 
Div.  584,  145  N.  Y.  Suppl.  708;  Bretz- 
felder  v.  Demaree  (Ohio),  130  N.  E. 
505;  Grouse  v.  Lubin,  260  Pa.  329,  103 
Atl.  725. 

Liability  of  wife  for  purchases  made 
by  husband. — The  wife  is  not  liable 
for  the  purchase  price  of  supplies 
bought  by  the  husband  for  her  automo- 
bile, unless  it  is  shown  that  the  wife 
authorized  the  husband  to  contract  on 
her  account.  Armstrong  v.  Backus, 
196  Mich.   735,  163  N.  W.  1. 

27.  Hutchins  v.  Haffner  (Colo.),  167 
Pac.  966;  Crawford  v.  McElhinney,  171 
Iowa,  606,  154  N.  W.  310;  Pla«^h  v. 
Faas  (Minn.),  174  N.  W.  438.  See  also 
Standard  Oil  Co.  of  Kentucky  v. 
Thompson  (Ky.),  226  S.  W.  368.  "It 
is  not  contended  by  plaintiff  that  the 
husband  is  responsible  for  the  negli- 
gence of  his  wife  because  of  tlie  mar- 
riage relation,  but  because  of  the  nature 

■  of  the  work  she  was  doing,  and  be- 
cause the  trip  was  being  taken  for  their 
mutual  pleasure,  in  his  car.  It  is  not 
contended  by  defendant  that   the  wife 


may  not  be  an  employee  or  agent  of  her 
husband.  It  is  doubtless  true  that  the 
mere  existence  of  tlie  relation  of  1ms- 
hand  and  wife  will  not  create  the  rela- 
tion of  master  and  servant,  or  agent 
on  the  part  of  the  wife,  so  as  to  render 
the  luisband  liable  for  negligence  in 
operating  his  automobile :  but  liere 
there  are  other  circumstances.  It  is 
further  sho\vn  that  the  wife  acted  as 
the  chauffeur  of  the  car,  bought  by  the 
husband  for  the  use  of  .both  of  them, 
and  in  the  particular  instance  was  be- 
ing used  for  the  mutual  pleasure  of 
both.  In  the  instant  case,  if  defendants 
were  engaged  in  a  common  enterprise, 
or  if  Mrs.  McElhinney  was  the  em- 
ployee and  agent  of  her  husband  at  the 
time,  in  the  use  of  the  car  by  his  au- 
thority, for  some  purpose  for  wliich 
the  car  Avas  bought  and  kept  by  liim, 
they  would  both  be  liable  for  her  negli- 
gence in  such  use."  Crawford  v.  Mc- 
Elhinney, 171  Iowa,  606.  154  N.  W. 
310. 

28.  Minasian  v.  PofT,  217  111.  App. 
8;  Mast  v.  Hirsh  (Mo.  App),  202  S. 
W.  273;  Tanzer  v.  Read,  160  X.  Y. 
App.  Div.  584,  145  N.  Y.  Suppl.  708; 
Duffy  V.  Ascher,  191  N.  Y.  App.  Div. 
918,  181  N.  Y.  Suppl.  934;  Bretzfelder 
V.  Demaree   (Ohio),  130  N.  E.  505. 


852 


The  Law  of  Automobiles. 


ing  her  car.^^    In  other  jurisdictions,  a  broader  liability  is 
imposed  on  the  owner  of  a  motor  vehicle  when  it  is  operated 
by  members  of  his  or  her  family .'"    And  the  rule  has  been 
extended  so  as  to  hold  the  husband  for  the  negligence  of  a 
chauffeur  employed  by  the  wif e.^^    Apparently  the  rule  is  the 
same  whether  the  machine  is  operated  on  the  occasion  in  ques- 
tion by  the  wife  or  by  some  other  member  of  the  family .^^    jf 
the  husband  has  control  of  the  machine  at  the  time  of  an  acci- 
dent, he  is  not  relieved  from  liability  because  he  shows  that 
the  ownership  of  the  machine  is  in  his  wife,  for  the  one  con- 
trolling the  operation  is  liable  for  negligence  in  such  opera- 
tion.22    Or,  if  the  wife  has  the  control  of  the  machine,  she  is 
liable  though  it  is  owned  by  the  husband.    And,  if  it  is  owned 
and  operated  by  the  wife,  the  husband  may  be  thought  to  oc- 
cupy the  position  of  a  passenger  and  not  to  be  liable.^"    It  has 
been  held,  that,  when  the  husband  is  operating  a  machine  for 


29.  Smith    v.    Weaver     (Ind.    App.), 
124  N.  E.  503. 

30.  Wolf  V.  Sulik.  93  Conn.  431,  106 
Atl.  443,  4  A.  L.   R.   356;    Hutcliins  v. 
Haffner    (Colo.),    167    Pac.   966,   L.   R. 
A.   1918  A.   1008;   Plasch  v.   Fass,   144 
Minn.  44.  174  N.  W.  438.  10  A.  L.  R. 
1446;   Vanett  v.   Cole    (N.   Dak.),   170 
N,   W.   663;    Ulman  v.   Lindcman    (N. 
Dak.),  176  N.  W.  25,  10  A.  L.  R.  1440. 
"The  decisions  bearing  upon  the  liabil- 
ity of  an  owner  of  an  automobile,  kept 
for  family  use,  for  the  negligence  of  a 
member   of   his    family   in    driving   the 
machine    with    his    consent,    cannot    be 
reconciled.      A   majority   of   this  court 
have  chosen  to  adopt  the  doctrine  that 
a  husband   is  liable   for  an   injury   in- 
flicted by  his  automobile,  which  he  pur- 
chased for  family  use,  while  it  was  be- 
ing operated  by  his  wife  solely  for  her 
own  pleasure  under  his  general  permis- 
sion to  use  the  machine  whenever  and 
wherever  she  pleased,  upon  the  theory 
that  the  wife  was  the  husband's  agent 
in  carrying  out  one  of  the  purposes  for 
which     the    car    was     purchased     and 


owned."  Hutchins  v.  Haffner,  63  Colo 
36.J,  167  Pac.  966,  L.  R.  A.  1918  A. 
1008. 

31.  Ulman   v.   Lindeman    (N.    Dak.). 
176  N.  W.  25,  10  A.  L."R.  1440. 

32.  "We  find  only  a  limited  number 
of  reported  decisions  wherein  the  lia- 
bility of  the  husband  for  the  negli- 
gence of  the  wife  has  been  involved. 
But  it  is  obvious  that  the  courts,  when 
the  question  is  squarely  presented,  will 
apply  the  rule  held  by  each  as  to  lia- 
bility for  the  negligence  of  a  son  or 
daughter.  ...  In  our  view  of  the 
question,  no  distinction  can  well  be 
drawn  between  different  members  of  the 
family  in  such  cases.  The  rule  of  lia- 
bility should  apply  equally  for  the  neg 
ligence  of  the  wife  as  for  the  negli- 
gence of  the  son  or  daughter."  Plasch 
v.  Fass,  144  Minn.  44,  174  N.  W.  438, 
10  A.  L.  R.  1446.     And  see  section  660. 

33.  Penticost  v.  Massey.  201  Ala.  261, 
77  So.  675.     And  see  section   655. 

34.  Christensen  v.  Johnston,   207  111. 
App.  209. 


Liability  for  Act  of  Driver.  853 

the  benefit  of  the  community,  the  community  is  liable  for  his 
negligence.^ 

Sec.  662.  Machine  driven  by  member  of  owner's  family  — 
immature  or  incompetent  driver. 
Where  a  motor  vehicle  is  driven  by  a  minor  child  of  the 
owner  or  by  an  incompetent  servant,  though  the  negligence  of 
such  driver  cannot  be  imputed  to  the  owner  on  the  theory  of 
the  existence  of  the  relation  of  master  and  servant,  neverthe- 
less, the  owner  may  be  liable  on  the  ground  that  he  himself 
has  been  negligent  in  knowingly  permitting  an  incompetent 
person  to  operate  his  vehicle.'*^  It  may  be  the  duty  of  an 
owner  to  see  that  his  automobile  is  run,  not  by  a  careless  per- 
son, but  by  a  competent  and  skillful  operator.^^  As  was  said 
in  one  case,^^  "No  one  can  deny  that  an  automobile  in  the 
hands  of  a  careless  and  incompetent  driver  would  be  a  dan- 
gerous machine  to  turn  loose  on  busy  streets,  and  would  con- 
stitute a  menace  to  travelers.  The  owner  of  a  car  must  exer- 
cise reasonable  care  in  the  selection  of  a  chauffeur,  and,  fail- 
ing in  this,  will  be  held  liable  for  the  consequences  of  his  own 
negligence  in  sending  out  his  car  in  charge  of  an  incompetent 
operator."  While  an  automobile  is  not  a  dangerous  instru- 
mentality when  driven  by  a  competent  chauffeur,  the  opera- 
tion of  a  heavy  machine  by  a  boy  only  eleven  years  old  may 
be  a  dangerous  menace  to  other  travelers.^  And,  when  the 
statutes  of  the  State  prescribe  a  minimum  limit  as  the  age  for 
drivers  of  motor  vehicles,  if  the  owner  permits  his  son  under 
such  age  to  run  the  machine,  he  is  generally  liable  for  in- 

35.  Milne  v.  Kane,  64  Wash.  254.  162  N.  Car.  95.  77  S.  E.  1096;  Taylor 
116  Pac.  659.  v.  Stewart,  172  N.  Car.  203,  90  S.  E. 

36.  Alabama.— Tavker  v.  Wilson,  179  134;  Taylor  v.  Stewart,  95  S.  E.  167. 
Ala.  361,  60  So.  150,  43  L.  R.  A.  (N.  Texas.— AUen  v.  Brand  {Civ.  App.). 
S.)  87;  Gardiner  v.  Soloman,  200  Ala.  168  S.  W.  35.  See  also  Prince  v.  Tay- 
115.  75  So.  621.  lor  (Civ.  App.),  171  S.  W.  826. 

Missouri.— D&ily  v.  Maxwell,  152  Mo.  37.  Raub  v.   Donn,  254  Pa.  St.   203, 

App.  415,  133  S.  W.  351.  98  Atl.  861.     And  see  sertions  292-296. 

New  ForA-.— Schultz  v.  Morrison.  91  38.  Dailey  v.  Max^vell,  152  Mo.  App. 

Misc.   248,   154  N.  Y.   Suppl.   257.     See  415.  133  S.  W.  351. 

also  Limbacher   v.    Fannon,    102   Misc.  39.  Alien  v.  Bland   (Tex.  Civ.  App.K 

703,  169  N.  Y.  Suppl.  490.  168  S.  W.  35. 

North  Carolina. — ^Linville  v.   Nissen. 


854  The  Law  of  Automobiles. 

juries  which  result  to  other  travelers  from  the  violation  of  the 
statute.*"  When  the  owner  of  a  motor  vehicle  permits  one  of 
his  own  family,  whose  acts  he  has  the  right  and  authority  to 
control,  to  operate  the  machine,  he  becomes  a  party  to  the 
violation  of  the  statute  and  should  be  held  responsible  for  the 
consequences  which  follow."^  Such  a  statute  is  a  legislative 
determination  that  a  child  under  the  statutory  limit  of  age  is 
incompetent  to  act  as  the  driver  of  a  motor  vehicle.^^  And  its 
violation  at  least  affords  the  jury  an  opportunity  to  charge 
the  owner  with  negligence,*^  and  may  be  said  to  constitute 
negligence  per  se}^  But  even  if  negligence  per  se,  a  question 
may  remain  for  the  jury  as  to  whether  the  violation  of  the 
statute  was  the  proximate  cause  of  the  injury  sustained  by 
the  plaintiff.*^ 

Sec.  663.  Liability  of  corporations. 

A  corporation  can  act  only  through  its  officers  and  em- 
ployees, but  it  is  liable,  as  a  general  proposition,  for  the  neg- 
ligence of  an  officer  or  servant  operating  its  motor  vehicle  in 
the  conduct  of  its  business.*^     Every  act  of  an  authorized 

40.  Daily  v.  Maxwell,   152  Mo.  App.       lands   Land   Co.    189   Ala.   576.   66   So. 
415,   133  S.  W.  351;   Schultz  v.  Morri-       577. 

son,  91  Misc.    (N.  Y.)    248,   154  N.  Y.  California. — Chamberlain     v.     South- 

Suppl.  257;   Taylor  v.  Stewart.   172  N.  ern  Cal.  Edison  Co.,  167  Cal.  500,  140 

Car.  203,  90  S.  E.  134.  Pae.  25. 

41.  Schultz    V.    Morrison,    91     Misc.  Iowa. — Ewing    v.    Artie    Ice    Cream 
(N.   Y.)    248,    154   N.   Y.   Suppl.    257;  Co.,  166  Iowa,  146,  147  N.  W.  294. 

Roe  V.  Wellesley,  43,  O.  L.  R.  (Canada)  Maryland. — Stewart  Taxi-Service  Co 

214.  V.  Roy,  127  Md.  70,  95  Atl.   1057. 

42.  Daily  v.  Maxwell,  153  Mo.  App.  Massachusetts. — Roach  v.  Hinohcliff. 
415,  133  S.  W.  351;   Schultz  v.  Morri-  214  Mass.  267,  101  N.  E.  383. 

son,  91  Misc.    (N.  Y.)    248.   154  N.  Y.  Neic  Jersey. — Lewis  v.  National  Cash 

Suppl.  257.  Register  Co.,   84  N.  J.  L.   598,  87  Atl. 

43.  Daily  v.  Maxwell,   152  Mo.  App.       345. 

415,  133  S.  W.  351;  Taylor  v.  Stewart,  l^ew    York. — Stern    v.    International 

172  N.  Car.  203,  90  S.  E.  134.  Ry.  Co.,  167  N.  Y.  App.  Div.  503.  153 

44.  Tayler  v.  Stewart   (N.  Car.),  95      N.  Y.  Suppl.  520. 

S.  E.  167.  Texas. — ^Studebaker      Bros.      Co.      v. 

45.  Tayler   v.    Stewart,    175   N.    Car.      Kitts   (Tex.),  152  S.  W.  464. 

199,  95  S.  E.  167.  An   incorporated    hospital   supported 

46.  United  States. — Panama  R.  Co.  by  voluntary  contributions,  by  endow- 
V.  Bosse,  239  Fed.  303.  ment,   and   by   appropriation    from   the 

Alabama. — Stovall     v.    Corey    High-      city  of  New  York,  and  which  received 


Liability  for  Act  of  Driver. 


855 


agent  within  the  scope  of  his  employment  is  the  act  of  the 
company."'  On  the  other  hand,  it  is  not  liable  for  the  negli- 
gence of  the  driver,  if  the  machine  is  operated  for  the  private 
purposes  of  officers  or  employees,  and  not  for  the  purposes 
of  the  corporation.'^  The  legal  situation  is  similar  to  the  case 
of  the  chauffeur  who  uses  the  car  of  an  individual  ownier 
against  the  directions  of  such  owner  or  for  purely  private 
purposes.''^  Thus,  where  the  general  manager  of  a  company 
which  owned  an  automobile  took  a  day  off  and  went  out  of 
town  upon  his  own  private  business,  and  on  his  return  home 
he  telephoned  for  another  employee  of  the  corporation  to 
come  to  the  depot  for  him  with  the  automobile  and  on  the 
way  from  the  depot  the  automobile  ran  into  and  injured  a 
third  person,  it  was  held  that  the  company  was  not  liable  foi' 
the  injuries.^^    A  plaintiff  who,  while  driving  along  a  high- 


from  said  city  an  annual  sum  for  the 
maintenance  of  motor  ambulances 
■which  are  required  to  be  at  the  service 
of  the  city  in  response  to  calls,  but 
hires  the  drivers  itself,  is  liable  for  the 
negligence  of  one  of  said  drivers  re- 
sulting in  a  collision  with  another  mo- 
tor car  injuring  a  passenger  therein. 
Van  Ingen  v.  Jewish  Hospital,  182  N. 
Y.  App.  Div.  10,  169  N.  Y.  Suppl.  412. 
Authority  of  agent  to  procure  auto- 
mobile.— In  the  case  of  a  sales  agent 
of  a  cash  register  company,  lie  not  b"- 
ing  able  to  carry  the  heavy  machines, 
the  use  of  some  sort  of  conveyance  is 
impliedly  authorized;  and,  in  the  ab- 
sence of  directions  forbidding  the  use  of 
a  motor  vehicle,  such  may  be  pro- 
cured, and  the  company  will  be  liable 
for  tlie  agent's  negligence  in  driving 
the  same.  Ix^wis  v.  National  Cash 
Register  Co..  84  N.  J.  L.  598.  87  Atl. 
345. 

47.  Panama  R.  Co.  v.  Bosse,  239  Fed. 
303. 

48.  California. — Mullia  v.  YcPlanry 
Bldg.  Co.,  32  Cal.  App.  6,  161  Pac. 
1008;  Mauchle  v.  Panama-Pacific  Ex- 
position Co.,  179  Cal.  App.  697,  174 
Pac.  400;  Hirst  v.  Morris  &  Co  (Cal. 
App.),  187  Pac.  770. 


///ijiot's.— Szszatkowski  v.  People's 
Gas  Light  &  Coke  Co..  209  111.  App. 
460. 

Kentucky. — Louisville  Lozier  Co.  v. 
Salleo,  167  Ky.  499,   180  S.  W.  841. 

^farylan(l. — .See  also  Zink  v.  State  to 
Use  of  Renstrnin.  l.'?2  Afd.  670.  104  Atl. 
264. 

Minnesota. —  Slater  v.  Advance 
Thresher  Co.,  97  Minn.  305.  107  N.  W. 
133;  Mogle  v.  A.  W.  Scott  Co,  144 
Minn.  173,  174  N.  W.  832;  Menton  v. 
L.  Patterson  Co.,  145  Minn.  321.  176 
N.  VV.  991. 

Missouri. — Vallery  \.  Hesse  Bldg. 
Material  Co,   (Mo.  App.).  211  S.  W.  95. 

New  York. — Power  v.  Arnold  Eng. 
Co.,  142  App.  Div.  401,  126  N.  Y. 
Suppl.  839;  Stern  v.  International  Ry. 
Co..  167  App.  Div.  503.  153  N.  Y. 
Suppl.  520;  Ostrander  v.  Armour  &  Co., 
176  App.  Div.  152,  161  N.  Y.  Suppl. 
961;  Clawson  v.  Pierce-Arrow  Motor 
Car  Co.,  182  App.  Div.  172.  170  N.  Y. 
Suppl.  310;  Davis  v.  Anglo  American, 
etc.  Co.,  145  N.  Y.  Suppl.  341. 

Washington. — Bursch  v.  Greenough 
Bros.  Co.,  79  Wash.   109.  139  Pac.  870 

49.  Section  630. 

50.  Clark  v.  Buckmobilc  Co.  107  N". 
Y.  App.  Div.  120.  94  X.  Y.  Suppl.  771. 


856  The  Law  of  Automobiles. 

way  is  injured  in  a  collision  with  an  automobile  owned  by  a 
corporation  and  used  in  its  business,  cannot  recover  from  the 
corporation  where  it  appears  that  the  car  at  the  time  of  the 
accident,  though  driven  and  occupied  by  officers  of  the  cor- 
poration and  their  friends,  is  being  used  solely  for  a  pleasure 
trip  having  nothing  to  do  with  the  business  of  the  corpora- 
tion.^^ Even  the  consent  of  the  general  manager  or  other 
officer  of  the  corporation  will  not  change  the  rule ;  though  con- 
sent is  given  to  the  use  of  the  company's  machine  for  the 
pleasure  purposes  of  a  driver  or  other  employee,  the  com- 
pany is  not  liable.^^ 

A  question  of  ultra  vires  may  arise  in  connection  with  the 
liability  of  corporations.  The  operation  of  a  motor  vehicle 
for  the  ordinary  purposes  of  a  corporation  is  generally  within 
the  scope  of  its  powers.  But  a  business  corporation  organized 
for  some  purposes  may  not  be  authorized  to  engage  in  the 
business  of  renting  automobiles  and  drivers  by  the  hour ;  and 
the  corporation,  in  such  a  case,  might  escape  liability  for  the 
negligence  of  one  of  its  drivers.  When  such  is  a  situation,  the 
managing  officers  of  the  company  may  be  liable  as  partners.-^ 

Sec.  664.  Municipal  corporations. 

In  so  far  as  municipal  corporations  are  engaged  in  the  dis- 
charge of  powers  and  duties  imposed  upon  them  by  the  Legis- 
lature as  governmental  agencies  of  the  State,  they  are  not 
liable  for  breach  of  duty  by  their  officers ;  in  that  respect,  the 
officers  are  agents  of  the  State,  although  selected  by  the  muni- 
cipality. When  acting  in  their  ministerial  or  corporate  char- 
acter in  the  management  of  property  used  for  their  own  bene- 
fit or  profit,  discharging  powers  and  duties  voluntarily  as- 
sumed for  their  own  advantage,  they  are  liable  in  an  action 
by  persons  injured  by  the  negligence  of  their  servants,  agents 

51.  Power  v.  Arnold  Eng.  Co.,  142  N.  318;    Ostrander  v.  Armour  &  Co.,   176 
Y.  App.  Div.  401,  126  N.  Y.  Suppl.  839.  N.  Y.  App.  Div.  152,  161  N.  Y.  Suppl. 

52.  Szszatkowaki     v.      People's     Gas  961;     Davis    v.     Anglo-American,    etc. 
Light  &   Coke   Co.,   209   111.   App.   460;  Co.,  145  N.  Y.  Suppl.  341. 
O'Rourke  v.   A-G   Co,   Inc.,   232   Mass.  53.  Stacke   v.    Routledge    (Tex.    Civ. 
129,   122  N.   E.   193:    Calhoun   v.   Min-  App.),  175  S.  W.  444. 

ing  Co.,   202  Mo.   App.   564,  209   S.   W. 


Liability  for  Act  of  Driver. 


857 


and  officers.^*  In  the  class  of  governmental  duties  imposed 
upon  a  municipality  is  the  operation  of  an  automobile  in  the 
service  of  the  fire  or  police  alarm  system  of  the  municipality, 
and  it  is  not  liable  for  the  negligence  of  one  operating  a  ma- 
chine for  such  a  purpose.^°  And,  also,  the  operation  of  a  city 
hospital  has  lieen  held  to  be  a  governmental  function,  so  that 
the  city  is  not  liable  for  the  negligence  of  the  driver  of  a 
motor  ambulance.^^  On  the  other  hand,  the  maintenance  of 
the  streets  is  a  proprietary  activity,  and  the  negligence  of  a 
municipal  employee  operating  a  motor  vehicle  for  such  pur- 
pose may  render  a  municipal  corporation  liable  for  ensuing 
damages.^''  And  a  municipal  corporation  which,  under  statu- 
tory authority,  organizes  and  attempts  to  maintain  a  public 
library  for  the  use  of  its  inhabitants,  is  liable  for  injury  caused 
by  the  negligence  of  a  library  employee  in  transporting  books 
by  automobile  from  one  branch  of  the  library  to  another.^^ 


64.  Jones  v.  Sioux  City.  185  Iowa, 
1178,  170  N.  W.  445,  10  A.  L.  R.  474; 
Fisher  v.  City  of  New  Bern,  140  N. 
Car.  506,  53  S.  E.  343,  5  L.  R.  A.  (N. 
S.)  543,  111  Am.  St.  Rep.  857.  See 
also  Cone  v.  City  of  Detroit,  191  Mich. 
198,  157  N.  W.  417. 

55.  Jones  v.  Sioux  City.  185  Iowa, 
1178,  170  N.  W.  445,  10  A.  L.  R.  474; 
Engle  V.  City  of  Milwaukee,  158  Wis. 
480,  149  N.  W.  141. 

Liability  of  chief  of  fire  department. 
— The  chief  of  the  fire  department  is 
not  liable  for  the  negligent  acts  of  the 
chauffeur  driving  the  chief's  automo- 
bile to  a  fire,  for  the  principal  of  re- 
spondeat  superior  is  not  applicable.  On 
the  other  hand,  the  chief  and  the  driver 
of  his  machine  are  to  be  considered 
more  as  fellow  servants.  Skerry  v. 
Rich,  228  Mass.  462.  117  N.  E.  824. 
But  see  Farrell  v.  Fire  Ins.  Salvage 
Corps.,  189  N.  Y.  App.  Div.  795.  179 
N.  Y.  Supp.  477,  wherein  the  negligence 
of  the  chauffeur  was  imputed  to  the 
chief  who  was  riding  with  him  and  had 
control  and  direction  of  the  vehicle. 

66.  Watson  v.  Atlanta,  136  Ga.  370, 
71    S.    E.    664,    wherein    it   was    said: 


"The  operation  of  the  ambulance  is  an 
incident  to  the  maintenance  and  opera- 
tion of  the  hospital  itself,  and  is  con- 
sequently to  be  classed  with  those  acts 
in  the  performance  of  which  the  muni- 
cipal corporation  is  exercising  a  gov- 
ernmental function." 

57.  Jones  v.  Sioux  City,  185  Iowa, 
1178,  170  N.  W.  445.  10  A.  L.  R.  474; 
Moss  V.  Aiken  County  (S.  Car.),  103 
S.  E.  520;  Hewitt  v.  City  of  Seattle,  62 
Wash.  377,  113  Pac.  1084.  See  also 
Johnston  v.  Chicago,  258  111.  494,  101 
N.  E.  960,  Ann.  Cas.  1914  B.  339,  45 
L.  R.  A  (N.  S.)   1167. 

68.  .Johnston  v  Chicago.  258  111.  494. 
101  N".  E.  960.  Ann.  Cas.  1914  B.  339, 
45  L.  T;.  a.  (N.  S.)  1167,  wherein  it 
was  said:  "The  operation  of  an  au- 
tomobile by  city  employees  in  the  class 
of  work  shown  here  on  principle  is  very 
like  the  proper  exercise  of  the  city's 
powers  in  caring  for  and  keeping  the 
streets  in  repair.  We  find  no  deci- 
sions directly  in  point  on  the  question 
of  the  liability  of  a  municipal  corpora- 
tion for  the  negligent  operation  of  any 
vehicle,  whether  horseless  or  otherwise, 
on  tlie  public  highways  under  such  cir- 


858  The  Law  of  Automobiles. 

Where  a  State  has  consented  to  be  sued,  it  may  be  liable  for 
the  acts  of  its  State  fair  commissioners  in  permitting  auto- 
mobile races  to  be  held  on  its  race  track  without  sufficient  pro- 
tection to  bystanders,  as  a  result  of  which  a  racing  machine 
leaves  the  track  and  breaks  through  the  insufficient  barri- 
cade.^^ If  a  machine  is  used  for  the  personal  purposes  of  a 
municipal  officer  or  employee,  the  municipality  is  plainly  not 
liable.«<> 

Sec.  665.  Liability  of  seller  of  automobile  for  act  of  servant. 

Where  an  automobile  manufacturer  sold  a  car  in  the  regular 
conduct  of  its  sales  business,  and,  following  its  custom,  per- 
mitted the  buyer  to  use  its  license  number  in  driving  through 
the  city,  and  furnished  to  the  seller  at  his  request  a  chauffeur, 
who  was  one  of  the  regular  employees  of  the  manufacturer, 
to  drive  the  machine  through  the  city  streets,  it  was  held  that 
the  manufacturer  was  not  liable  for  the  negligence  of  the 
driver  on  such  trip.^^  On  the  other  hand,  under  very  similar 
circumstances,  it  has  been  held  that  the  manufacturer  is 
liable.*^-    When  the  seller  of  a  motor  vehicle  engages  to  give 

eumsta-iices.     The  conveyance  of  books  mattpr  of  law  that  the  vendor  of  an 

from   one  library   building  to   another,  auto  who  assumes  or  undertakes,  either 

by  means  of  an  automobile,  along  the  expressly  or  impliedly,  to  see  that  the 

public   highways   by   employees   of  the  car  is  properly  run  for  a  time  can  so 

city,  is  plainly  a  ministerial  duty.    For  negligently    manage   the     same     as   to 

that  reason,  if  for  no  other,   we  hold  cause  injury  to  a  third  person,  without 

the  city  liable  in  this  ease."  t)eing    liable     therefor.      The    evidence 

59.  Arnold  v.  State,  163  N.  Y.  App.  tended  to  show,  and  the  jury  found  in 
IHv.  253.  148  N.  Y.  Suppl.  479.  eflfect.   that  the  company  undertook  to 

60.  Carroll  v.  City  of  Yonkers,  193  perform  the  service  as  a  part  of  the 
App.  I>iv.  655,  184  N.  Y.  Suppl.  847.  transaction,  in  connection  with  the  sale 

61.  Janik  v.  Ford  Motor  C^.,  180  of  the  automobile,  as  a  part  of  its  gen- 
Mich.  557,  147  N.  W.  510.  52  L.  E.  A.  oral  business,  and  in  furtherance  of  the 
(N.  S.)  294.  See  also  Keck  v.  Jones,  same;  that  Harrington,  the  servant, 
97  Kans.  470,  155  Pac.  950.  was  doing  the  work  for  his  master,  the 

62.  Dalrymple  v.  Corey  Motor  Car  company,  and  not  for  himself,  nor  on 
Co.,  66  Oreg.  533.  135  Pac  91,  48  L.  his  own  account,  nor  as  a  mere  favor 
R.  A.  (N.  S.)  424,  wherein  it  was  said:  to  the  purchaser;  that  it  was  as  much 
"While  one  buying  a  car  and  paying  a  part  of  the  general  business  of  the 
therefor  has  the  right  to  smash  it  up  company  as  though  it  liad  been  per- 
as  soon  as  circumstances  permit  after  formed  prior  to  the  time  of  the  pur- 
the  same  has  been  turned  over  to  him  chase  of  the  car;  that  the  company 
and  he  relies  upon  his  own  skill  to  run  alone  had  the  right  to  control  and  dis- 
it,  it  does  not  necessarily  follow  as  a  charge  Harrington." 


Liability  for  Act  of  Driver.  859 

instruction  in  its  operation  to  the  purchaser,  the  seller,  not 
the  purchaser,  is  responsible  for  the  negligent  acts  of  the 
driver  giving  the  instruction.*'^  If  a  machine  is  sold  under  a 
contract  of  conditional  sale,  the  vendor  reserving  title,  the 
vendor  is  not  liable  for  the  negligence  of  the  purchaser.*^ 

Sec.  666.  Liability  of  bailee. 

Where  a  motor  vehicle  is  loaned  or  hired  to  another  except 
possibly  in  s.ome  cases  where  the  owner  furnishes  both  the 
machine  and  the  driver,  the  owner  is  not  liable  for  the  negli- 
gence of  the  person  operating  the  machine.^^  Under  such 
circumstances  the  driver  of  the  machine  is  deemed  to  be  act- 
ing not  as  the  servant  of  the  owner,  but  as  the  servant  of  the 
one  having  possession  of  the  machine,  and  the  latter  is  respon- 
sible for  his  conduct.^*'  Thus,  a  garageman  who  has  posses- 
sion of  an  automobile  for  the  purpose  of  repairing  the  same 
and  whose  servant  is  running  it,  may  be  liable  for  injuries 
sustained  by  other  travelers  resulting  from  the  negligence  of 
such  servant.'^'^  Of  course,  as  in  other  cases,  the  operation  of 
the  machine  by  the  driver  must  be  an  act  within  the  scope  of 
his  employment  or  liability  will  not  attach  to  the  bailee. 
Where  a  motor  car  after  being  repaired  by  the  defendants 
was  sent  back  to  the  owner  under  the  charge  of  a  driver  in 
the  defendants'  employment,  and  such  driver  was  directed 
not  to  give  up  the  driving  to  anyone,  but  at  one  stage  of  the 
journey  a  man  not  in  the  employment  of  the  defendants  ac- 
companied the  driver,  and  the  driver  hearing  a  noise  at  the 
back  of  the  car,  intrusted  the  driving  to  such  person  while  he 

63.  Section  650.  Y.  Suppl.  1019. 

64.  Coonse  v.  Becliold  (Ind.  App.),  Machine  kept  for  public  hire. — Where 
125  N.  E.  416.  a  machine   with   its  chauffeur   \a  kept 

65.  Sections  642-644.  for  puhlie  hire,  the  hirer  is  not  the  su- 

66.  Pease  v.  Gardner,  113  Me.  264,  perior  of  the  chauffeur  and  is  not  re- 
93  Atl.  550:  Jolin  M.  Hughes  Sons  Co.  sponsible  for  his  negligence,  unless  he 
V.  Bergen  &  Westside  Auto  Co..  75  N.  in  some  way  participates  in  or  sanc- 
J.  L.  355,  67  Atl.  1018;  Diamond  v.  tions  such  negligence.  Hannon  v.  Van 
Sternburg,  etc.  Co.,  87  Misc.  305,  140  Dyke  Co..  154  Wis.  454.  143  N.  W.  150. 
N.  Y.  Suppl.  1000;  Baum  v.  Link.  110  67.  Geiss  v.  Twin  City  Taxicab  Co., 
Misc.    (K   Y.)    297,    180   N.   Y.   Suppl.  i;>0  Minn.  368,  139  N.  W.  611. 

468:   Waklman  v.   Picker  Bros..   1  »0  N. 


860  The  Law  of  Automobiles. 

went  to  ascertain  the  cause  of  the  noise,  it  was  held  that,  as 
there  was  no  necessity  for  keeping-  the  car  going  while  the 
driver  examined  the  machine,  the  defendants  were  not  liable 
for  the  negligence  of  such  companion  while  driving  the  car.^^ 
Where  two  members  of  a  political  committee  were  given  the 
use  of  an  automobile  for  campaign  purposes  and  hired  tho 
chauffeur  of  the  owner  to  run  the  machine  and  placed  the  car 
and  driver  at  the  disposal  of  a  campaign  speaker,  it  was  held 
that  the  members  of  the  committee  were  liable  for  the  driver's 
negligence,  but  the  speaker,  who  was  only  a  passenger  and 
could  not  direct  the  route  to  be  taken,  was  not  liable.^^  An 
express  company  which  hires  a  motor  van  to  deliver  packages, 
but  has  no  power  or  obligation  to  repair  the  vehicle,  which  is 
operated  wholly  by  a  chauffeur  furnished  by  the  bailor,  is  not 
liable  for  the  death  of  a  pedestrian  who  was  run  over  by  rea- 
son of  a  defect  in  the  steering  gear  at  a  time  when  the  chauf- 
feur, having  finished  delivering  packages,  was  either  taking 
the  vehicle  to  his  employer  for  repair  or  was  going  to  get  his 
luncheon,  because  the  chauffeur  was  not  ad  hoc  the  servant 
of  the  express  company .''°  If  two  or  more  persons  jointly 
hire  an  automobile  for  a  common  enterprise,  and  damages  are 
collected  from  one,  the  law  will  in  some  cases  allow  contribu- 
tion between  the  borrowers."^ 

68.  Harris  v.   Fiat  Motors,  Ltd.,   22  servant  may  be   imputed   to   the   mas- 
Times  Law  Rep.    (Eng.)   556.  ter,   is  based  upon  his  right  to  select 

69.  Pease  v.   Gardner,   113  Me.   264,  and  discharge  his  servants  and  control 
93  Atl.  550.  and  direct  them   while  in  his   employ. 

70.  Bohan  v.  Metropolitan  Express  The  doctrine,  however,  has  recently 
Co.,  122  N.  Y.  App.  Dlv.  590,  107  N.  been  extended  in  certain  instances  to 
Y.  Suppl.  530,  wherein  the  court  ex-  apply  to  cases  where  servants  employed 
plained  its  views  as  follows:  "The  and  paid  by  one  person  are  engaged  in 
question  presented  depends  primarily  the  business  of  and  under  the  direction 
for  its  determination  upon  whether  at  and  control  of  another,  though  he  have 
the  time  of  the  accident  the  ehaulTeur  no  right  of  selection  or  power  to  dis- 
was  a  servant  of  the  express  company  charge.  It  has  been  held  in  several 
or  of  the  transportation  company.  If  eases  that  servants  thus  employed  may 
a  servant  of  the  latter,  obviously  there  become  ad  hoc  the  servants  of  the  lat- 
can  be  no  recovery  against  the  defend-  ter,  and  this  even  though  he  does  not 
ant.  Maxmilian  v.  Mayor.  62  N.  Y.  employ  and  cannot  discharge  them." 
160.  The  doctrine  of  respondeat  su-  71.  Hobbs  v.  Hurley  (Me.),  104  Atl 
perior,  whereby  the   negligence  of  the  815. 


Liability  for  Act  of  Driver.  861 

Sec.  667.  Liability  of  passenger. 

One,  who  is  a  mere  passenger  in  an  automobile,  as  a  gen- 
eral proposition,  does  not  have  any  part  in  controlling  the 
management  thereof,  and  is  not  liable  for  the  negligence  of 
the  driver.'^  Even  the  owner  of  the  machine,  it  is  held,  may 
loan  the  machine  to  another  and  then  ride  as  a  passenger  and 
escape  liability  for  the  conduct  of  those  having  control  of  the 
vehicle."  But  a  passenger  who  participates  in  the  active 
management  of  the  machine,  as  a  near  relative  of  the  owner 
may  sometimes  do,  may  render  himself  liable  for  the  negli- 
gent conduct  of  the  chauffeur.'^  The  problem,  in  its  ultimate 
analysis,  is  to  find  the  person  who  has  control  of  the  machine 
at  the  time  of  the  injury  in  question.  One  having  control  is 
liable  whether  he  is  the  owner,  a  bailee  of  the  machine,  or  a 
passenger  riding  therein."^^  "Whether  a  person  riding  in  a 
vehicle  as  a  guest  is  with  the  other  persons  riding  therein  en- 
gaged in  the  joint  prosecution  of  a  common  purpose  so  that 
liability  may  be  charged  against  all,  may  be  a  question  for 
the  jury.'^^ 

Sec.  668.  Automobile  jointly  owned. 

It  has  been  held  that  where  two  persons  jointly  own  an  au- 
tomobile and  employ  a  chauffeur  and  practically  have  an 
equal  right  to  the  use  of  the  machine  and  the  services  of  such 
chauffeur,  both  of  such  joint  owners  are  liable  for  the  negli- 
gence of  the  chauffeur  upon  an  occasion  when  only  one  of  the 
owners  is  enjoying  the  use  of  the  machine."^    A  stronger  case 

72.  Burns  v.  Southern  Pac.  Co.  (Cal.  75.  Section  655. 

App.),    185    Pac.    875;    Pease  v.    Gard-  76.  Ward   v.    Meads,    114    Minn.    18. 

ner,  113  Me.  264,  93  Atl.  550;  Hobbs  130  N.   W.    2;    Tereau   v.   Meads,    114 

V.  Hurley,   117  Me.  449,  104  Atl.  815;  Minn.  517,  130  N.  W,  3. 

Christensen  v.  Johnston,  207  111.  App.  77.  Goodman    v.    Wilson,    129    Tenn. 

209;    Reitor  v.  Graber    (Wis.).   181   N.  464,  166  S.  W.  752,  51  L.  R.  A.  (N.  S.) 

VV.   739;    Foxley  v.   Gallagher    (Utah),  me,     where     it    was     said:       "Upon 

185  Pac.  775.     See  also  Neve  v.  Graves  principle,  it  would  seem  that  if  two  or 

(Ga.  App.),  106  S.  E.  305,  dismissing  more  persons,  as  the  case  under  cousid- 

the     action     because    the    owner     and  eration,    purchase    an    automobile     in 

driver  was  not  made  a  party.  partnership  and  employ  a  driver,  whose 

73.  Sections  629,  642.  duty  it  is  to  drive  the  vehicle  for  the 

74.  Hutehings  v.  Vacca,  224  Mass.  joint  and  separate  use  of  the  partner- 
?69,  112  N.  E.  652.  ship,  that  both  owners  would  be  liable 


862  The  Law  of  Automobiles. 

of  joint  liability  is  created  when  it  appears  that  both  owners 
were  riding  in  the  machine  at  the  time  under  investigation."'^ 
And,  if  a  father  and  son  jointly  own  the  machine,  the  father 
may  be  liable  for  the  negligence  of  the  son  driving  the  car, 
when  the  father  is  riding  in  the  machine  and  participating  in 
its  operation.''^  But,  when  the  machine  is  being  operated,  not 
by  a  servant,  but  by  one  of  the  owners,  the  owner  not  par- 
ticipating in  the  trip  is  not  usually  liable.^"  Or,  if  one  of  the 
owners  singly  employs  a  chauffeur  and  has  the  sole  control 
of  his  conduct  at  the  time  of  an  accident,  the  co-owner  is  not 
charged  with  liability .^^  One  partner  is  the  agent  of  the  other, 
and,  if  in  the  course  of  the  partnership  business  one  partner 
commits  a  tort,  the  other  may  be  held  in  damages  therefor, 
but  if  this  is  done,  even  in  the  use  of  partnership  property 
without  the  scope  of  such  business,  there  can  be  no  recovery 
against  both.^^ 

Sec.  669.  Criminal  liability  for  acts  of  driver. 

Ordinarily  the  owner  of  a  motor  vehicle  is  not  liable  to  a 
criminal  prosecution  for  the  acts  of  his  chauffeur,  though  the 

for  injuries   resulting   from   the   negli-  has   an   equal  right  to   the   use   of   the 

gence  of  the  driver,  whether  they  were  machine  and  the  services  of  the  driver, 

both  using  the  automobile  at  the  time  with  the  slight  exception  stated  hereto- 

or  not While  it  is  entirely  fore. ' ' 

true  that  the  driver  and  the  automobile  78.  Solon  &  Billings  v.  Pasche  (Tex. 
were  going  for  Mr.  Goodman,  it  is  none  Civ.  App.),  153  S.  W.  672. 
the  less  true  that  the  driver  was  doing  79.  Seiden  v.  Reimer,  190  N.  Y.  App. 
the  thing  for  which  he  was  jointly  em-  Div.  713,  180  N.  Y.  Suppl.  345. 
ployed,  and  the  machine  was  being  used  80.  Knight  v.  Cossitt,  102  Kans.  764, 
for  one  of  the  purposes  for  which  it  172  Pac.  533;  Mittlestadt  v.  KeHy 
was  jointly  owned.  The  machine  is  (Mich.),  168  N.  W.  501;  Hamilton  v. 
partnership  property,  and  the  driver  Vioue,  90  Wash.  618,  156  Pac  853; 
was  in  the  service  of  the  partnership.  Morris  v.  Raymond,  101  Wash.  34.  171 
There  is  no  separateness  of  time  at  Pac.  1006.  See  also  Cassutt  v.  George 
which  the  driver  may  serve,  or  of  in-  W.  Miller  Co.,  103  Wash.  222,  174  Pac. 
terest  in  the  automobile,  so  that  it  433.  See  also  Switzer  v.  Baker,  178 
could  be  said  that  the  machine  belonged  Iowa,  1063,  160  N.  W.  372,  where  two 
exclusively  to  one.  or  the  driver  was  ex-  officers  of  a  corporation  by  turns  drove 
clusively  in  his  service.  The  case  might  an  automobile  belonging  to  the  com- 
be  different   if   the   understanding  be-  pany. 

tween  Mrs.  Richardson  and  Mr.  Good-  81.  Mittlestadt  v.  Kelly  (Mich.),  168 

man    had   been    that    at   certain   hours  N.  W.  501. 

of    the    day    one    should    have   the   ex-  82.  Hall   v.   Young    (Iowa),    177    N. 

elusive    use    of    the    machine    and    the  W.   694. 
driver.    But  the  proof  is  that  each  one 


Liability  for  Act  of  Driver.  863 

liability  has  been  sustained  in  exceptional  cases.    This  ques- 
tion is  discussed  in  another  place  in  this  work.^ 

Sec.  670.  Ratification  of  servant's  act. 

It  may  be,  if  a  chauffeur  acting  in  his  master's  business  but 
beyond  the  authority  granted  to  him  is  retained  in  the  same 
employment  after  the  discovery  by  the  master  of  the  conduct, 
that  it  can  be  held  that  the  master  thereby  ratifies  the  conduct 
and  is  liable  accordingly.  But,  when  the  chauffeur  was  not 
acting  in  the  business  of  his  employer  and  did  not  profess  to 
be  so  acting,  but  used  the  machine  for  his  personal  benefit 
without  the  knowledge  of  the  owner,  the  fact  that  he  was  not 
discharged  upon  discovery  of  his  wrongful  conduct,  is  not 
evidence  that  the  owner  ratified  his  acts.^*  Nor  does  the  fact 
that  the  owner  renders  aid  to  an  injured  person  after  an  acci- 
dent show  a  ratification  of  the  driver's  conduct.^  Similarly, 
the  conduct  of  the  o^^mer  in  making  expressions  of  sympathy 
to  the  bereaved  family  and  in  stating  that  "he  would  do  the 
right  thing  by  her,"  and  would  do  his  Christian  duty  in  the 
matter,  does  not  amount  to  a  ratification  of  the  tort  or  an 
acknowledgment  of  his  liability  therefor.^'' 

83.  Section  725.  master's  business.     If  the  act  done  by 

84.  K^iight  V.  Laurens  Motor  Car  Co..  the  servant  was  about  the  master's 
108  S.  Car.  179,  93  S.  E.  869,  wherein  business,  but  the  servant  went  beyond 
it  was  said:  "But  it  is  said  that,  his  commision.  the  master  is  held  liable 
whether  Boyd  was  then  about  the  busi-  if,  knowing  of  the  act,  he  should  ap- 
ness  of  his  master  or  not,  yet  the  prove  it  after  the  event.  And  there  are 
master  subsequently  found  out  what  case?  which  rightly  hold  that  under 
had  happened  and  ratified  the  act,  and  some  circumstances  the  retention  of  the 
that  makes  the  master  liable,  and  servant  after  the  event  is  evidence  of 
further  that  there  was  testimony  tend-  approval  of  the  event.  But  when  Boyd 
ing  to  prove  that  the  motor  company  committed  the  delict  he  was  not  acting 
rat'ficd  the  act  of  Boyd.  And  the  testi-  at  all  for  the  master,  and  did  not  pro- 
mony  pointed  to  as  tending  to  prove  fess  to  be.  lie  was  acting  solely  for 
ratification  is  the  retention  of  Boyd  in  himself;  and  there  is  no  such  thing  as 
the  service  of  the  master  after  the  a  master  assuming,  by  ratification,  lia- 
master  had  knowledge  of  ihc  tort.  It  bility  for  an  act  of  another  in  which 
is   true  that   a  master   may,   after   the  the  master  had  no  part." 

event,  approve  the  tort  of  his  servant.  85.  Parker  v.  Wilson,   179  Ala.   .361, 

and  that  is  called  ratification.     But  it  60  So.  1.50.  43  L.  R.  A.   (N.  S.)  87. 

is   manifest   that   the   master   is    liable  86.  Dougherty  v.  Woodward.  21  Ga. 

without  such  approval,  if  the  act  was  App.  427.  94  S.  E.  636. 
done   bv   the    servant    while   about    the 


864 


The  Law  of  Automobiles. 


Sec.  671.  Presumption  of  ownership  —  from  license  number. 

Evidence  that  the  automobile  which  occasions  an  injury  to 
a  traveler  was  licensed  in  the  name  of  the  defendant  raises  a 
presumption  that  he  is  the  owner  of  the  machine.^^  The  aim 
of  the  statutory  provisions  requiring  registration,  licensing, 
and  the  display  of  number  plates,  is  for  the  safe  operation  of 
the  machines  on  the  public  highways  and  to  fix  the  identity 
of  one  who  offends  the  traffic  laws  or  the  public  safety.^^ 
Moreover,  in  some  jurisdictions,  proof  that  the  car  is  regis- 
tered in  the  name  of  the  defendant  is  held  to  be  prima  facie 
proof  that  the  custodian  of  the  car  at  the  time  of  an  accident 
was  then  engaged  in  the  owner's  service.^^  But  evidence  that 
an  alleged  owner  registered  one  or  more  automobiles  has  no 
probative  force,  where  the  machine  in  question  is  not  identi- 
fied as  one  of  those  registered  by  the  defendant.^"    Presump- 


87.  Patterson    v.    Millican,    12    Ala. 
App.  324,  66  So.  914;  Hatter  v.  Dodge 
Bros.,   202  Mich.   97,   167   K   W.   935; 
Uphoff  V.   McCormick,   139   Minn.   392, 
166  N.  W.   788;   Whimster  v.   Holmes, 
177    Mo.    App.    130,    164    S.    W.    236; 
Ferris  v.  Slerling,  214  N.  Y.  249,  108 
N.  E.  406;   Berger  v.  Watjen   (R.  I.), 
106    Atl.    740;    Ferguson    v.    Reynolds 
(Utah),    176    Pac.    267.      "There    was 
more   than    a   scintilla   of   evidence   of 
ownership  to  go  to  the  jury.     The  stat- 
ute upon  the  subject  of  motor  vehicles 
(chap.  89,  Comp.  Laws  1915),  requires 
every  automobile  driven  upon  a  'public 
highway'  to  be  annually  registered  by 
and  in  the  name  of  the  owner  with  the 
secretary  of  state,  who  must  assign  to 
it  a  distinctive  number,  and  furnish  to 
the  owner,  who  has  paid  the  license  fee 
and  complied  with  the  law,  a  number 
plate,  which  must  be  carried  and  con- 
spicuously displayed  on  the  vehicles  it 
identifies  when  the  same  is  in  use.     Pen- 
alties are  provided  for  violation  of  this 
lpg!.slation,   which   is  •  regulatory   in   its 
nature   and  an   exercise   of   the  police 
power  of  the  state."    The  manifest  in- 
tent  of   many   of   its   provisions,    such 
as    registration    in    the    name    of    the 


owner  with  detailed  description,  assign- 
ment of  a  distinctive  license  number, 
issuance  of  an  official  number  plate  of 
special  design,  which  must  be  conspicu- 
ously displayed  upon  the  motor  ve- 
hicle when  driven  upon  a  highway,  etc., 
is  for  identification  of  the  vehicle  and 
its  owner.  Proof  of  the  license  num- 
ber upon  an  automobile  being  driven 
upon  a  highway  and  of  the  person  in 
whose  name  such  distinctive  number  is 
registered  as  owner  prima  facie  identi- 
fies both  vehicle  and  ownership." 
Hatter  v.  Dodge  Bros.,  202  Mich.  97, 
167  N.  W.  935. 

Application  for  license. — The  fact 
that  one  applied  for  a  license  may  be 
evidence  of  ownership.  Windham  v. 
Newton,  200  Ala.  258,  76  So.  24. 

88.  Studebaker  Bros.  Co.  v.  Kitts 
(Tex.),  152  S.  W.  464. 

89.  Ferris  v.  Sterling,  214  N.  Y.  249, 
108  N.  E.  406.  See  also  Terry  Dairy 
Co.  v.  Parker  (Ark.),  223  S.  W.  6; 
Wald  V.  Packard  Motor  Car  Co.,  204 
Mich.  147,  169  N.  W.  957.  See  section 
673, 

90.  Nugent  v.  Campbell,  180  N.  Y. 
App.  Div.  257,  167  N.  Y.  Suppl,  617. 


Liability  for  Act  of  Driver. 


865 


tions  arising  from  the  registration  of  the  machine  are  re- 
buttable.^i 


Sec.  672.  Presumption  of  ownership — from  name  on  machine. 
In  an  action  to  recover  injuries  sustained  from  the  alleged 
operation  of  a  motor  vehicle  by  the  defendant,  in  some  States, 
the  ownership  and  control  by  the  defendant  of  the  vehicle  is 
prima  facie  proved  by  evidence  showing  that  his  name  was 
painted  on  the  outside  of  the  truck.'' 

Sec.  673,  Presumption  of  management  from  ownership  —  in 
general. 
The  decisions  are  not  harmonious  as  to  the  presumptions 
which  arise  from  the  ownership  of  a  motor  vehicle.  Techni- 
cally speaking,  the  burden  of  proof  is  on  the  plaintiff  who  has 
been  injured  by  the  operation  of  a  motor  vehicle  to  show,  if 
the  machine  was  operated  on  the  particular  occasion  by  one 
other  than  the  defendant,  that  such  driver  was  acting  for  the 
defendant  and  within  the  scope  of  the  defendant's  business.^^ 


91.  Brow-n  v.  Chevrolet  Motor  Co.,  39 
Cal.  App.  738,  179  Pac.  697. 

92.  Bosco  V.  Boston  Store  of  Chicago, 
195  111.  App.  133;  Buckley  v.  Sutton, 
231  Mass.  504,  121  N.  E.  527;  Weber 
V.  Thompson-Belden  &  Co.  (Neb.),  181 
N.  W.  649;  Baum  v.  Link,  110  Misc. 
(N.  Y.),  297,  180  N.  Y.  Supp.  468; 
Gershel  v.  White's  Express  Co.,  113  N. 
Y.  Suppl.  919;  Holzheimer  v.  Lit  Bros., 
162  Pa.  150,  105  Atl.  73.  See  also 
Hatter  v.  Dodge  Bros.,  202  Mich.  97, 
167  N.  W.  935;  O'Malley  v.  Public 
Ledger  Co.,  257  Pa.  17,  101  Atl.  94. 

93.  Nussbaum  v.  Traung  Label,  etc., 
Co.  (Cal.  App.),  189  Pac.  728.  Nav- 
ratel  v.  Curtiss  Door  &  Sash  Co.,  290 
HI.  529,  125  N.  E.  282. 

"The  burden  of  proof  was  on  the 
plaintiff,  in  order  to  make  out  his  case, 
to  show,  not  only  that  his  injury  was 
the  proximate  result  of  the  negligence 
of  the  person  operating  the  automobile, 
but  also,  as  was  alleged,  that  such  per- 

55 


son  Avas  the  servant  or  agent  of  the 
defendant,  and  was,  at  the  time  of  such 
negl'gence,  acting  within  the  line  and 
scope  of  his  employment."  Patterson 
V.  Millican,  12  Ala.  App.  324,  66  So. 
914. 

Burden  of  proof  not  shifted. — 
"Several  authorities  have  been  cited  to 
the  effect  that  when  it  is  shown  that 
when  an  injury  has  been  negligently 
inflicted  by  a  servant  of  the  owner  of 
the  car,  it  will  be  presumed,  in  the  ab- 
sence of  countervailing  proof,  that  the 
servant  was  at  the  time  employed  in  the 
business  of  his  master.  .  .  .  We  tl:iik, 
however,  that  the  inference  arising  from 
the  facts  stated,  are  properly  s;  eak- 
ing,  inferences  of  fact,  and  not  of  law. 
That  is,  it  may  be  true  that  upon  proof 
that  the  car  of  an  owner  is  being  driven 
by  one  of  his  servants  is  sufficient  as  a 
matter  of  evidence,  in  the  absence  of 
explanation  that  the  driver  at  the  time 
was  engaged  in  the  master's  business, 


866 


The  Law  of  Automobiles. 


The  mere  ownersliip  of  the  machine,  without  proof  that  the 
driver  is  in  the  employment  of  the  owner  or  that  he  is  member 
of  the  owner's  family,  has  been  held  not  sufficient  to  afford 
a  presumption  that  he  is  a  servant  of  the  owner  or  that  he 
was  acting  within  the  scope  of  the  owner's  employment.^*  On 
the  other  hand,  it  has  been  thought  that  ownership  of  the  ma- 
chine is  prima  facie  proof  that  the  custodian  of  the  car  is  act- 
ing within  the  scope  of  owner's  business.^^     The  conflict  of 


and  would  support  a  finding  to  that 
effect.  The  inference,  however,  we 
think  is  one  of  fact.  The  burden  of 
proof  as  a  matter  of  law,  as  we  under- 
stand the  rule,  yet  remains  upon  the 
plaintiff  to  establish  upon  the  whole 
case  the  material  allegations  upon 
which  his  right  of  recovery  must  rest. 
While  the  weight  of  the  evidence  may, 
from  time  to  time,  shift,  the  burden 
of  proof  as  to  the  essential  elements  of 
the  cause  of  action  does  not  do  so." 
Gordon  v.  Texas  &  Pacific  Mercantile 
&  Mfg.  Co.  (Tex.  Civ.  App.),  190  S.  W. 
748. 

94.  Lamanna  v.  Stevens,  5  Boyce's 
(Del.)  402,  93  Atl.  962;  Dearholt  Mo- 
tor Sales  Co.  v.  Merritt,  133  Md.  323, 
105  Atl.  316;  Hays  v.  Hogan,  273  Mo. 
1,  200  S.  W.  286,  L.  R.  A.  1918  C.  Ann. 
Cas.  1918  E.  1127;  Davis  v.  Neivsum 
Auto  Tire  &  Vulcanizing  Co.,  141  Tenn. 
527,  213  S.  W.  914. 

Name  of  defendant  on  truck. — The 
control  of  an  auto  truck  by  a  defend- 
ant is  prima  facie  shown  by  evidence 
that  the  name  of  the  defendant  was 
painted  on  the  outside  of  the  truck. 
Boseo  V.  Boston  Store  of  Chicago,  195 
111.  App.  133. 

95.  Arkansas. —Terry  Dairy  Co.  v. 
Parker,  223   S.  W.   6. 

Arizona. — Baker  v.  Maseeh,  20  Ariz. 
201,  179  Pac.  53. 

California. — Dierks  v.  Newsom  (Cal. 
App.),  194  Pac.  519. 

Jowo.— Hall  V.  Young  (Iowa),  177 
N.  W.  694. 

New   York. — Ferris  v.   Sterling,   214 


N.  Y.  249,  108  N.  E.  406;  Potts  v. 
Pardee,  220  N.  Y.  431,  116  N.  E.  78, 
8  A.  L.  R.  785;  Quirk  v.  Worden,  190 
N.  Y.  App.  Div.  773,  180  N.  Y.  Suppl. 
647;  Duffy  v.  Aseher,  191  N.  Y,  App. 
Div.  918,  181  N.  Y.  Suppl.  934;  Lim- 
bacher  v.  Fannon.  102  Misc.  (N.  Y.) 
703,  169  N.  Y.  Suppl.  490. 

Oregon. — West  v.  Kern,  88  Oreg. 
247,  171  Pac.  413;  West  v.  Kern,  171 
Pac.  1050;  Doherty  v.  Hazelwood  Co., 
90  Oreg.  475,  175  Pac.  849;  Clark  v. 
Jones,  179  Pac.  272.  "An  automobile 
is  a  valuable  piece  of  personal  prop- 
erty. It  is  ordinarily  driven  by  the 
owner  or  his  agent.  Proof  of  owner- 
ship therefore  logically  tends  to  prove 
responsibility  of  the  owner  for  the  acts 
of  the  party  in  charge.  If,  as  is  sug- 
gested in  the  petition,  the  automobile  is 
stolen  while  the  owner  is  away  from 
home,  the  owner  is  able  to  prove  this 
fact.  The  rules  of  law  on  the  subject 
of  the  burden  of  proof  have  for  their 
purpose  the  establishment  of  the  ma- 
terial facts  in  the  most  convenient  way. 
In  the  administration  of  justice  it  is 
often  wise  to  place  the  ultimate  burden 
of  proof  on  the  party  best  able  to  sus- 
tain it."  West  V.  Kerr  (Oreg.),  171 
Pac.  1050. 

Tennessee. — Davis  v.  Newsum  Auto 
Tire  &  Vulcanizing  Co.,  141  Tenn.  527, 
213  S.  W.  914. 

Washington. — Moore  v.  Roddie,  103 
Wash.  386,  174  Pac.  648;  Olsen  v. 
Clark,  191  Pac.  810;  Samuels  v.  Hia- 
watha Holstein  Dairy  Co.,  197  Pac.  24. 


Liability  for  Act  of  Driver. 


867 


authority  continues  through  the  decisions  when  the  fact  that 
the  driver  was  in  the  general  employment  of  the  owner  is 
added  to  the  fact  of  ownership.  In  a  majority  of  the  juris- 
dictions passing  upon  the  question,  it  is  held  that  evidence  of 
defendant's  ownership  of  a  motor  vehicle,  coupled  with  proof 
that  the  driver  is  in  his  regular  employment,  raises  a  pre- 
sumption that  at  the  time  he  is  acting  for  the  owner  and  within 
the  scope  of  the  owner's  business.^    The  burden  is  then  placed 


96.  United  States. — Benn  v.  Forrest, 
213  Fed.  763,  130  C.  C.  A.  277 ;  Foun- 
dation Co.  V.  Henderson,  264  Fed.  483. 
Alabama. — Pentieost  v.  Massey,  201 
Ala.  261,  77  So.  675;  Dowdell  v.  Reas- 
ley    (Ala.  App.),  82  So.  40. 

California. — Chamberlain  v.  Southern 
Cal.  Edison  Co.,  167  Cal.  500,  140  Pac. 
25;  Maupin  v.  Soloman  (Cal.  App.), 
183  Pac.  198. 

Colorado. — Ward  v.  Teller  Reservoir 
&  I.  Co.,  60  Colo.  47,  153  Pac.  219. 

Georgia. — Fielder  v.  Davidson,  139 
Ga.  509,  77  S.  E.  618;  Gallagher  v. 
Gunn,  16  Ga.  App.  600,  85  S.  E.  930. 

Kentticky. — Wood  v.  Indianapolis  Ab- 
batoir  Co.,  178  Ky.  188,  198  S.  W.  732. 
"The  authority  of  the  master  is  im- 
plied when  it  is  the  duty  generally  of 
the  agent,  under  the  terms  of  his  em- 
ployment, to  drive  the  automobile,  and 
when  the  authority,  either  express  or 
implied,  is  proven  the  presumption  is 
indulged  the  employee  was  on  the 
master's  business.  Thus  it  has 
frequently  been  held  that  wnere  it  not 
only  appears  that  the  defendant  was 
the  owner  of  the  machine,  but  also  that 
it  was  in  charge  of  his  chauffeur,  an 
employee  whose  duties  are  to  operate 
an  automobile,  at  the  time  the  injury 
occurred,  such  evidence  raises  a  pre- 
sumption that  the  chauffeur  was  en- 
gaged in  the  defendant's  business  and 
acting  within  the  scope  of  his  employ- 
ment, and  the  burden  then  shifted  to 
the  defendant  to  prove  that  the  chauf- 
feur was  not,  at  the  time,  acting  for 
him."     Wood  v.  Indianapolis  Abattoir 


Co.,   178  Ky.   188,  198  S.  W.  732. 

Michigan. — Hatter    v.    Dodge    Bros., 
202  Mich.  97,   167-  N.  W.  935. 

Missouri. — Guthrie    v.    Holmes,    272 
-Mo.    215,     198     S.     W.    854;     Long    v. 
Nute,    123   Mo.    App.    204,    100    S.    \V. 
511;   Shamp  v.  Lambert.  142  Mo.  App. 
567,  121  S.  W.  770;  Marshall  v.  Taylor, 
168    Mo.    App.    240,    153    S.    W.    527; 
Glassman  v.  Harry,  182  Mo.  App.  304, 
170  S.  W.  403;   Wiedeman  v.  St.  Louis 
Taxicab  Co..  182  Mo.  App.  523,   165   S. 
W.    1105;    Gordon    v.    Bleek   Auto    Co. 
(Mo.  App.),  233  S.   W.  265.     See  also 
VVhimster  v.  Holmes.  177  Mo.  App,  130, 
164  S.  W.  236.     "Where  a  servant,  who 
is  employed  for  the  special  purpose  of 
operating   an   automobile   for   the   mas- 
ter, is  found  operating  it  in  the  usual 
manner    such    machines    are    operated, 
the   presumption   naturally  arises   that 
lif  is  running  tlie  macliine  in  the  mas- 
toids service      If  lie  is  not  so  running 
it.    this    fa^t   is    peculiarly   within    the 
knowledge  of  the  master,  and  the  bur- 
den  is  on   him   to   overthrow   this   pre- 
sumption   by    evidence    which    the    law 
presumes    he    is    in    possession    of.      It 
would  be  a  hard   rule,  in  such  circum- 
stances, to  require  the  p.nrty  complain- 
ing of  the  tortious  acts  of  the  seirant, 
to  show  by  positive  proof  that  the  ser- 
vant was  serving  the  master,  and   not 
iiimself."     Long  v.  Nute.  123  Mo.  App. 
204.  100  S.  W.  511.     "Now  in  this  case 
it   appears   the   defendant   admitted   he 
owned    the    automobile,    and    that    the 
f>hauffeur  in  charge  of  the  same  at  the 
time  plaintiff  received   her   injury  was 
his  chauffeur;  that  is  to  sav.  the  chauf- 


868 


The  Law  of  Automobiles. 


on  the  defendant  to  show  that  at  the  time  of  the  particular 
occasion  the  driver  was  not  acting  for  him,  but  that  such 
driver  was  using  the  machine  for  his  own  purposes  or  out- 
side of  the  scope  of  his  employment.^^    In  a  minority  of  juris- 


feur  was  his  servant,  employed  for  the 
purpose  of  managing  and  operating  the 
automobile.  These  facts  tended  to 
prove  the  plaintifl'  received  her  injury 
through  the  negligence  of  defendant's 
servant  while  acting  within  the  scope 
of  his  employment.  And  even  though 
it  does  not  appear  that  the  chauffeur 
was  present  at  the  particular  time  and 
place  in  question  by  instruction  from 
his  master,  the  defendant,  or  perchance 
in  the  performance  of  his  duties  in  con- 
veying his  master  either  to  or  from  the 
Union  Station,  it  does  appear  that  he 
was  acting  within  the  scope  of  his  au- 
thority as  defendant's  chauffeur;  that 
is  to  say,  he  was  operating  defendant's 
automobile,  the  very  act  for  which  he 
was  employed.  We  believe  this  to  be 
sufficient,  prima  facie  at  least,  to  shift 
the  burden  of  proof  upon  the  defend- 
ant if  the  chauffeur  was  not  acting  for 
him  at  the  time."  Shamp  v.  Lambert, 
142  Mo.  App.  567,  121  S.  W.  770. 

New  York. — Ferris  v.  Sterling,  215 
N.  Y.  249,  108  N.  E.  406;  Rose  v.  Balfe, 
223  N.  Y.  481.  119  N.  E.  842;  Stewart 
V.  Baruch,  103  App.  Div.  577,  93  N.  Y. 
Suppl.  161;  Stern  v.  International  Ry. 
Co.,  167  App.  Div.  503,  153  N.  Y. 
Suppl.  520;  Bogorad  v.  Dix,  176  App. 
Div.  774,  162  N.  Y.  Suppl.  992. 

North  Carolina. — Wilson  v.  Polk,  175 
N.  Car.  490,  95  S.  E.  849;  Clark  v. 
Sweeney,  175  N.  Car.  280,  95  S.  E.  568. 
Oregon. — Kahn  v.  Home  Telep.  & 
Teleg.  Co.,  78  Oreg.  308,  152  Pac.  240. 
Tennessee. — Frank  v.  Wright.  140 
Tenn.   538,  205  S.  W.  434. 

Texas. — Gordon  v.  Texas  &  Pacific 
Mercantile  &  Mfg.  Cb.  (Civ.  App.),  190 
S.  W.  748;  Studebaker  Bros.  Co.  v. 
Kitts,  152  S.  W.  464;  City  Service  Co. 
V.  Brown  (Civ.  App.),  231  S.  W.  140. 
Washington. — Kneff    v.    Sanford.    63 


Wash.  503,  115  Pac.  1040:  Burger  v. 
Taxicab  Motor  Co.,  66  Wash.  676,  120 
Pac.  519;  Purdy  v.  Sherman,  74  Wash. 
309.  133  Pac.  440. 

Reason  for  rule.-n'' Owing  to  the 
difficulty  of  showing  ownership  of  an 
automobile  and  responsibility  therefor 
when  an  accident  is  caused  thereby,  the 
courts,  applying  and  extending  a  rule 
of  evidence  theretofore  obtaining  with 
respect  to  accidents  caused  by  other  ve- 
hicles, have  declared  that  it  is  to  be 
presumed  that  the  automobile  is  owned 
by  the  person  to  whom  the  license 
shown  by  the  number  was  issued  and 
that  it  was  being  used  in  his  business; 
but  that  this  presumption  may  be  met 
and  overcome  by  evidence."  Bogorad  v. 
Dix,  176  N.  Y.  App.  Div.  774.  162  N. 
Y.  Suppl.  992. 

Manager  of  corporation. — When  it 
is  shown  that  the  defendant  corpora- 
tion owned  the  automobile  causing  the 
injury  in  question  and  that  the  ma- 
chine was  then  operated  by  its  man- 
ager, a  presumption  making  out  a 
prima  facie  case  arises  that  it  was 
operated  for  the  defendant.  Wood  v, 
Indianapolis  Abattoir  Co.,  178  Ky.  188, 
198  S.  W.  732;  Stern  v.  International 
Ry.  Co..  167  N.  Y.  App.  Div.  503,  153 
N".  Y.  Suppl.  520. 

Carriage  for  hire. — Where  the  driver 
of  an  automobile  used  for  the  common 
carriage  of  passengers  about  a  city  tes- 
tifies that  at  the  time  of  the  accident 
he  had  three  passengers  in  the  ma- 
chine, the  jury  may  properly  find  that 
at  the  time  he  was  engaged  in  the 
business  of  the  owner.  Barfield  v. 
Evans,  187  Ala.  579,  65  So.  928. 

97.  Benn  v.  Forrest,  213  Fed.  763. 
130  C.  C.  A.  277;  Gallagher  v.  Gunn, 
16  Ga.  App.  600,  85  S.  E.  930;  Clar  v. 
Sweaney  (N.  Car),  95  S.  E.  568;  Kahn 


LiABmiTY  FOR  Act  of  Dbiver. 


869 


dictions,  however,  it  is  held  that  such  evidence  does  not  pre- 
sent a  prima  facie  case  of  liability,  but  that  the  plaintiff  must 
show  affirmatively  that  at  the  particular  occasion  under  con 
sideration  the  driver  was  acting  for  his  master  and  within 
the  scope  of  his  master's  business.^^    It  is  possible  that  a  dis- 


V,  Home  Telep.  &  Teleg.  Co..  78  Oreg. 
308,  152  Pac.  240;  Studebaker  Bros. 
Co.  V.  Kitts   (Tex.),  152  S.  W.  464. 

98.  Massachusetts. —   Hartnett  v. 

Gryzmish,  218  Mass.  258,  105  N.  E 
988;  Gardner  v.  Farnuiu.  230  Mas.*". 
•  193,  119  N.  E.  666;  Phillips  v.  (Jookin. 
231  Mass.  250,  120  N.  E.  691;  Canavan 
V.  Giblin,  232  Mass.  297.  122  N.  E.  171 : 
O'Rourke  v.  A-G  Co..  Inc.,  232  Mass. 
129,  122  N.  E.  193;  Lewandowski  v. 
Cohen  (Mass.).  129  N.  E.  378.  "What- 
ever may  be  the  rule  elsewhere  .  .  . 
it  never  has  been  the  rule  here  that 
simple  proof  of  the  ownership  of  the 
car  by  the  defendant  and  that  thi- 
chauffeur  is  his  servant  makes  out  a 
prima  facie  case  for  the  plaintiff  on 
the  question  whether  on  an  occasion 
like  that  in  the  present  case  the  chauf- 
feur was  acting  within  the  scope  of  his 
employment."  Hartnett  v.  Gryzmish. 
218  Mass.  258,  105  N.  E.  988. 

Minnesota. — See  Robinson  v.  Pence 
Automobile  Co.,  140  Minn.  332,  168  N. 
W.  10. 

Ohio.— See  White  Oak  Coal  Co.  v. 
Pavoux,  88  Ohio,  18.  102  N.  E.  302, 
46  L.  R.  A.  (N.  S.)  1091.  Ann.  Cas. 
1914  C.  1082. 

Pennsylvania. — Lotz  v.  Hanlon,  217 
Pa.  St.  339,  66  Atl.  525,  10  L.  R.  A. 
(N".  S.)  202.  118  Am.  St.  Rep.  922.  10 
Ann.  Cas.  731;  Curran  v.  Lorch,  243 
Pa.  247,  90  Atl.  62;  Scheel  v.  Shaw, 
252  Pa.  St.  451,  97  Atl.  685.  ai!lrminfr 
60  Pa.  Super.  Ct.  73;  Solomon  v.  Com- 
nionAvealth  Trust  Co.  of  Pittsburg,  256 
Pa.  St.  55,  100  Atl.  534.  See  also  Wil- 
liams V.  Ludwig  Floral  Co.,  252  Pa. 
140.  97  Atl.  206.  "It  was  essential  to 
a  recovery  in  this  case  that  it  be  made 
to  appear  that  the  accident  from  which 


plaintiff's  injury  resulted  occurred 
while  the  person  in  charge  of  the  au- 
tomobile was  using  it  in  the  course  of 
his  employment,  and  on  his  master's 
business.  Plaintiff  offered  no  direct 
evidence  as  to  this,  but  having  shown 
the  ownersliip  of  the  maeliine  to  be  in 
the  defendant,  sought  to  derive  from 
this  circumstance,  and  this  alone,  not 
only  the  fact  that  tlie  person  in  charge 
was  defendant's  servant,  but  the  fur 
ther  fact  that  lie  was  at  the  time  en- 
gaged on  the  master's  errand.  If,  when 
plaintiff  rested,  a  nonsuit  liad  been  or- 
dered, he  could  not  have  been  heard  to 
complain.  OwTiership  of  the  machine 
in  cases  of  this  character  is  at  best  but 
a  scant  basis  for  the  inference  that  was 
here  sought  to  be  derived  from  it.  It 
is  allowed  as  adequate  only  when  the 
attending  circumstances  point  to  no 
different  conclusion.  In  itself  it  is  but 
one  of  a  series  of  circumstances,  and  its 
significance  depends  on  the  extent  of 
the  general  concurrence  of  these.  If 
they  indicate  something  different,  th« 
scant  basis  that  this  single  fact  other- 
wise might  afford  is  reduced  below  the 
point  of  sufficiency.  Because  its  value 
as  a  probatory  fact  so  entirely  depends 
upon  attending  circTimstanees,  it  is  al- 
ways the  duty  of  the  party  seeking  to 
establish  through  it  a  prima  facie  case, 
to  develop  the  whole  situation,  so  that 
its  significance  may  be  correctly  meas- 
ured. When  he  fails  in  this  regard,  and 
his  evidence  leaves  tlie  general  situa- 
tion undisclosed,  and  this  without  ex 
planation  of  the  failure,  ho  is  liable  to 
suffer  from  the  inference  that  what  was 
not  disclosed  was  prejudicial  to  his 
ease.  Where  this  occurs  the  mere  fact 
of    ownership    can    count    for    little" 


870 


The  Law  of  Automobiles. 


tinction  should  be  made  between  cases  where  it  is  shown  that 
the  driver  of  the  machine  was  employed  to  drive  it  as  a  part 
of  his  employment,  and  eases  where  the  driver  is  in  the  gen- 
eral employ  of  the  defendant,  but  not  particularly  for  the 
driving  of  the  machine.  There  is  authority  to  the  effect  that 
the  presumption  does  not  arise  unless  it  is  shown  that  one  of 
the  duties  of  the  driver  is  the  operation  of  the  machine.^^  And 
a  distinction  may,  perhaps,  be  justified  between  a  case  where 
the  machine  is  operated  by  the  owner '^  paid  chauffeur,  and  a 
case  where  it  is  driven  by  a  member  of  his  family.^  In  the 
latter  case  it  is  necessary  to  make  two  presumptions  to  fix. 
prima  facie  liability  on  the  owner;  first,  that  the  member  of 
his  family  stood  in  the  relation  of  servant;  and  second,  that 
as  a  servant  he  was  acting  within  the  scope  of  his  master's 
business.^  The  general  rule  is  that  a  presumption  must  be 
based  on  a  fact,  not  upon  another  presumption.^  But  in  some 
cases  the  presumption  is  created,  although  the  driver  is  the 
child  or  other  relative  of  the  owner.*    In  those  States  where 


Lotz  V.  Hanlon,  217  Pa.  St.  339,  66  Atl. 
525,  10  L.  R.  A.  (N.  S.)  202.  118  Am. 
St.  Rep.  922,  10  Ann.  Cas.  731. 

Utah. — See  McFarlane  v.  Winters,  47 
Utah,  598,  155  Pac.  437. 

Operation  pursuant  to  request  of 
member  of  family. — When  it  is  shown 
that  at  the  time  of  the  accident  in 
question,  the  chauffeur  was  operating 
the  machine  at  the  request  of  a  mem- 
ber of  the  defendant's  family,  the  bur- 
den of  evidence  is  shifted  on  the  defend- 
ant to  show  that  the  chauffeur  was  not 
acting  within  the  scope  of  his  employ- 
ment and  within  the  scope  of  the  busi- 
ness for  which  he  was  employed.  Moon 
V.  Matthews,  227  Pa.  St.  488.  76  Atl. 
219,  29  L.  R.  A.  (N.  S.)  856;  Hazzard 
V.  Carstairs,  244  Pa.  St.  122,  90  Atl. 
556. 

99.  Wood  V.  Indianapolis  Abattoir 
Co.,  178  Ky.  188,  198  S.  W.  732;  White 
Oak  Coal  Co.  v.  Rivoux,  88  Ohio,  18, 
102  N.  E.  302.  46  L.  R.  A.  (N.  S.)  1091. 
Ann.  Cas.  1914  0.  1082;  McFarlane  v. 
Winters,  47  Utah.  598.  155  Pac.  437. 


"  The  test  for  the  prima  facie  re- 
sponsibility of  the  master  in  such 
cases  is  not  whether  the  particular  ser- 
vice being  performed  was  specially  au 
thorized,  but  it  is  whether  the  act 
which  occasioned  the  injury  was  within 
the  scope  of  the  servant's  authority  in 
prosecuting  the  business  for  which  he 
was  employed  by  the  master.  If  such 
is  not  the  test,  it  ought  to  be  suiiieient 
for  a  prima  facie  showing:  for  how 
may  the  injured  person  show  more?" 
Shamp  V.  Lambert,  142  Mo.  App  567, 
121  S.  W.  770. 

1.  Hays  V.  Hogan,  273  Mo.  1,  200  S. 
W.  286.  L.  R.  A.  1918  C.  715,  Ann.  Cas. 
1918  E.  1127. 

2.  Hays  v.  Hogan,  273  Mo.  1,  200  S. 
W.  286,  L.  R.  A.  1918  C.  715,  Ann.  Caa. 
1918  E.  1127. 

3.  Hays  v.  Hogan.  273  Mo.  1,  200  S. 
W.  286,  L.  R.  A.  1918  C.  715,  Ann.  Cas. 
1918  E.  1127. 

4.  Landry  v.  Oversen  (Iowa),  174  N. 
W.  255;  Clark  v.  Sweaney,  175  N".  Car. 
280,  95  S.  E.  568;  Wilson  v.  Polk,  175 


Liability  for  Act  of  Driver. 


871 


the  owner  of  a  vehicle  purchased  for  the  pleasure  and  con- 
venience of  his  family  is  liable,  irrespective  of  whether  the 
member  of  his  family  who  is  driving  the  machine  is  using  it 
for  his  own  purposes  or  for  the  purposes  of  the  owner,  the 
presumption  of  liability  clearly  exists.^ 


Sec.  674.  Presumption    of    management   from   ownership  — 
rebuttal  of  presumption. 

The  presumption  referred  to  in  the  foregoing  paragraph  is 
not  one  of  the  conclusive  presumptions  which  the  law  enforces 
in  some  cases,  but  is  one  which  may  be  rebutted.**    Though  not 


N.  Car.  490.  95  S.  E.  849;  Clark  v. 
Jones  (Oreg.),  179  Pac.  272;  King  v. 
Smythe,  104  Tenn.  217,  204  S.  W.  296, 
L.  R.  A.  1918  F.  293. 

Merely  an  inference  of  fact. — In- 
struction to  the  effect  that  there  is  a 
presumption  that  a  minor  child  living 
•with  his  father  and  using  his  father's 
automobile  in  and  about  the  business 
of  such  father,  is  acting  on  his  father's 
behalf  and  upon  his  father's  direction, 
until  the  contrary  is  made  to  appear  by 
the  evidence,  is  held  incorrect,  in  that 
it  is  not  a  presumption  of  law  but 
merely  an  inference  of  fact  that  may 
be  drawn  from  such  facts.  Garcia  v. 
Borino,  77  Fla.  211.  81  So.  155. 

5.  Landry  v.  Oversen  (Iowa),  174  N. 
W.  255;  King  v.  Smythe  (Tenn.)  204 
S.  W.  296. 

6.  Alabama. — Dowdell  v.  Beasley 
(Ala.   App.),   82   So.   40. 

Arizona. — Baker  v.  Maseeh.  20  Ariz. 
201,  179  Pac.  53. 

California. —  Mausin  v.  Solomon 
(Oal.  App.),  183  Pac.  198. 

Colorado. — Ward  v.  Teller  Reservoir 
&  I.  Co.,  60  Colo.  47,  153  Pac.  219. 

Indiana. — Premier  Motor  Mfg.  Co.  v. 
Tilford,  61  Ind.  App.  164.  Ill  N.  E. 
645. 

loioa.—UaU  v.  Young,  177  N.  W. 
694. 

Kansas. — Halverson  v.  Blosser,  101 
Kans.  683,  168  Pac.  863. 


.\tiir>/land. — State  to  Use  of  DeCelius 
V.  C.  J.  Benson  &  Co..  100  Atl.  505. 

.][innesota. — Menton  v.  L.  Patterson 
Co.,  145  Minn.  310,  176  N.  W.  991. 

Missouri. — Guthrie  v.  Holmes,  272 
Mo.  215,  198  S.  W.  854;  Vallery  v. 
Hesse  Bldg.  Material  Co.  ( Mo.  App. ) . 
211  S.  W.  95. 

New  York. — Potts  v.  Pardee,  220  N. 
Y.  431.  116  N".  E.  78,  8  A.  L.  R.  785; 
Rose  V.  Balfe,  119  N.  E.  842,  223  N.  Y. 
481;  Bogorad  v.  Dix,  176  App.  Div. 
774.  162  N.  Y.  Suppl.  992;  Limbacher 
V.  Fannon.  102  Misc.  (N.  Y.)  703.  169 
X.  Y.  Suppl.  490. 

Oregon. — Kahn  v.  Home  Telep.  & 
Teleg.  Co.,  78  Oreg.  308,  152  Pac.  240. 

Pennsylvania. — Holzheimer  v.  Lit 
Bros..  262  Pa.  150.  105  Atl.  73. 

Texas. — Godron  v.  Texas  &  Pacific 
Mercantile  &  Mfg.  Co.  (Civ.  App.),  190 
S.  W.  748;  City  Service  Co.  v.  Brown 
(Civ.  App.),  231  S.  W.  140. 

Washington. — Warren  v.  Norguard, 
103  Wash.  284.  174  Pac.  7;  Samuels  v. 
Hiawatha  Holstein  Dairy  Co..  107  Pac 
24 

Cross-examination  of  chauffeur  by 
defendant. — In  an  action  against  the 
owner  of  an  automobile  to  recover  dam- 
ages for  personal  injurio?,  where  the 
chauffeur  of  the  defendant  is  called  by 
the  plaintiff  to  show  that  he  wa-s  in  the 
employ  of  the  deft^ndant,  and  to 
identify    the   car,    it    is    competent    for 


872 


Thb  Law  of  Automobiles. 


conclusive,  it  may  sufficiently  raise  an  issue  of  fact  to  be  deter- 
mined, like  any  other  issue  of  fact,  upon  all  the  evidence  in 
the  caseJ  And  after  the  presentation  of  conflicting  evidence 
by  the  defendant  and  countervailing  rebuttal  evidence  on  tho 
part  of  the  plaintiff,  it  is  clear  that  generally  a  question  for 
the  jury  is  presented.'  But,  when  affirmative  evidence  is  pre- 
sented showing  that  the  servant  was  not  acting  within  the 
scope  of  his  master's  business  at  the  time  of  the  accident,  and 
such  evidence  is  entitled  to  credibility  and  no  conflicting  evi- 


the  defendant  on  cross-examination  to 
develop  by  the  witness  the  fact  that  at 
the  time  of  the  accident  he  was  using 
the  machine  in  the  prosecution  of  his 
own  business  and  not  in  the  business  of 
his  employer,  and  that  in  so  doing  he 
was  acting  contrary  to  the  orders  of 
his  employer.  Quigley  v.  Thompson, 
211  Pa.  St.  107,  60  Atl.  506. 

Statutory  change. — A  statute  may 
have  the  effect  of  raising  a  conclusive 
presumption  when  the  machine  is 
operated  by  a  member  of  the  owner's 
family.  Hatter  v.  Dodge  Bros.,  202 
Mich.  97,  167  N.  W.  935.  See  section 
626. 

7.  Penticost  v.  Massey,  201  Ala.  261, 

77  So.  675;  Dierks  v.  Neweon  (Cal. 
App.),  194  Pac.  519;  Ward  v.  Teller 
Reservoir  &  I.  Co.,  60  Colo.  47,  153  Pac. 
219 ;  Kahn  v.  Home  Telep.  &  Teleg.  Co., 

78  Oreg.  308.  152  Pac.  240;  Kneff  v. 
Sanford,  63  Wash.  503,  115  Pac.  1040; 
Burger  v.  Taxicab  Motor  Co.,  66  Wash. 
676,  120  Pa«.  519;  Purdy  v.  Sherman, 
74  Wash.  309,  133  Pac.  440;  Moore  v. 
Reddie,  103  Wash.  386,  174  Pac.  648. 

"  By  the  terms  '  raises  a  presump- 
tion,' 'will  be  presumed,'  and  other 
similar  language  used  in  the  decisions 
abm'e  cited,  it  is  evident  it  is  not  meant 
that  the  circumstances  of  the  use  of 
possession  of  an  automobile  by  an  em- 
ployee of  the  owner  raises  any  pre- 
sumption of  law  that  the  person  in 
charge  of  it  is  using  it  upon  the  buBi- 
ness  of  the  master,  but  rather  than  such 
facts  are  sufficient  to  justify  a  jury  in 


inferring  that  such  is  the  case;  in  other 
words,  the  fact  that  a  person  is  in  pos- 
session of  the  automobile  of  another, 
and  the  additional  fact  that  he  is 
shown  to  have  been  employed  by  the 
owner  to  drive  and  care  for  it,  taken 
together,  form  a  chain  of  circumstan- 
tial evidence  from  which  a  jury  is  au- 
thorized to  infer  the  further  fact  that 
the  employee  is  using  the  machine  upon 
the  employer's  business.  This  being 
the  case,  the  owner  is  called  upon  to 
rebut  the  evidence  of  these  circum- 
stances by  showing,  by  testimony  satis- 
factory to  the  jury,  that  the  real  fact 
is  otherwise;  that  notwithstanding  the 
testimony  introduced  by  plaintiff  pre- 
sents those  circumstances  which  usually 
justify  the  inference  that  the  machine 
is  being  used  for  his  business  and  by 
his  authority,  the  actual  fact  is  that 
the  employee  is  not  so  using  the  ma- 
chine, but  is  taking  it  in  connection 
with  his  own  business  and  in  perform- 
ance of  errands  not  connected  with  his 
employment.  The  inference  to  be 
drawn  from  the  facts  shown  by  the  tes- 
timony adduced  on  behalf  of  plaintiff 
is  similar  in  principle  and  effect  to  that 
arising  from  evidence  of  the  recent  pos- 
session of  stolen  property,  which  it  is 
said  presents  an  evidential  fact  to  be 
considered  by  the  jury  with  other  facts 
shown  in  the  case  in  determining  the 
guilt  or  innocence  of  the  accused" 
Kahn  v.  Home  Telep.  &  Teleg.  Ck>.,  78 
Oreg.  308,  152  Pac.  240. 


Liability  for  Act  of  Driver. 


873 


dence  is  presented,  it  is  held  in  some  States  that  the  presump- 
tion is  overcome,  and  that  the  plaintiff  is  not  entitled  to  go  to 
the  jury  merely  on  the  strength  of  the  presumption.''  How- 
ever, in  some  jurisdictions,  it  is  held  that  the  jury  is  not  re- 
quired as  a  matter  of  law  to  give  credibility  to  the  evidence 
of  the  owner,  and  hence  the  presumption  may  carry  the  ques- 
tion to  the  jury,  though  the  defendant's  explanation  is  not 
disputed  by  other  witnesses.^** 


Sec.  675.  Verdict  exonerating  chauffeur,  but  holding  owner. 

When  an  action  is  brought  against  the  owner  of  an  auto- 
mobile for  injuries  arising  from  its  operation  and  also  against 
the  driver  of  the  machine  whose  neglect  primarily  caused  the 
injuries,  a  verdict  against  the  owner  but  not  against  the 
driver,  may  be  said  with  considerable  force  to  be  inconsistent. 
But,  nevertheless,  the  verdict  against  the  owner  will  not  be 
set  aside  on  the  motion  of  such  owner  because  the  jury  fails 
to  render  a  verdict  against  the  driver  also." 


8.  Terry  Dairy  Co.  v.  Parker  (Ark.), 
223  S.  W.  6;  Randolph  v.  Hunt  (Cal. 
App.).  183  Pac.  358;  Dierks  v.  New- 
son  (Cal.  App.).  194  Pac.  519;  Fielder 
V.  Davison,  139  Ga.  509,  77  S.  E.  618: 
Samuels  v.  Hiawatha  Holstoin  Dairy 
Co.   (Wash.),  197  Pac.  24. 

9.  Maupin  v.  Solomon  (Cal.  App.). 
183  Pac.  198;  Martinelli  v.  Bond  (Cal. 
App.),  183  Pac.  461;  Halverson  v. 
Blosser,  101  Kans.  683,  168  Pac.  803; 
Classman  v.  Harry,  182  Mo.  App.  304. 
170  S.  W.  403;  Vallery  v.  Hesse  Bldg. 
Material  Co.   (Mo.  App.),  211  S.  W.  95. 

10.  Ferris  v.  Sterling,  214  N.  Y.  249, 
108  N.  E.  406;  Bogorad  v.  Dix.  176 
App.  774,  162  N.  Y.  Suppl.  992;  Cun- 
ningham V.  Castle,  127  N.  Y.  App.  Div. 
580,  111  N.  Y.  Suppl.  1057;  Holzheimer 
V.  Lit  Bros.,  262  Pa.  150.  105  Atl.  73: 
Kneff  V.  Sanford,  63  Wash.  503.  115 
Pac.  1040;  Purdy  v.  Sherman.  74 
Wash.    309,    133   Pac.   440. 

Verdict  against  weight  of  evidence. 
— Where  the  owner  of  an  automobile, 
havinsr    reached    his   destination,     dis- 


missed the  car  which  was  in  the 
charge  of  his  chauffeur  and  directed 
him  to  go  home,  but  the  chauffeur 
while  using  the  car  to  visit  a  physi- 
cian who  was  treating  him  ran  down 
and  injured  the  plaintiff,  it  was  held 
that  it  was  projaT  for  the  court  to  in- 
struct the  jury  that  while  the  law  pre- 
sumes that  an  automobile  is  in  use  for 
the  owner,  the  presumption  may  be 
overcome  and  that  under  the  evidence 
it  was  for  the  jury  to  say  whether  the 
presumption  was  overcome  by  the  te-^- 
timony  of  the  defendant  and  his  chauf- 
feur to  the  effect  that  the  defendant 
had  dismissed  the  chauffeur  and  the 
car  for  the  remainder  of  the  day  prior 
to  the  accident;  but  it  was  furtlier 
held,  that  a  verdict  for  the  plaintiff 
based  on  a  finding  that  the  chauffeur 
was  using  the  automobile  in  his  mas- 
ter's business  at  the  time  of  the  acci- 
dent vra»  agains*^  the  weight  of  the  evi- 
dence. Bogorad  v.  Dix.  176  N.  Y.  App. 
Div.  774.  162  N.  Y.  Suppl.  992. 

11.  National    Cash    Register    Co.    v. 


874  The  Law  of  Automobiles. 

Sec.  676.  Examination  of  owner  before  trial. 

Where  in  an  action  to  recover  for  personal  injuries  alleged 
to  have  been  caused  by  the  negligent  operation  of  an  auto- 
mobile the  defendant  denies  all  allegations  as  to  negligence, 
and  it  is  incumbent  upon  the  plaintiff  to  show  that  the  defend- 
ant was  operating  the  vehicle,  and,  if  not,  his  relation  to  the 
person  who  was  operating  it,  the  plaintiff  is  entitled  to  ex- 
amine the  defendant  before  trial  on  that  question,  but  is  not 
entitled  to  an  examination  upon  other  questions,  if  nothing 
indicates  that  the  examination  would  be  favorable  or  essential 
to  him.^2  A  plaintiff  who  alleges  that  he  was  run  down  and 
injured  by  an  automobile  operated  by  the  defendant  for  hire 
and  that  said  automobile  was  owned  by  one  of  the  defendants 
and  was  operated  by  the  other  defendants  in  connection  with 
their  said  business,  which  facts  are  denied  by  the  defendants, 
is  entitled  to  examination  of  defendants  before  trial  in  order 
to  prove  that  the  car  was  operated  by  all  of  the  defendants, 
or  by  some  one  of  them  for  whose  negligence  the  others  are 
responsible.^' 

Sec.  677.  Function  of  jury. 

The  question  whether  a  servant  is  acting  within  the  scope 
of  his  master's  business  in  the  operation  of  a  motor  vehicle 
is  frequently  a  question  for  the  jury.^*     The  scope  of  the 

Williams,  161  Ky.  550,  171  S.  W.  162;  Conn.  37,  89  Atl.  894;  Stuart  v.  Doyle, 

Weil  V.  Hagan,  166  Ky.  750,  179  S.  W.  112  Atl.  653 ;   Russo  \.  McAviney,  112 

835.  Atl.   657. 

12.  Brichta  v.  Simon,  152  App.  Div.  Florida. — Anderson  v.  Southern  Cot- 
832.  137  N.  Y.  Suppl.  751.  ton  Oil  Co.,  73  Fla.  432,  74  So.  975. 

13.  Behl  V.  Greenbaum,  183  N.  Y.  Illinois. — Johnson  v.  Hull,  199  111. 
App.  Div.  238,  171  N.  Y.  Suppl.  129.  App.   258. 

14.  United  States. — Benn  v.  Forrest.  BTansas.— Thompson  v.  Aultman  & 
813  Fed.  763,  130  C.  C.  A.  277.  Taylor  Machinery  Co.,   96   Kans.   259, 

Alabama. — Levine  v.  Ferlisi,  192  Ala.  150  Pae.  587;  Vail  v.  Marshall  Motor 

362,    68    So.    269 ;    Colley    v.    Lewis,    7  Co.,  107  Kans.  290,  191  Pac.  579. 
Ala.  App.  593,  61  So.  37;  Jenkins  Taxi-  Massachusetts. — Campbell  v.  Arnold, 

cab  Co.  V.  Estes,  201  Ala.  174,  77  So.  219    Mass.    160,    106   N.    E.    599;    Mc 

700.  Keever  v.  Ratliffe,  218  Mass.  17,  105  N 

California. — Adams  v.  Weisendanger,  E.  552;  Roach  v.  Hinchcliflf,  214  Mass 

27  Cal.  App.  590,  150  Pac.  1016.  367,  101  N.  E.  383;  Reynolds  v.  Den 

Connecticut. — Carrier  v.  Donovan,  88  holm,  213   Ma.s.s.  576,   100  N.  E.   1006; 


Liability  for  Act  of  Driver. 


875 


employment  may  be  a  mixed  question  of  law  and  fact.^^  *'The 
question  as  to  whether  or  not  the  chauffeur  was  acting  within 
the  scope  of  his  authority  is  generally  one  of  fact  for  the  jury 
under  proper  instructions  and  not  a  question  of  law  for  the 
court.""  Or  there  may  be  a  question  for  the  jury  as  to  the 
liability  of  the  owner  on  the  theory  that  he  committed  his 
machine  to  a  driver  known  by  him  to  be  incompetent.^^  MTien 
the  evidence  upon  the  material  points  is  conflicting,^^  or  when 
more  than  one  inference  can  be  drawn  from  the  facts,"  the 
question  may  be  one  within  the  province  of  the  jury.  In  some 
cases,  however,  the  question  may  be  one  of  law  for  the  court. 


Donahue  v.  Vorenberg,  227  Mass.  1,  116 
N.  E.  246;  French  v.  Manning,  130 
N.  E.  97. 

Michigan. — Houseman  v.  Karicoffe. 
201   Mich.  420,   167  N.  W.  064. 

Minnesota. — Emanuelson  v.  Johnson, 
182  N.  W.  521. 

Missouri. — Marshall  v.  Taylor,  168 
Mo.  App.  240,  153  S.  W.  527;  Whim- 
ster  V.  Holmes,  177  Mo.  App.  130,  164 
S.  W.  236 ;  Gordner  v.  St.  Louis  Screw 
Co.,  201  Mo.  App.  349,  210  S.  W.  930 
State  V.  Ellison  (Mo.),  229  S.  W.  1059 

New  Jersey. — Geise  v.  Mercer  Bot 
tling  Co.,  87  N.  J.  Law,  224,  94  Atl.  24 ; 
Missell  V.  Hayes,  86  N.  J.  Law,  348,  91 
Atl.  322;  Nell  v.  Godstrey,  101  Atl. 
50. 

New  York. — Zorn  v.  Pendleton,  163 
App.  Div.  33,  148  N.  Y.  Suppl.  370; 
Pangburn  v.  Buick  Motor  Co.,  151  App. 
Div.  756,  137  N.  Y.  Suppl.  37;  Baker 
V.  Homeopathic  Hospital,  190  App. 
Div.  39,  179  N.  Y.  Suppl.  675,  modified 
231  N.  Y.  8;  Shelvin  v.  Schneider,  193 
App.  Div.  107,  183  N.  Y.  Supp.  178; 
Schreiber  v.  Matlack.  90  Misc.  667, 
154  N.  Y.  Suppl.  109. 

North  Calorvna. — Rollins  v.  City  of 
Winston-Salem.  176  N.  Car.  411.  97  S. 
E.   211. 

Ohio.— White  Oak  Coal  Co.  v.  Rivoux, 
33  Ohio  Cir.  Ct.  642. 

Oregon. — Darlymple  v.  Dorey  Motor 
Car  Co.,  66  Oreg.  533,  135   Pac.  91,  48 


L.  R.  A.   (N.  S.)   424. 

Pennsylvania. — Moon  v.  Matthews. 
227  Pa.  St.  488,  76  Atl.  219,  29  L.  R. 
A.  rN.  S.)  856;  Ley  v.  Henry,  50  Pa. 
Super.  Ct.  491,  602;  Maloy  v.  Rosen- 
baum  Co.,  260  Pa.  466,  103  Atl.  882. 

Texas. — Auto  Sales  Co.  v.  Bland,  194 
S.  W.  1021. 

Washington. — Ottomeier  v.  Hom- 
berg,  50  Wash.  316,  97  Pac.  235;  Ham- 
raons  V.  Setzer,  72  Wash.  550,  130  Pac. 
1141. 

West  Virgmia. — Goff  v.  Clarksburg 
Dairy  Co.,  103  S.  E.  58. 

15.  Defoe  v.  Stratton  (N.  H.),  114 
Atl.  29. 

16.  Ward  v.  Teller  Reservoir  &  I. 
Co.,  60  Colo.  47.  153  Pac.  319. 

17.  Gardiner  v.  Solomon.  200  Ala. 
115,  75  So.  621. 

18.  Lane  v.  Roth,  195  Fed.  255; 
John.son  v.  Hull,  199  111.  App.  258; 
Schreiber  v.  Matlack,  90  Misc.  (N.  Y.) 
667,  154  N.  Y.  Suppl.  1009 ;  Dalrymple 
v.  Corey  Motor  Car  Co.,  66  Oreg.  533. 
135  Pac.  91,  48  L.  R.  A.  CN.  S.)  424; 
Curran  v.  Lorch,  243  Pa.  St.  247.  90 
Atl.  62;  Ottomeier  v.  Hornberg.  50 
Wash.  316,  97  Pac.  235;  Samuels  v. 
Hiawatha  Holstein  Dairy  (Wash.").  197 
Pac.  24. 

19.  Lane  v.  Roth.  195  Fed.  255: 
Sargent  Paint  Co.  v.  Ppfrovit.««ky  ('Tnd. 
App.).  124  N.  E.  881. 


876  The  Law  of  Automobiles. 

when  the  facts  are  vincontroverted.^*^  The  credibility  of  tlie 
mtnesses  is  generally  for  the  determination  of  the  jury,  and 
the  judge  should  not  divide  them  into  two  classes,  those  who 
were  employees  of  the  parties  and  those  who  were  not.^^  If 
the  question  of  the  liability  of  the  owner  is  not  litigated  on 
the  trial,  but  slight  evidence  will  be  required  on  appeal  to 
establish  that  the  machine  was  operated  in  the  course  of  the 
driver's  employment.^^ 

20.  Gousse  v.  Lowe   (Cal.  App.),  183  L.  R.  A.  (N.  S.)  424. 

Pac.    295;    Martinelli    v.    Bond     (Cal.  21.  Zamiar  v.  People's  Gas,  Light  & 

App.),    183    Pac.    461;    Perlrautter    v.  Coke  Co.,  204  111.  App.  290. 

Byrne,   193   App.  Div.   769,   184  N.   Y.  22.  Famt>     Laundry     Co.     v.     Henry 

Suppl.  580;   Dalrymple  v.  Corey  Motor  (Ind.  App.),  131  N.  E.  411. 
Car  Co.,  66  Oreg.  533.  135  Pac.  91,  48 


Status  of  Guests  and  Passengers.  877 

CHAPTER  XXIV. 

STATUS  OF  GUESTS  AND  PASSENGERS. 

Section  678.  Liability  of  automobilist  for  injuries  to  guest. 

679.  Imputation    of    driver's    negligence    to    other    occupant — majority 

view. 

680.  Imputation    of    driver's    negligence    to    other    occupant — minority 

view. 

681.  Imputation    of    driver's    negligence    to    other    occupant — statutory 

change  in  doctrine  of  imputed   negligence. 

682.  Imputation   of    driver's   negligence   to   other   occupant — when   pas- 

senger and   driver  are  engaged   in   common   purpose. 

683.  Imputation  of  driver's  negligence     to     other  occupant — control  by 

passenger  of  movement  of  machine. 

684.  Imputation  of  driver's  negligence  to  other  occupant — master  and 

servant. 

685.  Imputation  of  driver's  negligence  to  other  occupant — husband  and 

wife. 

686.  Imputation   of  driver's   negligence  to   other   occupant — parent  and 

child. 

687.  Imputation  of  driver's  negligence  to  other  occupant — passenger  for 

hire. 

688.  Contributory  negligence  of  passenger — in    general. 

689.  Contributory  negligence  of  passenger — lookout  for  dangers. 

690.  Contributory  negligence  of  passenger — reliance  on  driver. 

691.  Contributory     negligence     of    passenger — riding     with     intoxicated 

driver. 

692.  Contributory  negligence  of  passenger — failure    to    warn    driver    of 

dangers. 

693.  Contributory  negligence  of  passenger — remaining   in    machine. 

694.  Contributory  negligence  of  passenger — permitting  driver  to  run  at 

excessive  speed. 

695.  Contributory  negligence  of  passanger — defective   machine. 

Sec.  678.  Liability  of  automobilist  for  injuries  to  guest. 

When  the  occupant  of  an  automobile  is  injured  through  the 
operation  of  the  machine,  and  it  is  shown  that  the  driver  was 
negligent  and  the  occupant  was  not  guilty  of  contributory 
negligence,  it  is  clear  that  the  latter  can  maintain  an  action 
against  the  driver  and  recover  compensation  for  his  injuries.^ 

1.  United  States. — See  Kilkenny  v.  Ala.  265,  69  So.  875:  Galloway  v.  Per- 
Bockins,  187  Fed.  382.  kins.  198  Ala.  658,  73  So.  056. 

Alabama.  -Tevkins  v.  Galloway,   184 


878 


The  Law  of  Automobiles. 


It  has  been  said  that  the  negligence  of  the  defendant  is  not 
imputed  to  the  guest,  although  they  are  engaged  in  a  conmion 


ArJcoTisas. — Carter  v.  Brown,  136 
Ark.  23,  206  S.  W.  71. 

California. — Nichols  v.  Pacific  Elec. 
Ry.  Co.,  178  Cal.  630,  174  Pac.  319. 

Georgia. — Powell  v.  Berry,  145  Ga. 
696,   89   S.   E.   753. 

Illinois. — Masten  v.  Cousins,  216  HI. 
App.  268. 

Iowa.- — Hanen  v.  Lenander,  168  Iowa, 
569,  160- N.  W.  18. 

Kansas. — Bean-Hogan  v.  Kloehr,  103 
Kans.  731,  175  Pac.  976. 

Kentucky. — Beard  v.  Klusmeir,  I'lS 
Ky.  153,  164  S.  W.  319,  50  L.  R.  A. 
(N.  S.)   1100. 

Louisiana. — Jacobs  v.  Jacobs.  141 
La.  272,  74  So.  992. 

Maine. — Avery  v.  Thompson,  117  Me. 
120,  103  Atl.  4. 

Maryland. — Fitzjarel  v.  Boyd,  123 
Md.  497,  91  Atl.  457. 

Michigan. — Roy  v.  Kirn,  175  N.  W. 
475. 

Missouri. — Mahaney  v.  Kansas  City 
Ry.  Co.  (Mo.),  228  S.  W.  821. 

New  Jersey. — Mackenzie  v.  Oakley, 
108  Atl.  771. 

Neiu  Yor/;:.— Patnode  v.  Foote,  153 
N.  Y.  App.  Div.  494,  138  N.  Y.  Suppl. 
221;  Lowell  v.  Williams,  183  N.  Y. 
App.  Div.  701,  170  N.  Y.  Suppl.  956; 
Wilms  V.  Fournier,  111  Misc.  9,  180  N. 
Y.  Suppl.  860. 

North  Carolina. — Gates  v.  Hall,  171 
N.  C.  360,  88  S.  E.  524. 

North  Dakota. — McKeen  v.  I\ arson, 
180  N.  W.  805. 

Pennsylvania. — Steele  v.  Maxwell 
Motor  Sales  Corp.,  68  Pitts.  Leg.  Journ. 
97. 

Tennessee. — Tennessee  Cent.  R.  Co.  v. 
Vanhoy,  226  S.  W.  225. 

Utah. — Lockhead  v.  Jenson,  42  Utah, 
99,  129  Pac.  347. 

Wisconsin. — Bakula  v.  Schwab,  167 
Wis.  546,  168  N.  W.  378. 


England. — Karavias  v.  Callincos 
(1917),  W.  N.  323;  Harris  v.  Perry  & 
Co.    (1903),  2  K.  B.  219. 

Canada. — Borys  v.,  Christowsky,  27 
D.  L.  R.  792,  9  S.  L.  R.  181,  34  W.  L. 
R.  346;  Parlov  v.  Lozina,  180  W.  N. 
139,  47   O.  L.  R.   376. 

Explanation    of    rule. — In    Beard    v. 
Klusmeir,  158  Ky.  153,  164  S.  W.  319, 
50  L.   R.  A.    (N.  S.)    1100,  the  court 
said:       "Perhaps    the    best    reasoned 
opinion  upon   the   subject   is   found   in 
Patnode   v.   Foote,   decided  in   1912  by 
the  Appellate  Division  of  the  Supreme 
Court   of  New  York,   and   reported  in 
153   App.   Div.   494,   138   N.   Y.   Suppl. 
221.      In    that    case    Patnode    invited 
Foote    to    ride    with    him    in    an   open 
buggy      drawn      by      one      horse      and 
driven     by     Patnode.     There     was    evi- 
denci'     tending   to   show   that   Pt..tnode 
drove     at     a     reckless     speed     against 
Ff)ute's    protest,    and    that   a   collision 
with  a  wagon,  which  threw  Foote  vio- 
lently to  the  ground,  was  the  result  of 
Patnode 's  careless  driving.    Foote  hav- 
ing recovered  a  verdict  for  $400,  Pat- 
node appealed.     In  sustaining  the   re- 
covery the  court  said :     '  The  defendant 
insists,   as  one   of  his   grounds   for  re- 
versal of  the  judgment,  that  his  motion 
for  a  non.suit  should  have  been  granted, 
because  the  plaintiif  was  his  gratuitous 
passenger  to  whom  he  owed  no  duty  of 
care.     Counsel  upon  both  sides  confess 
their  inability  to  find  any  reported  de- 
cision   defining   the    obligation    of    one 
who  invites  another  to  ride  in  his  pri- 
vate  vehicle   toward   the  passenger   so 
invited.      After    considerable    research, 
we    have    not   been    able    to    find    any 
such    decision    in    this    State,    but    we 
do  find  the  case  of  Pigeon  v.  Lane,  80 
Conn.  237,    67   Atl.    886,    11    Ann.   Cas. 
371,  which  impresses  us  as  stating  the 

true  rule.     In  that  case  the  person  in- 


Status  of  Guests  and  Passengers. 


879 


enterprise.^    The  fact  that  the  occupant  was  a  guest  or  gratui- 
tous passenger  of  the  driver  or  owner  of  the  machine  creates 


vited  to  ride  in  the  private  vehicle  of 
another  is  declared  to  be  a  licensee,  and 
the  duty  of  the  person  giving  such  in- 
vitation is  stated  to  be  the  refraining 
from  doing  any  "negligent  acts  by 
which  the  danger  of  riding  upon  the 
conveyance  was  increased  or  a  new 
danger  created,"  and  a  summary  of 
the  decision  is  stated  in  the  syllabus  as 
follows:  'Such  licensee  can  recover 
only  for  the  active  negligence  of  the 
licensor. '  A  person  thus  invited  to  ride 
stands  in  the  same  situation  as  a  bare 
licensee  who  enters  upon  real  propcrt,y 
which  the  licensor  is  under  no  obliga- 
tion to  make  safe  or  keep  so,  but  who 
is  liable  only  for  active  negligence. 
Birch  V.  City  of  New  York,  190  N.  Y. 
397,  83  N.  E.  51,  18  L.  R.  A.  (N.  S.) 
595.  The  obligation  of  one  who  invites 
another  to  ride  is  not  as  great  as  that 
of  the  owner  of  real  property  who  in- 
vites another  thereon,  specially  for  the 
purposes  of  trade  or  commerce,  because, 
under  such  circumstances,  the  one  who 
gives  the  invitation  is  bound  to  exer- 
cise ordinary  care  to  keep  such  property 
reasonably  safe.  Duhme  v.  Hamburg- 
American  Packet  Co.,  184  N.  Y.  404. 
77  N.  E.  386,  113  Am.  St.  Bep.  615. 
Under  the  above  principles,  therefore, 
one  who  invites  another  to  ride  is  not 
bound  to  furnish  a  sound  vehicle  or  a 
safe  horse.  If  he  should  have  knowl- 
edge that  the  vehicle  was  unfit  for 
transportation  or  the  horse  unsafe  to 
drive,  another  element  would  arise,  and 
he  might  be  liable  for  recklessly  in- 
ducing another  to  enter  upon  danger. 
These  latter  elements,  however,  are  not 
involved  in  the  present  action,  and  the 
duty  of  the  defendant  toward  the 
plaintiff  only  was  to  use  ordinary  care 
not  to  increase  the  danger  of  riding 
with  him  or  to  create  a  new  danger.  It 
was  practically  upon   this  theory  that 


the  learned  trial  court  submitted  the 
case  to  the  jury. '  We  think  the  rule 
there  stated  is  the  correct  rule,  and  that 
appellant's  duty  to  the  appellee  was  to 
use  ordinary  care  not  to  increase  the 
danger  of  her  riding  with  him,  or  to 
create  any  new  danger.  In  the  case  at 
bar,  appellant  is  charged  svith  creating 
a  new  danger  by  his  fast  and  reckless 
driving.  As  said  in  the  Foote  case, 
supra,  one  who  invites  another  to  ride 
is  not  bound  to  furnish  a  safe  vehicle, 
or  a  safe  horse,  or  a  safe  automobile; 
but,  if  the  driver  fails  to  use  ordinary 
care  in  driving  the  automobile,  he 
thereby  creates  a  new  danger  for  which 
he  is  liable.  In  order  to  free  them- 
selves from  the  charge  of  reckless  driv- 
ing, chauffeurs  should  never  forget  that 
juries  usually  look  upon  an  automobile 
as  an  inherently  dangerous  contrivance 
that  is  likely  to  go  at  an  unreasonable 
speed,  at  any  time,  if  not  suppressed." 

Criminal  liability. — If  «,  man  un- 
dertakes to  drive  another  in  a  vehicle, 
he  is  bound  to  exercise  proper  care  in 
regard  to  the  safety  of  the  man  under 
his  charge:  and  if  by  culpably  negli- 
gent driving  he  causes  the  death  of  the 
other,  he  will  be  guilty  of  man- 
slaughter. But  he  cannot  be  found 
guilty  of  manslaughter  if  the  deceased 
himself  interfered  in  the  management 
of  the  vehicle  and  thereby  assisted  in 
bringing  about  the  accident.  Even  if 
the  doctrine  of  contributory  negligence 
;ipp!ies  to  criminal  cases,  which  is  very 
much  doubted,  yet  there  is  no  contribu- 
tory negligence  on  the  part  of  any  one 
in  merely  getting  into  a  vehicle  and  al- 
lowing himself  to  be  driven,  although 
the  driver  is  perceptibly  drunk.  Reg. 
v.  Jones,  2  Cox.  C.  C.  (Eng.)   544. 

2.  Wilmes  v.  Fournier,  111  Misc.  (N. 
Y.)  9,  180  N.  Y.  Suppl.  860.  See  also, 
sections    679,   682. 


The  Law  of  Automobiles. 

no  exception 'to  the  general  rule.^  The  driver  of  a  motor 
vehicle  is  under  the  obligation  of  exercising  reasonable  care, 
not  only  for  the  safety  of  pedestrians  and  other  travelers,  but 
also  for  the  safe  transportation  of  his  guests  or  other  pas- 
sengers in  the  machine.'*  The  express  or  implied  duty  of  the 
owner  and  driver  to  the  occupant  of  the  car  is  to  exercise 
reasonable  care  in  its  operation  and  not  unreasonably  to  ex- 
pose him  to  danger  by  increasing  the  hazard  of  that  method 
of  travel.  He  must  exercise  *the  care  and  diligence  which  a 
man  of  reasonable  prudence,  engaged  in  like  business,  would 
exercise  for  his  own  protection  and  the  protection  of  his 
family  and  property — a  care  which  must  be  reasonably  com- 
mensurate with  the  nature  and  hazards  attending  the  par- 
ticular mode  of  travel.  Failing  in  this  duty,  he  will  be  liable 
to  the  occupant  or  guest  in  the  car  for  injuries  which  are  the 
result  of  such  carelessness  or  lack  of  diligence.^  But  it  is 
doubtful  if  a  wife  can  recover  such  damages  from  her  husband 
with  whom  she  was  cohabiting  at  the  time  of  the  injury.^  And, 
an  owner  of  an  automobile  will  not  be  liable  for  an  injury  to 
a  person  riding  in  his  car  wthout  his  knowledge  but  as  the 
guest  of  the  driver.'^  But,  if  the  injured  passenger  is  a  guest 
of  the  owner  of  the  vehicle,  the  owner  is  not  released  from 
liability  merely  because  the  machine  is  driven  by  a  chauffeur  or 
a  child  instead  of  by  the  owner.^  And  the  owner  is  not  relieved 
from  liability  merely  because  he  did  not  expressly  invite  the 
plaintiff  to  ride  in  the  car,  where  he  was  not  a  trespasser,  and 
his  presence  was  known  to  and  acceded  to  by  the  owner.^  But 

3.  Galloway  v.  Perkins,  198  Ala.  658,  600,  66  So.  585.  And  see  section  638. 
73  So.  956;  Jacobs  v.  Jacobs,  141  La.  8.  Flynn  v.  Lewis,  231  Mass.  550, 
272,  74  So.  992;  Avery  v.  Thompson,  121  N.  E.  493,  1  A.  L.  R.  396;  Johnson 
117  Me.  120,  103  Atl.  4;  Roy  v.  Kirn  v.  Evans,  141  Minn.  356,  170  N.  W. 
(Mich.),  175  N.  W.  475;  Lowell  v.  Wil-  220,  2  A.  L.  R.  896;  Lowell  v.  Wil- 
liams, 183  N.  Y.  App.  Div.  701,  170  N.  liams,  183  N.  Y.  App.  Div.  701,  170  N. 
Y.  Suppl.  596.  Y.  Suppl.   596. 

4.  Section  277.  9.  Galloway  v.  Perkins,  198  Ala.  658, 

5.  Perkins  v.  Galloway,  184  Ala.  265,  73  So.  956,  wherein  it  was  said:  "It 
69  So.  875;  Spring  v.  McCabe  (Cal.  was  not  necessary  to  a  recovery  that 
App.),  200  Pac.  41;  Baniett  v.  Levy,  defendant  himself  should  have  ex- 
213  111.  App.  129.  pressly  invited  intestate  to  ride  in  the 

6.  Heyman  v.  Heyman,  19  Ga.  App.  car.  The  deceased  was  clearly  not  a 
634,  92  S.  E.  25.  trespasser,    and    was    expressly    invited 

7.  Powers    v.    Williamson,    189    Ala.      by  one  of  the  parties  in  the  automobile, 


Status  of  Guests  and  Passengers. 


881 


where  the  occupant  requests  the  driver  to  carry  him,  it  has 
been  held  that  he  is  a  mere  licensee  as  to  whom  the  driver  is 
under  no  obligation  except  to  refrain  from  wilful  or  wanton 
acts.i"' 

In  some  jurisdictions  recognizing  degrees  of  negligence,  such 
as  *' gross,"  '' ordinary"  or  ''slight"  negligence,  it  may  be 
held  that  the  driver  of  an  automobile  taking  a  gratuitous  pas- 
senger, is  liable  only  in  case  of  "gross"  negligence.^  But, 
in  those  jurisdictions  where  the  courts  do  not  recognize  the 
degrees  of  negligence,  it  is  said  that  "ordinary"  care  under 
the  circumstances  measures  the  duty  of  the  driver  of  the  ma- 
chine.^2    jf  ^y^q  driver  attempts  to  cross  a  railroad  track  in 


and  his  presence  in  the  car  waa  known 
and  acceded  to  by  the  defendant.  Tho 
duty  of  the  defendant  not  to  injure 
the  deceased  was  therefore  the  same  as 
if  he  had  expressly  invited  deceased  to 
ride  with  him.  As  before  remarked,  it 
does  seem  hard  that  defendant  should 
be  mulcted  in  damages,  when  he  was 
attempting  to  do  an  act  of  kindness 
and  curtesy  to  the  deceased  and  his 
comrade  by  taking  them,  tired  and 
footsore  from  hunting,  into  his  machine 
and  proceeding  to  carry  them  home, 
and  when  he  was  not  at  all  responsible 
for  their  being  away  from  home  with- 
out conveyance.  But  this  kindness  and 
charity,  in  the  eyes  of  the  law,  did  not 
excuse  defendant  from  exercising  ordi- 
nary care  not  to  injure  them.  Tf  he 
had  been  carrying  their  goods  under 
like  conditions,  he  would  not  have  been 
liable  except  for  gross  negligence  or 
wantonness.  But  as  to  the  gratuitous 
carriage  of  persons  the  rule,  as  we  have 
shown  is  different;  the  carrier  is  then 
liable  for  failure  to  exercise  reasonable 
care  as  to  the  safety  of  those  gratuit- 
ously riding  with  him,  and  the  fact  that 
he  himself  is  subjected  to  the  same  lia- 
bility or  probability  of  injury,  or  is 
himself  injured,  as  are  the  guests,  does 
not  preclude  a  recovery  against  him  for 
injury  to  those  who  are  so  riding  with 

56 


him."      See  also,  Graham  v.   Pudwill. 
(N.  Dak.),  178  N.  W.  124. 

Sheriff  attempting  arrest  of  driver.— 
Where  a  sheriff  stepped  on  the  running 
board  of  a  car  to  arrest  the  driver,  but 
the  driver  continued  to  run  the  car  in 
an  attempt  to  escape  and  in  an  ensu- 
ing struggle  for  its  control,  it  struck 
:t  bridge  support  and  the  sheriff  was 
killed,  the  liability  of  the  driver  was 
sustained.  VVeissengoff  v.  Davis,  260 
Fed.  16.  See  also  criminal  prosecution 
arising  out  of  same  accident.  State 
V.  Weisengoff  (W.  Va.),  101  S   E.  450. 

10.  Lutvin  V.  Dopkins  (N.  J),  108 
Atl.  862.  See  also  Crider  v.  Yolandc 
Coal  &.  Coke  Co.   (Ala.).  89  So.  285. 

11.  Epps  V.  Parrish  (Ga.  App. ),  106 
S.  E.  297;  Massaletti  v.  Fitzroy,  228 
Mass.  487.  118  N.  E.  168.  See  also 
Flynn  v.  Lewis,  231  Mass.  550,  2  A.  L. 
R.   896,   121  N.  E.  493. 

12.  Washington,  etc.  R.  Co.  v.  Stati' 
(Md.),  Ill  Atl.  164;  Avery  v.  Thomp- 
son. 117  Me.  120,  103  Atl.  4:  Bauer  v 
Gries  (Neb.).  181  N.  W.  156;  Pinck- 
ard  V.  Pease  (Wash),  197  Pac.  49. 
"Did  the  defendant  exercise  toward  his 
invited  guest  that  degree  of  care  and 
diligence  which  would  seem  reasonable 
and  proper  from  the  character  of  the 
thing  undertaken?  The  thing  under 
taken  was  the  transportation  of  the 
aruest    in    the    defendant's    automobile 


882 


The  Law  of  Automobiles. 


the  face  of  an  approaching  train  and  the  machine  is  struck 
through  his  miscalculation  of  the  danger,  there  may  be  a 
liability .^^  If  the  injury  is  occasioned  through  the  concurrent 
negligence  of  the  driver  and  a  third  person,  they  may  be  liable 
as  joint  tort-feasors."  The  driver  is  not  an  insurer  of  the 
safety  of  his  passenger,  nor,  in'  the  case  of  a  guest  or  gratui- 
tous passenger,  is  he  liable  as  a  common  carHer.^^  And  con- 
tributory negligence  of  the  passenger  will  defeat  his  action.^^ 
Where,  in  an  action  against  the  city  of  New  York,  brought 
by  a  police  officer  who,  while  riding  in  the  course  of  his  duty 
in  an  automobile  owned  by  the  municipality,  was  injured  when 
a  wheel  of  the  car  collapsed,  the  court,  instead  of  taking  a 
general  verdict  submitted  four  specific  questions  of  fact,  it 
was  error  to  refuse  to  charge  that  the  plaintiff  was,  never- 
theless, under  the  burden  of  proving  the  negligence  of  the  de- 
fendant or  of  its  employee,  the  chauffeur." 


The  act  itself  involved  some  danger,  be- 
cause the  instrumentality  is  commonly 
known  to  b<}  a  machine  of  tremendous 
power,  high  speed,  and  quick  action. 
All  these  elements  may  be  supposed  to 
have  been  within  the  contemplation  ot 
the  guest  when  she  accepted  the  in- 
vitation. In  a  sense  she  may  be  said 
to  have  assumed  the  risks  ordinarily 
arising  from  tliese  elements,  provided 
tlie  machine  is  controlled  and  managed 
by  a  reasonably  prudent  man  \^■ho  will 
not  by  his  own  want  of  due  care  in- 
crease their  danger  or  subject  the  guest 
to  a  newly  created  danger.  In  other 
words,  we  conceive  the  true  rule  to  be 
that  the  gratuitous  undertaker  shall 
be  mindful  of  the  life  and  limb  of  hia 
guest  and  shall  not  unreasonably  ex- 
pose here  to  additional  peril.  This 
would  seem  to  be  a  sane,  sound,  and 
workable  rule;  one  consistent  with  es- 
tablished legal  principles  and  just  to 
both  parties.  It  leaves  the  determina- 
tion of  the  issue  to  the  jury  as  a  ques- 
tion of  fact."  Avery  v.  Thompson,  117 
Me    120,  103  Atl.  4. 

13.  Avery  v.  Thompsox),  117  Me.  120, 
103  Atl.  4. 

14.  Jacobs    V.    Jacobs,    141    La.    272, 


74  So.  992;  Hennekes  v.  Beetz  (Mo. 
App.),  217  S.  W.  533;  Hays  v.  House, 
69  Pitts.  Leg.  Jour.    (Pa.)    186. 

15.  Coccora  v.  Vicksburg  L.  &  T  Co. 
(Miss  ),  89  So.  257;  Warner  v.  Brill, 
195  App.  Div.  64,  185  N.  Y.  Suppl.  586. 

16.  McGeever  v.  O'Byrne  (Ala.),  82 
So.  508;  Howe  v.  Corey  (Wis),  179 
N.  W.  791. 

17.  MoCormick  v.  New  York,  162 
App.  Div.  539,  147  N.  Y.  Suppl  917, 
wherein  the  court  explained  its  views 
as  follows:  "I  do  not  think,  however, 
tliat  the  defendant  was  liable  as  a  mat- 
ter of  law,  whether  or  not  this  wheel 
(•oUapsed  after  it  struck  the  boul  "er  or 
before,  or  that  the  defendant  was  liable 
to  the  deceased  if  tlie  chauffeur  drove 
the  car  negligently.  Here  was  a  police- 
man in  the  discharge  of  his  duty,  pro- 
tecting a  city  paymaster  in  pe  form- 
ing his  duty  in  paying  off  the  city  em- 
ployees. Both  men  were  engaged  in 
the  discharge  of  duties  devolving  upon 
the  municipality.  While  they  may  rot 
be  said  to  be  fellow-workmen  in  the 
strict  acceptation  of  that  term,  they 
both  owed  a  duty  to  the  defendant  and 
were  in  the  performance  of  their  duty 
when  the  accident  happened.     There  is 


Status  of  Guests  and  Passengers. 


883 


Sec.  679.  Imputation  of  driver's  negligence  to  other  occu- 
pant—  majority  view. 
Though  the  decisions  are  not  entirely  harmonious  on  the 
subject,  the  view  established  by  the  overwhelming  weight  of 
authority  is  that  the  negligence  of  the  driver  of  a  motor  vehicle 
is  not  imputed  to  a  passenger  who  has  no  control  over  his 
operation  of  the  machine.^*    To  state  the  rule  in  other  words, 


not  tlie  slightest  ■evidence  that  this 
chauffeur  was  not  a  perfectly  com- 
petent man,  or  that  he  was  intoxicated 
or  driving  the  car  in  a  reckless  and  im- 
proper manner.  They  were  on  a  coun- 
try road  outside  of  the  city  limits;  the 
chauffeur,  so  far  as  appears  from  the 
evidence,  was  attending  to  his  duties 
and  driving  the  car,  considering  the 
condition  of  the  road  and  the  locality 
as  well  as  he  could.  I  think  it  very 
doubtful  whether  the  finding  that  the 
chauffeur  was  guilty  of  negligence  was 
sustained  by  the  evidence,  but  at  any 
rate  I  do  not  think  that  a  municipal 
corporation  is  liable  to  one  of  its  em- 
ployees or  a  public  officer  engaged  in 
the  business  of  the  municipality  be- 
cause another  employee  engaged  in  per- 
forming the  same  duty  was  negligent. 
All  three  men.  the  paymaster,  chauf- 
feur and  the  police  officer,  were  engaged 
in  the  performance  of  a  common  duty 
to  the  municipal  corporation  of  the 
city  of  New  York.  While  engaged  in 
that  common  employment  or  perform- 
ance of  a  common  duty,  an  accident  to 
the  automobile  happened,  at  which  time 
the  jury  have  found  that  the  chauffeur 
was  negligent.  There  was  no  finding 
here  that  this  negligence  of  the  chauf- 
feur caused  the  accident  which  resulted 
in  the  death  of  the  deceased.  There 
was  a  simple  abstract  question  as  to 
whether  the  driver  of  the  machine  was 
negligent,  to  which  the  jury  answered 
"Yes."  I  do  not  think  that  that  find- 
ing standing  alone  was  sufficient  to 
justify  a  general  verdict  against  the 
defendant  for  the  injuries  which  were 


caused  by  the  accident  to  the  automo- 
bile." 

18.  United  States. — City  of  Balti- 
more V.  State  of  Maryland,  166  Fid. 
641;  Dale  v.  Denver  City  Tramway 
Co.,  173  Fed.  787,  97  C.  C.  A.  511; 
Long  Island  R.  Co.  v.  Darnell,  221  Fed. 
191;  Lehigh  Valley  R.  Co.  v.  Emens, 
231  Fed.  636.  145  C.   C.  A.   522. 

Alabama. — Birmingham,  etc.  Co.  v. 
Carpenter,  194  Ala.  141.  69  So.  626; 
Galloway  v.  Perkins,  198  Ala.  658,  73 
So.  956;  McGeever  v.  O'Byrne,  82  So. 
508;  Birmingham  So.  R.  Co.  v.  Harri- 
son. 203  Ala.  284,  82  So.  534;  Birm- 
ingham Ry.  T.  &  P.  Co.  V.  Barranco, 
203  Ala.  639. 

Arkansas. — Carter  v.  Brown.  136 
Ark.  23,  206  S.  W.  71;  Miller  v.  Ft. 
Smith  Light  &  Tract.  Co.,  206  S.  W. 
329;  Pine  BJuff  Co.  v.  Whitelaw.  227 
S.  W.  13. 

California. — Bresee  v.  Los  Angelea 
Traction  Co.,  149  Oal.  131,  85  Pac.  152, 
5  L.  R.  A.  (N.  S.)  1059;  Thompson  v. 
Los  Angeles,  etc.  R.  Co.,  165  Cal.  748, 
134  Pac.  709;  Lynn  v.  Goodwin.  170 
Cal.  112,  148  Pac.  927;  Parmenter  v. 
McDougall,  173  Cal.  306.  156  Pac.  460; 
Bryant  v.  Pacific  Elec.  Ry.  Co,  174 
Cal.  737,  164  Pac.  385;  Lininger  v.  San 
Francisco,  etc.  R.  Co..  18  Cal.  App.  411, 
123  Pac.  235:  Irwin  v.  Golden  State 
Auto  Tour  Co.,  178  Cal.  10.  171  Pac. 
1059;  Wiley  v.  Young,  178  Cal  681. 
174  Pac.  316;  Ellis  v.  Central  Cali- 
fornia Tract.  Co.,  37  Cal.  App.  390, 
174  Pac.  407;  De  Sota  v.  Pacific  Elec. 
Ry.  Co.  (Cal.  App.),  193  Pac.  270; 
Stewart  v.    San  Joaquin  L.   &  P.   Co., 


884 


The  Law  of  Automobiles. 


the  negligence  of  the  driver  of  the  machine  does  not  defeat 
the  remedy  of  a  passenger  who  sustains  an  injury  by  reason 
of  the  negligence  of  another  person.^^    Clearly  the  negligence 


186  Pac.  160;  Carpenter  v.  Atcheson, 
etc.  Ry.  Co.  (Cal.  App.),  195  Pac. 
1073. 

Colorado. — Denver  Tramway  Co.  v. 
Orbach.  64  Colo.  511,  172  Pac.  1063. 

Connecticut. — Clarke  v.  Connecticut 
St.  Ry.  Co.,  83  Conn.  219,  76  Atl.  523; 
Sampson  v.  Wilson,  89  Conn.  707,  96 
Atl.  163;  Weidlich  v.  New  York.  etc. 
R.  Co.,  93   Conn.  438,  106  Atl.  323. 

Georgia. — Adamson  v.  McEvvan,  12 
Ga.  App.  508,  77  S.  E.  591;  Wilkinson 
V.  Bray    (Ga.  App.).  108  S.  E.   133. 

Illinois.— 'Eckels  v.  Muttschall.  230 
111.  462,  82  N.  E.  872;  Opp  v.  Pryor, 
128  N.  E.  580;  Gaffney  v.  Dixon,  157 
111.  App.  589;  Sutton  v.  City  of  Chi- 
cago. 195  111.  App.  261;  Ferry  v.  City 
of  Waukegan,  205  111.  App.  109; 
Vanek  v.  Chicago  City  Ry.  Co.,  210 
111.  App.  148;  Fredericks  v.  Chicago 
Rys.  Co.,  208  111.  App.  172;  Deheave  v. 
Hines,  217  111.  App.  427. 

Indiana. — Indiana  Union  Traction 
Co.  V.  Love.  180  Ind.  442,  99  K  E. 
1005;  Pittsburgh,  etc.  R.  Co.  v.  Kep- 
hert,  6]  Ind  App.  621,  112  N.  E.  251: 
Chicago  I.  &  L.  Ry.  Co.  v.  Lake  County 
Savings  &  Trust  Co.  186  Ind.  358,  114 
N".  E.  454;  Union  Traction  Co.  of  In- 
diana v.  Haworth.  187  Ind.  451,  115 
N.  E.  753;  Lake  Erie  &  W.  R.  Co.  v. 
Howarth    (Ind.   App.),   124  N.  E.   687. 

Iowa. — Lawrence  v.  Sioux  City,  172 
Iowa.  320,  154  N.  Y.  494;  Stoker  v. 
Tri-City  Ry.  Co..  182  Iowa,  1090,  165 
ISr.  W.  30;  Nels  v.  Rider,  185  Iowa, 
781,  171  N.  W.  150;  Willis  v.  Schertz, 
175  N".  W.  327 ;  Wagner  v.  Kloster,  175 
N.  W.  840;  Borg  v.  Des  Moines  City 
Ry.  Co.,  181  N.  W.  10. 

Kansas. — Williams  v.  Withington,  88 
Kan.  809,  129  Pac  1148;  Corley  v. 
Atchison,  etc.  Ry.  Co..  90  Kans.  70, 
133  Pac.  555;  Anthony  v.  Kiefner,  96 
Kans.  194,  150  Pac.  524;  Denton  v. 
Missouri,  K.   &,  T.   Ry.    Co.,   97  Kans. 


498,  155  Pac.  812;  Eurzie  v.  Joplin, 
etc.  Ry.  Co.,  102  Kans.  287,  562,  171 
Pac.  351;  Schaefer  v.  Arkansas  Valley 
Interurban  Ry.  Co.,  179  Pac.  323. 

Kentucky. — Livingston  &  Co.  v.  Phil- 
ley,  155  Ky.  224,  159  S.  W.  665;  Hack- 
worth  V.  Ashby.  165  Ky.  796,  178  S. 
W.  1074;  Collins  Ex'rs  v.  Standard 
Ace.  Ins.  Co.,  170  Ky.  27,  185  S.  W. 
112;  Coughlin  v.  Mark,  173  Ky.  728, 
191  S.  W.  503;  Winston's  Adm'r  v. 
City  of  Henderson.  179  Ky.  220,  200 
S.  W.  330;  Louisville  &  N.  R.  Co.  v. 
Scott's  Adm'r,  184  Ky.  319,  211  S.  W. 
747. 

Louisiana. — Roby  v.  Kansas  City 
Southern  Ry.  Co.,  130  La.  880,  58  So. 
696.  41  L.  R.  A.  (N.  S.)  355;  Brous- 
sard  v.  Louisiana  Western  R.  Co.,  140 
La.  517.  73  So.  606;  Jacobs  v.  Jacobs, 
141  La.  272,  74  So.  992;  Peterson  v. 
New  Orleans  Ry.  &  Light  Co.,  152  La. 
835,  77  So.  647;  Maritzky  v.  Shreve- 
port  Rys.  Co.  (144  La),  692.  81  So 
253;  Daull  v.  New  Orleans  Ry.  &  L. 
Co.,  147  La.  1012,  86  So.  477. 

Maine. — Pease  v.  Gardner.  113  Me. 
264,  93  Atl.  550;  Cobb  v.  Cumberland 
County  Power  &  Light  Co.,  104  Atl. 
844. 

Maryland. — United  Rys.  &  Elec.  Co. 
V.  Grain,  123  Md.  332.  91  Atl.  405; 
Baltimore  &  0.  R.  Co.  v.  State  to  Use 
of  McCabe,  133  Md.  219,  104  Atl  465; 
Washington,  etc.  R.  Co.  v.  State,  111 
Atl.  164;  McAdoo  v.  State,  111  Atl. 
476;   Chiswell  v.  Nichols,  112  Atl    363. 

Massachusetts. — Schultz  v.  Old  Col- 
ony St.  Ry.  Co.,  193  Mass.  309.  79  N. 
E.  873, '  8  L.  R.  A.  (N.  S.)  597,  118 
Am.  St.  Rep.  502.  9  Ann.  Cas.  402; 
Miller  v.  Boston  &  Northern  Street  Ry , 
197  Mass.  535,  83  N.  E.  990;  Chad- 
bourne  v.  Springfield  Ry.  Co..  199 
Mass.  574,  85  N.  E.  737;  Loftus  v. 
Pelletier,  223  Mass.  63,  111  N.  E.  712; 


Status  of  Guests  and  Passengers. 


885 


of  one  passenger  is  not  ordinarily  to  be  imputed  to  another 


Griffin  v.  Hustis,  234  Mass.  95.  125  N 
E.  387;  Fahy  v.  Director  General,  126 
N.  E.  784. 

Michigan. — Ommen  v.  Grand  Trunk 
Western  Ry.,  169  N.  W.  914. 

Minnesota. — Ward  v.  Meeds.  114 
Minn.  18,  130  N.  W.  2;  Caniigie  v. 
Great  Northern  R.  Co.,  128  Minn.  14, 
150  N.  W.  164;  Zenner  v.  Great  Nor- 
thern Ry.  Co..  135  Minn.  37,  159  N. 
W.  1087;  Kokesh  v.  Price,  136  Minn. 
304,  161  N.  W.  715;  McDonald  v. 
Mesaba  Ry.  Co.,  137  Minn.  275.  163 
N.  W.  298;  Carson  v.  Turriah,  140 
Minn.  445,  168  N.  W.  349;  Fraught  v. 
Great  Northern  Ry.  Cb.,  144  Minn.  309, 
175  N.  W.  998. 

Mississippi. — Hines  v.  MoOullers,  121 
Miss.  666.  83  So.  734. 

Missouri. — Tannehill  v.  Kansas  City, 
etc.  Ry.  Co.,  279  Mo.  158,  213  S.  W. 
818;  Mahaney  v.  Kansas  City  Ry.s.  Co. 
(Mo.).  228  S.  W.  821;  Zaloutuchin  v. 
Metropolitan  St.  Ry.  Co.,  127  Mo.  App. 
577,  106  S.  W.  548;  Tumey  v.  United 
Rys.  of  St.  Louis,  155  Mo.  App.  513, 
135  S.  W.  93;  Rush  v.  Metropolitan  St. 
R.  Co.,  157  Mo.  App.  504,  137  R.  W. 
1029;  McFadden  v.  Metropolitan  St. 
Ry.  Co..  161  Mo.  App.  652,  143  S.  W. 
884;  Byerley  v.  Metropolitan  St.  R. 
Co.,  172  Mo.  App.  470,  158  S.  W.  413; 
Graham  v.  Sly,  177  Mo.  App.  348.  164 
S.  W.  136;  Rappaport  v.  Roberts  (Mo. 
App.),  203  S.  W.  676,;  Lawler  v. 
Montgomery  (Mo.  App.).  217  S.  W. 
856;  Davis  v.  City  L.  &  T.  Co.  (Mo. 
App.),  222  S.  W.   884. 

Montana. — Sherris  v.  Northern  Pac. 
Ry.  Co.,  55  Mont.  189,  175  Pac.  269. 

Nebraska. —  T^so  v.  I.^nca9tPr 
County.  77  Neb.  466,  109  N.  W.  752, 
8  L.  R.  A.  (N.  S.)  618;  Reudelhuber 
V.  Douglas  County,  100  Neb.  687.  161 
N.  W.  174;  Berlo  v.  Omaha,  etc.  Ry. 
Co..  178  N.  W.  912. 

New  Hampshire. — Collins  v.  Hustis, 
111  Atl.  286. 

New  Jersey. — Horandt  v.  Central  R. 


Co.,  81  N.  J.  Law,  488,  83  Atl.  511: 
Lange  v.  New  York  etc.  R.  Co..  89  N. 
J.  Law,  604,  99  Atl    346. 

Neto  York. — Ward  v.  Brooklyn 
Heights  R.  Co.,  119  App.  Div.  487,  104 
N.  Y.  SuppL  95;  Noakes  v.  New  York 
Central,  etc.  R.  Co ,  121  App.  Div.  716, 
106  N.  Y.  Suppl.  522.  affirmed  195  N. 
Y.  543,  88  N.  E.  1126;  Terwilliger  v. 
Long  Island  R.  Co.,  152  App.  Div.  168, 
136  N.  Y.  Suppl.  733;  Harding  v.  City 
of  New  York.  181  N.  Y.  App.  Div.  251, 
168  N.  Y.  Suppl.  265;  Sinica  v.  New 
York  Rya.  Co.,  ]90  App.  Div.  727,  180 
N.  Y.  Suppl.   377. 

North  Carolina. — Hunt  v.  North 
Carolina  R.  Ck).,  170  N.  Car.  442.  87 
S.  E.  210;  McMillian'v.  Atlanta  &  C. 
Air  Line  Ry.  Co.,  172  N.  C.  853,  90  S. 
E.  683;  Pusey  v.  Atlantic  Coast  Line 
R.  Co..  106  S.  E.  452;  Parker  v.  Sea- 
board Air  Line  Ry.,  106  S.  E.  755. 

North  Dakota. — Chambers  v.  Min- 
neapolis, etc.  Ry.  Co.,  37  N.  Dak.  377. 
163  N.  W.  824. 

0/ito.— Toledo  Rys.  &  Light  Co.  v. 
Mayers,  93  Ohio  St.  304.  112  N.  E. 
1014. 

()klahx)ma.—St.  Louis  &  S.  F.  R.  Co. 
V.  Bell,  58  Okla.  84,  159  Pac.  336  . 

Oregon. — Rogers  v.  Portland,  etc.  P. 
Co.,  66  Oreg.  244,  134  Pac.  9;  Tonsetli 
V.  Portland,  etc.  Co.,  70  Oreg.  341,  141 
Pac.  868;  Sanders  v.  Taber,  79  Oreg. 
522,  155  Pac.  1194  (motor  cycle)  ; 
White  V.  Portland  Gas  &  Coke  Co.,  84 
Oreg.  643.  165  Pac.  1005;  Robinson  v. 
Oregon-Washington  R.  &  Nav.  Co.,  90 
Orog.  490,  176  Pac.  594. 

Pennsylvania. — Wacbsniith  v.  Balti- 
more &  O.  R.  Co.,  233  Pa.  St.  465.  82 
Atl.  755;  Senft  v.  Western  Md.  Ry. 
Co.,  246  Pa.  St.  446.  92  Atl.  553;  Dun- 
lap  v.  Philadelpliia  Rapid  Transit  Co.. 
248  Pa.  St.  130.  93  Atl.  873;  Hardie  v. 
Barrett,  257  Pa.  42,  101  Atl.  75  Sis 
sion  V.  City  of  Philadelphia.  248  Pa 
140,  93  Atl.  936;  Vocea  v.  Pennsyl 
vania  R.  Co..  259  Pa.  St.  42,  102  Atl. 


886 


The  Law  of  Automobiles. 


passenger.^  In  case  of  the  concurring  negligence  of  two  per- 
sons resulting  in  an  injury  to  an  occupant  of  an  automobile, 
both  may  be  liable  jointly  or  severally  for  the  tort.'^  To  the 
general  rule  certain  exceptions  are  to  be  granted.  Thus,  it 
is  said,  if  the  driver  and  the  i^assenger  are  engaged  in  a  com- 
mon purpose  or  joint  enterprise,  the  negligence  of  the  driver 
may  be  the  negligence  of  the  other  occupant.-^  Another  ap- 
parent exception  exists  when  the  negligence  of  the  driver  is 
the  sole  proximate  cause  of  the  injury.^^     This  exception  is 


283;  Wanner  v.  Philadelphia,  etc.  Ey. 
Co.,  261  Pa.  273,  104  Atl.  570;  Martin 
V.  Pennsylvania  R.  Co.,  265  Pa.  St. 
282,  108  Atl.  631 ;  Keinath  v.  Bullock, 
110  Atl.  755. 

Rhode  Island. — Hermann  v.  Rhode 
Island  Co.,  36  H.  I.  447,  90  Atl.  813. 

South  Carolina. — Latimer  v.  Ander- 
son County,  95  S.  Car.  187,  78  S.  E. 
879. 

Tennessee.— Knoxville  Ry.  &  Light 
Co.  V.  Vangilden.  132  Tenn.  487.  178 
8.  W.   1117. 

Texas. — Routledge  v.  Rambler  Auto 
Co.  (Civ.  App.),  95  S.  W.  749;  Lyon 
V.  Phillips,  196  iS.  W.  995;  El  Paso 
Elec.  Ry.  Co.  v.  Benjamin  (Civ.  App.), 
202  S.  W.  996;  Chicago,  etc.  R.  Co.  v. 
Wentzel  (Civ.  App.),  214  S.  W.  710; 
Chicago,  etc.  R.  Co.  v.  Johnson  (Civ. 
App.),  224  S.  W.  277. 

Utah. — Montague  v.  Salt  Lake  &  U. 
R.  Co.,  52  Utah,  368,  174  Pac.  871; 
Cowan  V.  Salt  Lake,  et<?.  R.  Co.,  189 
Pac.  599. 

Vermont. — Wentworth  v.  Waterbury. 
90  Vt.  60,  96  Atl.  334;  Bancroft  v. 
Cote,  90  Vt.  358,  98  Atl.  915;  TTowc  v. 
Central  Vermont  Ry.  Co.,  Dl  Vt.  485, 
101  Atl.  45;  Lee  V.  Donnelly,  113  Atl. 
542. 

Virginia. — Virginia  Ry.  i.  Power  Co. 
V.  Gorsuch,  120  Vt.  655,  91  S.  E.  632; 
Clark  V.  Columbus,  etc.  Co..  108  S.  E. 
178. 

Washington. — Beach  v.  City  of  Se- 
attle, 85  Wash.  379,  148  Pac.  39;  Dilla- 
bough   V.  Okanogan  C^iintv.  105  Wash. 


609,  178  Pac.  802. 

Wisconsin. —  Reiter  v.  Grober,  181  N. 
W.  739. 

Steam  roller. — The  negligence  of  the 
driver  of  a  steam  roller  is  not  imputed 
to  a  helper  riding  thereon.  Moreno  v. 
Los  Angeles  Transfer  Co.  ( Cal.  App. ) , 
186  Pac.  800. 

Prospective  passenger. — The  negli- 
gence of  the  driver  of  a  vehicle  is  not 
imputed  to  a  person  who  is  struck  by 
an  automobile  while  he  is  entering  such 
vehicle.  Irwin  v.  Golden  State  Auto. 
Tour  Co.,  178  Cal.  10,  171  Pac.  1059. 

Military  service. — The  negligence  of 
a  sergeant,  driving  an  army  truck  may 
not  be  imputed  to  the  soldiers  riding 
therein.  Charleston,  etc.  R.  Co.  v. 
Alwang,  258  Fed.  297. 

19.  Colorado  Springs,  etc.  R.  Co.  v. 
Cohen,  16  Colo.  149,  180  Pac.  307;  In- 
diana Union  Traction  Co.  v.  Love,  180 
Ind.  442,  99  N.  E.  1005;  Denton  v.  Mis- 
souri, K.  &  T.  Ry.  Co.,  97  Kans.  498, 
155  Pac.  812;  Haekworth  v.  Ashby.  165 
Ky.  796,  178  S.  W.  1074;  Veach's 
Adm'r  v.  Louisville,  etc.  Ry.  Co.  (Ky.), 
228  S.  W.  35;  Tonseth  v.  Portland,  etc 
Co.,  70  Oreg.  341,  141  Pac.  868. 

20.  Baker  v.  Streater  (Tex.  Civ. 
App.),  221  S.  W.  1039. 

21.  Kilkenny  v.  Bockins,  187  Fed. 
382;  Coleman  v.  Minneapolis  St.  R 
Co..  113  Minn.  364,  129  N.  W.  762. 

22.  Section  682. 

23.  Alabama. — Karples  v.  City  Ice 
Delivery  Co.,  198  Ala.  449,  73  So.  642. 


Status  of  Guests  and  Passengers. 


more  accurately  stated  as  a  rule  of  proximate  cause.  That 
is  to  say,  to  take  a  concrete  case,  when  an  automobile  collides 
with  a  railroad  train  and  a  passenger  is  injured,  if  the  negli- 
gence of  the  driver  of  the  machine  can  be  said  to  be  the  solo 
proximate  cause  of  the  injury,  the  railroad  company  escape? 
liability,  not  so  much  on  the  theory  of  contributory  negligence 
of  the  driver  as  on  the  ground  that  no  negligence  on  its  part 
is  shown.2«  xjnder  the  general  rule,  if  a  guest  or  passenger 
in  a  vehicle  is  injured  by  reason  of  a  collision  with  another 
vehicle,25  or  with  a  railroad  train  ^  or  street  railway  car,"  or 


Indiana.— ijake  Erie  &  W.  R.  Co.  v. 
Howartb   (Ind.  App.),  124  N.  E.  687. 

Kentucky. — T^ouiaville  &  N.  R.  Co.  v. 
Scott's  Adm'r.  184  Ky.  319.  211  S.  W. 
747. 

Mart/land. — Washington,  etc.  R.  Co. 
V    State   (Md.),  Ill  Atl.  164. 

North  Carolina. — Bagwell  v.  South- 
ern Ry.  Co.,  167  N.  Car.  611.  83  S.  E. 
814;  McMillian  v.  Atlanta  &  C.  Air 
Line  Ry.  Co.,  172  N.  Car.  853.  90  S. 
E.  683. 

Oregon. — White  v.  Portland  Gas  & 
Coke  Co..  84  Oreg.  643,  165  Pae.   1005. 

24.  Bagwell  v.  Southern  Ry.  Co.,  167 
N.  Car.  611,  83  S.  E.   814. 

25.  Trwin  v.  Golden  State  Auto  Tour 
Co..  178  Cal.  10.  171  Pac.  1059:   Samp 
son   V.    Wilson,   89    Conn.    707.    96   Atl 
163;   Williams  v.  Withington.   88  Kan 
809,  129  Pac.  1148;  Hackworth  v.  Ash 
by,  165  Ky.  796,  178  S.  W.  1074;  Chis 
well   V.   Nichols    (Md.).    112   Atl.   363; 
Ward  V.  Meeds.   114  Minn.   18,   130  N. 
W.  2;  Kokesh  v.  Price,  136  Minn.  304, 
161  N.  W.  715;  Carson  v.  Turrish.  140 
Minn.  445,  168  N.  W.  349:    Sanders  v. 
Taber,    79    Oreg.    522.    155    Pac.    1194; 
Bancroft  v.   Cote.   90  Vt.   358.   98   Atl. 
915. 

26.  United  (States. — Tvohigh  Valley 
R.  Co.  V.  Emens,  231  Fed.  636,  145  C. 
C.  A.  522. 

Alabama. — Birmingham,  etc.  Co.  v. 
Carpenter.  194  Ala.  141.  69  So.  626; 
Birmingham  So.  R.  Co.  v.  Harrison, 
203  Ala.  284,  82  So.  534. 


California. — Ellis  v.  Central  Cali- 
fornia Tract.  Co.,  37  Cal.  App.  390. 
174  Pac.  407:  Carpenter  v.  Atchison, 
etc.  Ry.  Co.  (Cal.  App.),  195  Pac.  1073. 
Indiana. — Pittsburgh,  etc.  R.  Co.  v. 
Kepherl,  61  Ind.  App.  621,  112  X.  E. 
251;  Chicago  I.  &  L.  Ry.  Co.  v.  l.ake 
County  Savings  &  Trust  Co..  186  Ind. 
358,  114  N.  E.  454;  Lake  Erie  &  W. 
R.  Co.  V.  Howarth  (Ind.  App.),  124  N. 
E.  687. 

Kansas. — Corley  v.  Atchison,  etc.  Ry. 
Co.,  90  Kans.  70.  133  Pac.  555;  Den- 
ton V.  Missouri,  K.  &  T.  Ry.  Co.,  97 
Kans.  498,  155  Pac.  812;  Burzio  v. 
Joplin,  etc.  Ry.  Co.,  102  Kan.s.  287. 
562,  171  Pac.  351. 

Kentuckif. — Louisville  &  N.  R.  Co. 
V.  Scott's  Adm'r,  184  Ky.  319.  211  S. 
W.  747;  Veach's  Adm'r  v.  Louisville, 
etc.  Ry.  Co..  228  S.  W.  35. 

Louisiana. — P.rous>ard  v.  Louisiana 
Western  R.  Co..  140  La  517,  73  So. 
606. 

Maryland. — Baltimore  k  O.  R.  Co.  v. 
State  to  Use  of  McCabe.  133  Md.  219. 
104  Atl.  465:  McAdoo  v.  State.  Ill  Atl. 
476. 

Michigan. — Ommcn  v.  Grand  Trunk 
Western  Ry.,  204  Mich.  392,  169  N.  W. 
914. 

Min/nesoia. —  Carnigic  v  Great 
Northern  R.  Co.,  128  Minn.  14,  150  N. 
W.  164;  Zenner  v.  Great  Northern  Ry. 
Co..  135  Minn.  37,  159  N.  W.   1087. 

New  Hampshire. — Collins  v.  Hustis, 
111   Atl.  286. 


The  Law  of  Automobiles. 


on  account  of  defects  in  the  highways  or  bridges,^  and  he  has 
no  control  over  the  driver  and  is  not  guilty  of  contributory 


New  Jersey. — Laiige  v.  New  York, 
etc.  R.  Co.,  89  N.  J.  L.  604,  99  Atl.  346. 

New  York. — Noakes  v.  New  York 
Central,  etc.  R.  Co.,  121  App.  Div.  716. 
106  N.  Y.  Sup])l.  522.  affirmed  195  N. 
Y.  543,  88  N.  E.  1120;  Terwilliger  v. 
Long  Island  R.  Co..  152  App.  Div.  168, 
136  N.  Y.  Suppl.  733.  "Tlie  duty  which 
is  imposed  upon  a  passenger  in  a  ve- 
hicle crossing  a  steam  railroad  track 
and  the  question  as  to  the  extent  that 
a  passenger  in  a  vehicle  is  precluded 
from,  recovering  by  reason  of  the  negli- 
gence of  tlie  driver  or  person  operating 
the  motive  power  of  the  vehicle  have 
been  discussed,  but  it  is  settled  in  thL'^ 
State  that  the  contributory  negligence 
of  the  driver  or  ojwrator  of  the  vi- 
hicle  is  not  chargable  against  a  pas- 
senger, but  that  in  such  a  case  the  pas- 
senger is  to  be  judged  by  the  duty  that 
the  law  imposes  upon  him  under  the 
circumstances  existing  at  the  time  of 
the  accident.  Tliere  is  no  doubt  but 
that  a  traveler  approaching  a  railroad 
track  is  bound  before  crossing  the  track 
to  use  both  his  eyes  and  his  ears  to 
discover  if  possible  whetlier  a  train  is 
approaching."  Noakes  v.  New  York 
Central,  etc.  R.  Co.,  121  App.  Div.  716. 
106  N.  Y.  Suppl.  522,  affirmed  195  N. 
Y.  543,  88  N.  E.  1126. 

North  Carolina. — Hunt  v.  North 
Carolina  R.  Co..  170  N.  Oar.  442,  87 
S.  E.  210. 

Oklahoma. — St.  Louis  &  S.  F.  R.  Co 
v.  Bell,  58  Okla.  84,  159  Pac.  336. 

Oregon. — Robinson  v.  Oregon -Wash- 
ington R.  &  Nav.  Cb.,  90  Oreg.  490,  176 
Pac   594. 

Pennsylvania. — Wachsmith  v.  Balti- 
more &  0.  R.  Co..  233  Pa.  St.  465,  82 
Atl.  755;  Senft  v.  Western  Md.  Ry. 
Co.,  246  Pa.  St.  446,  92  Atl.  553; 
Vocca  V.  Pennsylvania  R.  Co.,  259  Pa. 
St.  42,  102  Atl.  283. 

Teaias. — Chicago,  etc.  R.  Oo.  v.  John- 


son   (Civ.  App.),  224  S.  W.  277. 

Utah. — Montague  v.  Salt  Lake  &  U. 
R.  Co.,  52  Utah,  368,  174  Pac.  871. 

27.  United  States. — Dale  v.  Denver 
City  Tramway  Co.,  173  Fed.  787,  97  C. 
C.  A.  511. 

Alabama. — Birmingham  Ry.  L.  &,  P. 
Co.  V.  Barranco,  203  Ala.  639.  84  So. 
839. 

Arkansas. — Pine  Bluff  Co.  v.  White- 
law,  227  S.  W.  13. 

California. — Thompson  v.  Los  An- 
geles, etc.  R.  Co..  165  Cal.  748,  134 
Pac.  709;  Lininger  v.  San  Francisco, 
etc.  R.  Co.,  18  Cal.  App.  411,  123  Pac. 
235. 

Colorado. — Denver  Tramway  Co.  v. 
Orbach,  64  Colo.  511,  172  Pac.  1063. 

/«mot*.— Eckels  v.  Muttaehall,  230 
111.  462,  82  N.  E.  872;  Fredericks  v. 
Chicago  Rys.  Co.,  208  111.  App.  172. 

Indiana. — Indiana  Union  Traction 
Co.  V.  Love,  180  Ind.  442.  99  N.  E.  1005. 

lovxt. — ^Stoker  v.  Tri-City  Ry.  Co., 
182  Iowa,  1090,  165  N.  W.  30;  Borg 
V.  Des  Moines  City  Ry.  Ck>..  181  N. 
W.  10. 

Louisiana.— Da.u[l  v.  New  Orleans 
Ry.  L.  Co.,  147  La.  1012,  86  So.  477. 

Maryland. — Washington,  etc.  R.  Cb. 
V.  State,  111  Atl.  164. 

Massachusetts.  —  Chadbourne  v. 
Springfield  Ry.  Co..  199  Mass.  574,  85 
N.  E.  737. 

Minnesota. — McDonald  v.  Mesaba 
Ry.  Co.,  137  Minn.  275,  163  N.  W.  298. 

Missouri. — Turney  v.  United  Rys.  of 
St.  Louis.  155  Mo.  App.  513,  135  S.  W. 
93;  Rush  V.  Metropolitan  St.  R.  Co., 
157   Mo.  App.  504,  137  S.  W.   1029. 

New  York. —  Ward  v.  Brooklyn 
Heiglits  R.  Co.,  119  App.  Div.  487,  104 
N.  Y.  Suppl.  95. 

0/?.io.— Toledo  Rys.  &  Light  Co.  v. 
Mayers.  93  Ohio  St.  304,  112  N.  E. 
1014. 

Oregon. — Rogers  v.   Portland,  etc,  P. 


Status  of  Guests  and  Passengers. 


889 


negligence,  he  will  not  be  barred  from  a  recovery  for  his  in- 
juries, merel}^  because  the  driver  of  the  machine  was  guilty 
of  negligence.  With  especial  force  does  the  rule  apply  when 
the  passenger  is  merely  a  guest  or  gratuitous  passenger,  and 
there  is  no  family  or  business  relation  between  him  and  the 
driver  or  owner  of  the  machine.^    And  the  fact  that  the  ownei- 


Co.,  66  Oreg.  244,  134  Pac.  9;  Tonseth 
V.  Portland,  etc.  Co  .  70  Oreg.  341,  141 
Pae.   868. 

Petmnylvania. — Keinath  v.  Bullock, 
110  Atl.  755. 

Texas.— El  Paso  Elec.  Ry.  Co.  v. 
Benjamin    (Civ.  App.),  202  S.  W.  996. 

Virginia. — Virginia  Ry.  &  Power  Co. 
V.  Gorsuch,  120  Va.  655.  91  S.  E.  632. 

28.  City  of  Baltimore  v.  State  of 
Maryland,  166  Fed.  641;  De  Sota  t. 
Pacific  Elec.  Ry.  Co.  (Cal.  App.).  193 
Pac.  270;  Ferry  v.  City  of  Waukegan, 
205  111.  App.  109;  Lawrence  v.  Sioux 
City.  172  lowia,  320,  154  N.  W.  494; 
Loso  V.  Lancaster  County,  77  Neb.  466, 
109  N.  W.  752,  8  L.  R,  A.  (N.  S.)  618; 
Keudelhuber  v.  Douglas  County,  100 
Neb.  687.  161  N.  W.  174;  Harding  v. 
City  of  New  York,  181  N.  Y.  App.  Div. 
251,  168  N.  Y.  Suppl.  265;  Latimer  v. 
Anderson  County,  95  S.  Car.  187,  78 
S.  E.  879;  Knoxville  Ry.  &  Light  Co. 
V.  Vangilden.  132  Tenn.  487,  178  S.  W. 
1117;  Dillabough  v.  Okanogan  County, 
105  Wash.  609,  178  Pac.  802. 

29.  United  States. — Dale  v.  Denver 
aty  Tramway  Co.,  173  Fed.  787,  97  C 
C.  A   511. 

Alabama. — Galloway  v.  Perkins.  198 
Ala.  658,  73  So.  956. 

California. — Lininger  v.  San  Fran- 
cisco, etc.  R.  Co.,  18  Cal.  App.  411, 
123  Pac.  235. 

Connecticut. — Sampson  v.  Wilson. 
89  Conn.  707,  96  Atl.  163. 

Indiana. — Indiana  Union  Traction 
Co.  V.  Love,  180  Ind.  442,  99  N.  E. 
1005;  Pittsburgh,  etc.  R.  Co.  v.  Kep 
hert.  61  Ind.  App.  621.  112  N.  E.  251 ; 
Union  Traction  Co.  of  Indiana  v.  Haw- 
worth,   187  Ind.  451,   115  N.  E.  753. 


lotca. — Lawrence  v.  Sioux  City,  172 
Iowa,  320.  154  N.  W.  494. 

Kansas. — Corley  \.  Atchison,  etc., 
Ry.   Co.,  90  Kans.  70.  133  Pac.  555. 

Kentucky. — Hackwortli  v.  Ashby, 
165  Ky.  796,  178  S.  W.  1074;  Collins 
Ex'rs  V.  Standard  Ace.  Ins.  Oo.,  170 
Ky.  27.  185  S.  W.  112;  Coughlin  v. 
Mark,  17.3  Ky.  728,  191  S.  W.  503. 

Louisiana. — Jacobs  v.  Jacobs,  141 
La.  272,  74  So.  992. 

Massachusetts.  —  Chadboume  v. 
Springfield  Ry.  Co..  199  Mass.  574,  85 
N.  E.  737. 

Minnesota. —  Carnegie  v.  Great 
Northern  R.  Co.,  128  Minn.  14,  150  N. 
W.  164;  Zenner  v.  Great  Northern  Ry. 
Co.,  135  Minn.  37,  159  N.  W.  1087: 
Carson  v.  Turrish.  140  Minn.  445,  168 
N.  W.  349. 

Missouri. — ^Tumey  v.  United  Rys.  of 
St.  Louis,  155  Mo.  App.  513,  135  S.  W. 
93;  Graham  v.  Sly,  177  Mo.  App.  348. 
164  S.  W.  1.16 -,  Rappaport  v.  Robert^ 
(Mo.  App).  203  S.  W.  676. 

New  York.  —  Ward  v.  Brooklyn 
Heights  Car  Co.,  119  App.  Div.  487. 
104  N.  Y.  Suppl.  95;  Terwilliger  v. 
Long  Island  R.  Co.,  152  App.  DiT.  168, 
136  N.  Y.  Suppl.  722;  Sinica  v.  New 
York  Rys.  Co..  190  App.  Div.  727,  180 
N.  Y.  Suppl.  377. 

North  Dakota. — Chambers  v.  Minne- 
apolis, etc.  Ry.  Co.,  37  N.  Dak.  377,  163 
N.   W.   824. 

O/ito.— Toledo  Rys.  &  Light  Co.  v. 
Mayers,  93  Ohio  St.  304.  112  N.  E. 
1014. 

Oklahoma. — St.  Ix)uia,  etc.  R  Co.  v. 
Bell,  58  Okla.  84.  159  Pae.  336. 

Oregon. — Rogers  v.  Portland,  etc.  P. 
C-o.,  66  Oreg.  244,  134  Pa-.  9:  Tonsotb 


890  The  Law  of  Automobiles. 

of  an  automobile  permits  his  guest  to  give  some  directions  to 
the  chauffeur  as  to  the  running  of  the  machine,  does  not  make 
the  chauffeur  an  agent  of  the  guest  so  as  to  charge  his  negli- 
gence to  the  guest.20  Thus  the  negligence  of  a  young  gentle- 
man driving  an  automobile  will  not  be  imputed  to  a  young 
lady  who  is  riding  with  him  on  a  pleasure  trip.^^ 

Sec.  680.  Imputation  of  driver's  negligence  to  other  occu- 
pant—  minority  view. 
In  England  it  was  formerly  held  that  one  who  voluntarily 
becomes  a  passenger  in  a  conveyance  thereby  so  identifies 
himself  with  the  driver  that  he  cannot  recover  for  an  injury 
negligently  inflicted  by  a  third  person,  if  the  driver's  negli- 
gence was  a  contributing  cause.^^  This  view  was  afterwards 
repudiated  in  that  country,^  and  has  not  been  followed  to  any 
considerable  extent  in  this  country,  but  there  are,  neverthe- 
less, decisions  which  support  it.^*  The  courts  of  Wisconsin, 
after  following  the  general  doctrine  for  fifty  years,  have  finally 
repudiated  it.^^  The  theory  or  fiction  in  law  on  which  these 
decisions  are  based  is  that  the  relation  between  the  driver  and 
injured  occupant  is  that  of  principal  and  agent  or  master  and 
servant.  Where,  as  in  the  case  of  an  infant,  the  injured  per- 
son is  incompetent  to  enter  into  a  contract  of  agency,  the  doc- 
trine is  not  applied.  Hence,  the  negligence  of  the  driver  is 
not  imputed  to  a  minor  riding  in  the  machine.^     And  the 

V.  Portland,  etc.  Co.,  70  Oreg.  341.  141  33.  The  Bernina,  L.  R.  12  Prob.  Div. 

Pac.   868,;    Sanders  v.   Taber,   79   Oreg.  (Eng.)    58. 

522,  155  Pac.  1194.  34.  Kneeshaw  v.  Detroit  United  Ry., 

Penm^ylvunia.—Yoccsi,      v.      Pennayl-  169  Mich.  697,  135  N.  W.  903;  Granger 

vania  R.  Co..  259  Pa.  St.  42,  102  Atl.  v.    Farrant.   179   Mich.   19,    146   N.   W. 

283.  218;   .Jewell  v.  Rogers,  Tp.,  208  Mich. 

yaras.— Lyon      v.       Phillips       (Oiv.  318,  175  N".  W.  151;  Ruhr  v.  Chicago, 

App.),  196  S.  W.  995;  El.  Paso  Elec.  etc.    R.    Co.    (Wis.),    176   N.    W.    767. 

Ry.  Co.  V.  Benjamin    (Civ.  App.),  202  See  also  Webber  v.  Billings,  184  Mich. 

S.  W.  996.  119  150  N.  W.  332. 

30.  Collins  Exr's  v.   Standard  Aocci-  35.  Reiter  v.  Grober    (Wis),  181  N. 
dent  Ins.   Co.,   170  Ky.   27,   185  S.   W.  W.  739. 

112.  36.  Donlin  v.  Detroit  United  Ry.,  198 

31.  Tnrney    v.    United    Rys.    of    St.  Mich.   327,   164   N.   W.   447.      See  also 
Louis.  155  Mo.  App.  513.  135  S.  W.  93.  Gulessarian      v.      Madison      Rys.      Co. 

32.  Thorogood    v.    Bryan,    8    C.    B.  (Wis.).  179  N.  W.  573. 
(Eng.)    115. 


Status  of  Guests  and  Passengers.  891 

doctrine  is  not  applied  when  the  passenger  sues  the  driver  for 
his  injuries.^'' 

Sec.  681.  Imputation  of  driver's  negligence  to  other  occu- 
pant —  statutory  change  in  doctrine  of  imputed 
negligence. 

In  Alabama,  the  Legislature  enacted  a  statute  providing, 
"The  contributory  negligence  of  the  person  operating  or  driv- 
ing any  motor  vehicle  in  this  State  shall  be  imputed  to  every 
occupant  of  said  motor  vehicle  at  the  time  of  such  negligence 
in  actions  brought  by  such  occupant  or  his  personal  repre- 
sentatives for  the  recovery  for  damages  for  death  or  personal 
injury  whether  the  relation  of  principal  and  agent  exists  be- 
tween such  person  operating  or  driving  such  motor  vehicle 
and  such  occupant  or  not,  provided  that  the  provisions  of 
this  section  shall  not  apply  to  passengers  paying  fare  and 
riding  in  a  motor  vehicle  regularly  used  for  public  hire.*' 
The  courts,  however,  have  held  that  the  enactment  was  uncon- 
stitutional in  that  it  was  an  unjust  discrimination  between 
persons  riding  in  motor  vehicles  and  those  riding  in  other 
classes  of  conveyances.^*    The  Massachusetts  statute  in  some 

37.  Roy  V.  Kirn  (Mich.),  175  N.  W.  use  and  travel —  as  was  the  case  when 
475;  Howe  v.  Corey  (Wis.),  179  N.  W.  the  coai  oil  lamp  succeeded  the  tallow 
791.  candlo;  yet  it  is  a  vehicle  of  most  com- 

38.  Birmingham,  etc.  Co.  v.  Car-  jnou  use,  and  is  recognized  as  having 
penter,  194  Ala.  141,  69  So.  626.  where-  the  right  to  the  use  of  our  highways  in 
in  it  was  said:  "We  are  convinced  that  common  with  all  the  other  modes  of 
section  34  should  be  stricken  down  a-<  travel,  possessing  the  same  general 
being  repugnant  both  to  our  State  and  rights  and  subject  to  the  same  general 
Federal  Constitutions.  It  is  an  un-  mlcs  as  to  the  duties  and  liabilities 
warranted  anri  unjust  discrimination  (  wing  to  the  public,  and  the  occupants 
between  persons  of  the  same  class:  that  of  the  same  should  enjoy  the  same 
is,  it  discriminates  against  persons  rid-  l."gal  protection  according  to  persom^ 
ing  in  motor  vehicles,  because  it  does  riding  or  traveling  in  otlier  vehicles, 
not  reach  those  riding  in  any  other  We  do  not  mean  to  hold  that  the  leg- 
kind  of  vehicles  under  similar  terms  islature  cannot  enjoin  upon  motor  ve- 
and  conditions.  It  may  be  that  the  mo  hide  operatives  certain  duties  and  re- 
tor  vehicle,  because  of  its  meelianism  .^frictions  not  placed  upon  other  ve- 
and  capacity  for  speed,  as  well  as  its  lucles  of  an  inherently  different  na 
rather  recent  appearance  and  general  ture  and  character,  for  the  protection 
use.  is  considered  more  dangerous  than  of  th<'  public  But  the  right  to  do  thi^ 
other  vehicles  in  common  use  l>oforc  it  does  not  authorize  the  penalizing  of 
became    such    a   general    instrument    of  por.jde    wlio    ride    in    the   same,   by   de- 


892 


The  Law  of  Automobiles. 


cases  imputes  gross  negligence  to  one  who  has  intrusted  him^ 
self  to  the  driver.^ 

Sec.  682.  Imputation  of  driver's  negligence  to  other  occu- 
pant —  when  passenger  and  driver  are  engaged 
in  common  purpose. 

It  may  be  stated  as  a  general  rule  that  when  the  driver  and 
an  occupant  of  a  motor  vehicle  are  engaged  in  common  pur- 
pose or  joint  enterprise,  the  negligence  of  the  driver  may  be 
imputed  to  the  accupant.'*"  If  they  are  so  engaged,  and  the 
driver  is  negligent,  the  occupant  inay  be  precluded  from  re- 
covering for  his  injuries  either  from  the  driver  or  a  third  per- 
son."^ The  difficulty  is  in  determining  when  such  relation  exists 


priving  them  of  a  legal  right  enjoyed 
by  persons  riding  in  any  other  kind  of 
vehicle,  and  such  a  discrimination  can- 
not be  justified  upon  the  basis  of  a 
reasonable  classification.  Section  34 
not  only  discriminates  against  persons 
riding  in  motor  vehicles  in  favor  of 
those  riding  in  all  other  vehicles  un- 
der similar  conditions,  but  it  discrimi- 
nates between  those  who  ride  in  motor 
vehicles  for  hire.  In  other  words,  if  a 
person  rides  in  a  motor  vehicle  which 
is  regularly  used  for  hire,  he  is  not  re- 
sponsible for  the  negligence  of  the 
driver  or  operator;  yet  if  he  rides  in 
one  for  hire  he  is  responsible,  unless 
said  vehicle  is  regularly  operated  for 
hire.  The  section  denies  an  equal  pro- 
tection of  the  law  to  all  persons  simil- 
arly situated,  and  is  an  unwarranted 
discrimination." 

39.  See  McDonald  v.  Lewenson 
(Mass.),  131  N.  E.  160;  Morel  v.  New 
Yoilc.  etc.  R.  Co.  (Mass.).  131  "N".  E. 
175. 

40.  California. — ^Bryant  v.  Pacific 
Elec.  Ry.  Co.,  174  Oal.  737,  164  Pae. 
385. 

Illinois. — See  Van  Orsdale  v.  Illinois 
Central  R.  Co.,  210  El.  App.  619. 

Kansas. — Kirkland  v.  Atchison,  etc. 
Ry.   Co.,  179  Pac.  362. 

Michigan. — Hanser    v.    Youngs,     180 


N.  W.  409. 

Minnesota. — Ward  v.  Meeds,  114 
Minn.  18,  130  N.  W.  2;  Kokesh  v. 
Price,  136  Minn.  304.  161  N.  W.  715. 
Missouri. — Tannehill  v.  Kansas  City, 
etc.  Ry.  Co.,  279  Mo.  158,  213  S.  W. 
818;  Gresman  v.  Atchison,  etc.  R.  Co., 
229  S.  W.  167. 

North  Carolina. — Pusey  v.  Atlantic 
Coast  Line  R.  Co.,  106  S.  E.  452. 

Oregon. — Robinson  v.  Oregon-Wash- 
ington R.  &  Nav.  Co.,  90  Oreg.  490,  176 
Pac.  594. 

Oklahoma. — Thrasher  v.  St.  Louis. 
etc.  Ry.  Co..  198  Pac.  97. 

South  Carolina. — ^Langley  v.  South- 
ern Ry.  Co.,  101  S.  E.  286. 

Tennessee. — Hurt  v.  Yazoo,  etc.  R. 
Co.,  140  Tenn.  623,  205  S.  W,  437. 

Utah. — Derrick  v.  Salt  Lake,  etc.  R. 
Co.,  50  Utah,  573,  168  Pac.  335;  Law- 
rence V.  Denver,  etc.  R.  Co.,  52  Utah. 
414,  174  Pac.  817. 

Virginia. — Washington  &  0.  D.  Ry. 
v.  Zell's  Adm'x  118  Va.  755,  88  S.  E. 
309. 

Vermont. — Wentworth  v.  Waterbury, 
90  Vt.  60,  96  Atl.  334. 

Canada. — Dixon  v.  Grand  Trunk  Ry., 
47  0.  L.  R.  115. 

41.  Barnett  v.  Lucy.  213  111.  Ai»p. 
129. 


Status  of  Guests  and  Passengers. 


893 


between  the  parties.  In  every  case,  it  may  be  said  that  the 
parties  are  engaged  in  the  common  enterprise  of  "riding," 
but  that  is  not  sufficient  to  bring  the  passenger  within  the 
rule.''^  In  such  a  case,  the  passenger  may  be  merely  a  guest 
of  the  driver  and  will  not  be  charged  with  the  negligence  of 
the  driver.  The  negligence  of  the  driver  will  not  be  attributed 
to  the  passenger,  unless  the  latter  undertakes  to  or  has  the 
right  to  exercise  some  control  over  the  movement  of  the  vehi- 
cle.*2  In  order  that  there  be  such  a  joint  undertaking,  it  is 
not  sufficient  merely  that  the  passenger  or  occupant  of  the  ma- 
chine indicate  to  the  driver  or  chauffeur  the  route  he  may 
wish  to  travel,  or  the  places  to  which  he  wishes  to  go,  even 
though  in  this  respect  there  exists  between  them  a  common 
enterprise.  The  circumstances  must  be  such  as  to  show  that 
the  occupant  and  the  driver  together  had  such  control  and 
direction  over  the  automobile  as  to  be  practically  in  the  joint 
or  common  possession  of  it.**    Parties  cannot  be  said  to  be 


42.  Indiana.— Lake  Erie  &  W.  R.  Co. 
V.  Sams    (Ind.  App  ) ,  566. 

Iowa. — Lawrence  v.  Sioux  City,  173 
Iowa,  320,  154  N.  W.  494;  Wagner  v. 
Kloster,  175  N.  W.  840.  "We  reach 
the  conclusion  that,  to  warrant  the 
denial  of  recovery  by  a  guest  invited  to 
ride  in  an  automobile  on  the  ground 
that  the  negligence  of  the  driver  con- 
tributed to  his  injuries,  it  must  ap- 
pear that  the  guest  was  in  some  man- 
ner responsible  for  what  the  driver 
did.  He  must  have  either  directed  the 
operation  of  the  car  or  have  had  the 
right  so  to  do  or  have  been  engaged 
in  some  joint  venture  or  common  en- 
terprise wherein  each  in  what  was 
done  was  acting  for  both.  A  person 
invited  unconditionally  to  ride  with 
the  driver  of  an  automobile  as  a  guest 
to  some  place  or  on  some  trip  or  gen- 
erally for  pleasure,  does  not  thereby 
enter  upon  such  a  joint  venture  or 
common  enterprise  as  renders  him  re- 
sponsible for  the  acts  or  omissions  of 
the  driver  within  the  meaning  of  the 
law.  Something  more  is  essential  to 
accomplish    this;    i.   e.,   their   relations 


must  be  such  that  each  in  what  he 
does  in  carrying  on  the  common  pur- 
pose may  be  said  not  only  to  act  for 
himself,  but  for  the  other,  and  in  no 
event  is  the  negligence  of  the  driver  to 
be  imputed  to  the  guest  or  passenger, 
unless  the  guest  or  passenger  has  the 
right  to  direct  or  control  in  some  man- 
ner the  operation  of  the  vehicle,  or  in 
fact  does  exercise  some  control  in  the 
management  thereof."  Wagner  v. 
Kloster   (Iowa),  175  N.  W.  840. 

Louisiana. — Jacobs  v.  Jacobs.  141 
La.  272,  74  So.  992. 

Massachusetts.  —  Chadbourne  v. 
Springfield  Ry.  Co.,  199  Mass.  574.  85 
N.  E.  737. 

North  Carolina,. — Pusey  v.  Atlantic 
Coast  Line  R.  Co.,  106  S.  E.  452. 

Oklahoma. — ^St.  Louis,  etc.  R.  Co.  v. 
Boll.  .'-,8  Okla.  84.   156  Pac.  336. 

43.  Barrett  v.  Chicago,  etc.  R.  Co. 
(Iowa),  175  N.  W.  950;  Lawrence  v. 
Sioux  City.  173  Iowa,  320,  154  N.  W. 
494;  Donlin  v.  Detroit  United  Ry.,  198 
Mich,  327,  164  N.  W.  447. 

44.  Bryant  v.  Pacific  Elei-.  Ry.  Co  , 
174  Oal.   737,   164  Pac.   385.      See  alw 


894  The  Law  of  Automobiles. 

engaged  in  a  joint  enterprise  unless  there  is  a  community  of 
interest  in  the  objects  or  purposes  of  the  undertaking,  and  an 
equal  right  to  direct  and  govern  the  movement  of  each  other 
with  respect  thereto.  Each  must  have  some  voice  and  right 
to  he  held  in  its  control  and  management.'^  If  they  are  joint 
owners  of  the  machine,  it  may  be  easy  to  decide  that  they  are 
engaged  in  a  common  enterprise.'**  It  is  not  necessary  that 
he  actually  exercise  his  right  of  control,  but  it  is  sufficient  if 
he  has  the  right  of  control.'*'  Where  a  district  nurse  was  in- 
jured while  being  driven  by  a  doctor  in  his  automobile,  it  was 
held  that  the  negligence  of  the  doctor  was  not  necessarily  to 
be  imputed  to  the  nurse.^^  But  where  two  travelers  in  an  au- 
tomobile each  participate  in  the  running  of  the  machine,  one 
owning  it  and  the  other  preparing  it  for  the  trip,  they  may 
be  said  to  be  engaged  in  a  conmion  enterprise.'*^  And  where 
two  persons  start  out  on  a  trip  with  the  car  of  one,  each  pay- 
ing one-half  of  the  expenses,  they  are  deemed  to  be  engaged 
in  a  common  enterprise  so  that  the  negligence  of  the  one  driv- 
ing is  imputed  to  the  other.^"  A  joint  enterprise  in  an  auto- 
mobile journey  is  more  easily  shown  when  the  trip  is  for  busi- 
ness affairs  rather  than  for  social  purposes.^^  Where  the 
plaintiff  and  his  companion  were  engaged  in  hauling  fodder 
with  a  team,  and  the  plaintiff  was  injured  while  his  companion 
was  endeavoring  to  force  the  horses  past  an  object  causing 
their  fright,  the  relation  of  master  and  servant,  or  joint  un- 
dertaking, existed  between  the  plaintiff  and  his  companion, 
so  that  the  plaintiff  was  chargeable  with  the  negligence  of  the 
latter.^2  Where  several  men  go  on  a  *'joy"  ride  and  become 
intoxicated,  an  occupant  who  receives  an  injury  on  account  of 
the  negligence  of  a  third  person  may  easily  be  denied  re- 

Chicago.  etc.   R.   Co.   v.   Johnson    ^Tex.  48.  Loftus  v.  Pelletier,  223  Mass.  63, 

Civ.  App.),  224  S.  W.   277.  IJl  N.  E.  712. 

45.  Denver  Tramway  Co.  v.   Orba-h.  49.  Washington  &  O.  D.  Ry.  v    Zell's 
64   Colo.    511,   172   Pac.    1063;    Kokesh  Adm'x,  118  Va.  755    88  S    E.  309. 

V.    Price,    136    Minn.    304,    161    N    W.  50.  Derrick  v.  Salt  Lake.  etc.  R.  Co., 

715;   St.  Louis,  etc.  Ry.  Co.  v.  Bell.   58  50  I^tah,  573.  168  Pac.  335 

Okla.  84,  159  Pac.  336.  51.  Lawrence  v.   Denver,  etc.  R.  Co., 

46.  Tannehill    v.    Kansas    City.    etc.  52  Utah,  414.  174  Pac.  817. 

Ry.  Co.,  279  Mo.  158  213  S.  W.  818.  52.  Louisville  &   N.   R     Co.   v.   Arm- 

47.  Bryant   v.   Pacific  Elec.   Ry.   Co.,      .strong,    127   Ky.    367.    32   Ky.    I;.    Rep. 
174  Cal.  737,  164  Pac.  385.  252,  105  S.  W.  473. 


Status  of  Guests  and  Passengers.  895 

covery,  either  on  the  ground  of  the  common  nature  of  the 
enterprise  or  on  the  ground  of  contributory  negligence  in  rid- 
ing in  a  machine  with  a  drunken  driver.^  The  extreme  limit 
to  which  the  cases  have  gone  has  been  to  hold  that  two  gentle- 
men taking  two  ladies  for  a  pleasure  trip  are  engaged  in  a 
common  purpose  and  the  contributory  negligence  of  the  gentle- 
man driving  the  car  can  be  imputed  to  the  other  gentleman.^* 
But  other  decisions  cast  doubt  on  the  correctness  of  such 
holding.^^ 

Sec.  683.  Imputation  of  driver's  negligence  to  other  occupant 
—  control  by  passenger  of  movement  of  machine. 
If  a  passenger  in  an  automobile  has  the  actual  control  over 
the  operation  thereof,  he  is  liable  for  the  negligent  act  of  the 
driver,^*'  and  the  driver's  contributory  negligence  may  bar  a 
remedy  for  injuries  sustained  on  account  of  the  negligence  of 
a  third  person.^^  Thus,  if  the  driver  is  in  the  general  employ 
of  the  occupant,  the  former's  negligence  mil  be  imputed  to 
the  latter.^ 

Sec.  684.  Imputation  of  driver's  negligence  to  other  occu- 
pant —  master  and  servant. 
Though  negligence  on  the  part  of  the  driver  of  an  automo- 
bile will  not,  as  a  general  rule,  be  imputed  to  another  occupant 
or  passenger,  unless  such  occupant  is  the  owner  or  has  some 
control  over  the  driver,^^  the  negligent  failure  of  a  driver  of 
an  automobile  to  avoid  danger  while  he  is  driving  his  master, 
is  imputable  to  the  master.^**    But,  where  the  person  injured 

53.  Winston's  Adm'r  v.  Cit^^  of  Hen-       I^ouis.    etc.    Ry.    Co.    v.    Bell.    .58    Okla. 
derson.    179   Ky.   220.   200   S.   W.   330;       84.   159  Pac.   336. 

Kinne  v.  Town  of  Morristown.   184  N.  56.  Section  655. 

Y.  App    Div.  408.  57.  Bryant  v.   Pacific  Elec.   Ry.   Co  , 

54.  Wentworth  v.  Waterbury,  90  Vt.  174   Cal.   737,   164  Pac.  385.     See  also 
60,  96  Atl.  334.  Clark  v.   Columbia,  etc.  Co.    (S.   Car.  K 

55.  Carter    v.    Brown,    136    Avk.    23,  108  S.  E.  178. 
206  S.  W.   71;   Bryant  v.  Pacific  Elec.  58.  Section  684. 

Ry.   Co..   174   Cal    737,   164   Pac.   385;  59.  Hunt  v.   North   Carolina  R.   Co., 

Donlin    v.     Detroit     United     Ry.,     198  170  N.  Car.  442,  87  S.  E.  210. 

Mich.    327,    164   N.    W.    447;    Ward   v.  60.  Lytle  v.  Hancock  County,  19  Ga. 

Meed.s,  114  Minn.  18,  130  N.  W.  2;   St.  App.  193.  91  S.  E.  219. 


896 


The  Law  of  Automobiles. 


is  a  co-employee  of  the  driver,  the  negligence  of  the  latter  is 
not  generally  to  be  imputed  to  the  former^  And  the  negli- 
gence of  the  master  driving  the  machine  will  not  generally  be 
imputed  to  the  servant  riding  with  him.^^  ^^d  where  a  party 
of  policemen  are  called  out  to  quell  a  riot,  the  fact  that  the 
city  employee  driving  the  conveyance  is  guilty  of  negligence, 
does  not  bar  an  action  for  injuries  received  by  one  of  the 
party  in  case  of  a  collision  with  a  street  car.^^ 

Sec.  685.  Imputation  of  driver's  negligence  to  other  occu- 
pant—  husband  and  wife. 
It  is  clear  that  the  mere  relation  of  husband  and  wife  does 
not  charge  the  wife  with  the  negligence  of  the  husband  in 
running  a  motor  vehicle,  though  she  is  at  the  time  of  an  acci- 
dent riding  in  the  vehicle.^*    Some  fact  other  than  the  relation- 


61.  stoker  v.  Tri-City  Ry.  Co.,  183 
Iowa,  1090,  165  N.  W.  30;  Pete:  son  v. 
New  Orleans  Ry.  &  Light  Co.,  142  La. 
835.  77  So.  647. 

62.  County  Comr's  v.  Wright  (Md.), 
114  Atl.  573. 

63.  Denver  Tramway  Co.  v.  Orbach, 
64   Colo.   511    172  Pac.   1063. 

64.  Arkansas. — Miller  v.  Ft.  Smith 
Light  &  Tract.  Co.,  136  Ark.  355,  206 
S.  W.  329.  See  also  Ft  Smith,  etc.  R. 
Co.  V.  Pence,  122  Ark.  611,  182  S.  W. 
568. 

Illinois. — Gaffney  v.  Dixon,  157  111. 
App.  589. 

Iowa. — Fisher  v.  Ellston,  174  Iowa, 
364,  156  N.  W.  422. 

Kansas. — Williams  v.  Withington 
88  Kans.  809,  129  Pac.  1148;  Denton 
V.  Missouri.  K.  &  T.  Ry.  Co.,  97  Kans. 
498,  155  Pac.  812. 

Kentucky. — Livingston  &  Co,  v. 
Philley,  155  Ky.  224,  159  S.  W.  665. 

Maine. — Cobb  v.  Cumberland  County 
Power  &  Light  Co.,  104  Atl.  844. 

Massachusetts. — McDonald  v.  Leven- 
son.   131  N.  E.   160. 

Minnesota. — Kolesh  v.  Price,  136 
Minn.  304,  161  N.  W.  715;  Bruce  v. 
Ryan,   138  Minn    264,   164  N.   W.  982. 


Missouri. — Byerley  v.  Metropolitan 
St.  R.  Co.,  172  Mo.  App.  470,  158  S. 
W.  413;  Ziegler  v.  United  Rys.  Co.  of 
St.  Louis  (Mo.  App.).  220  S.  W.  1016; 
Corn  V.  Kansas  City,  etc.  Ry.  Co 
(Mo.),  228  S.  W.  78. 

Nebraska. — 'Stevens  v.  Luther,  180 
N.  W.  87. 

Nevj  York.— Ward.  v.  Clark,  189 
App.  Div.  344,  179  N.  Y.  Suppl.  466. 

Tennessee. — Knoxville  Ry.  &  Light 
Co.  V.  Vangilden,  132  Tenn.  487,  178 
S.  W.  1117.  "We  see  no  reason  why 
the  negligence  of  the  husband  should 
be  attributable  to  the  Avife  under  the 
circumstances  in  this  case.  The  rea- 
soning applied  in  cases  holding  that 
the  negligence  of  the  driver  will  be  im- 
puted to  the  rider  in  some  instances 
was  that  the  driver  was  the  servant  of 
the  one  riding  with  him  and  under  the 
control  of  the  master.  That  is  un- 
doubtedly a  sound  distinction,  where 
the  one  driving  is  under  the  control  of 
another  person  and  is  only  carrying 
out  that  person's  orders,  and  the  one 
riding  in  such  case  should  be  held 
chargeable  with  the  negligence  of  his 
servant.  This  distinction,  however, 
cannot  apply  as  between  husband  and 


Status  of  Guests  and  Passengers. 


897 


ship  must  be  shown  in  order  that  the  negligence  of  one  shall 
be  imputed  to  the  other.  In  case  the  wife  is  exercising  control 
over  the  movements  of  the  vehicle,*'^  or  if  the  husband  can  be 
said  to  be  the  servant  or  agent  of  the  wife,®"^  or  if  they  are  en- 
gaged in  a  common  purpose  or  joint  enterprise,"  then  there 
is  ground  for  the  doctrine  of  imputed  negligence.  But  the 
additional  circumstance  that  the  wife  is  the  real  owner  of  the 
machine  driven  by  her  husband,  does  not  impute  his  negli- 
gence to  her.^^  The  fact  that  they  were  moving  to  another 
city  does  not  make  them  engaged  in  a  joint  enterprise."® 


Sec.  686.  Imputation  of  driver's  negligence  to  other  occu- 
pant—  parent  and  child. 

The  negligence  of  a  father  driving  a  vehicle  with  his  child 
as  a  passenger  is  not  generally  imputed  to  such  child.'^^  AVhen, 
however,  the  conditions  are  reversed  and  the  child  is  the 


wife,  because  the  wife  has  not  that 
direction  and  control,  and  is  not 
chargeable  with  the  manner  of  driving, 
or  in  directing  how  the  driving  shall 
be  done,  as  appears  in  the  case  re- 
ferred to.  It  is  not  supposed  that  the 
wife  has  charge  over  matters  of  this 
kind.  She  rather  relies  upon  her  hus- 
band, and  tnists  to  his  guidance  and 
protection.  If  he  blunders,  why  should 
she  be  chargeable,  when  she  is  without 
faiilt.  Of  course,  if  an  adult,  who 
while  riding  in  a  vehicle  driven  by  an- 
other sees,  or  ought  by  due  diligence 
to  see,  a  danger  not  obvious  to  the 
driver,  or  who  sees  that  the  driver  is 
incompetent  or  careless,  or  is  not  tak- 
ing proper  precautions,  it  is  his  duty 
to  give  some  warning  of  danger,  and 
a  failure  to  do  so  is  negligence.  Or- 
dinarily, however,  a  driver  is  intrusted 
with  caring  for  the  safety  of  a  carriage 
and  its  occupants,  and  unless  the  dan- 
ger is  obvious,  or  is  known  to  the  pas- 
senger, he  may  rely  upon  the  assump- 
tion that  the  driver  will  exercise 
proper  care  and  caution."  Knoxville 
Ry.  *  Light  Co.  v.  Vangilden.  132 
57 


Tenu.  487,   178  S.  W.   11.17. 

Pennsylvania. — Senft  v.  Western  Md. 
Ry.  Co.,  246  Pa.   St.  446.  92  Atl.   553. 

Virginia. — Virginia  Ry.  &  Power  Co. 
v.  Gorsuch,  120  Va.  655.  91  S.  E.  632. 

Wisconsin. —  Brubaker  v.  Iowa 
County,  183  N.  W.  690. 

Canrtda.— Brooks  v.  B.  C.  El.  Ry.,  48 
D.  L.  R.  90;  Hoffman  v.  H.  G.  &  B.  El. 
Ry.,  18  O.  W.  N.  92. 

65.  Section  683. 

66.  Standard  Oil  Co.  of  Kentucky  v. 
Thompson    (Ky.),   226   S.   W.   368. 

67.  Section  682. 

68.  Virginia  Ry.  &  Power  Co.  v. 
Gorsuch,  120  Va.  655,  91  S.  E.  632. 

69.  Brubaker  v.  Iowa  County 
(Wis.),  183  N.  W.  690. 

70.  Burzio  v.  Joplin,  etc.  Ry.  Co., 
102  Kan.  287,  562,  171  Pac.  351; 
Zalotuchin  v.  Metropolitan  St.  Ry.  Co., 
127  Mo.  App.  577,  106  S.  W.  548; 
Howe  V.  Central  Vermont  Ry.  Co,  91 
Vt.  485,  101  Atl.  45:  Gulessarian  v. 
Madison  Rya.  Co.  (Wis.).  179  N.  W. 
573.  See  also  Hines  v.  Moore  (Miss.), 
87  So.  1. 


898  The  Law  of  Automobiles. 

operator  of  the  machine,  the  legal  situation  may  be  different. 
A  son  may  be  deemed  under  the  control  of  his  father,  or  to 
be  acting  as  the  agent  or  servant  for  him,  and  under  such 
circumstances,  the  negligence  of  the  son  would  be  imputed  to 
the  father.'^  But  the  mere  relation  of  parent  and  child  does 
not  have  this  effect.'^  Thus,  if  a  child  is  driving  an  automo- 
bile with  a  parent  as  his  guest,  the  negligence  of  the  child 
will  not  be  attributed  to  the  parent  so  as  to  defeat  a  recovery 
by  the  latter  for  injuries  sustained  through  the  negligence 
of  a  third  person.''^  Nor  do  the  facts  that  the  son  and  the 
father  are  both  employed  by  an^  interested  in  the  same  cor- 
poration and  that  such  corporation  is  the  owner  of  the  ma- 
chine, necessarily  alter  the  situation.'* 

Sec.  687.  Imputation  of  driver's  negligence  to  other  occu- 
pant —  passenger  for  hire. 
Where  a  driver  is  carrying  a  passenger  for  hire,  it  is  rea- 
sonably clear  that  the  negligence  of  the  driver  cannot  be  im- 
puted to  the  passenger.''^  When,  therefore,  the  machine  col- 
lides with  another  conveyance,  the  negligence  of  his  driver 
does  not  bar  his  action  against  the  operator  of  the  other  con- 
veyance ;  in  fact,  he  may  have  a  cause  of  action  against  both.'^^ 
Thus,  in  case  of  a  collision  between  a  sight  seeing  automobile 
and  a  street  car  causing  an  injury  to  a  passenger  in  the  auto, 
the  negligence  of  the  driver  is  not  imputed  to  such  passen- 

71.  Bryant  v.  Pacific  Elec.  Ey.  Co.,  75.  Johnson  v.  Louisville  &  N.  R. 
174  Cal.  737,  164  Pac.  385.  See  also  Co.,  203  Ala.  86,  82  So.  100;  McDon- 
Leopold  V.  Texas,  etc.  R.  Co.,  144  La.  aid  v.  Messaba  Ry.  Co.,  137  Minn.  275, 
1000,  81  So.  602.  163    N.    W.    298;    Harding  v.    City   of 

72.  Bryant  v.  Pacific  Elec.  Ry.  Co.,  New  York.  181  N.  Y.  App.  Div.  251, 
174  Cal.  737,  164  Pac.  385;  Lange  v.  168  N.  Y.  Suppl.  265;  Hardie  v.  Bar- 
New  York  etc.  R.  Co.,  89  N.  J.  Law,  604,  rett,  257  Pa.  42,  101  Atl.  75 ;  Wanner 
99  Atl.  346.  A  question  may  be  pre-  v.  Philadelphia,  etc.  Ry.  Co.,  261  Pa. 
sented  for  the  jury  as  to  whether  tlie  273.  104  Atl.  570;  Wolf  v.  Sweeney 
child  i,s  under  such  control  as  to  im-  (Pa.),  112  Atl.  869.  See  also  Piper 
pute  his  negligence  to  the  father.  v.  New  York  State  Rys.,  185  N.  Y. 
Gu.stavson  v.  Hester,  211  111.  App.  439.  App.  Div.  184,  172  N.  Y.  Suppl    838. 

73.  Lange  v.  New  York,  etc.  R.  Co.,  78.  Broussard  v.  Louisiana  Western 
89  N.  J.  Law,  604,  99  Atl.  346.  R.  Co.,  140  La.  517.  73  So.  606;   Ban- 

74.  Bryant  v.  Pacific  Elec.  Ry.  Co.,  croft  v.  Cote,  90  Vt.  358,  98  Atl.  915. 
174  Cal.   737.   164  Pac.   385. 


Status  of  Guests  and  Passexgees. 


899 


gerJ^    The  liability  of  one  carrying  another  in  an  automobile 
for  hire  is  further  discussed  in  other  places  in  this  bookJ^ 


Sec.  688.  Contributory  neg-lig-ence  of  passenger  —  in  general. 
As  a  practical  proposition,  one  who  is  merely  a  passenger 
in  an  automobile  is  not  required  to  use  many  precautions  to 
avoid  injury  from  defects  in  the  highway  or  from  other  con- 
veyances. But,  theoretically,  though  the  negligence  of  the 
driver  is  not  imputed  to  him,"^^  he  is  required  to  exercise  rea- 
sonable care  under  the  circumstances.^"     That  is,  he  must 


77.  Thompson  v.  Los  Angeles,  etc.  R 
Co..  165  Cal.  748,  134  Pac.  709;  Rush 
V.  Metropolitan  St.  R.  Co.,  157  Mo. 
App.  504,  137  S.  W.  1029. 

78.  See  sections  169,   170.    179. 

79.  Section  679. 

80.  United  States. —  Brommer  v. 
Pennsylvania  R.  Co.,  179  Fed.  577, 
103  C.  C.  A.  135,  29  L.  R.  A.  (N.  S.) 
924. 

Alabama. — McGeever  v.  O'Byrne,  82 
So.  508. 

Arkansas. — ^Carter  v.  Brown,  136 
Ark    23,  206  S.  W.  71. 

California. — Thompson  v.  Los  An- 
geles, etc.  R.  Co.,  165  Cal.  748,  134 
Pac.  709;  Lynn  v.  Goodwin,  170  Cal. 
112,  148  Pac.  927;  Parmenter  v.  Mc- 
Dougall,  173  Cal.  306,  156  Pac.  460; 
Drouillard  v.  Southern  Pac.  Co.  (Cal. 
Anp.).  172  Pac.  405;  Wiley  v.  Young, 
178  Cal.  681,  174  Pac.  316;  Ellis  v. 
Central  California  Tract.  Co.,  37  Cal. 
A  Tip.  390,  174  Pac.  407;  Stewart  v. 
San  Joaquin  L.  &  P.  Co.  (Cal.  App.), 
186  Pac.  160;  Carpenter  v.  Atchison. 
t<tc.  Ry.  Co.  (Cal.  App.).  195  Pac. 
1073. 

Connecticut. — Clarke  v.  Connecfirut 
St.  Ry.  Co.,  83  Conn  219,  76  Atl.  523: 
Woidlich  V.  New  York,  etc.  R.  Co..  93 
Con".  438,  106  Atl.  323. 

JJlinois. — Sutton  v.  City  of  Cliicago. 
195  Til.  App.  261;  Vanek  v.  Chicago 
Citv  Ry.  Co.,  210  111  App.  148;  Frod 
enVks  v.  Chicago  Ry.  Co.,  208  111.  App. 
172. 


I luliana.  -  A' \\\u]\  Traction  Co.  of  In- 
diana V.  Hawwnrth.  187  Ind.  451.  115 
N.  E.   753. 

Iowa. — Herdman  v.  Zwart.  167 
Iowa,  500,  149  N.  W.  631;  Willis  v. 
Schertz,  175  N.  W.  321;  Wagner  v. 
Kloster,  175  N.  W.  840;  Glanville  v. 
Chicago,  etc.  Ry.  Co..  180  N.  W.  152; 
Bradley  v.  Intorburban  Ry.  Co.,  183  N. 
W.  493. 

Kansas. — Williams  v.  Eithington.  88 
Kans.  809,  129  Pac.  1148;  Denton  v. 
Missouri,  etc.  R.  Co.,  97  Kans.  498, 
155  Pac.  812;  Schaefer  v.  Arkansas 
Valley  Interurban  Ry.  Co.,  179  Pac. 
323. 

Kentttclif. — Winston's  Adm'r  v.  City 
of  Henderson,  179  Ky.  220,  200  S.  W. 
330;  Graham's  Adm'r  v.  Illinois  Cen- 
tral R.  Co.,  185  Ky.  370.  215  S.  W, 
60;  Milner's  Adm'r  v.  .  Evansville  Ry. 
Co.,  188  Ky.  14.  221  S.  W.  207. 

Louisiana. — Jacobs  v.  .Jacobs,  141  La. 
272.   74  So.  992. 

Maine. — Blanchard  v.  Maine  Cent. 
R.  Co.,   116  Me.  179,  100  Atl.  666. 

Maryland. — Baltimore  &  0.  R.  Co.  v. 
State  to  Use  of  McCabe,  133  Md  219, 
104  Atl.  465;  County  Com'rs  v. 
Wright,  114  Atl.  573. 

Massachvsctts.  —  Chadbounic  v. 
Springfield  Ry.  Co..  199  Mass.  .'.71.  85 
NT.  E.  737:  Fogg  v.  New  York.  etc.  R. 
Co.,  223  Mass.  444.   Ill  N.  E    960. 

Minnesota. —  Carnegie  v.  Great 
Northern  R.  Co..  128  Minn.  14,  150  N. 
W.  164;  Zenner  v.  Great  Northern  Ry. 


900 


The  Law  of  Automobiles. 


use  the  same  care  that  a  reasonably  prudent  passenger  would 


Co.,    135    Minn.    37.    159    N.    W.    1087; 
Kolesh    V.    Price,    136    Minn     304,    161 
N.  W.  715;  McDonald  v.  Messaba  Ry. 
Co,    137    Minn.    275.    163    N.    W.    298; 
Piauglit    V.    Great    Northern    Ry.    Co., 
144  Minn.   309,   175  N.   W.   998.      "Tlie 
negligence  of  the  driver  of  a  vehicle  is 
not  imputed  to  a  mere  passerger  rid-  . 
ing  therein.     Nevertheless  a  passenger 
is  required  to  exercise  a  proper  degree 
of   care   for   his   own   safety,   and   any 
negligence  on  his  part  that  contributes 
to  his  injury  is   fatal  to   his   right  to 
recover.    He  is  obliged  to  exercise  such 
care    as    a    reasonably    prudent    person 
would,  when  riding  with  another  under 
similar  circumstances.    A  person  of  or- 
dinary  prudence    riding   with   another, 
upon  his  invitation,  will  naturally  put 
a   certain   trust   in   his   judgment,  and 
will    rely   in   some  measure  on  the  as- 
sumption that  he  will  use  care  to  avoid 
the  ordinary  dangers  of  the  road.     In 
order    to    conclusively    charge    a    mere 
passenger  witli  contributory  negligence 
in  failing  to  see  the  approaching  train, 
something  more  than  ability  to  see  and 
a  failure  to  look  must  be  shown.     His 
failure  to  look   is   evidence  to  be  con- 
sidered   on   the   question   of   his   negli- 
gence, but  it  is  not  conclusive  against 
him.     In  general,  the  primary  duty  of 
caring  for  the  safety  of  the  vehicle  and 
its   passengers   rests   upon   the   driver, 
and     a     mere     gratuitous     passenger 
should  not  be  found  guilty  of  contribu- 
tory negligence  as  a  matter  of  law,  un- 
less he   in   some  way  actively  partici- 
pates in  the  negligence  of  the  driver,  or 
is  aware  either  that  the  driver  is  in- 
competent or  careless,  or  unmindful  of 
some  danger  known  to  or  apparent  to 
the    passenger,    or    that    the    driver    is 
not   taking   proper   precautions   in   ap- 
proaching a  place  of  danger,  and.  be- 
ing   so    aware,    fails    to    warn    or    ad- 
monish  the  driver,   or   to  ta,ke   proper 
steps    to    preserve     his     own     safety." 


Carnegie  v.  Great  Northern  R.  Co.,  128 
Minn.  14,  150  N.  W.  164. 

Missouri. — Turney  v.  United  Rys.  of 
St.  Louis,  155  Mo.  App.  513.  135  S.  W. 
93;  Rappaport  v.  Roberts  (Mo.  App.), 
203  S.  W.  676 ;  Leapard  v.  Kansas  City 
Rys.  Co.  (Mo.  App.),  214  S.  W.  268; 
Davis  V.  City  L.  &  T.  Co.  (Mo.  App.), 
222   S,  W.  884. 

New  York. — La  Goy  v.  Director  Gen- 
eral, 231  N.  Y.  191;  Pouch  v.  Staten 
Island  Midland  Ry.  Co.,  142  App.  Div. 
16,  126  N.  Y,  Suppl.  738;  Terwilliger 
v.  Long  Island  R.  Co.,  152  N.  Y.  App. 
Div.   168.   136  N.  Y.  Suppl.   733. 

0/ho.— Toledo  Rys.  &  Light  Co.  v. 
Mayers,  93  Ohio  St.  304,  113  N.  E. 
1014. 

Oregon. — ^V^^hite  v.  Portland  Gas  & 
Coke  Co.,  84  Greg.  643,  165  Pac.  1005 ; 
Robison  v.  Oregon-Washington  R.  & 
Nav.  Co.,  90  Greg.  490,  176  Pac.  594. 

Pennsylvania. — Wachsmith  v.  Balti- 
more Sc  0.  R.  Co.,  233  Pa.  St.  465,  82 
Atl.  755;  Senft  v.  Western  Md.  Ry. 
Co.,  246  Pa.  St.  446,  92  Atl.  553;  Dun- 
lap  V.  Philadelphia  Rapid  Transit  Co., 
248  Pa.  130,  93  Atl.  873;  Hardie  v. 
Barrett.  257  Pa.  St.  42,  101  Atl.  75; 
Eline  v.  Western  Maryland  Ry.  Co., 
104  Atl.  857;  Azinger  v.  Pennsylvania 
R.  Co.;  262  Pa.  33,  105  Atl.  87;  Mar- 
tin V.  Pennsylvania  R.  Co.,  265  Pa.  St. 
282.  108  Atl.  631. 

South  Carolina. — Latimer  v.  Ander- 
son County,  95  S.  Car.  187,  78  S.  E. 
879. 

rennessee.-— Knoxville  Ry.  &  Light 
Co.  V.  Vangilden,  132  Tenn.  487,  178 
S.  W.  1117;  Hurt  V.  Yazoo,  etc.  R.  Co., 
140  Tenn.   623,  205   S.  W.  437. 

Texas. — Sellers  v.  Galveston,  etc.  Ry. 
Co.  (Civ.  App).  208  S.  W.  397;  Chi- 
cago, etc.  R.  Co.  V.  Wentzel  (Civ. 
App  ) .  214  S.  W.  710. 

Utah. — Lawrence  t.  Denver,  etc.  R. 
Co.,  52  Utah.  414,   174  Pac.  817. 


Status  of  Guests  and  Passengers. 


901 


under  the  circumstances.®^  And  this  is  true  although  he  is  in- 
toxicated.^2  The  fact  that  he  is  not  the  driver  of  the  machine 
does  not  relieve  him  from  the  duty  of  exercising  some  care.^ 
If  he  fails  to  use  such  care  he  is  guilty  of  contributory  negli- 
gence and  will  not  generally  be  permitted  to  recover  for  in- 
juries arising  out  of  an  automobile  accident.  But  the  pre- 
cautions to  be  taken  by  the  passenger  are  in  any  event  much 
less  than  those  required  of  the  driver  of  the  vehicle.^^  Whether 
a  passenger  has  exercised  the  proper  degree  of  care  is  almost 
always  a  question  for  the  determination  of  the  jury.^^    Bui 


Vermont. — Wentworth  v.  Waterburj  . 
90  Vt.  60,  96  Atl.  334. 

Virginia. — Virginia  &  S.  W.  Ry.  Co. 
V.  Skinner,  119  Va.  843.  89  S.  E,  887: 
Director-General  v.  Lucas,  107  S.  E. 
675. 

Canada. — Miller  v.  (  mintv  of  Went- 
worth. .5  O.  W.  N.  317. 

81.  Birmingham  Ry.  L.  &  P.  Co.  v. 
Barranco,  203  Ala.  639.  84  So.  839; 
Drouillard  v.  Southern  Pac.  Co.  (Cal. 
App.),  172  Pac.  40.5;  Colorado  Springs. 
etc.  R.  Co.  V.  Cohun.  16  Colo.  142.  180 
Pac.  307;  Clarke  v.  Connecticut  St. 
Ry.  Co.,  83  Conn.  219,  76  Atl.  523: 
Union  Traction  Co.  of  Indiana  v.  Haw 
worth,  187  Ind.  451.  115  N.  E.  753: 
Carnegie  v.  Great  Northern  R.  Co.,  128 
Minn.  14,  150  N.  W.  164;  Zenner  v. 
Great  Northern  Ry.  Co.,  135  Minn.  37. 
169  N.  W.  1087;  White  v.  Portland 
Gas  &  Coke  Co..  84  Oreg.  643,  165  Pac. 
1005;  Texas,  etc.  R.  Co.  v.  Pevoto 
<Tex.   Civ.   App.).   224   S.  W.   552. 

82.  Graham's  Adm'r  v.  Illinois  (  ent 
R.  Co.,  185  Ky.  370. 

83.  Blanchard  v.  Maine  Cent.  R.  Co 
116  Me    179,  100  Atl.  666. 

84.  Clarke  v.  Connecticut  St.  Ry. 
Co.,  83  Cbnn.  219,  76  Atl.  523;  Thoma-s 
V.  Illinois  Cent.  R.  Ck).,  169  Iowa.  337. 
151  N.  W.  387;  Denton  v.  Missouri, 
etc.  R.  Co.,  97  Kans.  498.  155  Pao.  812; 
Kolesh  V.  Price.  136  Minn.  304.  161  N. 
W.  715.  "Manifestly,  the  conduct 
which  reasonable  care  requires  of  such 
a   passenger   will   not   ordinarily,   if   in 


any  ease,  be  the  same  as  that  Which 
it  would  require  of  the  driver.  While 
the  standard  of  duty  is  the  same,  the 
conduct  required  to  fulfill  that  duty 
is  ordinarily  ditl'erent.  because  their 
circumstances  arc  diflerent."  Clarke 
V.  Connecticut  St.  Ry.  Co.,  83  Conn. 
219,  76  Atl.   523. 

85.  United  atates. —  Pish  v.  Penn- 
sylvania Co.,   359   Fed.   201. 

Alabama. — ^Birmingham  Ry.  L  &  P. 
Co,  V.  Barranco,  203  Ala.  639.  84  So. 
839. 

Arkansas. — Carter  v.  Brown,  136 
Ark.  36,  206  S.  W.  71;  Pine  Bluff  Co 
V.  Whitelaw,  227  S.  W.   13. 

California. — Parmcnter  v.  McDou- 
gall.  172  Cal.  306,  156  Pac,  460;  Invin 
V.  Golden  State  Auto  Tour  Co..  178 
Cal.  10,  171  Pac.  1059;  Drouillard  v. 
Southern  Pae.  Co.  (Cal.  App.),  172 
Pac.  405;  Nichols  v.  Pacific  Elec.  K> . 
Co.,  178  Cal.  630.   174  Pac.   319. 

Colorado. — Colorado  Springs,  etc.  R. 
Co.  v.  Cohen,  16  Colo  149,  180  Pac. 
307. 

Connecticut. — Clarke  v.  Connecticnit 
Co.    83  Conn.  219,  76  Atl.  523. 

/iKnot*.— .Sutton  v.  City  of  Chica.<,'ri. 
195  111  App.  261  :  Fei  rv-  v.  City  of 
Waukegan,  196  HI.  App.  SI;  Fredericks 
y.  Chicago  Ry>.  Co..  208  111.  App.   172. 

/"ojira..— Stoker  a.  Tri-City  Ry.  Co.. 
182  Iowa.  1090.  165  N.  W.  30:  Willis 
v.  Schertz,  175  N.  W.  321:  Barrett  v. 
Chicago,  etc.  R.  Co.,  175  N.  W.  950: 
Glanville   v.    Chicago,   etc.    R.   Co..    180 


902 


The  Law  of  Automobiles. 


a  passenger  in  an  unlicensed  machine  may,  in  some  States, 
be  barred  of  recovery  for  his  injuries  as  a  matter  of  law, 
though  the  rule  is  to  the  contrary  in  the  great  majority  of 
States.^^  The  fact  that  the  chauffeur  is  not  licensed  as  re- 
quired by  law  is  some  evidence  of  negligence,  but  is  not  con- 
clusive.^^ An  occupant  may  be  guilty  of  negligence  if  he 
takes  a  position  of  unnecessary  danger.^ 

Sec.  689.  Contributory  negligence  of  passenger  —  lookout  for 
dangers. 

A  passenger  cannot  close  his  eyes  to  an  obvious  or  well 
known  danger,*^  but,  as  a  general  rule,  he  is  not  required,  as 
a  matter  of  law,  to  keep  a  continual  lookout  for  approaching 


N.  W.  152;   Bradley  v.  Interurban  Ry. 
Co.,  183  N.  W.  493. 

Maryland. — Baltimore  &  0.  R.  Co.  v. 
State  to  Use  of  McCabe,  133  Md.  219, 
104  Atl.  465;  Washington  v.  State,  111 
Atl.  164;  McAdoo  v.  State,  111  Atl. 
476;  Chiswell  v.  Nichols,  112  Atl.  363. 

Massachusetts. — Bailey  v.  Worcester 
Consol.  St.  Ry.  Co.,  228  Mass.  477,  117 
N.  E.  824;  Griffin  v.  Hustis,  234  Mass. 
95,  125  N.  E.  387. 

Michigan. — Ommen  v.  Grand  Trunk 
Western  Ry.,  204  Mich.  392,  169  N.  W. 
914;  Jewell  v.  Rogers,  Tp.,  208  Mich. 
318,  175  N.  W.  151. 

Minnesota. —  Carnegie  v.  Greet 
Northern  R.  Co.,  128  Minn.  14,  150  N. 
W.  164:  Kolesh  v.  Price,  136  Minn. 
304,  161  N.  W.  715,  Fraught  v.  Great 
Northern  Ry.  Co.,  144  Minn.  309.  175 
N.  W.  998. 

Missouri. — Zugler  v.  United  Rys.  Oo. 
of  St.  Louis  (Mo.  App.).  220  S,  W. 
1016;  Corn  v.  Kansas  City  Ry.  Co.. 
228  S.  W.  78. 

New  Hampshire. — Collins  v.  Hustis. 
Ill  Atl.  286. 

North  Dakota. — Chambers  v.  Min 
neapolis,  etc.  Ry.  Co.,  37  N.  Dak.  377. 
163  N;  W.  824. 

Ohio. — Board  of  Com'rs  of  Logan 
County  V.  Bicher,  98  Ohio,  432,  121 
N.  E.  535. 


Oregon. — White  v.  Portland  Gas  & 
Coke  Co.,  84  Oreg.  643,  165  Pac.  1005. 

Pennsylvania. — Senft  v.  Western  Md. 
Ry.  Co..  246  Pa.  St.  446,  92  Atl.  553; 
Vocca  V.  Pennsylvania  R.  Co.,  259  Pa. 
St.  42,  102  Atl.  283. 

Tennessee. — Hurt  v.  Yazoo,  etc.  R. 
Co.,  140  Tenn.  623.  205  S.  W.  437; 
Stem  V.  Nashville  Interurban  Ry.,  142 
Tenn.  494,  221  S.  W.  192;  Tennessee 
Cent.  R.  Oo.  v.  Vanhoy,  226  S.  W.  225. 

Texas. — Texas,  etc.  R.  Co.  v.  Peveto 
(Civ.  App),  224  S.  W.  552;  Baker  v. 
Streater  (Civ.  App.),  221  S.  W.  1039; 
Hines  v.  Wilson  (Civ.  App.)),  225  S. 
W.  275. 

Utah. — ^Loekhead  v.  Henson,  48 
Utah.  99,  139  Pac.  347;  Montague  v. 
Salt  Lake,  etc.  R.  Co,  52  Utah,  368, 
174  Pac.  871;  Cowan  v.  Salt  Lake,  etc. 
R.  Co.,  189  Pac.  599. 

86.  Sections   125-126. 

87.  Griffin  v.  Hustis,  234  Mass.  95, 
125  N.  E.  387. 

88  Crider  v.  Yolande  Coal  &  0)ke 
Co.    (Ala.),  89  So.  285. 

89.  Sherris  v.  Northern  Pac.  Ry.  Co., 
55  MoTit.  189,  175  Pac.  269;  Terwilli- 
ger  V.  Long  Island  R.  Co.,  152  N.  Y. 
App.  Div.  168,  136  N.  Y.  Suppl.  733; 
Virginia  &  S.  W.  Ry.  Co.  v.  Skinner, 
119  Va.  843.  89  g'.  E.  887. 


Status  of  Guests  and  Passengers. 


903 


trains  or  other  vehicles  or  for  defects  in  the  highway  or  other 
causes  which  might  occasion  an  injury  to  the  machine.^  In 
other  words,  he  may  to  some  extent,  though  not  completely, 
rely  on  the  driver  keeping  a  lookout  for  such  dangers  as  might 
be  encountered  on  the  trip.'^  Thus,  he  is  not  necessarily 
charged  with  contributory  negligence  because  at  the  time  of 
crossing  a  railroad  track  he  was  engaged  in  conversation  witli 
another  passenger.^^  If  the  passenger  assumes  the  duty  of 
looking  out  for  trains  and  other  dangers,  the  situation  is  en- 
tirely different.^^  And  cases  can  be  found  where  considerable 
diligence  has  been  required  of  a  passenger,  and  he  has  been 
condemned  for  failing  to  look  and  listen  for  approaching 
trains  when  passing  over  a  crossing.^*    But  little  is  required 


90.  Umted  States. — Brommer  v. 
Pennsylvania  R.  Co.,  179  Fed.  577,  103 
C.  C.  A.  135,  29  L.  R.  A.   (N.  S.)  924. 

Alabama. — Birmingham  Ry.  L.  &  P. 
Co.  V.  Barranco,  203  Ala.  639,  84  So. 
839. 

Arkansas. — rPine  Bluff  Co.  v.  White- 
law,  227  S.  W.  13. 

Connecticut. — Clarke  v.  Connecticut 
St.  Ry.  Co.,  83  Conn.  219.  76  Atl.  523. 

/oti>o.— Willis  V.  Schertz,  175  N.  W. 
321. 

Louisiana. — Broussard  v.  Louisiana 
Western  R.  Co.,  140  La.  517,  73  So. 
606. 

Minnesota. —  Carnegie  v.  Great 
Northern  R.  Co..  128  Minn.  14,  150 
N.  W.  164;  Johnson  v.  Evans,  141 
Minn.  356.  170  N.  W.  220,  2  .\.  L.  R. 
891. 

Neto  York. — Terwilliger  v.  lx)n^f 
Island  R.  Co.,  152  App.  Div.  168.  136 
N.  Y.  Siippl.  733.  But  see  Noakes  v 
Ne^v  York  Central,  etc.  R.  Co.,  121 
App.  Div.  716,  106  N.  Y.  Suppl.  522. 
p.ffirmed   195  N.  Y.  543,  88  N.  E.  1126. 

Oregon. — Rogers  v.  Portland,  etc.  R. 
Co..  66  Oreg.  244.  134  Pac.  9. 

Utah. — Montague  v.  Salt  Lake.  etc. 
R.  Co.,  52  Utah,  368.  174  Pac.  871. 

Washington. — Dillabougli  v.  Okano- 
gan County.  105  W:is)i.  009.  178  Pac. 
802. 


Wisconsin. —  Brubaker  v.  Iowa 
County.  183  N.  W.  690. 

The  duty  to  look  and  listen  before 
crossing  railroad  tracks  does  not  rest 
upon  the  passenger  as  on  the  driver, 
Thomas  v.  Illinois  Cent.  R.  Co.,  169 
Iowa,  337,  151  N.  W,  387. 

91.  Carpenter  v.  Atchison,  etc.  Ry. 
<  o.    (Cal.  App.).   195  Pac.  1073. 

92.  Clarke  v.  Connecticut  St.  Ry. 
Co.,  83  Conn.  219,  76  Atl.  523;  Ter 
williger  v.  Long  Island  R.  Co.,  152  App. 
Div.  168,  136  N.  Y.  Suppl.  722;  Wan- 
ner v.  Philadelphia,  etc.  Ry.  Co,  261 
Pa.  273,  104  Atl.  570. 

93.  Fluckey  v.  Southern  Ry.  Co..  342 
Fed.  469;  Rogers  v.  Portland,  etc.  P. 
Co,  66  Oreg.  244.  134  Pac.  9. 

94.  United  States. —  Brommer  v. 
Pennsylvania  R.  Co.,  179  Fed.  580,  103 
C,  C.  A.  135.  29  L.  R,  A.  (N.  S.)  924; 
Hall  V.  West  Jersey  &  Seashore  R.  Co  . 
244  Fed.   104. 

Illinois. — Opp  V.  Pryor.  128  N.  E. 
580. 

Kansas. — Kirby  v.  Kansas,  etc.  R. 
Co..  106  Kans.  163.  186  Pac.  744;  Gil- 
bert v.  Kansas  City  Rys.  Co..  197  Pac. 
872. 

Kenttwkg. —  Milncr's  Adm'r  v. 
Evansville  R.  Co.,  188  Ky.  14,  221  S. 
W    207. 


904 


The  Law  of  Automobiles. 


of  a  passenger  riding  in  the  rear  seatf  but  one  riding  in  the 
front  seat  with  the  driver  is  frequently  required  to  keep  a 
vigilant  outlook  when  approaching  a  place  of  danger  such  as 
a  railroad  track.^^ 

Sec.  690.  Contributory  negligence  of  passenger  —  reliance  on 
driver. 

As  a  general  proposition,  one  who  is  merely  a  guest  or  pas- 
senger in  an  automobile  may,  to  some  extent,  though  not  abso- 
lutely, rely  that  the  driver  will  exercise  reasonable  care  to 
avoid  danger.^'    And,  in  the  absence  of  unusual  circumstances. 

Louisiana. — Leopold  v.  Texas,  etc. 
R.   Co.,   144  La.   1000.  81   So.  602. 

Massachusetts. — Pigeon  v.  Massachu- 
setts, etc.  St.  Ry.  Co.,  119  N.  E   762. 

Nebraska. — Morris  v.  Chicago,  etc. 
R.  Co..  101  Neb.  479,  163  N.  W.  799. 

Pennsylvania. — Bell  v.  Jacobs,  261 
Pa.  204,  104  Atl.  587;  Martin  v.  Penn- 
sylvania R.  Co.,  265  Pa.  St.  282,  108 
Atl.  634. 

Utah. — Lawrence  v.  Denver,  etc.  R. 
Co.,  105  Wash.  652,  178  Pac.  810. 

Washington. — Hoyle  v.  Northern 
Pac.  E.  Co.,  105  Wash.  652,  178  Pae. 
810. 

95.  Weidlech  v.  New  York,  etc  R. 
Co.,  93  Conn.  438.  106  Atl.  323;  Mar- 
ion &  B.  Traction  Co.  v.  Reese  (Ind. 
App.),  124  N.  E.  500;  Marion  &  B. 
Tract.  Co.  v.  Reese  (Ind.  App.),  127 
N.  E.  568;  Glenville  v.  Chicago,  etc. 
Co.  (Iowa).  180  N.  W.  152;  Beall  v. 
Kansas  City  Rys.  Co.  (Mo.  App.),  228 
S.  W.  834;  Tennessee  Cent.  R.  Co.  v. 
Vanhoy  (Tenn.),  226  S.  W.  225; 
Cowan  v.  Salt  Lake,  etc.  R.  Co. 
(Utah),  189  Pac.  599. 

96.  Barrett  v.  Chicago,  etc.  R.  Co. 
(Iowa),  175  N.  W.  950;  leopard  v. 
Kansas  City  Rys.  Co.  (Mo.  App.),  214 
S.  W.  268. 

97.  United  States. — Lehigh  Valley 
R.  Co.  v.  Emens,  231  Fed,  636,  145  C. 
C.  A.  522. 

Alabama. — Birmingham  Ry.  L.  &  P. 
Co.  v.  Barranco.  203  Ala.  639,  84  So. 
839. 


California. — ^Ellis  v.  Central  Cali- 
fornia Tract.  Co,  37  Cal.  App.  390; 
Carpenter  v.  Atchison,  etc.  Ry.  Co. 
(Cal.  App.),  195  Pac.  1073. 

Illinois. — Johnson  v.  Chicago  Surface 
Lines,  209  111.  App.  26. 

loio^a. — Bradley  v.  Interurban  Ry. 
Co..  183  N.  W.  493. 

Kansas. — Williams  v.  Withington, 
88  Kans.  809,  129  Pac.  1148;  Denton 
V.  Missouri,  etc.  Ry.  Co.,  97  Kans.  498, 
155  Pac.  812. 

Maine. — Avery  v.  Thompson,  117  Me. 
120,  103  Atl.  4. 

Massachusetts.  —  Chadbourne  v. 
Springfield  Ry.  Co.,  199  Mass.  574,  85 
N.  E.  737;  Pigeon  v.  Massachusetts, 
etc.  St.  Ry.  Co.,  119  N.  E.  762;  Grif- 
fin V.  Hustis,  234  Mass.  99,  125  N.  E. 
387;  Fahy  v.  Director  General.  126 
N.  E.  784. 

Minnesota. — Kolesh  v.  Price,  136 
Minn.  304,  161  N.  W.  715. 

Missouri. — Corn  v.  Kansas  City,  etc. 
Ry.  Co.,  228  S.  W.  78. 

New  York. — Terwilliger  v.  Long 
Island  R.  Co..  152  App.  Div.  168,  136 
N.  Y.  Suppl.  733.  "He  had  a  right 
to  assume  that  Mr.  Welsh,  his  friend, 
would  exercise  reasonable  care  in  the 
operation  of  his  car,  and  unless  he  was 
aware  of  the  railroad  crossing  and  had 
reason  to  apprehend  that  Mr.  Welsh 
would  run  his  car  into  a  position  of 
danger,  the  jury  might  properly  find 
that  he  was  in  the  exercise  of  that  rea- 


Status  of  Guests  and  Passengers. 


905 


he  is  not  guilty  "of  contributory  negligence  if  he  relies  on  the 
skill  of  the  driver  and  does  not  take  active  steps  to  see  that 


sonable  degree  of  care  which  an  or- 
dinarily prudent  man  would  exercise 
under  like  circumstances  by  merely 
sitting  still  in  liis  seat  and  talking 
with  a  fellow- passenger.  That  is  prob- 
ably what  seventy-five  per  cent,  of  tlie 
persons  who  go  out  for  a  drive  with 
their  friends  do  under  the  circum- 
stances. They  have  no  power  over  the 
car.  no  authority  over  the  driver,  and, 
while  they  would  not  be  free  to  ride 
Avitli  a  reckless  driver,  knowing  the 
fact,  and  charge  their  misfortunes 
upon  others,  we  do  not  think  it  can  be 
said  that  there  is  a  failure  to  produce 
evidence  of  a  lack  of  contributory  neg- 
ligence where  it  apj)€ar8,  as  it  does 
here,  that  the  plaintiff's  intestate  was 
sitting  in  his  seat  engaged  in  a  con- 
versation with  a  fellow-passenger  who 
was  occupying  the  seat  behind  him, 
and  who  was  leaning  forward  for  the 
purpose  fif  carrying  on  the  conversa- 
tion, leaving  the  driver  free  to  manage 
the  CRT.  Of  course  if  the  passenger 
was  familiar  with  a  known  danger,  if 
he  was  better  informed  of  the  circum- 
stances than  the  driver,  it  might  be 
his  duty  to  watch  and  jwint  out  the 
danger,  but  here  the  car  was  being 
driven  upon  a  flat  land  in  broad  day- 
light, and  at  an  angle  with  the  rail- 
road track,  which  had  been  crossed 
some  distance  back,  and  which  was  to 
be  crossed  again  at  grade.  It  was  an 
open  country,  and,  assuming  that  the 
plaintiff's  intestate  was  familiar  with 
the  country — which  is  the  most  favor- 
able view  for  the  defendant — it  cannot 
be  said  as  a  matter  of  law  that  he  was 
bound  to  anticipate  that  Mr.  Welsh 
would  drive  upon  the  crossing  without 
observing  the  sittiation  and  taking  the 
necessary  precautions."  Terwllliger  v. 
Long  Island  R.  Co.,  152  Aipp.  Div.  168, 
136  N.  Y.  Suppl.  733. 
Oregon. — ^Rogers  v.  Portland,  etc.  R. 


Co.,  60  Oieg.  244,  134  Pac.   9. 

Pennsylvania. — Vocca  v.  Pennsyl- 
vania R.  Co.,  259  Pa.  St.  42,  102  Atl. 
283;  Carbaugh  v.  Philadelphia,  etc.  Ry. 
Co.,  262  Pa.  25,  104  Atl.  860. 

Tennessee. — Knoxvillo  Ry.  &  Liglit 
Co.  v.  Vaiigilden.  132  Tcnn.  487,  178 
S.  W.  1117;  Stem  v.  Nashville  Int.  r- 
urban  Ry..  142  Tenn.  494,  221  S.  W. 
192. 

Utah. — Montague  v  Salt  T-ake,  etc. 
R.  Co.,  52  Utah.  368,   174  Pac    871. 

Husband  and  wife.— It  has  been  hela 
that,  where  a  husband  and  wife,  travel- 
ing together  in  an  automobile  which 
the  husband  ia  driving,  tlie  wife  can- 
not rely  entirely  on  the  husband,  but 
she  is  bound  to  exercise  the  same  de 
gree  of  care  as  he.  Beemer  v.  Chicago. 
et^.  R.  Co.   (Iowa),  162  N.  W.  43. 

Reliance  of  wife  on  husband. — In 
Denton  v.  Missouri,  etc.  R.  Co,  97 
Kans.  498,  155  Pac.  812,  the  court,  dis- 
cussing the  riglit  of  a  wife  to  rely  on 
her  husband's  management  of  the  au- 
tomobile, said:  'The  plaintiff  was  re- 
quired to  take  the  precautions  which 
a  reasonably  prudent  person,  not  in  the 
situation  of  the  automobile  driver,  but 
in  her  situation  would  have  taken. 
The  argument  is  that  she  should  have 
stopped  the  automobile,  or  should  have 
called  her  husband's  attention  to  the 
conditions  and  requested  him  to  ex 
ercise  reasonable  care.  Why  should 
the  plaintiff  have  called  her  husband's 
attention  to  the  conditions  and  ex- 
horted him  to  use  due  care?  She  ha*i 
confidence  in  his  ability  as  a  driver. 
The  conditions  were  just  as  obvious  to 
him  aa  to  her.  He  could  hear  and  see 
all  she  could  see  and  hear.  He  was 
responsible  for  the  operation  of  the  au- 
tomobile, not  she,  and  she  bad  tio  rea- 
son to  doubt  that  he  was  exercising  liis 
faculties  with  diligence.  Besides  this, 
there  was  another  observer  in  the  front 


906 


The  Law  of  Automobili<:.s. 


the  machine  is  properly  propelled.    Ordinarily  it  is  not  the 
province,  or  even  proper  for  a  guest  to  attempt  to  direct  the 


seat  with  the  driver,  who  was  in  fact 
familiar  with  the  crossing.  His  safety 
and  his  wife's  safety  were  at  stake, 
and  there  is  no  evidence  of  any  fact 
indicating  to  the  plaintiff  that  he  soon 
was  not  exercising  his  faculties  of  ob- 
servation with  diligence.  Why  ought 
the  plaintiff  to  have  arrogated  to  her- 
self control  over  the  automobile  and 
commanded  it  to  stop?  The  finding  is 
that  she  saw  a  track  beyond  the  ob- 
structions to  her  vision  and  knew  en- 
gines and  cars  were  likely  to  pass  over 
it  at  any  time.  There  is  no  finding 
and  no  evidence  that  from  her  place  in 
the  back  seat  she  could  see  this  track 
was  so  close  to  the  one  on  which  the 
coal  ear  stood  that  the  automobile 
would  be  in  danger  before  her  husband 
on  tlie  front  seat  could  see  toward  the 
north.  ,  Her  opportunities  of  observa- 
tion were  not  equal  to  those  of  her  hus- 
band. She  knew  his  ability  as  a  driver 
and  trusted  him,  and,  what  is  more, 
she  had  the  right  to  trust  him  "  See 
also  Ward  v.  Clark,  189  N.  Y.  App. 
Div.  344,  179  N.  Y.  Suppl.  466. 

Pa^enger   in   auto   bus. — A   passen- 
ger in  an  auto  bus  is  not  negligent  in 
taking    such    a   means    for    transporta- 
tion, nor  is  he  negligent  in  relying  on 
the  driver  of  the  car  to  avoid  dangers 
and  in  not  keeping  a  lookout  for  dan- 
gers.    McDonald   v.   Messaba  Ry.    Co., 
137  Minn.  275,   163  N.  W.  298,  where- 
in it  was  said:     "The  plaintiff  was  not 
negligent  in  taking  passage  in  the  bus. 
She  was  not  wanting  in  care  in  what 
shfe  did  or  failed  to  do  at  the  precise 
moment  of  the  collision.     She  did  not 
actually  anticipate  it.     If  negligent  at 
all  it  was  because  she  did  not  look  and 
listen,  or  hearing,  did  nothing  to  pre- 
vent  the   accident.      It  appears   nearly 
conclusively    that    she    did    not    hear. 
Considering    that    she    did    not    hear, 
veyance,    her    position    in    it    shut    in 


as   she  was,  the  difficulty  and   imprac- 
ticability   of    her    maintaining   a    look- 
out, the  lack  of  any  reason  for  her  dis- 
trusting  the    skill   or   diligence   of   the 
driver,    the    readiness    with    which    he 
could  control  his  machine,  his  superior 
position   for   observing  danger,   the   ac- 
tive and  continuous  duty  which  rested 
upon  him  of  watching,  the  absence  of 
actual  notice  to  her  of  impending  dan- 
ger, and  the  want  of  apparent  need  of 
supervising  the  conduct  of  the   driver 
or  disturbing  him  with  suggestions  or 
warnings,    a   jury    should   not  be  per- 
mitted to  find  that  she  was  guilty  of 
negligence  in  caring  for  her  own  safety. 
It  is  hardly  to  be  thought  that  the  con- 
duet   of   a   very   careful    person   would 
have   been   different    from   that   of   the 
plaintiff.      We    make    no    attempt    to 
frame  a  general  rule  solving  all  cases. 
The  facts  in  particular  cases  must  de 
termine  whether  the  ultimate  question 
is  for  the  jury." 

Wagon. — "  Common       sense       would 
dictate  that  when  a  wife  goes  riding 
with   her   children   in   a   rig  driven   by 
her    husband    she    rightfully    relies    on 
him  not  to  drive  so  as  to  imperil  those 
in  his  charge.     The  law  does  not  de- 
part from  common  sense  by  requiring 
her,    under    the    circumstances    shown 
here,  to  impugn  her  husband's  ability 
to  drive  and  assume  the  prerogative  to 
dicta'te  to  him  the  manner  of  driving. 
With  one  child  on  her  lap  and  another 
sitting   next   to    look    after    she   might 
with  human  and  legal  fairness  and  pro- 
priety leave  the  driving  in  the  exclu- 
sive care  of  the   husband  and   father, 
at  least  until   she   actually  saw  some 
danger   calling   for   warning   or   advice 
from   her.  which  was  not  the  case  in 
this    instance.      She    frankly    testified 
that  she  was  's'crooched  down'   holding 
her    baby    and    'gawking    around     at 
things'  but  not  paying  attention  to  the 


Status  of  Guests  and  Passengers. 


907 


movements  of  the  driver.^^  The  situation  may  be  different, 
when  he  knows  that  the  driver  is  operating  the  machine  in  a 
careless  manner,  or  if  he  has  knowledge  of  some  danger  which 
is  not  known  or  obvious  to  the  driver.  Then  a  duty  devolves 
on  him  of  taking  measures  for  his  own  protection.^^  The  ex- 
tent to  which  the  passenger  or  guest  may  rely  upon  the  driver, 
and  the  steps  he  should  take  for  his  own  safety,  must  depend 
upon  the  circumstances  of  the  particular  case.^     Negligence 


situation  or  circumstances  surroundin- 
the  place  at  the  time.  So  far  as  im- 
puted negligence  is  concemetl  sl.e  had 
a  right  to  trust  her  husband  to  so  con 
duct  the  ride  that  she  could  'scrootcli 
down'  and  'gawk  around"  and  rest, 
for  very  likely  she  was  taken  on  the 
drive  for  real  rest  and  relaxation." 
Williams  v.  Withington,  88  Kans.  809. 
129  Pac.  1148. 

98.  Bradley  v.  Interurban  Ry.  Co. 
(Iowa),  183  N.  W.  493;  Latimer  v. 
Anderson  County.  95  ^S.  Car.  187,  78 
S.  E.  879;  Hunter  v.  City  of  Saska 
toon,  48  D.  L.  R.  (Canada)  68.  "A 
gratuitous  passenger,  in  no  matter 
what  vehicle,  is  not  oApected,  ordi- 
narily, to  give  advice  or  direction  a.=< 
to  its  control  and  raanagcment  To 
do  so  might  be  harmful  rather  than 
helpful.  Clarke  v.  Connecticut  Co..  S3 
Conn.  219,  76  Atl.  523. 

99.  Brommer  v.  Pennsylvania  R.  (  o.. 
179  Fed.  577,  103  C.  C.  A.  135.  29  L. 
R.  A.  (N.  S.)  924;  Thompson  v.  Los 
Angeles,  etc.  R.  C^.,  165  Cal.  748,  134 
Pac.  709;  Beall  v.  Kansas  City  Ry>. 
Co.  (Mo.  App.).  228  S.  W.  834;  White 
V.  Portland  Gas  &■  Coke  Co.,  84  Greg. 
643,  165  Pac.  1005;  Azinger  v.  Penn- 
sylvania R.  Co..  262  Pa.  242,  105  Atl. 
87;  Martin  v.  Pennsylvania  R.  Co..  265 
Pa.  St.  282,  108  Atl.  631;  Hill  v. 
Philadelphia  Rapid  Transit  (  o.,  114 
Atl.  634.  "Assuming  for  the  sake  of 
argument,  but  not  conceding,  that 
plaintiff  was  merely  the  guest  of  Bird, 
and  was  in  no  sense  responsible  for  tlie 
manner    in    which    Bird    operated    and 


niai):i;^eri  tlio  ;iut oni<.l>iI(>  while  making 
the  trip  in  question,  it  nevertheless  was 
incumbent  upon  him  to  exercif-e  ordi- 
naiy  care  and  prudence  by  making 
•iiligcnt  use  of  his  senses  of  sight  and 
hearing,  by  looking  and  listening  for 
trains  as  the  automobile  approached 
the  crossing,  and  to  heed  the  warnings 
and  signals  of  the  approach  of  the 
train,  and  to  suggest  to  Bird  that  they 
>top  until  the  danger  was  over,  and 
to  protest  if  that  was  not  done."  Law- 
rence v.  Denver,  etc,  R.  Co..  52  Utah, 
414.  174  Pac.  817. 

1.  "Negligence  may  be  grounded  in 
action  or  refusal  to  act,  in  speaking  or 
failing  to  speak,  all  with  reference  to 
duty  in  the  premises.  We  can  easily 
conceive  of  cases  where  a  clamor  of 
direction  by  the  guest  would  confuse  a 
driver  or  chauffeur  and  increase  the 
danger  in  a  manner  amounting  to  con 
tributory  negligence  of  the  passenger. 
In  others  the  duty  to  utter  warning 
mig])t  be  imperative.  In  some  in- 
stances it  would  be  rank  folly  to  wrest 
tlie  reins  or  tlie  wheel  from  the  hands 
of  the  one  in  charge  of  the  vehicle.  In 
others  it  might  be  highly  necessary  to 
do  that  very  thing.  The  court  cftnnot 
lay  down  a  mathematieal  preceiit  as  a 
rule  of  law  enjoining  in  detail  what 
should  be  said  or  done  or  omitted  in 
every  juncture  of  danger.  It  is  plain, 
however,  that  an  invited  guest  is  not 
to  he  supine  and  inert  as  mere  freight. 
.Accepting  the  hospit.ality  of  his  friend 
does  not  excuse  him  from  the  duty  of 
acting    for    his    own    safety    as    a    rea- 


908  The  Law  of  Automobiles. 

is  not  necessarily  charged  against  a  passenger  because  lie  in- 
trusts himself  to  a  driver  who  he  has  reason  to  believe  is  care- 
less, but  such  fact  is  to  be  considered  in  determining  whether 
he  has  exercised  the  proper  conduct  in  the  face  of  danger.^ 
But,  if  one  intrusts  himself  to  a  driver  whom  he  knows  to  be 
intoxicated  to  the  extent  that  he  cannot  drive  the  car  with  the 
care  of  an  ordinarily  prudent  person,  he  may  be  unable  to  re- 
cover for  his  injuries.' 

Sec.  691.  Contributory  negligence  of  passenger  —  riding  with 
intoxicated  driver. 

One  may  be  negligent  if  he  commits  his  safety  to  the  intoxi- 
cated driver  of  an  automobile.  While  it  is  true  in  general 
that  the  negligence  of  the  driver  of  a  vehicle  is  not  imputable 
to  a  passenger  so  as  to  bar  that  passenger's  right  of  recovery, 
yet  the  conduct  of  one  in  riding  in  and  continuing  to  ride  in 
an  automobile  when  he  must  have  known  that  the  driver  was 
intoxicated  establishes  independent  negligence  on  his  part.'* 
* '  Even  while  prosecuting  a  journey,  if  the  driver  becomes  in- 
toxicated so  as  to  lose  control  of  the  vehicle,  or  is  reckless, 
and  this  is  known  to  the  passenger,  ordinary  care  requires 
the  passenger  to  call  upon  the  driver  to  stop  and  allow  him 
to  alight,  or  turn  the  management  of  the  vehicle  over  to  an- 
other capable  of  properly  directing  it,  and  if  the  passenger 
fails  to  exercise  such  care  and  is  injured  as  a  result  of  the 
negligence  or  recklessness  of  the  driver  and  a  third  person,  he 
may  not  have  recourse  of  such  third  person,  this  being  denied 

sonably    prudent    person    would    under  he  was  unable  to  manage  the  autoino- 

like    conditions.      Whether   he   does   so  bile  with   ordinary  safety.     Gaffney  v. 

or  not  must  be  decided  by  the  12  who  Dixon,  157  111.  App.  589. 

declare  the  facts  embodied  in  the  ver-  3,  Section   691. 

diet."     White  v.  Portland  Gas  &  Coke  4.  McGeever   v.    O'Byrne    (Ala.),    82 

Co.,  84  Oreg.  643,  165  Pac.  1005.  So.    508;    Lynn    v.    Goodwin,    170    Cal. 

2.  Wiley  v.  Young,  178  Cal.  681,  174  112,  148  Pac.  927;  Kirmse  v.  Chicago, 

Pac.  316.  etc.    R.    Co.     (Ind.),    127    N.    E.    837; 

Driver      with      injured      hand. — To  Winston's    Adm'r    v.    City    of   Hender- 

charge   a  wife   with   the  negligence  of  son,  179  Ky.  220,  200  S.  W.  330.     See 

her    husband    driving    the    car    on    the  also  Brannen  v.  Kokomo.  etc.   Co.,  115 

theory   that   she   knew   he  had   an    in-  Ind.  115,  17  N.  E.  202,  7  Am.  St.  Rep. 

jured  hand,  it  must  also  be  found  that  411;  Meenagh  v.  Buekmaster,  26  N.  Y. 

slie  knew  that  on  account  of  the  injury  A-pp.  Div.  451,  50  N.  Y.  Suppl.   85 


Status  of  Guests  and  Passengers.  909 

him  because  of  his  own  negligence  rather  than  upon  the 
ground  that  the  negligence  of  the  driver  is  imputed  to  him."^ 
If  the  driver  from  intoxication  is  in  a  condition  which  renders 
him  incapable  of  operating  the  machine  with  proper  diligence 
and  skill,  and  this  is  known  or  is  palpably  apparent  to  one 
entering  the  car,  this  is  a  fact  which  may  be  proved  for  the 
consideration  of  the  jury,  along  with  the  other  facts  in  the 
case,  to  throw  light  on  the  question  whether  such  person  exer- 
cised ordinary  care  in  entering  the  car  or  in  remaining  therein. 
So,  if  the  guest  took  drinks  of  liquor  with  the  owner  and 
driver  of  the  car,  some  of  the  liquor  being  furnished  by  the 
owner  and  some  by  the  guest,  this  may  be  shown  for  the  pur- 
pose of  aiding  in  the  determination  of  whether  the  guest  was 
negligent.^  Where  it  is  shown  that  a  party  of  eight  persons, 
including  the  operator  of  the  automobile,  had  been  drinking 
for  about  six  hours  before  the  accident,  the  contributory  neg- 
ligence of  one  of  such  persons  in  remaining  in  the  vehicle,  is 
a  question  for  the  jury."^ 

Sec.  692.  Contributory  negligence  of  passenger  —  failure  to 
warn  driver  of  dangers. 

If  a  passenger  sees  that  the  driver  is  guilty  of  negligence 
in  his  operation  of  the  machine  or  that  he  is  running  into 
danger  which  is  known  to  the  passenger  but  of  which  the 
driver  is  oblivious,  reasonable  care  would  require  that  the 
passenger  give  some  warning  to  the  driver  or  take  some  steps 
for  the  avoidance  of  injury.^  Or,  if  the  driver  is  taking  no 
steps  to  avoid  a  threatened  danger  which  is  apparent  to  the 
passenger,  the  jury  may  properly  charge  him  with  contribu- 

5.  Winston's  Arlm'r  v.  City  uf  Hen-  Atl.  323;  Jacobs  v.  Jacobs,  141  La. 
derson.  179  Ky.  220,  200  S.  W.  330.  272,    74    So.    992;    Carnegie    v.    Great 

6.  Powell  V.  Berry,  145  Ga.  696,  89  Northern  R.  Co..  128  Minn.  14,  150  N, 
S-  E.  7r>3.  W.  164;   TcnviJligar  v.  Long  Island  R. 

7.  Sutton  v.  City  of  Cliieaso,  195  Co.,  152  N.  Y.  App.  Div.  168.  136  N. 
Til.  App.  261.  See  also  McKeen  v.  Y.  Suppl.  733;  Rogers  v  Portland,  etc. 
Iverson    (N.  Dak.),   180  N.  W.  805.  R.  Co.,  66  Oreg.  244.  134  Pac.  9;  Eline 

8.  Brommer  v.  Pennsylvania  R.  Co..  v.  Western  Maryland  R.  Co.,  262  Pa. 
179  Fed.  577,  103  C.  C.  A  135.  29  L.  33,  104  Atl.  857:  Knox ville  Ry.  &  Light 
R.  A.  (N.  S.)  924;  Weidlich  v.  New  Co.  v.  Vangilden,  132  Tenn.  487.  178  S. 
York,   etc.    R.   Co.,   93   Conn.    438.    106  W.   1117. 


910 


The  Law  of  Automobiles. 


tory  negligence,  unless  he  attempts  to  avoid  the  danger.^  In 
such  a  case,  he  cannot  passively  sit  still  and  then  charge  his 
misfortunes  to  others.  If  a  passenger  sees  a  train  approach- 
ing at  a  crossing  and  the  driver  is  taking  no  steps  to  avoid 
the  danger,  the  passenger  should  give  warning,  and  a  failure 
to  give  such  warning  may  afford  ground  for  a  charge  of  con- 
tributo^-y  negligence.^**  But  if  the  passenger  is  not  aware  of 
the  driver's  intention  to  cross  the  track  without  stopping,  con- 
tributory negligence  as  a  matter  of  law  is  necessarily 
charged."    And  it  cannot  be  said  as  a  matter  of  law  that  a 


9.  Christison  v.  St.  Paul  City  Ey. 
Co.,  138  Minn.  456,  165  N.  W.  273; 
Morris  v.  Chicago,  etc.  R.  Co.,  101 
Neb.  479,  163  N.  W.  799;  Hill  v. 
Philadelphia  Rapid  Transit  Co.  (Pa.). 
114  All.  634;  Wentworth  v.  Water- 
bury,  90  Vt.  60,  96  Atl.  334. 

10.  Brommer  v.  Pennsylvania  R.  Co., 
179  Fed.  577,  103  C.  C.  A.  135.  29  L. 
R.  A.  (N.  S.)  924;  Lyon  v.  Phillips 
(Tex.  Civ.  App.),   196  S.  W.   995. 

Husband  and  wife. — Where  in  an 
action  by  a  woman  of  mature  years  to 
recover  for  injuries  received  in  a  col- 
lision at  a  grade  crossing  between  an 
automobile  in  which  she  was  riding, 
and  which  was  driven  by  her  husband, 
and  one  of  defendant's  trolley  cars,  the 
plaintifi'  testifies  that  at  the  time  of 
the  accident  the  automobile  was  going 
down  a  steep  hill;  that  she  was  fami- 
liar with  the  road  and  vicinity;  that 
when  the  automobile  was  400  or  500 
feet  from  defendant'^  tracks,  which  ran 
along  an  intersecting  road,  she  could 
have  seen  the  wires  and  the  trolley  pole 
of  the  approaching  car  had  she  looked, 
although  the  car  itself  was  hidden  by 
the  walls  and  shdubbery  on  the  sides 
of  the  road,  but  that  she  did  not  look 
nor  pay  any  attention  to  the  driving 
of  the  automobile,  and  it  appears  that 
her  husband  had  the  automobile  un- 
der control  and  could  easily  have 
stopped  it.  had  she  warned  him,  she 
was  guilty  of  contributory  negligence 
barring  a   recovery.     Pouch  v.    Staten 


Island    Midland    Ry.    Co..    142    N.    Y. 
App.  Div.  16,  126  N.  Y.  Suppl.  738. 

11.  Birmingham  So.  R.  Co.  v.  Har- 
rison, 203  Ala.  284,  82  So.  534. 
"There  is  no  duty  on  such  guest  to 
anticipate  that  the  independent  driver 
of  the  vehicle  in  which  such  guest  is 
riding  will  enter  the  sphere  of  danger 
or  peril  ahead,  or  will  omit  to  exercise 
commensurate  care  to  sense  the  ap- 
proach or  the  probable  approach  of 
other  agencies  of  transportation  with 
reference  to  which  the  ordinarily  pru- 
dent driver  should,  in  due  observance 
of  his  duty,  govern  the  movement  of 
the  vehicle  he  controls.  Where,  how- 
ever, siich  guest  knows  of  the  danger 
or  peril  into  or  toward  which  the  ve- 
hicle is  being  driven,  or  the  circum- 
stances of  realized  speed  of  the  vehicle 
and  known  location  and  its  surround- 
ings ahead  are  such  as  to  suggest,  to 
a  reasonably  prudent  person  likewise 
situated,  the  probabilify  that  a  sphere 
of  danger  or  peril  may  be  created 
thereby  or  may  be  entered  in  course  of 
the  vehicle's  movement,  it  is  the  duty 
of  such  guest  to  warn  the  driver  in 
the  premises  and  to  protest  a  continu- 
ance of  a  movement  so  actually  or 
probably  fraught  with  danger  or  peril 
to  such  occupant  of  the  vehicle.  In 
otlier  words,  the  duty  imposed  upon 
such  ]ierson.  whatever  his  seat  in  the 
vehicle,  is  created  by  either  knoAvn 
dangers  or  perils  that  the  attendant 
circumstances    reasonably    suggest    or 


Status  of  Guests  and  Passengers.  911 

girl  of  19,  riding  in  the  rear  seat  of  a  carriage  driven  bj^  her 
brother-in-law,  is  bound  to  advise  him  with  respect  to  the 
management  of  the  team  on  approaching  at  night  a  railroad 
crossing  where  obstructions  prevent  a  view  of  the  track  from 
a  greater  distance  than  about  fifteen  feet,  although  she  is 
familiar  with  the  surroundings  and  he  is  not.^  A  train  may 
appear  so  suddenly  and  the  entire  transaction  take  such  a 
short  time  that  there  is  no  opportunity  for  even  the  most 
prudent  passenger  to  apprehend  the  danger  and  give  warning 
thereof  to  the  driver.^^  When  the  passenger  actually  gives  a 
warning  of  the  danger  to  the  chauffeur,  but  the  latter  dis- 
regards the  warning,  ordinarily  there  is  no  basis  upon  which 
negligence  can  be  charged  to  the  passenger.^* 

Sec.  693.  Contributory  neg-ligence  of  passenger  —  remaining 
in  machine. 

When  a  passenger  sees  the  machine  approaching  in  a  posi- 
tion of  danger,  it  may  be  that  his  best  recourse  to  escape  in- 
jury would  be  to  jump  from  the  machine.  But,  in  a  sudden 
emergency,  his  conduct  is  not  closely  scrutinized  and  he  is 
not  charged  with  contributory  negligence  as  a  matter  of  law 
because  he  remains  in  the  machine.^^  On  the  other  hand,  if  he 
leaves  a  moving  machine  and  thereby  receives  an  injury,  it 
may  be  proved  subsequently  that  he  would  have  escaped  in- 
jury had  he  remained  with  the  machine,  but  he  is  not  neces- 

foreshadow.     The  duty  is  therefore  not  perils  create."     Birmingliam  Ky.  L    & 

original   with   respect  to  the   operation  P.  Co.  v.  Barranco,  203  Ala.  639,  84  S. 

of  the  vehicle,  but  resultant,  and  that  O.  839. 

only  from  known  and   appreciated  cir-  12.  Angell  v.  Chicago,  R.  I.  &  P.  Ry. 

cumstances  capable  of  bringing  it  into  Co.,    97   Kana.  688,    156   Pac.    763,   re- 

eflfoct.      Otherwise,    the    law   would    be  hearing  denied  98  Kans.  268,  157  Pac. 

held  to  sanction  this  irrational  result:  1196. 

Such  person  would  be  allowed  to  close  13.  Drouillard  v.   Southern  Pac.   Co. 

his    senses    to    known    dangers    or    to  (Cal.    App.).    172    Pac.    405;    Sc-haefer 

perils  reasonably  suggested  by  the  at-  v.  Arkansas  Valley  Interurban  Ry.  Co. 

tendant     circumstances     indicated,      in  (Kans.),   179  Pac.  323 

blind  reliance  upon  the  unaided  care  of  14.  Avery  v.  Thompson,  117  Me.  120, 

another,   independent  of   such    person's  103  Atl.   4. 

control   though   that  other   is,  without  15    Ellis  v.  Central  California  Tract. 

assuming     the     consequences     of     the  Co..   37    Cal.    App.    390.    174    Pac.    407. 

omission  of  such  ordinary  care  as  the  See  also  Hensley  v.   Kansas  City   Rys. 

attendant      circumstances      or      known  Co.    (Mo.  App.).  214  S.  W.  287. 


912  The  Law  of  Automobiles. 

sarily  charged  with  negligence  because  he  took  the  wrong 
course  in  the  emergency .^^  The  circumstances,  however,  may 
be  such  as  to  charge  the  occupant  with  negligence  as  a  matter 
of  law,  where  he  unreasonably  remains  in  the  machine  when 
adequate  time  is  allowed  for  escaping."  The  fact  that  one 
remains  in  a  machine  while  it  is  traveling  over  a  muddy  and 
slippery  road  in  the  night,  is  not  necessarily  negligence.^^ 

Sec.  694.  Contributory  negligence  of  passenger  —  permitting 
driver  to  run  at  excessive  speed. 
One  riding  in  a  motor  vehicle  may  be  properly  charged 
with  negligence  if  he  encourages  or  permits  the  driver  to 
proceed  at  an  unreasonable  speed  without  remonstrance." 
Thus,  where  one  rode  in  an  automobile  at  a  rate  of  over  fifty 
miles  an  hour  in  a  city  street  for  a  distance  of  1,500  feet, 
without  remonstrance  or  even  suggestion  to  the  driver  that 
he  stop  the  car  or  slacken  its  speed,  renders  him  guilty  of 
contributory  negligence,  and  he  cannot  recover  for  injuries 
sustained  by  the  machine  strildng  a  bundle  of  newspapers  in 
the  street.20  n-  j^^s  been  held,  however,  that  one  who  is  merely 
a  guest  of  persons  hiring  a  car  is  not  ordinarily  in  a  position 
to  object  to  the  speed  with  which  the  machine  is  operatcd.^^ 
The  violation  of  the  speed  limit,  is  not  necessarily  negligence 
in  those  States  where  the  violation  constitutes  merely  prima 
facie  evidence  of  negligence.22  And,  where  the  guest  remon- 
strates against  the  speed,  but  the  accident  occurs  before  he 

16.  Fahey  v.  Director  Oereral  233;  Hardie  v.  Barrett,  257  Pa  St. 
(Mass)  126  N.  E.  784;  Parker  v.  Sea-  42.  101  Atl.  75:  Langley  v  Soutlicrn 
board  Air  Line  Co.  (N.  C  ),  106  S.  F.  Ry.  Co.  (S.  C).  101  S.  E.  286;  Howe 
755  V.  Corey    (Wis.),  179  N.  W.  791.     See 

17.  Krouse  v.  Southern  Mich.  Ry.  also  Ferry  v.  City  of  Waukegan,  196 
Co.    (Mich.),  183  N.  W.  768.  111.  App    81. 

18.  Dillabough  v.  Okanogan  County,  20.  Jefson  v.  Crosstown  St.  Ry.  Co., 
105  Wash.  609,   178  Pac.   802.  72   Misc.   103    129  N.  Y.   Suppl.   233. 

19.  McGeever  v.  O'Byrne  (Ala.),  82  21.  Routlerlge  v.  Rambler  Auto  Co. 
So    508;   Stewart  v.  San  Jonquin  L.  &  (Tex.).  95  S.  W.  749. 

P   Co    (Cal.  App.),  186  Pac.  160;  Fair  22.  Holland   v.   Yellow   Cab  Co.,   144 

V.    Union    Tract.    Co.,    102    Kars     611.  Minn.   475,   175   N.  W.   536.     And  see 

171  Pac.  649;   Jefson  v.  Crosstown  St.  section  322. 

Ry.,    72   Misc.    103,    129   N.   Y.    Suppl.  , 


Status  of  Guests  and  Passengers.  913 

has  time  to  take  other  steps  for  his  safety,  he  is  not  negli- 
gent as  a  matter  of  law.^ 

Sec.  695.  Contributory  negligence  of  passenger  —  defective 
machine. 
One  who  rides  as  a  passenger  or  guest  in  a  motor  vehicle 
which  he  knows  to  be  in  a  defective  condition  so  that  injury 
will  likely  ensue,  may  be  found  guilty  of  contributory  negli- 
gence, for  such  conduct  may  be  deemed  by  the  jury  to  be  in- 
consistent with  the  care  which  would  be  exercised  by  a  reason- 
ably careful  person.  If  the  passenger  knows  that  the  machine 
is  not  properly  equipped  with  lights,  and  he  continues  the 
trip,  he  may  be  charged  with  negligence  in  that  respect.^*  But 
where  the  lights  fail  in  the  night  while  on  a  trip,  and  the  car 
proceeds  with  the  use  of  an  oil  lamp,  and  reasonable  precau- 
tions are  taken  for  the  safety  of  the  travelers  in  view  of  the 
circumstances,  the  passengers  are  not  necessarily  to  be 
charged  with  negligence  because  they  continued  their  trip 
and  did  not  refuse  to  proceed  when  the  difficulty  arose.^^ 

23.  Rappaport  v.  Roberts  (Mo.  eonvej'ance.  But  an  examination  of 
App. ),  203  S.  W.  676.  See  also  Mas-  the  many  cases  on  tliat  question  shows 
ten   V.   Cousins.  216  III.  App.   268.  that   the    writers   of   the   opinions    are 

24.  Rebillard  v.  Railroad  Co.  216  careful  to  except  a  passenger  or  guest 
Fed  503.  The  court  said:  "In  Lit-  who  with  knowledge  of  the  danger  re- 
tle  V.  Hackett,  116  U.  S.  366,  which  mains  in  such  dangerous  position.  .  .  . 
is  the  leading  American  case  on  this  The  plaintiff,  as  a  reasonably  prudent 
subject,  and  which  has  been  followed  person,  must  have  known  of  the  danger 
by  the  American  courts  generally,  the  inc'dent  to  riding  in  a  motor  car  on 
rule  was  established  that  the  centribu-  o  dark  night,  without  lights,  over  roads 
tory  negligence  of  the  driver  of  a  pub-  with  which  neither  the  driver  of  the 
lie  conveyance  would  not  be  imputed  car,  nor  any  of  the  persons  with  hira 
to  a  passenger.  And  this  court  in  in  the  car,  were  familiar.  When  with 
Union  Pacific  Ry.  Co.  v.  Lapsley,  51  full  knowledge  of  that  fact  the  plain- 
Fed.  174,  2  C.  C.  A.  149,  and  City  of  tiff  remained  in  the  car  he  was  as 
Winona  v.  Botzet,  169  Fed.  321,  has  guilty  of  negligence  as  the  driver  him- 
extended    this    rule    to    a    person    who  self." 

accepts   a  gratuitous  invitation   of  the  25.  Chambers     v.     Minneapolis,     etc. 

owner  and  driver  of  a  vehicle  to  ride      Ry.  Co..  37  N.  Dak.  377.  163  N.  W.  324. 
with    him,    even    if   it    is   not    a   public 

58 


914  The  Law  of  Automobiles. 

CHAPTER  XXV. 

SAFETY  OF  EOADS  FOR  AUTOMOBILES. 

Section  696.  In  general. 

697.  Municipalities   not   insurers   against   injuries   from  defective   high- 

ways. 

698.  Obstructions. 

699.  Obstructions  placed  in  streets  by  others. 

700.  Holes  or  excavations. 

701.  Guarding. 

702.  Slippery  surface. 

703.  Width  of  road. 

704.  Bridges. 

705.  Proximate  cause. 

706.  Knowledge  of  defect. 

707.  Notice  of  injury. 

708.  Liability  of  abutting  owners  and  others  for  defects  in  streets. 

709.  Joint  wrongdoers. 

710.  Contributory  negligence  of  traveler — in  general. 

711.  Contributory  negligence  of  traveler — right    to    assume    safety    of 

highway. 

712.  Contributory  negligence  of  traveler — violation  of  statute  or  law  of 

road. 

713.  Contributory  negligence  of  traveler — assumption  of   danger. 

714.  Contributory  negligence  of  traveler — lookout. 

715.  Contributory  negligence  of  traveler — speed. 

716.  Contributory  negligence  of  traveler— negligence    of   passenger. 

Sec.  696.  In  general. 

Automobiles  have  an  equal  right  to  the  use  of  the  public 
highways  in  common  with  other  vehicles.^  With  the  growth 
of  the  use  of  the  highways  for  motor  vehicle  travel,  a  corre- 
sponding duty  is  imposed  upon  cities,  villages,  towns,  coun- 
ties, or  other  municipal  divisions  charged  with  the  mainten- 
ance of  the  highways,  to  exercise  due  care  in  keeping  the 
roads  reasonably  safe  for  such  traffic.^    And,  ordinarily,  the 

1.  Section  49.  such    guards,     lights,    or    barriers    or 

2.  United  States  — City  of  Baltimore  other  safeguards  as  would  be  ordinarily 
V.  State  of  Maryland,  166  Fed.  641.  and  reasonably  sufficient  to  protect  per- 
"The  court  by  the  first  instrur^tion  in  sons  lawfully  using  such  highway  in 
effect  informed  the  jury  that  the  ob-  the  exercise  of  proper  care.  This  in- 
ligation  upon  the  city  was  to  keep  its  strnction  properly  propounds  the  law, 
highway  reasonably  safe  for  public  and  carefully  safeguarded  the  city's 
tra'^'el  by  day  or  night,  and  to  provide  rights,  as  settled  certainly  by  authori- 


Safety  of  Roads  for  Aitoaioiut^es. 


91  .-J 


question  whether  a  highway  was  reasonably  safe  for  auto- 
mobilists  is  a  question  left  for  the  jury.'    The  fact  that  the 


ties  of  the  state  of  Maryland,  and  the 
Supreme  Court  of  the  United  States." 
City  of  Baltimore  v.  State  of  Mary- 
land, 166  Fed.  641. 

District  of  Columbia. — Burke  v.  Dis- 
trict of  CVjlumbia,  42  App.   D.   C.   438. 

Georgia. — Holiday  v.  Athens,  10  Ga. 
App.  709,  74  S.  E.  67. 

Illinois. — Gafl'ney  v.  Dixon,  157  111. 
App.  589;  Ferry  v.  City  of  Waukegan, 
196  111.  App.  81. 

Indiana. — City  of  Indianapolis  v. 
Moss  (Ind    App.),  128  N.  E.  857. 

Iowa. — Wolford  v.  City  of  Grinncll, 
179  Iowa,  689,  161  N.  W.  686. 

Kansas. — ^Super  v.  Modell  Twp.,  88 
Kans.   698.   129  Pae.   1162. 

Kentucky. — City  of  Lancaster  v. 
Broddus,  186  Ky.  226,  216  S.  W.  373. 

Maryland. — Charles  v.  City  of  Balti- 
more, 114  Atl.  565. 

Massachusetts. — Baker  v.  City  of 
Fall  River.  187  Mass.  53,  72  S.  E. 
336;  Kelleher  v.  City  of  Newburyport, 
227  Mass.  462,  116  N.  E.  807;  Bond  v. 
Inhabitants  of  Billerica  (Mass.),  126 
N.  E.  281.  ''Cities  and  to^vns  are  not 
required  by  the  law  to  make  special 
provisions  in  order  to  keep  all  their 
public  ways  at  all  times  in  condition 
for  the  safe  passage  of  automobiles, 
bicycles  and  other  mechanisms  for 
travel  newly  devised  and  unthought  of 
at  the  time  when  the  statute  imposing 
the  general  duty  as  to  repairs  of  ways 
and  liability  for  defects  therein  was 
enacted.  But  they  are  obliged  to  keep 
their  ways  reasonably  safe  and  con- 
venient for  travel  generally,  having  re- 
gard to  all  the  circumstances.  Auto 
mobiles  are  recognized  by  the  law  as  a 
legal  method  of  travel.  Ehihorate 
statutory  provisions  are  made  for  their 
registration  for  the  licensing  of  those 
who  operate  them,  and  for  their  man- 
agement upon  public  ways.  It  is  com- 
mon knowledge  that  at  present  in  this 


eonmion wealth  a  vastly  larger  iiuml>er 
of  poople  travel  upon  the  highways  in 
:uitomobiles  than  in  horse-drawn  ve- 
hicles. The  care  as  to  the  repair  of 
ways  cast  upon  municipalities  by  the 
statutes  lias  reference  to  all  kinds  of 
legitimate  travel,  including  that 
rightly  undertaken  in  automobiles. 
Although  special  provisions  for  their 
safety  are  not  demanded,  their  pres- 
ence cannot  be  ignored."  Kellelier  v. 
City  of  Newburyport,  227  Mass.  462, 
116  N    E.   807. 

Michigan. — Cone  v.  City  of  Detroit, 
191  Mich.  198.  ir)7  N.  W.  417;  Loose 
V.  Deerfield  Twp..  187  Midi,  206,  153 
N.  W.  913. 

Missouri. — Bethel  v.  City   of  St.  Jo- 
seph. 184  Mo.  App.  388,  171  S.  W.  42. 
Nebraska. — Reudelhuber    v.    Douglas 
County,  100  Neb.  687,   161  N.  W.   174. 
New  Hampshire. — Richmond  v.  Town 
of  Bethlehem,   104  Atl.  773. 

Neio  York. — Corcoran  v.  City  of  New 
York    188  N.  Y.  131,  80  N.  E.  660. 

North  Carolina. — Hardy  v.  West 
Coast  Constr.  Co.,  174  N.  Car.  320,  93 
S.  E.  841. 

Oklahoma. — City  of  Sapulta  v.  Dea- 
son,  196  Pac.  544. 

Rhode  Island. — Smith  v.  Howard, 
105  Atl.  648. 

S!outh  Carolina.- — 'Ijatimer  v.  Ander- 
son County,  95  S.  Car.  187,  78  S.  E. 
879. 

Utah. — Sweet  v.  Salt  Lake  City,  43 
Utah.  306,  134  Pac.  1167. 

Washington. —  Wessels  v.  Stevens 
County.  188  Pac.  490. 

Canada. — Connor  v.  Tp.  of  Brant,  31 
O.  L.  R.  274;  Raymond  v.  Tp.  of 
Bosenquet,   43   0.    L.    R.    434. 

3.  Smith  V.  Village  of  Sidell,  205  HI. 
App.  66;  Ferry  v.  City  of  Waukegan, 
205  111.  App.  109;  Smith  v.  Howard 
(R.  I.),  105  Atl.  648;  Walters  v.  City 
of  Seattle,  97  Wash.  657,  167  Pac.  124 ; 


916 


The  Law  of  Automobiles. 


highway,  if  maintained  in  a  similar  condition  before  the  ad- 
vent of  the  automobile,  would  have  then  been  considered  suffi- 
cient, does  not  necessarily  determine  its  sufficiency  at  the 
present  period.*  It  would  have  been,  perhaps,  unreasonable 
to  have  expected  municipalities  and  their  officials  to  have 
placed  the  streets  and  highways  in  proper  condition  for  auto 
travel  immediately  after  the  advent  of  their  popularity.^  But 
a  failure  to  conform  the  highways  to  the  changed  methods  of 
travels  within  a  reasonable  time,  justifies  a  finding  of  negli- 
gence.^ Expert  evidence  is  not  generally  admissible  on  the 
question  whether  the  highway  in  question  is  reasonably  safe 
for  automobiles  at  the  time  of  an  accident.''    If  a  municipality 


Xadolph  V.  Town  of  Herman,  166  Wis. 
577,  166  N.  W.  433. 

4.  Cone  v.  City  of  Detroit,  191  Mich. 
198,  157  N.  W.  417;  Davis  v.  Town- 
ship of  Usborne,  28  D:  L.  R.  (Canada) 
397,  36  O.  L.  R.  148,  9  O.  W.  N.  484. 
Compare  Doherty  v.  Inhabitants  of 
Ayer,  197  Mass.  241,  83  N.  E.  677,  14 
L.  R.  A.  (N.  S.)  816.  "It  is  also 
argued  by  counsel  for  the  city  that  the 
statute  which  imposes  the  obligation 
upon  the  municipality  to  keep  and  main- 
tain its  highways  in  a  condition  rea- 
sonably safe  and  fit  for  public  travel 
should  be  construed  so  as  to  refer  only 
to  ordinary  vehicles  which  were  in  use 
at  the  time  of  the  passage  of  the  stat- 
ute, which  at  that  time  were  wagons 
or  carriages  drawn  by  horses  and 
should  not  be  held  to  apply  to  automo- 
biles. It  cannot  now  well  be  disputed 
that  automobiles  and  automobile  trucks 
are  ordinary  vehicles.  In  fact,  they 
have  become  so  ordinary  that  it  is 
rather  unusual  to  see  vehicles  which 
were  in  use  at  the  time  the  statute  was 
passed  on  the  streets  of  a  large  city 
like  Detroit.  It  would  be  a  strange 
conclusion  to  say  that  the  municipality 
should  not  be  bound  to  keep  its  high- 
ways in  condition  reasonably  fit  for 
travel  for  vehicles  which  become  from 
time  to   time   the   ordinary  vehicles   of 


travel."     Cone  v.  City  of  Detroit,  191 
Mich.  198,  157  N.  W.  417. 

5.  Davis  v.  Township  of  Usborne,  28 
D.  L.  R.  (Canada)  397,  36  O.  L.  R. 
148,  9  O.  W.  N.  484. 

6.  Davis  v.  Township  of  Usborne,  28 
D.  L.  R.  (Canada)  397,  36  O.  L.  R. 
148,  9  O.  W.  N.  484;  Walker  v.  Tp.  of 
Southwold,  46  O.  L.  R.  (Canada)  265. 
Compare  Bond  v.  Inhabitants  of  Bil- 
lerica  (Mass.),  126  N.  E.  281.  "It  is 
true  of  course  that  the  ordinary  needs 
of  travel  change  with  changed  condi- 
tions, and  road  officers  must  keep  in 
mind  the  new  uses  of  travel  in  the  con- 
struction and  maintenance  of  highways. 
In  this  connection  it  has  been  held  that 
bridges  must  be  of  sufficient  strength 
to  carry  traction  engines  when  they  are 
in  common  use  in  the  community  and 
are  ordinarily  propelled  upon  the  pub- 
lic roads."  Wasser  v.  Northampton 
County,  249  Pa.  St.  25,  94  Atl.  444. 

7.  Loose  v.  Deerfield  Twp.,  187  Mich. 
206,  153  N.  W.  913. 

Evidence  as  to  precautions  which 
should  have  been  taken. — In  an  action 
for  damages  arising  out  of  injuries  sus- 
tained from  an  automobile  running  into 
an  excavation  in  a  city  street,  it  is  a 
question  for  the  jury  as  to  what  pre- 
cautions the  city  should  have  taken  to 
have  guarded  against  accident,  and  the 


Safety  oi'  Roads  for  Automobiles.  917 

fails  to  perform  its  duty  with  respect  to  the  proper  condition 
of  its  highways,  liability  for  pecuniary  damages  is  generally 
imposed  on  it.  With  respect  to  towns  and  counties,  the  lia- 
bility is  usually  a  matter  of  statutory  regulation.^  Where  a 
statute  provides  that  highways  shall  be  kept  in  a  reasonably 
safe  condition  for  travelers  with  horses,  teams  and  carriages, 
the  word  "carriages"  is  construed  to  include  motor  cars  or 
automobiles.^  A  State  may  waive  its  immunity  from  suit  and 
assume  liability  for  defects  in  a  State  highway .^'^ 

Sec.  697.  Municipalities  not  insurers  against  injuries  from 
defective  highways. 
A  municipality  upon  which  is  imposed  the  duty  of  the  main- 
tenance of  the  streets  and  highways,  does  not  insure  travelers 
against  injury  from  defects  therein.^^  It  is  liable,  only  when 
negligence  is  shown  on  the  part  of  its  officers  or  employees.^- 
And  the  burden  is  placed  on  the  plaintiff  to  show  the  negli- 
gence of  the  municipality."  Moreover,  the  duty  of  a  muni- 
cipality to  keep  its  highways  in  a  reasonably  safe  condition 
does  not  include  the  providing  against  insufficiency  caused  by 
extraordinary  events." 

Sec.  698.  Obstructions. 

Municipalities  do  not  insure  travelers  in  motor  vehicles 
against   accidents  from   striking  objects  within   the   street 

plaintiff  should  not  be  allowed  to  give  11.  Sharot  v.  City  of  New  York,  177 

his  opinion  as  an  expert  on  that  ques-  N.  Y.  App.  Div.  869,  164  N.  Y.  Suppl. 

tion.    Sweet  v.  Salt  Lake  City,  43  Utah,  804 ;   Wasser  v.   Northampton   County. 

306,  134  Pac.  1167.  249  Pa.  St.  25,  94  Atl.  444;  Swain  v. 

8.  Dubourdieu  v.  Delaware  Tp.,  106  City  of  Spokane,  94  Wash.  616,  162 
Kans.  650,  189  Pac.  386;  Buckalew  v.  Pac.  991;  Thompson  v.  City  of  Belling- 
Middlesex  County,  91  N.  J.  Law,  517,  ham  (Wash.),  192  Pac.  952. 

104  Atl.  308 ;  Raymond  v.  Sauk  County,  12.  Zorn   v.   City   of    New   York,   85 

167  Wis.  125.  166  N.  W.  29.     Soe  also  Misc.  (N.  Y.)  45,  147  N.  Y.  Suppl.  70; 

Irvin  V.  Finney  County,  106  Kaus.  171,  Camp  v.  Alleghany  County,  263  Pa.  St. 

186  Pac.  975;  Benner  v.  Buchanan  Co.  276,  106  Atl.  314. 

(Iowa),  183  N.  W.  320.  13.  McDonald    v.    City   of    Philadcl- 

9.  Baker  v.  Fall  River,  187  Mass.  53,  phia,  248  Pa.  St.  145,  93  Atl.  959. 

72  N.  E.  336.  14.  Schrunk  v.   St.  Joseph.   120  Wis. 

10.  Best  V.  State,  114  Misc.  (N.  Y.)       223,  97  N.  W.  946. 
272. 


918 


The  Law  or  Automobii.es. 


lines.^  But  reasonable  care  on  the  part  of  those  officers 
charged  with  the  repair  of  highways,  requires  that  iwreason- 
ahle  obstructions  in  the  streets  shall  be  avoided,  and  liability 
may  be  imposed  on  the  officer,  or,  in  some  cases,  on  the  muni- 
cipality, for  injuries  received  by  an  automobilist  from  such 
an  obstruction.^"  A  temporary  obstruction  may  be  justified, 
but,  if  so,  reasonable  care  requires  that  warning  of  the  danger 
be  given  to  travelers.^'^     Thus  a  municipality  may  be  liable 


15.  Section  697. 

Stump  in  .sidewalk  line. — Wheeler 
V.  Flatonio  (Tex.  Civ.  App.),  155  S.  "W. 
951. 

16.  Connecticut. — Baldwin  v.  City  of 
Norwalli,  112  Atl.  660. 

District  of  Columbia. — Burke  v.  Dis- 
trict of  Columbia,  42  App.  D.  C.  438. 

Georgia. — Holliday  v.  Athens,  10  Ga. 
App.  709,  74  S.  E.  67. 

Illinois. — Gafifney  v.  Dixon,  157  111. 
App.  589;  Ferry  v.  City  of  Waukegan, 
196  111.  App.  81 ;  Ferry  v.  City  of  Wau- 
kegan, 205  111.  App.  109. 

Iowa. — ^Wolford  v.  City  of  Grinnell, 
179  Iowa,  689,  161  N.  W.  686.  "It  is 
settled  law  of  this  State  that  cities 
must  keep  their  streets  free  from  ob- 
structions and  nuisances  which  inter- 
fere with  ordinary  public  travel,  and 
this  duty  applies  to  automobiles  as  well 
as  other  vehicles."  Kendall  v.  City  of 
Des  Moines,  183  Iowa,  866.  167  N.  W. 
684.  "The  street  upon  which  the  acci- 
dent occurred  was  open  to  public  travel, 
and  it  was  the  defendant 's  duty  to  keep 
the  same  free  from  obstructions  and 
from  nuisances,  which  would  interfere 
with  ordinary  public  travel,  and  this 
includes  travel  by  automobiles  as  well 
as  other  vehicles."  Wolford  v.  City  of 
Grinnell,  179  Iowa,  689,  161  N.  W.  686. 

South  Carolina. — Latimer  v.  Ander- 
son County,  95  S.  Car.  -187,  78  S.  F.. 
879. 

Wisconsin. — Kadolph  v.  Town  of 
Herman,  166  Wis.  577,  166  N.  W.  433. 

Cana(ia.-^Freedman  v.  City  of  Winni 
peg,  43  D.  L.  R.   126. 


Snow  ddf*.  -It  i'^  not  noplisrenrn  nor 
does  it  constitute  an  actionable  ' '  de- 
fect" under  section  74  of  the  Highway 
Law  of  the  State  of  New  York  for  a 
town  superintendent,  when  clearing  a 
country  highway  from  drifted  snow,  to 
cut  a  passage  which  does  not  lie  pre- 
cisely in  the  line  of  the  middle  of  the 
macadam  road,  but  is  partly  on  the 
macadam  and  partly  on  the  dirt  sur- 
face, where  he  cleared  sufficient  room 
for  two  wagons  to  pass.  Hence,  the 
town  cannot  be  held  liable  for  damages 
where  the  plaintiff's  husband,  while 
driving  an  automobile  after  dark  on  a 
foggy  evening  at  a  speed  of  from 
twelve  to  fifteen  miles  an  hour,  ran  into 
the  drift  by  keeping  to  the  middle  of 
the  road.  Robinson  v.  Town  of  Somers, 
189  N.  Y.  App.  Div.  792,  179  N.  Y. 
Suppl.  107. 

17.  Gaffney  v.  Dixon,  157  111.  App. 
589.  "It  was  for  the  jury  to  decide 
whether  the  obstruction  was  in  any  way 
dangerous  to  public  travel,  as  ordi- 
narily and  reasonably  conducted,  and 
whether  appellee,  in  the  exercise  of  or- 
dinary care  in  providing  a  reasonably 
safe  street  for  public  travel,  should 
have  placed  danger  signals  at  that 
point  at  night."  Gaffney  v.  Dixon, 
157  111,  App.  589. 

Presumption  of  continuance  of  warn- 
ing.— Where  the  existence  at  any  one 
time  of  a  certain  condition  of  things 
of  a  continuing  nature  is  shown,  it  is 
presumed  that  such  condition  continues 
to  exist  until  the  contrary  is  shown  by 
circumstantial  or  direct  evidence.   Thus, 


Safety  of  Roads  for  Automobiles.  919 

for  negligence,  where  a  rope  was  tied  across  the  highway  with 
nothing,  other  than  the  rope,  to  indicate  its  presence.^*  Grant- 
ing that  a  city,  town  or  other  municipal  unit  for  the  main- 
tenance of  highways  has  the  right  to  close  a  street  temporarily 
by  the  use  of  the  rope  stretched  across  it,  reasonable  prudence 
would  seem  to  require  that  some  notice  of  the  obstruction  be 
afforded  to  travelers.^^  And  it  may  be  held  to  be  negligence 
to  deposit  a  pile  of  sand,  crushed  stone  or  other  material  on 
a  city  street  and  to  allow  it  to  remain  there  over  night  with- 
out guarding  it  with  red-light  signal  or  any  other  warning  of 
danger.^  But  the  construction  of  a  bridge  over  a  street  mth 
a  girder  and  a  truss  in  the  middle  of  the  carriageM^ay  does  not 
impose  a  duty  on  the  municipality  of  lighting  the  obstruction 
at  night  in  order  to  give  notice  thereof  to  travelers.^! 

Sec.  699.  Obstructions  placed  in  streets  by  others. 

A  municipality  is  not  necessarily  relieved  from  responsi- 
bility for  an  accident  to  an  automobilist,  merely  because  tho 
obstruction  which  was  the  primary  cause  of  the  accident  had 
been  placed  in  the  street  by  a  person  other  than  a  municipal 
employee.    Negligence  may  be  charged  upon  the  theory  that 

in  an  action  to  recover  against  a  city  (Jodroice  v.  City  of  New  York.  109  X. 

for  injury  to  an  automobile  which  col-  Y.  App.  Div.  176,  95  N.  Y.  Suppl.  645. 

lided  with  a  sand  pile  in  the  street  in  18.  Holliday  v.  Athens.  10  Ga.  App. 

the  night  time,  it  will  be  presumed  that  709,  74  S.  E.  67 ;  Latimer  v.  Anderson 

there  was  a  red  light  burning  at  the  County,  95  S.  Car.  187,  78  S.  E.  879. 

point  at  which  the  plaintiff  approached  See  also  Wallower  v.  Webb  City,  171 

the  sand,  if  it  be  shown  that  such  light  Mo.  App.  214,  156  S.  W.  48. 

was  burning  earlier  in  the  evening  and  19.  Holliday  v.  Athens,  10  Qa.  App. 

immediately  after  the  accident,  though  709,  74  S.  E.  67. 

extinguished,   was   found   to  be   warm.  20.  Roy  v.  Kansas  City  (Mo.  App.), 

Carlson  v.  City  of  New  York,  150  N.  Y.  224  S.  W.  132 ;  Martin  v.  Kansas  City 

App.  Div.  264,  134  N.  Y.  Suppl.  661.  (Mo.  App.),  224  S.  W.   141;   Britt  v. 

Manhole. — When  plainitff 's  automo-  Omaha  Concrete  Stone  Co.,  99  Neb.  300, 

bile  was  injured  at  night  through  driv-  156    N.    W.    497;    Brengman    v.    King 

ing  against  a  manhole  standing  above  County,  107  Wash.  306,  181  Pac.  861. 

the  level  of  a  street  which  was  being  See  also  Hardy  v.  West  Coast  Constr. 

graded,  he  must  show,  in  order  to  re-  Co.,  174  N.  Car.  320,  93  S.  E.  841. 

cover  against  the  municipality,  that  the  21.  Gaines  v.  City  of  New  York,  156 

city  had  actual  notice  of  the  fact  that  N.  Y.  App.  Div.  789,  142  N.  Y.  Suppl. 

a  light  previously  placed  on  the  man-  401. 
hole  by  a  foreman  had  been  removed. 


920 


The  Law  of  Automobiles. 


the   municipality   negligently   permitted   the   obstruction   to 
continue.^^ 


Sec.  700.  Holes  or  excavations. 

An  excavation  or  hole  in  a  street  or  highway  may  form  tho 
basis  for  charging  a  municipality  for  liability  to  one  riding 
in  a  motor  vehicle  and  receiving  injuries  from  such  defective 
condition.2^  The  size  of  the  excavation  or  hole  in  the  road  is 
one  of  the  principal  elements  in  determining  the  liability  of 
the  municipality.  Municipalities  are  not  held  liable,  as  for 
negligence,  by  reason  of  slight  depressions  or  differences  of 
grade  in  the  highway,  for  to  hold  otherwise  would  subject 
them  to  an  unreasonable  burden.^    If  for  any  reason,  a  dan- 


22.  Wolford  v.  City  of  Grinnell,  17<) 
Iowa,  689,  161  N.  W.  686;  Shafir  v. 
Sieben   (Mo.),  233  S.  W.  419. 

Pole  placed  in  street  by  electric  com- 
pany.— In  an  action  for  damages  for 
personal  injuries  sustained  by  an  auto- 
mobile passenger  in  a  collision  between 
the  machine  in  which  he  was  riding  and 
a  trolley  pole  maintained  in  the  middle 
of  a  street  by  the  company,  with  the 
acquiescence  of  the  city,  held,  that  the 
maintenance  of  such  trolley  pole  did 
not  constitute  negligence  either  on  the 
part  of  the  company  or  of  the  city, 
where  it  appeared  that  the  street  in 
which  the  poles  were  maintained  was 
143  feet  wide,  ana  a  span  from  side  to 
side  would  necessarily  be  120  feet ;  that 
it  would  bo  impracticable  and  danger- 
ous to  suspend  high  power  feed  wires 
across  a  street  where  the  span  was  so 
great,  without  supports;  and  that  the 
poles  in  question  were  plainly  marked 
by  a  white  stripe  4  feet  wide,  painted 
around  them  5  feet  from  the  ground. 

Un3er  such  circumstances,  no  obliga- 
tion rested  either  on  the  railway  com- 
pany or  the  city  to  maintain  grass 
plots  aroimd  trolley  poles  legitimately 
placed  in  the  center  of  a  street.  Weg- 
mann  v.  City  of  New  York,  195  App. 
Div.  540. 


23.  City  of  Baltimore  v.  State  of 
Maryland,  166  Fed.  641;  Burke  v.  Dis- 
trict of  Columbia,  42  App.  D.  C.  438; 
City  of  Lancaster  v.  Broaddus,  186  Ky. 
226,  216  S.  W.  373;  Loose  v.  Deerfield 
Twp.,  187  Mich.  206.  153  N.  W.  913; 
Cone  V.  City  of  Detroit,  191  Mich.  198, 
157  N.  W.  417;  Howell  v.  Burchville 
Twp.  (Mich.),  179  N.  W.  279;  Sweet 
V.  Salt  Lake  City,  43  Utah,  306,  134 
Pac.  1167;  Kaufman  v.  Township  of 
Korah,  46  O.  L.  E.  (Canada)  412. 
See  also  St.  Louis,  etc.,  R.  Co.  v.  Bell, 
58  Okla.  84,  159  Pac.  336. 

Assault  by  employee  of  company 
making  excavation. — Where  a  street 
railway  company  made  an  excavation  in 
a  street  and  the  plaintiff  ran  his  auto- 
mobile in  the  excavation,  whereupon  he 
was  tortiously  assaulted  by  an  employee 
of  the  company  while  he  was  endeavor- 
ing to  extricate  his  machine,  it  was 
held  that  the  company  was  liable  for 
exemplary  damages.  Memphis  St.  Ry. 
Co.  V.  Stratton,  131  Tenn.  620,  176  S. 
W.   105. 

24.  Faber  v.  City  of  New  York,  161 
N.  Y.  App.  Div.  203,  146  N.  Y.  Suppl. 
295;  Morris  v.  Interurban  St.  Ry.  Co., 
100  N.  Y.  App.  Div.  295,  91  N.  Y. 
Suppl.  479. 

Three    inch    depression. — Where,    in 


Safety  of  Roads  for  Automobiles.  921 

gerous  excavation  exists  in  the  street,  it  is  the  duty  of  the 
municipality  to  exercise  ordinary  care  and  diligence  to  ap- 
prise travelers  of  the  dangerous  conditions  by  placing  a 
barrier  or  some  other  efficient  means  of  pointing  out  the  dan- 
ger.^ An  excavation  hidden  by  weeds  is  particularly  dan- 
gerous.^^  If  lights  are  used  as  a  warning,  reasonable  pre- 
cautions must  be  made  to  the  end  that  they  will  inform  travel- 
ers of  the  point  of  danger  and  not  mislead  them  to  the  in- 
jury.^'' For  example,  where  a  city  had  made  an  excavation 
along  a  highway  for  a  considerable  distance  about  which  red 
lights  were  placed  at  night,  but  there  was  evidence  that  the 
lights  were  so  placed  as  to  mislead  a  person  driving  along 
the  highway  in  that  there  appeared  to  be  a  continuous  row  or' 
lights  on  one  side  of  the  street  and  a  separate  light  on  the 
opposite  side  and  the  driver  of  an  automobile  ran  his  machine 
between  such  lights,  it  was  held  that  the  questions  of  the  exer- 
cise of  due  care  in  providing  safeguards  necessary  to  over- 
come the  danger,  whether  the  barriers  and  lights  were  suffi- 
cient and  whether  the  lights  were  properly  arranged,  were 
for  the  jury.'^  And,  where  in  the  night  time  an  automobile 
ran  through  a  fence  and  guard  at  the  end  of  a  street  forming 
a  ciil  de  sac,  and  fell  into  a  pit,  and  it  appeared  that  the  ma- 
chine was  running  at  a  reasonable  rate  at  the  time  of  the  acci- 
dent and  that  a  similar  accident  had  happened  at  the  same 

an    action    for   the    death    of    a   truck  feet,  and  that  no  previous  accident  had 

driver,  in  consequence  of  a  fall  from  a  happened   at  this  point,  the  complaint 

truck  occasioned  by  a  hole  or  depres-  should  he  dismissed.     Faber  v.  City  of 

sion  in  the  street,  the  evidence  as  to  New  York,   161  N.  Y.  App.  Div.  203. 

the  depth  of  the  hole  varied,  some  wit-  146  N.  Y.  Suppl.  295. 

nesses  testifying  that  it  was  nine  inches,  25.  City    of    Baltimore    v.    State    of 

resulting  as   it   was   claimed   from    the  Maryland,  166  Fed.  641  ;  Hardy  v.  West 

sinking  of  the  stone  blocks  underlying  Coast  Constr.  Co.,  174  N.  Car.  320,  93 

the  asphalt,  and  there  was  no  evidence  S.  E.  841 ;  Swoet  v.  Salt  Lake  City,  43 

as  to  how  long  it  had  existed,  but  an  Utah,  306,  134  Pac.  1167. 

officer  of  the  city  who  actually  meas-  26.  City   of   Lancaster   v.   Broaddus, 

ured  the  hole  and  a  street  sweeper  who  189  Ky.  226,  216  S.  W.  373. 

assisted  him,  testified   that  it  was  not  27.  City    of     Baltimore   v.    State    of 

moro  than  three  inches  deep,  and  about  Maryland,  166  Fed.  641. 

two  feet  square,  and  that  it  had  been  28.  City    of    Baltimore    v.    State    of 

formed  by  the   gradual   wearing   away  Maryland,    166   Fed.  641.   92   C.   C.    A. 

of  the  asphalt,   and  it   appeared   that  335. 

the  city  had  not  been  notified  of  the  de- 


922 


The  Law  or  Automobiles. 


place  and  had  been  reported  to  the  city  officials,  it  was  held 
that  the  negligence  of  the  city  was  a  question  for  the  jury.^^ 
No  formula  of  care  is  pronounced  by  the  law  as  to  how  an 
excavation  shall  be  guarded ;  the  law  does  not  say  that  lights 
shall  be  used  or  that  barriers  shall  be  used ;  nor  does  it  say 
that  it  is  sufficient  if  but  one  of  such  precautions  is  used  to 
warn  travelers.  It  is  a  question  for  the  jury  what  precautions 
are  reasonably  necessary  in  a  particular  case.^*^ 


Sec.  701.  Guarding. 

Reasonable  care  on  the  part  of  highway  officials  may  re- 
quire the  maintenance  of  barriers  or  guard  rails  at  dangerous 
places  along  a  road.^^  This  precaution  should  be  designed, 
not  only  as  a  protection  for  injuries  to  automobilists,  but  also 


29.  Corcoran  v.  City  of  New  York, 
188  N,  Y.  131,  80  N.  E.  660,  wherein 
it  was  said:  "The  streets  of  a  city 
may  be  as  freely  used  by  those  who 
ride  in  automobiles  as  by  pedestrians  or 
travelers,  and  if  this  cul  de  sao  was 
likely  to  be  a  dangerous  place  in  the 
night  to  any  class  of  wayfarers  who 
might  be  misled  into  thinking  that  it 
would  be  a  continuatiou  of  the  high- 
way, it  should  have  been  so  well  lighted 
as  to  give  fair  warning  that  it  was 
merely  a  (ml  de  sac,  or  so  well  guarded 
as  to  prevent  entrance  to  the  point  of 
danger,  for  a  public  highway  may  be 
used  in  the  darkest  night;  a  night  so 
dark  that  the  keenest  and  clearest 
vision  may  not  be  able  to  detect  ob- 
sti-uctions   and  defects.'  " 

30.  City  of  Baltimore  v.  State  of 
Maryland,  166  Fed.  641.  See  also  Carl- 
son V.  City  of  New  York,  150  N.  Y. 
App.  Div.  264,  134  N.  Y.  Suppl.  661. 

31.  Indiana. — City  of  Indianapolis  v. 
Moss  (Ind.  App.),  128  N.  E.  857. 

Massachusetts. — Bond  v.  Inhabitants 
of  Billenca,  126  N.  E.  281. 

Michigan. — Jewell  v.  Eogers  Tp.,  208 
Mich.  318,  175  N.  W.  151. 

New  Hampshire. — Miner  v.  Franklin, 


78  N.  H.  240,  99  Atl.  647;  Richmond 
V.  Town  of  Bethlehem,  104  Atl.  773. 

New  YorJc. — Johnson  v.  State  of  New 
York,  186  N.  Y.  App.  Div.  389,  173  N. 
Y.  Suppl.  701 ;  Johnson  v.  State  of 
New  York,  104  Misc.  (N.  Y.)  395; 
Lendrum  v.  Village  of  Cobleskill,  192 
N.  Y.  App.  Div.  828,  183  N.  Y.  Suppl. 
215. 

North  Dakota. — See  Chambers  v. 
Minneapolis,  etc.,  Ey.  Co.,  37  N.  Dak. 
377,  163  N.  W.  824. 

Ohio. — Board  of  Com'rs  of  Logan 
County  v.  Bicher,  98  Ohio,  432,  121  N. 
E.  535. 

Oregon. — West  v.  Marion  County,  95 
Oreg.  529,  188  Pac.  184. 

Vermont. — Bancroft  v.  Town  of  E. 
Montpelier,  109  Atl.  39. 

Washington. — ^Wessels  v.  Stevens  Co., 
188  Pac.  490. 

West  Virginia. — Pollock  v.  Wheeling 
Tract.  Co.,  83  W.  Va.  768,  99  S.  E.  267. 
Wisconsin. — Raymond  v.  Saunk  Co., 
167  Wis.  125,  166  N,  W.  29 ;  Branegan 
v.  Town  of  Winona,  170  Wis.  137,  174 
N.  W.  468. 

Canada. — Ackersville  v.  County  of 
Perth,  32  O.  L.  E.  (Canada)  423,  33 
O.  L.  E.  598. 


Safety  of  Roads  fok  Automobiles. 


923 


as  a  guard  against  injuries  to  one  riding  in  a  horse-drawn 
conveyance  in  case  the  horse  becomes  frightened  on  the  ap- 
proach of  a  motor  vehicle.  One  riding  in  such  a  carriage  may 
recover  from  the  municipality  in  case  the  road  is  not  proi>erly 
protected  and  the  horse  shys  from  fright  of  the  machine,  and 
goes  over  an  embankment  or  excavation  which  should  have 
been  protected  with  a  guard.^^  Some  guard  rail  or  other  pro-' 
tection  may  be  necessary  as  a  matter  of  law  at  a  particularly 
dangerous  point,  but,  when  a  barrier  has  been  constructed, 
the  municipality  does  not  insure  its  sufficiency  against  all 
accidents.  It  is,  of  course,  not  reasonable  to  require  a  muni- 
cipality to  construct  a  barrier  which  will  stop  a  heavy  motor 
vehicle  traveling  at  a  high  rate  of  speed.^  Thus,  it  has  been 
held  that  a  county  is  not  required  to  construct  a  barrier  which 


Negligence  a  question  for  jury. — 
Plaintiff's  intestate  waa  dfiving  an  au- 
tomobile after  dark  along  a  much-trav- 
eled highway.  At  the  point  where  the 
accident  occurred  the  roadway  rapidly 
narrowed,  and  the  adjacent  land  from 
being  level  with  the  roadway  turned 
into  a  sharp  descending  slope  of  sev- 
eral feet  from  the  edge  of  the  high- 
way. There  was  no  barrier  or  guard  of 
any  kind  to  mark  the  edge  of  the  high- 
way, but  instead  thereof  weeds  had 
been  allowed  to  grow  up  which  ob- 
scured and  concealed  such  edge.  The 
free  space  left  for  the  passage  of  an 
automobile  and  a  vehicle  was  very 
small.  Intestate  applied  the  brakes  to 
his  car,  and,  olearing  a  tree  which 
stood  close  to  the  roadway,  pulled  to 
the  side  of  the  road  so  as  to  allow  a 
horse  and  wagon  to  pass  him,  and 
brought  his  car  to  a  stop.  He  was  so 
near  the  edge  of  the  bank  that,  as  he 
stopped,  the  car  slipped  down  and  over 
the  bank,  turning  over  and  killing  him. 
Plaintiff  gave  evidence  for  the  pur 
pose  of  showing  that  other  accident? 
had  happened  at  this  place,  and  no 
issue  was  presented  on  the  trial  con 
cerning  the  possession  by  the  highway 
commissioner     of     ample     funds     with 


which  to  construct  a  barrier  and  of 
which  the  expense  would  have  been 
trivial.  Held,  that  the  issue  of  defend- 
ant's freedom  from  negligence  should 
be  submitted  to  a  jury.  Nicholson  v. 
Stillwater,  208  N.  Y.  203,  101  N.  E. 
858. 

Change  of  highway. — If  a  highway 
is  discontinued  or  altered,  it  is  the 
duty  of  the  municipality  to  erect  and 
maintain  suitable  signals  or  barriers  to 
warn  travelers  of  the  fact.  Eaymond 
v.  Sauk  County,  167  Wis.  125,  166  N. 
W.  29. 

32.  Upton  V.  Windham,  75  Conn.  288. 
53  Atl.  660;  MajTiard  v.  Westfield,  87 
Vt.  532,  90  Atl.  504;  Davis  v.  Town 
ship  of  Usborne,  28  D.  L.  B.  (Canada) 
397,  36  O.  L.  R.  148,  9  O.  W.  N.  484. 
' '  The  passing  of  an  automobile  driven 
with  ordinary  care  and  at  a  reason- 
able speed,  and  the  fright  and  shying 
of  a  gentle  horse,  constitute  one  of 
those  events  in  the  proper  use  of  the 
liiiihway  calling  for  its  maintenance  in 
a  safe  condition  .  .  ."  Upton  V. 
>Vi7i(Hi:un.  75  Conn.  :2S8.  53   Atl.  660. 

33.  Dorrer  v.  Town  of  Oallicoon,  183 
N.  Y.  App.  Div.  186,  170  N.  Y.  Suppl. 
676.  See  also  Bond  v.  Inhabitants  of 
Dillerica  (Mass.),  126  N.  E.  281. 


924  The  Law  of  Automobiles, 

is  strong  enough  to  stop  an  automobile  running  twenty-five 
miles  an  hour.^*  Nor  is  a  municipality  required  to  anticipate 
that,  a  vehicle  will,  after  locking  wheels  with  another,  attempt 
to  cross  the  road  at  right  angles,  and  it  is  not  required  to 
construct  a  guard  rail  to  protect  the  traveler  against  such  a 
contingency.^^  There  is  no  hard  and  fast  rule  as  to  the  kind 
and  character  of  a  guard  rail  or  barrier  to  be  erected  so  that 
the  highway  may  be  deemed  reasonably  safe  for  the  ordinary 
needs  of  travel.  Public  roads  are  intended  for  ordinary 
travel;  if  they  meet  the  requirements  which  their  ordinary 
uses  demand,  the  authorities  in  charge  of  them  have  per- 
formed their  duty  under  the  law,  and  cannot  be  made  answer- 
able in  damages  for  extraordinary  accidents  occurring  on 
them.^ 

Sec.  702.  Slippery  surface. 

Municipalities  have  been  successfully  charged  with  negli- 
gence where  they  have  spread  oil  upon  the  streets  so  that  a 
motor  vehicle  was  thereby  caused  to  skid  and  cause  injury.^^ 

34.  Wasser  v.  Northampton  County,  Pa.  St.  25,  94  Atl.  444, 

249  Pa.  St.  25,  94  Atl.  444,  wherein  it  35.  Dorrer  v.  Town  of  Callicoon,  183 

was  said:     "It  has  never  been  declared  N.  Y.  App.  Div.  186,  170  N.  T.  Suppl. 

to  be  the  law  in  this  State  that  a  town-  676. 

ship  must  erect  guard  rails  or  barriers,  36.  Wasser  v.  Northampton  County, 

at    points    where    the    public   highway  249  Pa.  St.  25,  94  Atl.  444;  CSmp  v. 

runs   near   an   embankment,   so    strong  Alleghany  County,  263  Pa.  St.  276,  106 

as   to  stop  an  automobile   running  at  Atl.  314. 

the  rate  of  25  miles  an  hour.     To  do  "Proximity   to   a   precipice   or  dan- 

this  would  require  the  building  of  solid  gerous  embankment  requires  a   degree 

walls  of  masonry,  the  expense  of  which  of  care  not  necessary  under  ordinary 

would  be  a  very  onerous  burden  for  any  circumstances,  but  it  is  only  that  care, 

township  to  bear  in  a  rural  community.  which    common    prudence    dictates,    in 

The  law  does  not  contemplate  the  build-  view  of  an  unusual  danger,  as  neces- 

ing  of  such  a  barrier  or  guard  by  coun-  sary  to  reasonable  safety  in  the  ordi- 

ties,  or  townships,  in  county  districts,  nary  use  of  the  highway  at  that  point. ' ' 

and  the  proper  and  ordinaiy  uses  of  the  Wasser    v.    Northampton    County.    249 

highways  in  such  community  do  not  de-  Pa.  St.  25,  94  Atl.  444. 

mand  this  extraordinary  protection  to  37.  Kelleher  v.  City  of  Newburyport, 

the   traveling    public.      We,    therefore,  227  Mass.  462,  116  N.  E.  807.    See  also 

agree  with  the  learned  court  below  that  Laut  v.  City  of  Albany,  191  N.  Y.  App. 

the  evidence  in  the  present  case  does  Div.  753,  182  N.  Y.  Suppl.  183;  Pem- 

not    disclose    any    negligence    by    the  berton    v.    City    of    Albany,    196    App. 

county  upon  which  to  base  a  recovery."  Div.  881. 
Wasser    v.    Northampton    County,    249 


Safety  of  Roads  for  Automobiles.  925 

If  tarvia  is  being  spread  upon  a  highway  so  that  it  is  tem- 
porarily dangerous,  reasonable  prudence  may  require  that 
warning  of  the  condition  be  given  to  automobilists.^^  On  the 
other  hand,  it  has  been  held  that  a  charge  of  negligence  is 
unjustified  in  a  case  where  clay  marl  had  been  used  for  the 
resurfacing  of  a  highway  and  had  been  rendered  slippery  by 
reason  of  a  rain.^  And,  when  the  driver  of  a  motor  vehicle, 
in  broad  daylight,  knowingly  drives  his  machine  over  a  high- 
way which  is  in  a  slippery  condition  by  reason  of  the  appli- 
cation of  tar  and  oil,  he  takes  the  responsibility  of  accident 
from  such  condition.** 

Sec.  703.  Width  of  road. 

Negligence  is  not  necessarily  charged  against  a  munici- 
pality because  a  highway  is,  for  a  short  distance,  so  narrow 
that  two  automobiles  cannot  safely  pass  each  other.*^ 

Sec.  704.  Bridges. 

Where  a  motor  vehicle  or  a  person  riding  therein  is  injured 
by  reason  of  a  defective  bridge  or  viaduct,  speaking  in  general 
terms,  a  recovery  may  be  had,  in  the  absence  of  contributory 
negligence,  as  against  the  to^vn  or  municipal  division  or  the 
public  officials  charged  with  the  maintenance  of  the  bridge.''" 
A  defective  culvert  may  create  a  similar  liability.*^  But,  it 
has  been  held  that  a  municipality  is  not  liable  for  the  negli- 
gence of  the  tender  of  a  drawbridge,  the  reason  for  the  deci- 
sion being  that  the  municipality  was  engaged  in  a  govern- 
mental rather  than  proprietary  function.**    It  is  not  to  be 

38.  Zegeer  v.  Barrett  Mfg.  Co.,  226  105  Misc.  (N.  Y.)  115,  175  N.  Y. 
Mas3.  146,  115  N.  E.  291.  Suppl.  314;  City  of  Sapulpa  v.  Deason 

39.  Kinne  v.  Town  of  Morristown,  (Okla.),  196  Pac.  544;  Coates  v. 
184  N.  Y.  App.  Div.  408.  Marion  County,  96  Oreg.  334,  189  Pac. 

40.  RajTTiond  v.  Sauk  County,  167  903;  Smith  v.  Howard  (R.  I.),  105  Atl. 
Wis.   125,  166  N.  W.  29.  648. 

41.  Miner  v.  Town  of  Rolling,  167  43.  Goodwin  v.  City  of  Concord  (N. 
Wis.  213,  167  N.  W.  242.  H.),     Ill     Atl.     304;     Dillabough     v. 

42.  Ham  v.  Los  Angeles  County  (Cal.  Okanogan  County,  105  Wash.  609,  178 
App.),  189  Pac.  462;  Dubourdieu  v.  Pac.  802;  Roeser  v.  Sauk  County,  166 
Delaware  Tp.,  106  Kans.  650,  189  Pac.  Wis.  417,  165  N.  W.  1086. 

386;  Welcome  v.  State  of  New  York,  44.  Bremer    v.    City    of    Milwaukee. 


926  The  Law  of  Automobiles. 

expected  that  a  temporary  bridge,  or  even  a  public  highway, 
will  be  kept  as  smooth  or  free  from  obstructions  or  defects  as 
the  floors  of  places  of  business  usually  are.*^  A  village  may 
be  liable  for  the  care  of  a  bridge  within  its  territorial  limits, 
where  it  is  a  part  of  its  system  of  highways  and  is  in  general 
use  by  the  public,  although  the  bridge  in  question  was  con- 
structed by  the  State  and  tendered  to  the  village  but  not  form- 
ally accepted.^  A  county  may  be  liable  for  an  injury  caused 
by  an  unsafe  and  defective  condition  of  a  county  bridge,  not- 
withstanding the  fact  that  no  actual  notice  of  the  condition 
of  the  bridge  had  previously  been  given  to  any  county  officer, 
where  the  defects  were  of  such  a  nature  or  had  existed  for 
such  a  length  of  time  that  by  the  exercise  of  ordinary  care 
they  might  have  been  discovered  and  repaired.'*'  The  law  re- 
quires the  maintenance  of  a  structure  with  sufficient  strength 
to  sustain  an  ordinary  vehicle  with  a  load  of  reasonable 
weight.  Whether  a  weight  of  ten  tons  is  reasonable,  may  be 
a  question  for  the  jury.'*^ 

Sec.  705.  Proximate  cause. 

It  is  a  fundamental  rule  in  the  law  of  negligence  that  the 
failure  to  exercise  a  proper  degree  of  care  renders  one  liable 
only  for  those  results  which  proximately  follow  from  the 
neglect."^  Like  other  general  rules  of  the  law  of  negligence, 
this  rule  is  applicable  to  cases  where  automobilists  have  sus- 
tained an  injury  from  the  defective  condition  of  a  highway. 
The  burden  is  on  the  plaintiff  to  show  that  the  injuries  of 
which  he  complains  are  the  proximate  result  of  the  negligence 

166    Wis.    164,    164    N.   W.    840.      See  tomobile.       Loui.sville     Bridge     Co.     v. 

Drennan   v.   State,   109   Misc.    (N.   Y.)  Irving,  180  Ky.  729.  203  S.  W.  531. 

107.   178  N.   Y.   Suppl.  278,  aS  to   the  45.  Creitz  v.  Wolverine  Engineering 

liability  of  the  State  for  negligence  of  Co.   (Mich.),  181  N.  W.  966. 

watchman   at   a  bridge   maintained   by  46.  Lawrence  v.  Channahon,   157  111. 

the  State.  App.  560. 

Opening  in  drawbridge.— See  County  47.  Reudelhuber   v.   Douglas   County, 

Com'rs  V.  Wright   (Md.),  114  Atl.  573.  100  Neb.  687,  161  N.  W.  174. 

Bridge       company.— A       corporation  48.  Smith    v.    Howard    (R.    I.),    105 

maintaining  a  bridge  may  be  liable  for  Atl.  648. 

the  negligence  of  an  employee  who  neg-  49.  Gones  v.  Illinois  Printing  Co.,  205 

lir^ently   lowers   a    gate    arm   so   as   to  HI.  App.  5. 
strike  and  injure  the  driver  of  an  au- 


Safety  of  Roads  for  Automobiles.  927 

charged  against  the  defendant.^^    The  fact  that  no  warmng, 
either  by  sign  or  otherwise,  is  given  of  a  defect  in  a  highway 
is  not  the  proximate  cause  of  an  injury  to  an  automohilist, 
where  it  appears  that  he  had  actual  knowledge  of  the  de- 
fect.^^    And,  where  an  automobilist  collided  with  girder  and 
truss  in  the  street  supporting  an  overhead  structure,  it  was 
held  that  the  failure  of  the  municipality  to  light  the  obstruc- 
tion could  not  be  deemed  the  proximate  cause  of  the  collision, 
where  it  appeared  that  the  chauffeur  could  have  seen  the 
danger  in  time  to  avoid  it  had  it  not  been  for  exhaust  steam 
from  an  engine  passing  under  the  bridge.^^    In  some  States, 
when  horses  have  become  beyond  the  control  of  the  driver, 
the  defective  condition  of  a  highway  is  not  considered  the 
proximate  cause  of  an  injury  sustained  by  the  driver,  but  they 
are  not  considered  beyond  control  when  they  merely  shy  or 
start  and  for  a  moment  have  their  own  way.^    But,  where  a 
traveler's  horse,  upon  becoming  frightened  by  a  motor  vehi- 
cle, jumped  over  the  unprotected  side  of  a  culvert  on  the  high- 
way and  was  thereby  injured,  but  would  not  have  jumped  had 
the  culvert  been  protected  by  a  suitable  railing,  it  was  held 
that  the  absence  of  the  railing  could  be  considered  the  proxi- 
mate cause  of  the  accident.^*    And  one  who  collided  ^\'ith  a 
telephone  pole  along  the  highway  while  attempting  to  avoid 
an  automobile,  was  denied  recovery  from  the  town  for  his 
injuries.^^    But,  where  a  wagon  was  struck  by  an  automobile 
which  skidded  on  account  of  defects  in  the  street,  it  was  held 
that  the  owner  of  the  wagon  could  recover  against  the  muni- 
cipality.^^   Where  one  riding  in  an  automobile  running  at  the 
rate  of  fifty  miles  an  hour  or  Taster  was  throAvn  from  the  ma- 
chine by  a  collision  with  a  bundle  of  newspapers  placed  in 

50.  McDonald   v.    City    of    Philadel-  53.  Johnson    v.    City    of    Marquette, 
phia,    248    Pa.    St.    145,    03    Atl.    959;       154  Mich.  50,  117  N.  W.  658. 

Camp  V.  Allegheny  County,  263  Pa.  St.  54.  Ma^aiard  v.  Westfiekl,  87  Vt.  533, 

276,    106    Atl.    314;    Davis    v.    Mellen  90  Atl.  504. 

(Utah),   182  Pac.   920.  55.   Scnfield   v.   Town  of  Poughkeep- 

51.  Raymond    v.    Sauk    County.    167  sie,  122  N'.  Y.  App.  Div.  868,  107  N.  Y. 
Wis.  125,  166  N.  W.  29.  Suppl.  767. 

52.  Gaines  v.  City  of  New  York.  156  56.  Kol'ehcr  v.  City  of  Newburyport, 
N.  Y.  App.  Div.  789,  142  N.  Y.  Suppl.  227  Mass.   462,   116  N.  E.   807. 

401. 


928  The  Law  of  Automobiles. 

the  street,  it  was  held  that  he  could  not  recover  for  his  per- 
sonal injuries,  as  the  proximate  cause  of  the  accident  was 
not  the  nuisance  in  the  highway,  but  the  reckless  and  unrea- 
sonable use  thereof  by  the  plaintiff."  If  by  reason  of  the  de- 
fective condition  of  the  steering  gear  of  an  automobile  and  the 
insufficiency  of  a  board  fence  maintained  by  a  city  at  the  side 
of  a  bridge,  the  automobile  crashes  through  the  bridge,  the 
proximate  cause  of  the  accident  is  the  defect  in  the  steering 
gear,  not  the  negligence  of  the  city.^ 

Sec.  706.  Knowledge  of  defect. 

In  many  States,  a  municipal  corporation  is  not  liable  for 
injuries  received  by  one  from  defects  in  its  streets  or  high- 
ways, unless  it  has  knowledge,  either  actual  or  implied,  of  the 
defect  before  the  injury.^^  Thus,  where  it  was  claimed  in  an 
action  for  injuries  arising  from  an  automobile  striking  a  man- 
hole standing  above  the  level  of  the  street  that  a  lantern  pre- 
viously placed  on  the  obstruction  had  been  removed  before 
the  accident,  it  must  be  shown  that  the  city  had  knowledge  of 
the  removal.*^*^  Moreover,  in  some  jurisdictions,  the  notice  of 
the  defect  must  be  an  actual  notice  or  knowledge  by  some  offi- 
cial, implied  notice  arising  from  former  accidents  or  duration 
of  the  defect  not  being  sufficient.^^    If  the  chairman  of  the 

57.  Jefson  v.  Crosstown  St.  Ry.,  72  and  through  the  wooden  railing  at  the 
Misc.    (N.  Y.)    103,   129   N.  Y.  Suppl.      side  of  the  street." 

233.  59.  Dobbins  v.  City  of  Arcadia  (Cal. 

58.  Swain  v.  City  of  Spokane,  94  App.),  186  Pae.  190;  Gedroice  v.  City 
Wash.  616,  162  Pae.  991,  wherein  the  of  New  York,  109  N.  Y.  App.  Div.  176, 
court  said:  *'In  the  case  before  us  it  95  N.  Y.  Suppl.  645;  McDonald  v.  City 
is  clear  that  for  all  ordinary  uses  of  of  Philadelphia,  248  Pa.  St.  145,  93 
the  street  reasonably  to  be  anticipated,  Atl.  959 ;  Strang  v.  City  of  Kenosha 
it  was  kept  in  a  safe  condition,  and  (Wis.),  182  N.  W.  741.  See  also  Laut 
that  if  appellant's  car  had  been  equally  v.  City  of  Albany,  191  N.  Y.  App.  Div. 
fit   for   its   intended   purpose  the   acci-  753,  182  N.  Y.  Supp.  183. 

dent  would  not   have   happened.     The  GO.  Gedroice  v.   City   of   New  York, 

defect  in  the  car  itself  was  plainly  the  109    N.    Y.   App.    Div.    176,    95   N.   Y. 

proximate    cause   of   the   injury.      The  Suppl.  645. 

breaking  of  the  railing  was  a  mere  con-  61.  Hari  v.  Ohio  Tp.,  62  Kans.  315, 

dition.     It  could  not  reasonably  be  an-  62    Pae.   .1010,    construing    Gen.    Sts;, 

ticipated  that  a  car,  by  reason  of  its  1899,  ch.  16,  sec.  3171.     See  also  Du- 

own  defects,  would  be  driven  over  the  bourdieu   v.   Delaware    Tp.,   106   Kans. 

curb,  across  the  walk  for  pedestrians,  650,  189  Pae.  386. 


Safety  of  Roads  for  Automobiles.  929 

selectmen  of  a  town  and  superintendent  of  streets  has  knowl- 
edge of  the  defect,  it  is  proper  to  find  that  the  town  was 
charged  with  notice.*'^  But  knowledge  of  firemen  and  police- 
men of  an  obstruction  in  the  highway,  is  not  deemed  knowl- 
edge of  the  municipality."'  And  knowledge  of  a  city  alder- 
man, when  he  is  not  a  member  of  some  committee  having  au- 
thority over  the  city  streets,  is  not  imputed  to  the  city.*'* 

Sec.  707.  Notice  of  injury. 

In  many  municipalities,  before  commencing  an  action  for 
the  recovery  of  damages  sustained  from  a  defective  highway, 
it  is  necessary  that  the  injured  person  file  a  claim  with  some 
officer  of  the  municipality,  so  as  to  give  notice  of  the  injury."^ 
Ignorance  of  the  laAv  is  no  excuse  for  a  failure  to  give  the 
proper  notice.*'''  The  purpose  of  a  regulation  requiring  a 
claimant  to  file  a  claim  giving  notice  of  the  place  where  the 
injury  is  alleged  to  have  occurred  and  the  nature  of  the  de- 
fect or  omission  causing  the  same,  is  to  enable  the  city's 
agents  to  accurately  locate  the  place  of  injury,  and  the  al- 
leged defects  or  omissions,  and  so  be  informed  whether  to 
adjust  the  claim  or  prepare  its  defense  thereto."  The  law 
may  require  the  notice  to  specify  the  nature  of  the  injuries 
sustained  by  the  claimant,  as  well  as  the  facts  showing  the 
liability  of  the  municipality.^^  A  provision  requiring  the 
presentation  of  a  notice  of  claim  within  twenty  days  after  an 
injury,  does  not  apply  in  a  case  where  the  injury  results  in 
death.*'^    And  a  statute  requiring  notice  of  an  injury  from  a 

62.  Pratt  v.  Inhabitants  of  Cohasset,       546. 

177  Mass.  488,  59  N.  E.  79.  66.  Egan  v.  Township  of  Saltfleet,  29 

63.  Huyler  v.  City  of  New  York,  160      O.  L.  R.  (Canada)   116. 

K  Y.  App.  Div.  415,  145  N.  Y.  Suppl.  A    verbal    notice    is    not    sufTicient. 

650.  Egan  v.   Township  of  Saltfleet,   29  O. 

64.  Gaffney  v.  Dixon,   157  111.   App.      L.  R.   (Canada)   116. 

589.  67.  Walters   v.    City   of    Seattle,    97 

65.  Dean  v.  Sharon,  72  Conn.  667,  Wash.  657,  167  Pae.  124;  Greedon  v. 
45  Atl,  963;  Joy  v.  Inhabitants  of  Town  of  Kittcry  (Mc.),  105  Atl.  124. 
York,  99  Me.  2.37,  58  Atl.  1050.  Garske  68.  Creodon  v.  Town  of  Kittery,  117 
V.  Ridgcville,  123  Wis.  503,  102  N.  W.  Mc.    541,   105  Atl.   124. 

22,   3  Ann.  Cas.   747;   Young  v.  Town-  69.  Bigclow   v.    Town   of   St.   Johns- 

ship  of  Bruce.  24  O.  L.  R.    (Canada)       burv,  92  Vt.  423,  105  Atl.  34. 

59 


930  The  Law  of  Automobiles. 

defect  in  a  highway  in  a  city,  does  not  require  a  notice  when 
the  injury  was  without  its  territorial  limits.'" 

Sec.  708.  Liability  of  abutting  owners  and  others  for  defects 
in  streets. 

An  abutting  owner  or  one  working  in  a  street  is  guilty  of 
negligence  if  he  leaves  an  obstruction  therein  at  night  without 
guarding  the  same  with  a  light  or  in  some  other  manner  as  to 
furnish  information  of  the  danger  to  travelers.^^  Thus,  where 
an  automobile  collided  with  an  abandoned  car  partially  de- 
stroyed bj'  fire  a  few  hours  earlier,  the  liability  of  the  owner 
of  the  abandoned  car  was  sustained,  but  the  city  was  excused 
on  the  ground  that  it  was  not  chargeable  with  notice  of  the 
obstruction  before  the  accident.^^  Certain  obstructions  in  a 
highway  are,  of  themselves,  nuisances,  so  that  the  liability 
of  the  wrongdoer  is  determined  by  the  law  of  nuisances.  Other 
obstructions  are  not  necessarily  nuisances,  and  the  liability 
of  the  person  placing  them  in  the  road  is  controlled  by  the 
law  of  negligence.  Of  this  latter  class  are  stones  which  have 
been  used  in  the  road  for  the  purpose  of  blocking  the  wheels 
of  a  wagon ;  and,  if  they  are  not  removed  after  their  use,  the 
liability  of  the  person  using  them  is  based  on  negligence  in 
the  removal.'^^    And  a  tool  cart  and  can  of  gasoline  left  in  the 

70.  Roy  V.  Kansas  City  (Mo.  App.),  to  reckless  riders  of  motoreyeles  driv- 
224  S.  W.  132.  ing  their  machines  at  a  speed  which  is 

71.  Helber  v.  Harkness  (Mich.),  178  perilous  in  itself.  The  fundamental 
N.  W.  46;  Britt  v.  Concrete  Stone  Co.,  mistake  made  in  this  case  was  in  try- 
99  Neb.  300,  156  N.  W.  497;  Davis  v.  ing  it  as  an  action  for  nuisance  instead 
Mellen  (Utah),  182  Pac.  920.  of  an  action  for  negligence.     The   act 

72.  Huyler  v.  City  of  New  York,  160  of  the  defendant's  agents  in  placing 
N.  Y.  App.  Div.  415,  145  N.  Y.  Suppl.  the  stonesi  in  the  road  for  the  purpose 
650.  of  blocking  the  wheels  of  the  wagons 

73.  Francis  v.  GafFey,  211  N.  Y.  47,  did  not  involve  any  unlawful  use  of 
105  N.  E.  96,  wherein  it  was  said:  "A  the  highway.  So  long  as  the  wagons 
readily  removable  object  of  this  char-  remained  there  the  presence  of  the 
acter  carelessly  left  in  the  road  may  stones  cannot  in  any  reasonable  view, 
render  the  person  who  left  it  there  li-  as  it  seems  to  me,  be  regarded  as  hav- 
able  for  negligence  to  the  drivers  of  ing  constituted  an  unlawful  obstruc- 
ordmary  vehicles  moving  at  a  reason-  tion.  When  the  wagons  were  removed, 
able  rate  of  speed;  but  the  law  should  it  i.*;  true  that  the  stones  which  had 
not  deem  its  presence  a  nuisance  sim-  been  used  for  blocking  the  wheels 
ply  because  it  may  become  dangerous  ought  to  have  been  removed  also.     In 


Safety  of  Roads  for  Automobiles. 


931 


highway  do  not  necessarily  constitute  a  nuisance.'*  But  a 
pole  left  by  an  electric  company  lying  on  the  ground  in  such 
a  position  that  it  is  struck  by  a  motor  vehicle,  may  l)e  found 
to  be  a  nuisance.'^  A  railroad  company  may  be  liable  if  it 
permits  an  obstruction  to  extend  from  one  of  its  cars  into  the 
traveled  part  of  a  street.''® 


Sec.  709.  Joint  wrongdoers. 

As  a  general  proposition,  there  is  no  contribution  between 
wrongdoers.''"  When  a  plaintiff  sues  two  wrongdoers,  neither 
of  them  can  in  that  action  file  a  cross-petition  against  the 
other,  when  he  was  paid  nothing,  for  the  plaintiff  is  entitled 
to  try  out  his  action  without  its  being  incumbered  with  the 
controversy  between  the  two  defendants.  If  one  of  them  who 
is  not  primarily  liable  has  anything  to  pay  under  the  judg- 
ment, he  may,  after  paying  it,  bring  his  action  against  the 
other  to  recover  what  he  has  paid ;  but  he  cannot  sue  until  he 
has  paid  the  judgment.    Until  he  has  suffered  a  loss,  he  has 


other  words,  the  duty  to  remove  the 
stones  was  imposed  by  law  upon  the 
defendant's  agents.  The  failure  to 
discharge  this  duty,  however,  merely 
made  the  defendant  negligent ;  it  did 
not  constitute  him,  as  it  seems  to  me, 
the  creator  of  a  nuisance. ' ' 

74.  Cuilo  V.  New  York  Edison  Co., 
85  Misc.  6,  147  N.  Y.  Suppl.  14,  wherein 
the  court  expressed  its  views  as  fol- 
lows: "The  rule  has  always  been  ap- 
plied that  when  an  obstruction  of  a 
street  serves  some  public  necessity,  is 
temporary  in  its  nature,  and  reason- 
able in  degree,  it  does  not  constitute  a 
nuisance,  and  that,  unless  the  surround- 
ing circumstances  show  conclusively 
that  the  obstruction  was  either  un 
necessary  or  unreasonable,  the  question 
of  whether  it  constitutes  a  nuisance  is 
a  question  of  fact.  In  this  case  Mie 
evidence  shows  that  even  with  the  cart 
in  the  street,  room  was  left  for  traffic 
to  pass  in  single  file ;  that  the  defend- 
ant  was    lawfully    doing   work    at    the 


time  on  the  street  for  the  convenience 
and  necessities  of  the  abutting  owners 
and  that  in  the  prosecution  of  such 
work  it  required  tools  and  gasoline,  and 
upon  this  evidence  it  seems  to  me 
quite  clear  that  the  court  could  not 
say  that  the  present  obstruction  dur- 
ing the  pendency  of  the  work  consti- 
tuted a  nuisance  as  a  matter  of  law." 

Street  railway  pole  falling  on  auto- 
mobile. See  Xorth  Alabama  Tract.  Co. 
v.  McNeil  (Ala.  App.),  8.5  So.  568;  Ex 
parte  McNeil   (Ala.  App.),  85  So.  569. 

Rotten  pole  of  power  cotnpany  break- 
ing on  collision  with  automobile  and 
causing  electric  wire  to  fall  on  one  in 
automobile.  Stewart  v.  San  Joaquin 
L.  &-  P.  Co.  (Cal.  App.).  186  Pac.  160. 

75.  Reed  v.  Edison  Elec.  Illuminat- 
ing Co.,  225  Mass.   16.3,  114  N.  E.  289. 

76.  St.  Louis  Southwestern  Ry.  Co. 
v.  Ristine  (Tex.  Civ.  App.).  219  S.  W. 
.-.15. 

77.  Livingston  &  Co.  v.  Philley,  155 
K\.   ::24,   159  S.  W.   665. 


932  The  Law  of  Automobiles. 

no  cause  of  action  which  a  common  law  court  can  enforce.'^ 
Thus,  where  an  action  is  brought  against  a  city  and  the  owner 
of  a  motor  truck  for  injuries  occasioned  by  the  horse  becom- 
ing frightened  at  the  truck  and  breaking  through  an  insuffi- 
cient guard  rail  maintained  by  the  city,  the  owner  of  the 
truck  cannot  file  a  cross-petition  against  the  city  on  the  claim 
that  the  negligence  of  the  city  in  failing  to  maintain  a  proper 
guard  was  the  proximate  cause  of  the  accidentJ^  Where  a 
street  is  obstructed  by  building  operations  so  that  a  pedestrian 
is  required  to  go  into  the  street  where  he  is  struck  by  a  vehicle 
negligently  driven,  the  driver  and  the  persons  creating  the 
obstruction  may  be  liable  as  joint  tort-feasors.^** 

Sec.  710.  Contributory  negligence  of  traveler  —  in  general. 

A  person  in  charge  of  a  motor  vehicle  must  exercise  ordi- 
nary care  to  avoid  injury  from  defective  conditions  in  the 
highway;  and,  if  guilty  of  want  of  such  care  contributing  to 
an  injury,  he  will  be  precluded  from  recovery .^^  Ordinary 
care  is  such  care  as  prudent  men  ordinarily  use  in  like  circum- 
stances, taking  into  consideration  the  time,  place,  condition 
of  the  highway,  possible  dangers,  known  obstructions,  and  the 
damage  likely  to  result  from  driving  carelessly  at  that  par- 
ticular time  and  place.^^  Whether  the  proper  degree  of  care 
has  been  exercised  by  the  driver  of  the  machine,  is,  speaking 

78.  Livingston  &  Co.  v.  Philley,  155  Sauk  County,  167  Wis.  125,  166  N.  W. 
Ky.  224,  159  S.  W.  665.  39 ;  Freedman  v.  City  of  Winnepeg,  43 

79.  Livingston  &  Oo.  v.  Philley,  155       D.  L.  R.   (Canada)    126. 

Ky.  224,  159  S.  W.  665.  Statutes     may     require     the      auto 

80.  Shafir  V.  Sieben  (Mo.),  233  S.  W.  driver  to  exercise  the  "highest  degree 
419.  of    care."      Jackson    v.    Southwestern 

81.  Ford  V.  Whiteman,  Z  Penn.  Bell  Telep.  Co.  (Mo.),  219  S.  W.  655. 
(Del.)  355,  45  Atl.  543;  Smith  v.  Vil-  82.  Ford  v.  Whiteman,  2  Penn. 
lage  of  Sidell,  205  111.  App.  66;  Louis-  (Del.)  355,  45  Atl.  543;  Kendall  v. 
ville  Bridge  Co.  v.  Irving,  180  Ky.  729,  City  of  Des  Moines  (Iowa),  167  N.  W. 
203  S.  W.  531;  Loose  v.  Deerfield  Tp.,  684;  Loose  v.  Deerfield  Tp.,  187  Mich. 
187  Mich.  206,  153  N.  W.  913;  Creitz  206,  153  N.  W.  913;  Miner  v.  Franklin, 
V.  Wolverine  Engineering  Co.  (Mich.),  78  N.  H.  240,  99  Atl.  647;  Goodwin  v. 
181  N.  W.  966;  Short  v.  State,  109  City  of  Concord  (N.  H.),  Ill  Atl.  304; 
Misc.  (N.  Y.)  617,  179  N.  Y.  Supp.  Rohan  v.  American  Sugar  Refining  Co. 
539;   Thompson  v.  City  of  Bellingham  (N.  J.),  109  Atl.  346. 

(Wash.),    192    Pac.    952;    Raymond    v. 


Safety  of  Koads  for  Automobiles. 


93^ 


in  general  terms,  a  jury  question.^''  Under  the  common  law 
system,  the  absence  of  contributory  negligence  was  required 
to  be  shown  by  the  plaintiff ,'^^  but  this  rule  has  been  changed 
in  many  jurisdictions  so  as  to  place  the  bruden  of  proof  on 
the  issue  of  contributory  negligence  upon  the  defendant.^^ 


Sec.  711.  Contributory  negligence  of  traveler  —  right  to 
assume  safety  of  highway. 
As  a  general  proposition,  every  man  is  presumed  to  have 
obeyed  the  law  and  to  have  exercised  proper  care  for  the 
safety  of  others.  And,  generally,  other  persons  have  a  right 
to  rely  on  such  presumption  and  are  not  guilty  of  contribu- 
tory negligence  merely  because  of  their  faith.  Thus,  the 
driver  of  a  motor  vehicle  is  not  necessarily  guilty  of  con- 
tributory negligence  because  he  proceeds  along  a  highway  on 
the  assumption  that  it  is  in  a  reasonably  safe  condition.**^ 
Bridges,  as  well  as  the  other  parts  of  the  traveled  highway, 
are  ordinarily  safe,  and  the  traveler,  in  the  absence  of  some 


83.  Philipps  V.  City  of  Perry,  178 
Iowa,  173,  159  N.  W.  653;  Wolford  v. 
City  of  Grinnell,  179  Iowa,  689.  161 
N.  W.  686 ;  Owens  v.  Iowa  County,  186 
Iowa,  408,  169  N.  W.  38§;  Loose  v. 
Deerfield  Tp.,  187  Mieh.  206,  153  N. 
W.  913;  Helber  v.  Harkness  (Mich.), 
178  N.  W.  46;  Howell  v.  Burchvillfi 
Tp.  (Mich.),  179  N.  W.  279;  Johnson 
V.  State  of  New  York,  186  N.  Y.  App. 
Div.  389,  173  N.  Y.  Suppl.  701;  Cham 
bers  V.  Minneapolis,  etc.,  Ey.  Co.,  37 
N.  Dak.  377,  163  N.  W.  824;  Big^elow 
V.  Town  of  St.  Johnsbury,  92  Vt.  423. 
105  Atl.  34 ;  Waltera  v.  City  of  Seattle. 
97  Wash.  657,  167  Pac.  124;  Kadolph 
V.  Town  of  Herman,  166  Wis.  577,  166 
N.  W.  423. 

84.  Ham  v.  Los  Angeles  County 
(Cal.  App.),  189  Pac.  462;  Orr  v.  Old- 
town,  99  Me.  190,  58  Atl.  914;  Jewell 
V.  Rogers  Tp.,  208  Mich.  318.  175  N. 
W.   151. 

85.  Wallower  v.  Webb  City,  171  Mo. 
App.  214,  156  S.  W.  48.     "The  authori- 


ties all  hold  that,  while  contributory 
negligence  is  an  affirmative  defense, 
and  as  a  general  rule  must  be  alleged 
in  order  to  be  available,  yet  in  cases 
where  the  plaintiff's  own  evidence 
show*  or  tends  to  show  that  he  was 
guilty  of  contributory  negligence  which 
defeats  his  right  of  recovery,  the  de- 
fendant may  take  advantage  thereof, 
although  the  answer  contains  no  plea 
of  such  contributory  negligence."  Wal 
lower  v.  Webb  City,  171  Mo.  App.  214. 
156  S.  W.  48. 

86.  Burke  v.  District  of  Columbia. 
42  App.  D.  C.  438 ;  Wolford  v.  City  of 
Grinnell,  179  Iowa,  689,  161  N.  W. 
fiS6;  Kendall  v.  City  of  Des  Moines 
(Iowa),  167  N.  W.  684;  Owens  v.  Iowa 
County,  186  Iowa,  408,  169  N.  W.  38S: 
Klopfen.<«tein  v.  Union  Tract.  Co. 
(Kans.").  198  Pac.  930;  Jacobs  v. 
Jacobs,  141  La.  272,  74  So.  992;  Ray- 
mond V.  Sauk  County,  167  Wi9.  125, 
HU;  N.  W.  29. 


934  The  Law  of  Automobiles. 

warning  of  danger,  may  proceed  upon  the  belief  that  they  are 
safe  for  ordinary  use  by  one  observing  due  caution.^^  But 
this  right  to  assume  that  others  have  exercised  due  care  does 
not  excuse  the  driver  of  a  machine  from  failure  to  use  a 
proper  care  on  his  part.  It  remains,  nevertheless,  his  duty 
to  exercise  reasonable  care  to  discover  and  avoid  defects  or 
obstructions  in  the  highway.® 

Sec.  712.  Contributory  negligence  of  traveler  —  violation  of 
statute  or  law  of  road. 

A  violation  of  law  by  the  driver  of  an  automobile  generally 
constitutes  negligence,  and,  if  such  violation  is  a  proximate 
cause  of  the  injury  in  question,  he  will  be  precluded  from  re- 
covery for  his  injuries.  Thus,  if  the  driver  of  the  machine 
fails  to  have  his  lights  turned  on  at  night  as  required  by 
statute,  and  he  strikes  an  obstruction  in  the  road,  he  cannot 
recover,  unless  it  can  be  found  that  the  absence  of  lights  was 
not  a  proximate  cause  of  the  collision.**  But  the  violation  of 
a  statute  requiring  the  maintenance  of  a  red  light  at  the  rear 
of  the  machine,  does  not  forbid  a  recovery,  for  ordinarily 
such  failure  is  not  a  contributing  cause  to  an  accident  from 
a  defective  highway.^**  And,  in  the  great  majority  of  States, 
the  failure  to  comply  with  the  statutes  relating  to  the  regis- 
tration of  automobiles,  does  not  render  the  occupants  tres- 
passers and  forbid  their  recovery  for  injuries  sustained  from 
a  defective  highway.*^  A  different  rule,  however,  is  in  force 
in  Massachusetts,^^  and  in  a  few  other  States.*^  In  consider- 
ing the  question  of  due  care  it  has  been  held  that  the  jury  may 

87.  Super  v.  Modell  Tp.,  88  Kans.  Iowa,  173,  159  N.  W.  €53;  Wolford  v. 
698,  129  Pac.  1162.  City   of   Grinnell,    179   Iowa,    689,    161 

88.  Wolford  v.  City  of  Grinnell,  170  N.  W.  686;  Chambers  v.  Minneapolis, 
Iowa,  689,  161  N.  \\\  686;  Kendall  v.  etc.,  Ry.  Co.,  37  N.  Dak.  377,  163  N. 
City  of  Des  Moines  (Iowa),  167  N.  W.  W.  824.  See  also  West  v.  Marion 
684 ;  Wallower  v.  Webb  City,  171  Mo.  County,  95  Oreg.  529,  188  Pac.  184. 
App.  214,  156  S.  W.  48.  And  see  section  126. 

89.  Ferry  v.  City  of  Waukegan,  19(i  92.  Holland  v.  City  of  Boston,  213 
111.   App.   81;    Ferry   v.   City   of   Wau  Mass.  560,  100  N.  E.  1009. 

kegan,  205  111.  App.  109.  93.  McCarthy     v.     Town     of     Leeds 

90.  Lawrence  v.  Channahon,  157  111.  (Me.),  101  Atl.  448;  Blanchard  v.  City 
App.  560.  of  Portland   (Me.),  113  Atl.  18.     And 

91.  Phillips    V.    City    of    Perry,    178  see  section   125. 


Safety  of  Roads  for  Automobiles.  935 

■keep  in  mind  the  "Law  oi'  tlie  Road"  it  appearing  that  the 
plaintiff  went  to  the  right  side  of  the  road  to  avoid  some 
workmen,  when  the  left  side  afforded  a  better  way,  and  this 
although  there  was  no  other  vehicle  in  the  immediate  vicinity.^* 

Sec.  713.  Contributory  negligence  of  traveler  —  assumption 
of  danger. 

Mere  knowledge  on  the  part  of  an  automobilist  that  the  road 
is  defective  does  not  necessarily  bar  him  from  recovering  for 
his  injuries.  He  may  use  the  highway  though  he  knows  of 
defects  therein,  but  his  duty  in  such  a  case  is  to  use  due  care 
according  to  the  dangers  of  which  he  has  knowledge.*  But 
it  is  held  that  where  the  driver  knows  that  the  road  is  under 
reconstruction  and  is  unfit  for  travel  and  he  could  have  used 
another  road  with  comparative  safety,  his  negligence  may  be 
found  as  a  matter  of  law.^^  But  it  is  held  that  when  a  high- 
way is  of  reasonable  wddth  and  smoothness,  a  person  who 
drives  outside  of  the  traveled  way  assumes  the  risk.^  And 
when  the  driver  has  knowledge  of  a  dangerous  place  in  the 
road  and  he  runs  his  iiiachine  at  such  a  rate  that  it  is  difficult 
to  avoid  the  danger,  it  is  not  difficult  to  charge  him  with  con- 
tributory negligence.^^ 

Sec.  714.  Contributory  negligence  of  traveler  —  lookout. 

It  is  the  duty  of  the  driver  of  a  motor  vehicle  to  keep  a 
reasonably  careful  lookout  for  other  travelers  and  dangers 
which  may  be  encountered  along  the  highway.^    If  a  danger 

94.  Baker  v.  Fall  Eiver,  187  Mass.  53.       son  Co.    (Cal.  App.),   178  Pac.  318. 

73    N.    E.    336.      See    also    Kadolph   v.  97.  Orr  v.  Oldtown,   99   Me.   190,   58 

Town  of  Herman,  166  Wis.  577,  166  N.  Atl.   914;    MeChesney   v.   Dane   County 

W.   433.  (Wis.).   ITT   N.  W.    12. 

95.  Gardner  v.  Wasco  County,  37  Automobile  running  into  ditch. — 
Oreg.  392,  61  Pac.  834 ;  Walters  v.  Coutributory  negligence  held  to  be  for 
City  of  Seattle,  97  Wash.  657,  167  Pac.  jury.  Sweetman  v.  City  of  Green  Bay, 
124;    Ra\Tnond    v.    Sauk    County,    167  147  Wis.  586,  132  N.  W.  1111. 

Wis.  125,  166  N.  W.  29.    Compare  Mil-  98.  Morris  v.  Intorurban  St.  Ry.  Co.. 

ler  V.  County  of  Wentworth,  5  O.  W.  100   N.   Y.    App.   Div.    295,    91    N.   Y. 

N.   (Canada)  317,  affirmed  5  O.  W.  N.  Suppl.  479. 

891.  99.  Super    v.    Modell    Tp.,    88    Kana. 

96.  Buckingham    v.    rommary-Peter  698,  129  Pac.  1162;  Wallower  v.  Webb 


936  The  Law  of  Automobiles. 

is  obvious  at  a  considerable  distance,  the  driver  may  be  negli- 
gent in  failing  to  see  and  avoid  iV    But  the  fact  that  a  driver, 
coming  up  behind  a  horse-drawn  vehicle  and  being  compelled 
to  go  around  it  was  looking  in  the  direction  of  the  obstruction, 
does  not  preclude  his  recovery,  for  he  had  a  right  to  assume 
that  the  street  was  reasonably  safe  for  travel.^    Yet  it  can- 
not be  laid  down  as  an  inflexible  rule  of  law  that  he  must  keep 
his  eyes  constantly  fixed  on  the  roaHbed  and  must  be  charged 
with  notice  of  every  defect  thereon,  great  or  small,  which 
might  be  detected  by  such  a  precaution.^    The  general  duty  of 
keeping  a  lookout  is  extended  by  statute  so  as  to  require  the 
maintenance  of  lights  on  the  machines,  and  a  failure  to  have 
lights  properly  working  may  constitute  contributory  negli- 
gence.''   One  approaching  a  draw  bridge  is  bound  to  exercise 
reasonable  care  to  discover  whether  the  arms  of  the  gate  are 
down  and  whether  they  are  being  lowered  at  the  time  of  his 
approach.^    Where  there  was  evidence  tending  to  show  that 
in  the  center  of  a  traveled  side  track  of  a  country  road  there 
was  an  oak  stump  ten  inches  high  partially  concealed  by 
green  oak  sprouts  about  two  feet  high  and  by  weeds,  but 
visible  to  one  approaching  from  the  west  for  a  distance  of 
fifty  to  seventy-five  feet,  and  the  plaintiff  going  east  in  an 
automobile  at  the  rate  of  twelve  miles  per  hour  left  the  main 
traveled  track  and  took  this  side  track,  and  the  under  part  of 
his  automobile  struck  this  stump  and  was  damaged,  it  was 
held  that  a  verdict  finding  plaintiff  guilty  of  contributory 
negligence  was  not  without  evidence  to  support  it.^ 

City,  171  Mo.  App.  214,  156  S.  W.  48;  5.  Louisville    Bridge    Co.    v.    Irving. 

Short  V.  State,  109  Misc.   (N.  Y.)   617,  180  Ky.  729,  203  S.  W.  531. 

179  N.  Y.  Suppl.  539.  Traveling  on  bridges.— It  is  the  duty 

1.  Kaufman  Beef  Co.  v.  United  Rys.  of  one  approaching  a  drawbridge  to 
&  Elec.  Co.,  135  Md.  524,  109  Atl.  191.  stop,   look,    and    listen.      In   an    action 

2.  Klopfenstein  v.  Union  Tract.  Co.  against  a  county  for  the  death  of  de- 
(Kans.),  198  Pac.  930.  cedent    through    driving    off    an    open 

3.  Smith  V.  .Jackson  Tp.,  26  Pa.  drawbridge  at  night,  the  evidence  was 
Super.  Ct.  234.  See  also  Goodwin  v.  held  to  show  that  the  deceased  was 
City  of  Concord  (N.  H,),  111  Atl.  guilty  of  contributory  negligence.  Com- 
304.  missioners   v.    State,    107   Md.    210,    68 

4.  Baldwin      v.     City     of      Norwalk  Atl.  602,  14  L.  R.  A.   (N.  S.)   452. 
(Conn.),   112  Atl.  €60;   Sweet  v.  Salt  6.  Olrastead   v.   Town   of  Greenfield, 
Lake    City,    43    Utah,    306,    134    Pac.  155  Wis.  452,  144  N.  W.  987. 

1167.     And  see  section  297  et  seq. 


Safety  of  Roads  for  Automobiles.  937 

Sec.  715.  Contributory  neglig"ence  of  traveler  —  speed. 

Independently  of  statutory  regulations  fixing  the  speed 
limit  for  automobiles,  it  is  held  that  automobilists  must  not 
exceed  a  reasonable  speed  under  the  circumstances.'  Whether 
the  speed  on  a  particular  occasion  was  reasonable,  is  generally 
a  question  for  the  jury.^  If  unreasonable,  the  driver  is  guilty 
of  such  negligence  that  he  will  be  precluded  from  recovery 
for  his  injuries  to  him  or  to  the  car,  though  negligence  on  the 
part  of  the  municipal  officials  in  the  maintenance  of  the  high- 
way is  shown.^  Of  course,  a  question  of  proximate  cause  may 
remain  for  the  determination  of  the  jury.^"  When  traveling 
in  the  night  time,  the  rate  of  speed  depends  to  some  extent  on 
the  lighting  of  the  machine.  It  should  not  be  operated  so  fast 
that  it  cannot  be  stopped  within  the  distance  that  the  lights 
would  disclose  obstructions  or  defects  in  the  highway."  One 
is  not  necessarily  guilty  of  contributory  negligence  because 
he  is  proceeding  in  a  fog  which  does  not  permit  him  to  look 
far  ahead,  but  he  should  measure  his  speed  by  his  vision." 
A  passenger  permitting  an  excessive  speed  without  remon- 
strance to  the  driver,  may  also  be  charged  \\'ith  contributory 
negligence.^^ 

7.  Section  305.  str.   Co.   v.   White.   130   Tenn.   ,520,   172 

8.  Warren  Co.  v.  Whitt.  19  Ariz.  S.  W.  301;  Knoxville  Ry.  &  Light  Co. 
104,  165  Pac.  1097;  Ferry  v.  City  of  v.  Vangildcn.  132  Tenn.  487.  178  S.  W. 
Waukegan,  196  111.  App.  81;  Ferry  v.  1117;  Raymond  v.  Sanx  County,  167 
City  of  Waukegan,  205  111.  App.  109;  Wis.  1^5,  166  N.  W.  29. 

Phipps    V.    City    of    Perry,    178    Iowa,  Not  contribtitory  negligence  as  mat- 

173,  159  N.  W.  653;  Abbott  v.  Board  ter  of  law. — It  has  been  lield  not  oon- 

of  County  Com'rs,  94  Kans.   553,   146  tributory  negligence  as  a  matter  of  law 

Pac.  998 ;  Rockett  v.  Philadelphia,  256  for  an  automobilist  to  assume  that  the 

Pa.  St.  347,  100  Atl.  826.  road  is  in  safe  condition  and  to  run  at 

9.  Gilbert  v.  Southern  Bell  Telep.  &  a  speed  which  precludes  him  from  stop- 
Teleg.  Co.,  200  Ala.  3,  75  So.  315;  ping  within  the  scope  of  his  lights. 
Lytle  V.  Hancock  County,  19  Ga.  App.  Owens  v.  Iowa  County.  186  Iowa,  408. 
193,  91  S.  Fj.  219;  Wasser  v.  North-  169  N.  W.  388.  See  also  Kendall  v. 
ampton,  249  Pa.  St.  25,  94  Atl.  444;  City  of  Des  Moines  (Iowa).  167  N.  W. 
Wentworth    v.    Waterbpry,    90   Vt.   60,  684. 

96  Atl.  334.  12.  Johnson   v.   State   of   New   York, 

10.  Hardy  v.  West  Coast  Constr.  Co.,       104  Misc.   (N.  Y.)   395. 

174  N.  Car.  320,  93  S.  E.  841.  13.  Jefson   v.  Crosstown   St.   Ry.,   72 

11.  Ham  V.  Lo*  Angeles  County  Misc.  (N.  Y.)  103.  129  N.  Y.  Suppl. 
(Cal.  App.),  189  Pac.  462;  West  Con-       233.     And  see  section  716. 


938  The  Law  of  Automobiles. 

Sec.  716.  Contributory  negligence  of  traveler  —  negligence  of 
passenger. 

Though  a  contrary  rule  has  been  adopted  in  a  few  juris- 
dictions, the  general  rule  is  that  the  negligence  of  the  driver 
of  an  automobile  is  not  imputed  to  a  passenger  riding  therein.^' 
But,  though  the  negligence  of  the  driver  is  not  imputed  to 
other  persons  in  the  machine,  there  remains  the  question 
whether  the  injury  was  the  "proximate"  or  ''sole"  result  of 
the  negligence  of  the  defendant,  and  the  negligence  of  the 
driver  may  be  considered  on  that  issue.^^  This  is  a  question 
of  proximate  cause  rather  than  of  contributory  negligence. 
It  is  one  proposition  to  charge  the  passenger  with  the  negli- 
gence of  the  driver  and  quite  another  to  exonerate  a  defend- 
ing third  party  therefrom.  Confining  the  discussion  strictly 
so  the  doctrine  of  contributory  negligence,  it  may  be  said, 
that,  as  a  general  rule,  the  negligence  of  the  plaintiff  is  de- 
cided on  his  own  conduct,^^  and  the  question  is  left  to  the 
jury."  If  he  acts  as  a  reasonably  prudent  man  would  act 
under  similar  circumstances,  he  fulfills  the  duty  cast  on  him, 
and  he  may  be  permitted  to  recover  for  injuries  received  from 

14.  Section  679.  rose,  205  Mass.  329,  91    N.  E.  306,  27 

15.  Feeley    v.    City   of    Melrose,   205       L.  R.  A.  (N.  S.)   1156. 

Mass.  329,  91  N.  E.  306.  27  L.  R.  A.  Imputed  to  chauffeur's  master.— The 

(N.  S.)    1156;   White  v.  Portland  Gas  negl'genee  of  a  chauffeur,  in  failing  to 

&   Coke   Co.,    84    Oreg.    643,    165    Pac.  avoid  danger  while  driving  his  master 

1005.      See    also    Lauson    v.    Town    of  in  an  automobile,  is  imputable  to  the 

Fond  du  Lac,  141  Wis.  57,  123  N.  W.  master,     Lytlo  v.  Hancock  County,   19 

629,  25  L.  R.  A.   (N.  S.)   40.  Ga.  App.  193,  91  S.  E.  219. 

Rule    in    Massachusetts. — In    a    re-  16.  Stewart  v.  San  Joaquin  L.  &  P. 

cent   case   in   Massachusetts,   where   an  Co.  (Cal.  App.),  186  Pac.  160;  Gaffney 

action  was  brought  by  occupants  of  an  v.    Dixon,    157   111.   App.    589 ;    Reudel- 

automobile  to  recover  for  injuries  from  huber  v.  Douglas  County,  100  Neb.  687, 

defects   in    the   highway,   the   rule   was  161  N.  W.  174;  White  v.  Portland  Gas 

laid    down    that   if   the   injury   to   the  &   Coke   Co.,    84   Oreg.    643,    165    Pac. 

plaintiffs  was  due  in  part  to  the  negli-  1005 ;   Camp  v.  Alleghany  County,  263 

gence  of  the  driver  of  the  automobile,  Pa.  St.  276,   106  Atl.  314;   Latimer  v. 

then  it  could  not  be  said  that  the  de-  Anderson  County,  95  S.  Car.  187,  78  S. 

feet  in  the  highway  was  the  sole  cause  E.  879;  Knoxville  Ry.  Sc  Light  Co.  v. 

of  their  injury  within  the  meaning  of  Vangilden,   132   Tenn.   487.   178   S.   W. 

the   decisions   of   that    State   requiring  1117. 

that  such  defect  must  be  the  sole  cause  17.  Com'rs     of     Logan     County     v. 

of  the  injury.     Feeley  v.  City  of  Mel  Bicher,  98  Ohio.  432,  121  N.  E.  535. 


Safety  of  Roads  for  Automobiles.  939 

the  negligent  condition  of  the  highway.^*  One  riding  in  a 
machine,  however,  may  be  charged  as  a  matter  of  law  with 
contributory  negligence  Avhere  he  rides  a  distance  of  1,500 
feet  at  the  rate  of  about  fifty  miles  an  hour  in  a  city  street 
without  remonstrance  or  even  suggestion  to  the  driver  that 
he  stop  the  car  or  slacken  its  speed."  But  the  fact  that  a 
wife  riding  in  an  automobile  driven  by  her  husband  knows 
that  he  has  an  injured  hand,  does  not  charge  her  with  negli- 
gence per  sBj  but  it  must  also  appear  that  she  knew  that  he 
was  unable  to  manage  the  automobile  with  ordinary  safety.*' 
And,  whether  one  who  is  on  ''joy"  ride  ^vith  a  chauffeur  more 
or  less  intoxicated  is  guilty  of  negligence,  may  be  a  question 
within  the  province  of  the  jury.^*  A  passenger  who  sees,  or 
by  the  exercise  of  proper  care  should  see,  a  danger  not  ob- 
vious to  the  driver,  or  who  sees  that  the  driver  is  incompetent 
or  careless,  or  is  not  taking  proper  precautions,  should  give 
some  warning  of  the  danger,  and  a  failure  to  do  so  may  be 
negligence.22  But,  ordinarily,  a  driver  is  intrusted  ^vith  the 
caring  for  the  safety  of  a  carriage  and  its  occupants,  and, 
unless  the  danger  is  obvious  or  is  known  to  the  passenger,  he 
may  rely  upon  the  assumption  that  the  driver  will  exercise 
proper  care  and  caution.^^  In  the  case  of  a  guest,  unless  he 
knows,  or,  in  the  exercise  of  proper  care,  should  know,  that 
the  driver  is  running  the  machine  in  a  negligent  manner,  it 
is  not  his  duty  ordinarily  to  give  instructions  or  even  sug- 
gestions.2*  A  guest  is  not  necessarily  guilty  of  negligence  be- 
cause be  rides  in  a  machine  which  is  not  properly  equipped 
with  lights,25  or  because  the  road  is  muddy  and  slippery.*^ 

18.  White  V.  Portland  Gas  &  Coke  22.  Knoxville  Ry.  &  Lipht  Co.  v.  Van 
Co.,  84  Oreg.  64.3,  16.5  Pac.  1005.  -ilden.  132  Tenn.  487,  178  S.  W.   1117. 

19.  Jefson  v.  Crosstown  St.  By.,  72  23.  Knoxville  Ry.  &  Light  Co.  v.  Van- 
Misc.  (N.  Y.)  \m,  129  N.  Y.  Suppl.  gilden,  132  Tenn.487,  178  S.  W.  1117. 
^^^-  24.  Latimer  v.   Anderson   County.   35 

20.  Gaflfney  v.   Dixon,    157    Til.    App  S.  Car.   187,  78  S.  E.   879. 

'°^-  25.  Chambers    v.    Minneapolis,    etc., 

21.  Sutton  V.  City  of  Chicago.  19.=-.  Ry.  Co..  37  N.  Dak.  .377.  163  N.  W. 
111.  App.  261.     See  also  Kinne  v.  Town       H24. 

of    Morristown,    184    N.    Y.    App.    Div.  26.  Dillahough   v.   Okanogan   County. 

*^8.  105  Wash.  609.  17S  Pac  802. 


940  The  Law  of  Automobiles. 

CHAPTER  XXVI. 

MEASURE  OF  DAMAGES   FOR  INJURY   TO  AUTOMOBILE. 

Section  717.  lu  general. 

718.  Market  value. 

719.  Difference  between   value  before   and   after  injury. 

720.  Cost   of   repairs. 

721.  Expenses  of  preserving  ear  from  further  injury. 

722.  Usable  value  for  period  of  repairs — in   general. 

723.  Usable  value  for  period  of  repairs — rental   value. 

724.  PajTuents  to  chauffeur  during  repairs. 

Sec.  717.  In  general. 

The  general  rule  for  the  determination  of  damages  to  per- 
sonal property  is  that  the  owner  shall  receive  fair  and  reason- 
able compensation  for  the  injuries  sustained  by  him.^  The 
presiding  judge  on  a  trial  should  not,  however,  merely  in- 
struct that  the  jury  should  find  a  fair  and  reasonable  compen- 
sation for  the  injury,  but  should  inform  them  how  this  com- 
pensation is  to  be  found.  The  jurors  should  not  be  left  each 
to  his  individual  idea  as  to  how  to  fix  the  sum  which  would 
reasonably  and  fairly  compensate  the  owner  of  the  machine.^ 
A  verdict  for  nominal  damages  will  be  set  aside  when  sub- 
stantial damages  are  proved.^    There  are  authorities  which 

1.  Indianapolis,  etc.,  Traction  Co.  v.  N.  E.  594.    "In  a  case  like  the  one  be- 

Sherry,  65  Ind.  App.  1,  116  N.  E.  594 ;  fore  us,  in  measuring  the  damages  to 

F.    &    B.    Livery    Co.    v.    Indianapolis  an   automobile,   the  basic  rule  is  juat 

Tract.  &  Terminal  Co.  (Ind.  App.),  124  compen-sation   for  the  actual  loss  sua- 

N.   E.   493;    Gilwee  v.   Pabst  Brewing  tained."      Gilwee    v.    Pabst    Brewing 

Co.,  195  Mo.  App.  487,  193  S.  W.  886.  Co.,  195  Mo.  App.  487. 

"While  the   rule  for   determining  the  California  Code. — ^Under  section  3333 

amount  of  damages  to  personal  prop-  of   the   Civil    Code    of    California,   the 

erty  varies  in  some  degree  in  different  measure  of  damages  for  the  breach  of 

jurisdictions,  and  is  affected  by  exist-  an  obligation  not  arising  from  contract 

ing  circumstances,  it  is  manifest  that  is  the   amount  which  will   compensate 

just  compensation  in  money,  for  the  ac-  for   all   of   the   detriment   proximately 

tual    loss   sustained   is   the  basic  prin-  caused.    Kincaid  v.  Dunn,  36  Cal.  App. 

ciple  which  should  control.     This  prin-  686,  148  Pac.  235. 

ciple  is  applicable  to  damages  to  auto-  2.  Southern    Ry.    Co.     v.    Kentucky 

mobile    as    well    as    to    other    personal  Grocery   Co.,    166   Ky.    94,    178   S.   W. 

property."      Indianapolis,    etc.,    Trac-  1162. 

tion  Co.  v.  Sherry,  65  Ind.  App.  1,  116  3.  F.    &    B.    Livery    Co.    v.    Indian- 


Measure  of  Damages  for  Injury  to  Automomobile.     941 

permit  the  calculation  of  damages  upon  the  basis  of  the  dif- 
ference between  the  value  before  the  injury  and  the  value 
after  the  accident.*  And  other  authorities  take  the  view  that 
the  damages  are  the  reasonable  value  of  the  repairs  made 
necessary  by  the  injury.^  But  the  damages  must  be  figured  on 
one  or  the  other  theory ;  to  allow  both  would  constitute  double 
damages.^  And,  in  an  action  between  the  manufacturer  and 
purchaser  of  an  automobile  arising  from  alleged  defects  in 
the  car  as  delivered,  it  is  improper  to  allow  as  damages,  not 
only  the  difference  between  the  value  of  the  automobile  in 
its  condition  when  delivered  and  what  its  value  would  have 
been  had  it  been  delivered  in  the  condition  contracted  for, 
but  also  such  sums  as  might  have  been  necessarily  expended 
by  the  plaintiff  in  procuring  parts  and  making  repairs  thereon 
and  the  value  of  the  plaintiff's  time  lost  in  attempting  to 
make  repairs  so  that  it  would  run  properly.''  Evidence  of 
insurance  on  the  machine  is  not  admissible  for  the  purpose  of 
reducing  the  damages.^ 

Sec.  718.  Market  value. 

Where  personal  property  is  totally  destroyed  or  converted 
by  the  wrongful  act  of  another,  in  general,  the  measure  of 
damages  is  the  market  value  of  the  property  at  the  time  of 
the  wrongful  act.^    This  rule  is  applied  to  motor  vehicles." 

apolis    Tract.    &    Terminal    Co.     (Ind.  property  is  so  complete  that  it  is  not 

App.).    12i    N.    E.    4  93;    Merriman   v.  susceptible  of   repair,  the  measure   of 

Cty  of  Chllicolhe   (Mo.  App.),  217  S.  damages  is  its  reasonable  market  value 

"V^.  637.  immediately    before    its    destruction." 

4.  Section  719.  Cincinnati,    etc.,    Ry.    Co.   v.    Sweeney, 

5.  Section  720.      .  Ififi  Ky.  360,  179  S.  W.  214. 

6.  Barshfield  v.  Vucklich  (K'-ns.),  Personal  property  in  motor  vehicle. 
197  Pac.  205;  Gilwee  v.  Pabst  Brew-  — Where  personal  property  carri  d  in  a 
ing  Co.,  195  Mo.  App.  487,  193  S.  W.  motor  vehicle  is  destroyed  at  the  time 
886.  of  an  injury  to   the  machine,  its  fair 

7.  Studebaker  Corporation  of  Amer-  market  value  at  the  time  and  place  of 
ica  V.  Mi  ler,  169  Ky.  90,  183  S.  W.  the  injury,  is  the  measure  of  damages. 
256.  Southern  Ry.  v.  Kentucky  Grocery  Co.. 

8.  Lou-hced    v.    Collingwood    Co..    16  166  Ky.  94,   17S  S.  W.   1162. 

O.    L.    R.    (Canada)    64;    H^-ndman   v.  10.  Monson  v.  Chicago,  e'c,  Ry.  Co. 

Stephens,  19  Man.  L.  R.  (Canada)  187.       (Iowa),  159  N.  W.  679:  Southern  Ky. 

9.  "  If    the    destruction    of    personal      v.  Kentucky  Grocery  Co.,  166  Ky.  94. 


942  The  Law  of  Automobiles. 

If  not  totally  destroyed,  the  value  after  the  occurrence  is  de- 
ducted from  the  market  value  so  as  to  leave  the  measure  of 
damages  the  difference  between  the  values."  But,  it  is  held 
that  the  damages  cannot  exceed  the  value  before  the  commis- 
sion of  the  tort.^^  The  cost  of  the  machine  is  not  a  criterion 
of  its  market  value,  yet  the  price  i>aid  therefor  shortly  before 
the  injury  may  be  admissible  as  evidence  of  its  market  value." 
As  bearing  upon  the  question  of  the  value  of  a  car,  a  person 
will  not  be  permitted  to  introduce  in  evidence  a  personal  prop- 
erty tax  schedule  containing  a  declaration  as  to  its  value," 
or  a  compromise  agreement  between  the  plaintiff  and  an  in- 
surance company  regarding  an  adjustment  of  the  damage.^ 

Sec.  719.  Difference  between  value  before  and  after  injury. 

Where,  by  the  wrongful  act  of  the  defendant,  the  plain- 
tiff's automobile  is  injured,  but  is  not  totally  destroyed,  the 
measure  of  damages  usually  adopted  is  the  difference  be- 
tween the  market  value  before  the  injury  and  market  value 
thereafter.^*^    In  many  cases,  as  a  practical  proposition,  the 

178   S.   W.   1162;    Cincinnati,   etc.,  Ey.  Cal.   App.    686,    148   Pac.   235;    Rhodes 

Co.  V.  Sweeney,  166  Ky.  360,  179  8.  W.  v.   Firestone   Tire  &  Rubber  Co.    fCal. 

214;    Seaboard   Air  Line  Ry.   v.   Aber-  App.),  197  Pac.  392. 

nathy,  121  Va.  173,  92  S.  E.  913.  Connecticut. — Hawkins     v.     Garford 

11.  Section  719.  Trucking  Co.,  114  Atl.  94. 

12.  Southern  Ry.  \.  Kentucky  Gro-  Delaware. — Morgan  Millwork  Co.  v. 
eery  Co.,  166  Ky.  94,  178  S.  W.  1162.  '  Dover  Garage  Co.,  7  Boyce's  (30  Del.) 

13.  Sehall    v.    Northland    Motor    Car  383. 

Co.,    123   Minn.    214,    143    N.   W.    357;  Iowa. — Lonneeker  v.  Van  Patten,  179 

Bonert  v.  Long  Island  K.  Co.,  145  N.  N.  W.   432.     See  also   Gay  v.   Shad'e, 

Y.    App.    Div.    552,    130    N.    Y.    Suppl.  176  N.  W.  635. 

271.     See  also  Sanders  v.  Austin,  180  Kansas. — Barsfield   v.    Vucklich,    197 

Cal.  664,  182  Pac.  449.  Pac.  205. 

14.  Burdick  v.  Valerius,  172  111.  App.  Kentucky. — Southern  Ry.  v.  Ken- 
267.  See  in  this  connection,  5  Cham  tucky  Grocery  Co.,  166  Ky.  94,  178  S. 
berlayne's  Modern  Law  of  Evidence,  W.  1162;  Cincinnati,  etc.,  Ry.  Co.  v. 
§  3455.  Sweeney,   166  Ky.  360,   179  S.  W.  214. 

15.  Burdick  v.  Valerius,  172  111.  App.  "Where  an  injury  to  personal  prop- 
267.  erty   does  not   effect  its   destruction — 

16.  Alahama. — Birmingham  Ry.,  L.  that  is,  where  it  is  suscep'ible  of  re 
&  P.  Co.  V.  Sprague,  196  Ala.  148,  72  pair — the  measure  of  damages  is  the 
So.  96 ;  Mobile  L.  &  P.  Co.  v.  Harris  difference  between  the  reasonable  m.'ir- 
(Ala.  App.),  84  So.  8B7.                ,.  ket  value  of  the  property  immediately 

California. — Kincaid     v.     Dunn^     26      before  the  injury  at  the  place  thereof, 


Measure  of  Damages  for  Injury  to  Automomobile.     943 


difference  in  value  may  be  the  cost  of  repairing  the  machine." 
And,  as  a  general  proposition,  the  reasonable  value  of  repairs 
necessitated  is  admissible  as  evidence  bearing  upon  the  de- 
preciation in  value  through  the  injury .^^  But  the  cost  of  re- 
pairs may  be  unsatisfactory  as  evidence  of  depreciation  in 
value,  for  after  the  repairs  the  machine  may  not  be  of  the 
same  value  as  before  the  injury,  and  it  is  possible  that  it  be 
of  greater  value.^^    Hence,  the  owner  is  sometimes  allowed  the 


and  its  reasonable  market  value  imme 
diately  after  the  injury  at  the  place 
thereof."  Southern  Ry.  Co.  v.  Ken 
tucky  Grocery  Co.,  166  Ky.  94,  178  S. 
W.  1162.  "It  is  a  matter  of  common 
knowledge  that  automobiles  in  all 
stages  of  use  and  repair  are  being 
daily  exchanged  in  barter  and  sales. 
If  an  automobile  is  totally  destroyed, 
or  if  an  automobile  suffers  injuries,  the 
damages  'o  the  owner  from  the  de- 
struction or  injury  of  the  machine, 
alone,  cannot  be  more  than  his  loss, 
which  in  the  first  instance  is  its  value 
immediately  before  its  destruction, 
and,  in  the  second  instance,  is  the  dif- 
ference between  its  value  in  its  injured 
condition  and  its  value  before  the  in 
juries.  To  fix  these  values,  the  law  re- 
fuses to  leave  it  to  the  imagination 
of  the  owner  of  tho  injured  property, 
or  to  the  opinion  which  a  jury  may  set 
up  as  the  criterioii  of  value,  and  which 
may  vary  in  different  cases  and  with 
oaoh  jury,  but  ha.s  adopted  the  nuukei 
value,  as  the  most  tangible  and  Ihe  one 
which  can  be  most  easily  afid  certainly 
laid  hold  of."'  Cincinnati,  etc.,  Ry. 
Co.  V.  Sweeney.  166  Ky.  360,  179  S.  W. 
214. 

Minnesota. — Egelvist  v.  Minnetonka 
&  White  Bear  Nav.  Co..  178  N.  W.  238. 

Missouri. — Jackels  v.  Kansas  City 
Rys.  Co.  (Mo.  App.),  231  S.  W.  1023; 
Gilwee  v.  Pabst  Brewing  Co.,  19.t  Mo. 
App.  487,  193  S.  W.  886. 

Next)  Jersey. — Van  Sciver  v.  Public 
Service  Ry.  Co.,  114  Atl.  146;  Taylor 
v.  Brewer,  110  Atl.  693. 


Xorth  Carolina. — Farrell  v.  Univer- 
sal Garage  Co.,  179  S.  Car.  389,  102 
S.  E.  617. 

South  Carolina. — Johnson  Motor  Co. 
V.  Payne,  107  S.  E.  252. 

Texas. — Beaumont,  etc.,  R.  Co.  v. 
Myrich  (Tex.  Civ.  App.),  208  S.  W. 
935;  Kansas  City,  etc.,  R.  Co.  v.  O'Con- 
iioU    (Tex.  Civ.  App.),  210  S.  W.  757. 

Utah.—Metca\t  v.  Mellen,  192  Pac. 
676. 

Washington. — Kane  v.  Nakmoto,  194 
Fac.  381 ;  Alexander  v.  Amusement  Co., 
105  Wash.  346. 

Trover. — Where  an  automobile  is  re- 
turned after  its  conversion,  the  return 
i;()es  only  in  mitigation  of  the  dam- 
ages, and  the  owner  in  an  action  of 
trover  may  recover  the  difference  be- 
tween the  value  when  taken  and  the 
value  when  returned.  Lyman  v.  James, 
87  Vt.  486,  89  Atl.  932.  Interest  may 
be  added  from  the  date  of  the  conver- 
sion. Taylor  v.  Brewer  (N.  J.),  110 
Atl.  693. 

Attachment. — The  measure  of  dam- 
ages sustained  through  the  attach- 
ment of  a  motor  vehicle,  may  be  the 
depreciation  in  value  during  the  time 
the  machine  was  under  attachment. 
Morneault  v.  National  Surety  Co.,  37 
Cal.  App.  285,  174  Pac.  81. 

17.  Section  720. 

18.  Southern  Ry.  v.  Kentucky  Gro- 
cery Co.,  166  Ky.  94.  178  S.  W.  1162; 
FarroU  v.  Universal  Oarage  Co.,  179  N. 
C..389,  .102-S.  E.  617. 

19.  "Evidence  of  the  reasonable 
value   of  such   repairs,  made   necessary 


944 


The  Law  of  Automobiles. 


cost  of  repairs  together  with  the  difference  between  the  value 
before  the  accident  and  the  value  after  repairs  are  made.^o 
In  some  jurisdictions,  the  rule  seems  to  have  been  adopted 
that,  in  case  the  property  can  be  repaired,  the  measure  of 
damages  is  the  reasonable  value  of  the  repairs  and  the  value 
of  the  use  of  the  machine  while  undergoing  repairs;  but,  if 
the  property  cannot  be  so  repaired,  the  measure  of  damages 
is  the  difference  between  the  value  before  the  accident  and 
the  value  of  the  wreckage.^ 


Sec.  720.  Cost  of  repairs. 

The  reasonable  value  of  repairs  to  an  injured  automobile 
is  frequently  considered  as  the  proper  measure  of  damages 
for  the  injury .22  jf  go,  only  those  repairs  which  are  attribu- 
table as  resulting  from  the  accident  in  question  are  to  be  con- 
sidered.23    In  at  least  one  jurisdiction,  it  seems  that  the  value 


by  the  injury,  as  were  required  to  place 
the    property    in    usable    condition,    as 
well  as  evidence  of  its  reasonable  mar- 
ket value  when  repaired,  is  competent, 
as   bearing   on   the   reasonable   market 
value  of  the  machine  immediately  after 
the  injury.    But  if  the  property  should 
be  rendered,  by  reason  of  the  repairs, 
more  valuable  than  it  was  before  the  in- 
jury, then,  of  course,  the  full  expendi- 
ture for  repairs  should  not  be  at  the 
expense    of    the    defendant.      On    the 
other  hand,  if  by  reason  of  the  injury 
the    property    has    been    rendered    in- 
capable of  being  made,  by  repairing  it, 
as  valuable  as  it  was  immediately  be- 
fore   the    injury,    the    plaintifif    should 
not  be  required  to  lose  this  deteriora- 
tion."      Southern     Ry.    v.     Kentucky 
Grocery    Co.,    166    Ky.    94,    178   S.    W. 
1162. 

20.  Yawitz  Dyeing  &  Cleaning  Co. 
V.  Erlenbach  (Mo.  App.),  221  S  W. 
411;  Jackels  v.  Kansas  City  Rys.  Co. 
(Mo.  App.),  231  S.  W.  1023;  Cooper 
V.  Knight  (Tex.  Civ.  App.),  147  S.  W. 
349;  Metcalf  v.  Mellen  (Utah).  192 
Pac.  676. 


21.  Ciossoii  V.  Chicago,  etc.  Co.,  158 
111.  App.  42;  Latham  v.  Cleveland,  etc. 
Co..  164  111.  App.  559;  McDonell  v. 
Lake  Erie  &  Western  Ry.  Co.,  208  111. 
.\pp.  442;  Fisher  v.  City  Dairy  Co. 
(Md.),  113  Atl.  95. 

22.  Hawkins  v.  Garford  Trucking 
Go.  (Conn.),  114  Atl.  94;  Lonntcker  v. 
Van  Patten  (Iowa),  179  N.  W.  432, 
citing  Huddy  on  Automobiles  (5th 
Ed.),  p.  943;  Coggin  v.  Shreveport 
Rys.  Co.,  147  La.  — ,  84  So.  902;  Don- 
nelly V.  Poliakoflf,  79  Misc.  (N.  Y.) 
250,  139  N.  Y.  Suppl.  999;  Peters  v. 
Streep,  138  N.  Y.  Suppl.  146;  Stubbs 
V.  Molberget,  108  Wash.  89,  182  Pac. 
936,  6  A.  L.  R.  318;  Chotem  v.  Porte- 
ous,  51  D.  L.  R.  (Canada)  507.  See 
also  Walker  v.  Hilland,  205  111.  App. 
243 ;  W.  S.  Conrad  Co.  v.  St.  Paul  City 
Ry.,  130  Minn.  128,  153  N.  W.  256. 

23.  Coyne  v.  Cleveland,  etc.  R,  Co., 
208  111.  App.  425;  IndiarapoMs,  etc. 
Traction  Cb.  v.  Sherry,  65  Ind.  App. 
I.  116  N.  E.  594;  Murphy  v.  New 
Vi.rk  City  R.  Co..  108  N.  Y.  Suppl. 
1021,  58  Misc.  237.  See  also  Reda  v. 
Hammond  Co.,  187  111.  App.   182. 


Measure  of  Damages  for  Injury  to  Automomobile.     945 

of  the  repairs  is  considered  the  proper  measure  of  damage 
when  the  machine  can  be  repaired,  but  il'  not  susceptible  of 
repair,  the  measure  is  the  difference  between  the  value  before 
the  accident  and  afterwards.^^  And  it  has  been  held  that  the 
damages  are  not  limited  to  repairs  that  are  apparent  but  that 
they  include  also  the  expense  of  a  thorough  examination  of 
the  machine.25  It  is  the  value,  not  the  cost,  of  the  repairs 
which  is  essential;  if  for  some  reason  the  repairs  cost  an 
excessive  sum,  the  excess  is  borne  by  the  owner.^"  The  reason- 
able cost  of  repair  is  what  an  automobile  repair  man  would, 
in  accordance  with  the  market  and  usual  rates,  charge  for  the 
work  and  material  necessary .^^  Mere  proof  of  receipted  bills 
for  repairs  is  not  sufficient  to  prove  the  plaintiff's  case,  but 
he  must  go  farther  and  show  that  the  sums  paid  represent 
the  reasonable  value  of  the  repairs.^*  It  is  not  necessary, 
however,  that  the  owner  should  have  actually  expended  the 
money  for  the  repairs;  the  obligation  to  pay  more  may  be 
sufficient  to  sustain  the  collection  thereof  from  the  defendant.^^ 
The  owner  is  not  permitted  to  speculate  at  the  expense  of  the 
defendant  in  repairing  the  machine,  and  after  repairing  it 
once,  tearing  it  to  pieces  and  rebuilding  it  because  of  his  owm 
mistake.  Nor  can  he  make  repairs  at  an  expense  greater 
than  the  value  of  the  machine  after  it  has  been  repaired 
In  some  jurisdictions,  the  cost  of  the  repairs  is  permitted  as 
the  measure  of  damages,  but  not  to  exceed  the  difference 
between  the  value  before  the  accident  and  afterwards.  In 
such  a  case,  when  the  cost  of  repairs  is  found,  the  burden  is 
on  the  defendant  to  show  that  such  sum  is  greater  than  the 

24.  Crosson  v.  Chicago,  etc.  Co..  158  27.  Peabody  v.  Lynch,  184  111.  App 
111.  App.  42;  Latham  v.  Cleveland,  etc.       78. 

R.   Co.,   164   111.  App.   559;   Peabody  v.  28.  Oalvoston,  etc.  El.  R.  Co.  v.  Eng 

Lynch.'  184   111.   App.   78.  Hsh    (Tex.  Civ.   App.),   178   S.  W.  666 

25.  Sears  v.  Gowvre,  52  Que.  S.  C.  See  also  Indianapolis,  etc.  Traction  Co 
(Canada)   186.  V-   Sherry    (Ind.  App.K   116  N.  E.   594 

26.  Crosson  v.  Chicago,  etc.  Co.,  158  29  Kincaid  v.  Dunn.  26  Cal.  App 
111.  App.  42;  Offner  v.  Wilke.  208  111.  686,  148  Pac.  235.  See  also  Bnnert  v 
App.  463;  W.  S.  Conrad  Co.  v.  St.  Long  Island  P.  Co..  145  N.  Y.  App 
Paul  City  Ry.,  130  Minn.   128,   153  N.  Div.  552,   130  N.  Y.  Suppl.  271. 

W.    256;    Galveston,  etc.   El.   R.   Co.   v.  30.  Crosson  v.  Chicago,  etc.   Co.,  158 

English    (Tex.    Civ.    .\pp.).    178   S.   W.       111.  App.  42. 

666. 

60 


30 


946  The  Law  of  Automobiles. 

depreciated  value.^^  The  value  of  repairs  may  be  a  very 
unsatisfactory  method  of  reaching  the  damages  sustained  by 
the  owner  of  an  injured  motor  vehicle.  After  the  repairs  have 
been  made,  the  car  may  still  be  w^orth  less  than  before  the  in- 
jury ;  and,  on  the  other  hand,  the  repairs  may  actually  enhance 
its  value.^^  A  sum  must  be  added  to  or  taken  from  the  value 
of  the  repairs  to  harmonize  with  the  increased  or  decreased 
value  of  the  machine  after  the  repairs  are  made.^^ 

Sec.  721.  Expenses  of  preserving-  car  from  further  injury. 

After  an  injury  to  an  automobile  has  been  occasioned  by  the 
negligence  of  another,  it  is  the  duty  of  the  owner  to  use 
reasonable  diligence  in  an  effort  to  protect  the  property  so  as 
not  to  aggravate  the  damage,  and  he  is  entitled  to  recover 
from  the  wrongdoer  the  reasonable  expenses  incurred  in  such 
preservation.^*  Thus,  it  has  been  held  that  the  expense  of 
assembling  the  parts  after  a  collision  with  another  automobile 
and  towing  the  car  to  a  garage  and  expense  of  storage  in  the 
garage  for  a  reasonable  time  while  attempting  to  dispose  of 
the  machine  are  proper  elements  of  damage.^^ 

Sec.  722.  Usable  value  for  period  of  repairs  —  in  general. 

When,  by  reason  of  an  injury  to  plaintiff's  automobile,  he  is 
deprived  of  the  use  thereof  for  some  time,  a  troublesome  ques- 
tion has  arisen  as  to  the  damages  which  shall  be  allowed  to 
compensate  him  for  such  loss.^^     Conflicting  decisions  have 

31.  Kincaid  v.  Dunn.  26  Cal.  App.  place  where  it  was  afterwards  sold  is 
686,  148  Pac.  235;  Rhodes  v.  Firestone  not  allowed,  where  there  is  no  evidence 
Tire  &  Rubber  Co.  (Cal.  App.),  197  that  such  transportation  enabled  the 
Pac.  392.  owner  to  get  a  better  price.     Luttenton 

32.  See  Southern  Ry.  Co.  v.  Ken-  v.  Detroit,  etc.  Ry.  (Mich.),  176  N.  W. 
tucky  Grocery  Co,  166  Ky.  94.   178  S.  558. 

W.  1162:  Gilwee  V.  Pabst  Brewing  Co.,  35.  Gilwee    v.    Pabst     Brewing    Co, 

3  95    Mo.    App.    487,    193    S.    W.    886;  195  Mo.  App.  487.   193  S.  W.   886. 

Cooper    V.    Knight     (Tex.    Civ.    App),  36.  Trover. — ^Tn   an   action   of   trover 

147  S    W.  349.  for    the   conversion    of   an    automobile, 

33.  Jackals  v.  Kansas  City  Rys.  Co.  the  owner  may  be  entitled  to  special 
(Mo.  App.),  231  S.  W.  1023.  damages  such  as  the  loss  of  rental  and 

34  Gilwee  v.  Pabst  Brewing  Co.,  the  opportunity  to  sell.  Lyman  v. 
195  Mo.  App.  487,  93  S.  W.  886  James,  87  Vt.  486.   89  Atl.   932. 

Expenses  of  transporting  machine  to  Pleading   special   damage. — ^Damages 


Measure  of  Damages  for  Injury  to  Automomobile.     947 

been  made  in  diiferent  jurisdictions.  As  a  general  proposi- 
tion the  owner  of  a  commercial  truck  or  business  machine  is 
entitled  to  recover,  as  an  element  of  his  compensatory  dam- 
ages, the  usable  value  of  the  machine  during  the  time  it  is 
receiving  repairs  and  he  is  unable  to  use  the  same."  If  so, 
it  is  his  duty  to  make  the  repairs  as  soon  as  reasonably 
possible  so  that  the  damages  will  be  minimized.^  In  some 
jurisdictions,  a  distinction  is  drawn  between  the  use  of  a 
business  and  the  use  of  a  pleasure  car,  and  it  is  held  that  the 
owner  is  entitled  to  the  usable  value  of  a  business  machine  as 
an  element  of  damage,  but  is  not  entitled  to  recover  damages 
for  the  loss  of  the  use  of  an  automobile  which  is  used  purely 
for  pleasure  purposes.*^"  In  othci-  jurisdictions,  the  usable 
value  of  the  machine  is  allowed  as  an  element  of  damage. 


accruing  from  the  loss  of  the  use  of 
a  motor  vehicle  are  special  damages, 
and  the  owner  must  plead  the  same  in 
order  to  have  them  considered  as  an 
element  of  damage.  Hunter  v.  Quaint- 
ance  (Colo),  168  Pac.  918;  OiVner  v. 
Wilke,  208  111.  App.  463.  A  contrary 
decision  has  also  been  made.  Ralph  N. 
Blakeslee  Co.  v.  Rigo  (Conn.),  loi) 
Atl.  173. 

Attachment. — The  damages  sustained 
under  an  attachment  include  the  de- 
preciation in  the  value  of  the  machine, 
but,  where  the  machine  is  kept  only 
for  purposes  of  sale,  rental  value 
should  not  be  considered.  Morneault 
V.  National  Surety  Co ,  37  Cal.  App. 
285,  174  Pac.   81. 

Certainty  of  evidence. — The  evidence 
should  with  reaj^onable  certainty  fur- 
nish a  basis  for  the  computation  of  loss 
of  profits,  or  they  will  not  be  allowed. 
Adams  v.  Hardin  Motor  Co..  Ill  S. 
Car.  493,  98  S    E.  381. 

37.  Ralph  N.  Blakeslee  Co.  v.  Rigo 
(Conn.),  109  Atl  173;  Southern  Ry. 
V.  Kentucky  Grocery  Co.,  166  Ky.  94, 
178  S.  VV.  1162;  Wa^hiiigt' n,  etc.  Ry. 
Co.  V.  Fingks,  135  Md.  574.  109  Atl. 
431;  Bergstrom  v.  Mellen  (Utah),  192 
Pac.    679.      See    also   Morgan    v.    Wil- 


liams,  ]T9  Ky.  428.  200  S.  W.  650. 

Physician's  car. — In  an  action  for 
damages  to  the  automobile  of  a  physi- 
cian used  in  his  business,  he  being  re- 
quired to  hire  another  car  until  the 
completion  of  repairs  to  his  own  ma- 
chine, it  was  held  to  be  proper  to  in- 
troduce evidence  of  the  expense  of  hir- 
ing the  substitute  car.  the  cost  of  new 
parts  and  repairs,  and  also  the  depre- 
ciation on  the  machine  due  to  the  acci- 
dent. Hollander  v.  Daw?on  Construc- 
tion Co.,  66  Pitts.  Leg.  Jour.  (Pa.)  97. 

Evidence  of  owner  as  to  usable 
value. — The  owner  of  a  motor  vehicle 
has  been  permitted  to  testify  what  the 
value  of  the  use  of  his  machine  would 
be  during  the  time  he  wa.s  deprived  of 
it.  Andries  v.  Everett,  etc..  Flanders 
Co.,  177  Mich.   110,  142  N.  W.   1067. 

Estimated  future  profits  cannot  be 
recovered. — Jimeney  v.  San  Juan 
Light  &  Transit  Co  .  3  Porto  Rico  Rep. 
178;  Louisville,  etc.  R.  Co.  v.  Schues- 
ter,  183  Ky.  504,  209  S.  W.  542.  4  A. 
L.  R.  1344. 

38.  Rosenstein  v.  Bernhard  &  Tur- 
ner .Automobile  Co.  (Iowa),  180  N.  W. 
282 

39.  Hunter  v.  Quaintance  (Colo  ), 
168  Pac.  918. 


948 


The  Law  of  Automobiles. 


regardless  of  the  purpose  for  which  it  is  used.^"  In  such  a 
case,  the  fact  that  it  is  difficult  to  fix  the  amount  of  damages 
an  owner  has  sustained  through  the  loss  of  a  pleasure  vehicle 
does  not  bar  the  damages  or  require  that  they  be  placed  at  a 
nominal  amount.^    And,  in  some  jurisdictions  the  right  to 


40.  Cook  V.  Packard  Motor  Car  Co., 
88  Conn.  590,  92  Atl.  413,  L.  R.  A. 
1915C,  319;  Hawkins  v.  Garford  Truck- 
ing Co.  (Conn.).  114  Atl.  94;  Lon- 
necker  v.  Van  Patten  (Iowa),  179  N. 
W.  432;  Gilwee  v.  Pabst  Brewing  Co., 
195  Mo.  App.  487,  193  S.  W.  886;  Per- 
kins V.  Brown.  132  Tenn.  294,  177  S. 
W.  1158.  "On  this  appeal  the  ques- 
tion arises  on  an  exception  to  the  ex- 
clusion of  evidence  of  the  rental  value 
of  the  plaintifT's  car,  on  the  ground 
that  the  plaintiff  used  and  intended  to 
use  his  car  for  pleasure  only,  and  not 
for  rent  or  profit  Stated  more  gen- 
erally, the  question  is  whether  the 
right  to  recover  substantial  damages 
for  being  deprived  of  the  use  and  pos- 
session of  a  chattel  as  a  result  of  a 
tortious  injury  to  the  chattel  itself  de- 
pends on  the  character  of  the  use 
which  the  owner  intended  to  make  of 
it.  during  the  period  of  the  detention. 
We  fail  to  see  why  the  character  of  the 
intended  use  should  detennine  the 
rigl'.t  to  a  recovery,  although  it  will, 
of  course,  affect  the  amount  of  recover- 
able damages."  Cook  v.  Packard  Mo- 
tor Car  Co..  88  Conn.  590,  92  Atl.  413, 
L.  R.  A.  (1915C,  319.  "Nor  may  it  be 
held,  under  the  authorities,  that  the 
right  to  recover  substantial  damages, 
as  distinguished  from  nominal  dam- 
ages, depends  upon  the  precedent  use 
of  the  car  for  profit.  Compensation  for 
injury  being  the  rule,  there  can  be  no 
just  reason  for  the  allowance  of  the 
usable  value  in  the  one  case  and  its 
disallowance  in  the  other.  As  pointed 
out  by  Mr.  Sedgwick  (section  243a), 
the  value  of  the  use  of  personal  prop- 
erty is  not  the  mere  value  of  its  in- 
tended  use.   but  of   its   present   poten- 


tial use,  whether  availed  of  or  not  by 
its  owner.  His  right  of  user,  whether 
for  business  or  pleasure,  is  absolute, 
and  whoever  injures  him  in  the  exer- 
cise of  that  right  cannot  complain  when 
held  to  respond  on  the  basis."  Perkins 
V.  Brown,  132  Tenn.  294,  177  S.  W. 
1158. 

41.  Cook  V.  Packard  Motor  Car  Co., 
88  Conn.  590,  92  Atl.  413,  L.  R.  A. 
19150,  319.  "  An  automobile  owner,  who 
expects  to  use  his  car  for  pleasure  only, 
has  the  same  legal  right  to  its  con- 
tinued use  and  possession  as  an  owner 
who  expects  to  rent  his  car  for  profit; 
and  the  legal  basis  for  a  substantial 
recoA^ery,  in  case  of  a  deprivation  of 
the  use  of  the  car,  is  the  same  in  one 
case  as  in  the  other.  Such  an  invasion 
of  property  right  calls  for  an  award  of 
substantial,  as  distinguished  from 
nominal,  damages,  and  the  only  dffi- 
culty  in  applying  the  rule  of  compensa- 
tory damages  to  cas^s  of  this  character 
is  the  very  practical  difficulty  of  esti- 
mating the  actual  damages  in  money. 
But  the  law  does  not  deny  substantial 
damages  to'  one  who  has  suffered  a  sub- 
stantial injury,  solely  on  the  ground 
that  the  injury  has  not  produced  or 
will  not  produce  a  pecuniary  loss.  For 
example,  no  one  would  contend  that 
only  those  plaintiffs  whose  incomes  de- 
pended on  their  earning  capacity  could 
recover  substantial  damages  for  in- 
juries to  person  or  character.  So  in 
this  case  the  fact  that  thp  plaintiff  has 
suffered  no  pecuniary  loss  ought  not 
to  prevent  a  recovery  proportionate  to 
the  actual  extent  of  his  injury."  Cook 
v.  Packard  Motor  Oar  Co ,  88  Conn. 
590,  92-  Atl.  413,  L.  R.  A.   1915C,  319. 


Measure  of  Damages  i<oji  Ln.iuky  to  Automomobile.     949 


recover  the  usable  value  of  an  injured  pleasure  vehicle,  does 
not  depend  upon  whether  the  owner  has  rented  a  substitute 
machine  during  the  procurement  of  repairs  to  his  own  ma- 
chine.*^ In  at  least  one  jurisdiction  the  rules  seem  to  be  that, 
when  the  injured  machine  can  be  repaired,  the  owner  is 
entitled  to  the  value  of  the  repairs  together  Avith  the  value  of 
the  use  of  the  machine  while  the  repairs  are  being  made ;  but, 
if  the  machine  cannot  be  repaired,  the  measure  of  damages  is 
only  the  difference  between  the  value  before  and  after  the 
injury."^  In  New  Yorh,  the  loss  of  the  use  of  the  machine  is 
not  allowed  unless  the  machine  was  used  for  business  pur- 
poses, or  unless  the  owner  procured  another  to  take  its  place 
during  the  time  it  was  out  of  order.** 

Sec.  723.  Usable  value  for  period  of  repairs  —  rental  value. 

The  rental  value  of  similar  machines  is  not  a  fair  criterion 
of  the  usable  value  of  an  automobile  which  the  o^vner  has  lost 
through  an  injury  thereto.*^     In  the  first  place,  the  rental 


42.  Perkins  v.  Brown,  132  Tenn. 
294,  177  S.  W.  1158.  wherein  it  was 
said:  "It  is  next  urged  that  a  dis- 
allowance of  the  usable  value  of  the 
car  must  result,  because  the  plaintiff 
did  not  actually  expend  money  in  liir- 
ing  a  substitute  car  for  recreation  pur- 
poses. This  insistence  also  is  not  ten- 
able. .  .  .  Two  recent  decisions  of 
the  House  of  Lords  of  England  have 
iTiled  the  point.  In  The  Gretna  Holme 
(1897),  A.  C.  597,  a  recovery  was  al- 
lowed for  the  loss  of  the  use  of  a 
dredger,  injured  in  a  collision,  although 
the  owner  was  out  of  pocket  no  definite 
sum  for  a  substitute  during  the  period 
necessary  for  repairs;  and  in  The 
Mediana  (1900).  A.  i:.  112,  where 
there  was  a  lightship  substitutetl  for 
the  lightship  damaged,  and  it  was 
argiied  that,  as  nothing  was  paid  for 
the  hire  of  the  substitute,  no  damages 
were  consequent  or  allowable.  I^rd 
Chancellor  Halsbury  gave  his  o{>inion, 
and  the  judgment  was.  in  opjuji^ition 
to  that  argument." 


43.  Crosson  v.  Chicago,  etc.  Co.,  158 
111.  App.  42;  Latham  v.  Cleveland,  etc. 
R.  Co.,  164  111.  Aipp.  559. 

44.  Foley  v.  Forty-second  St ,  etc.  R. 
Co.,  52  Misc.  (K  Y.)  183.  101  N.  Y. 
Snppl.  780:  Donnelly  v.  PoliakofT.  79 
Misc.  (N.  Y.)  250,  139  N.  Y.  Suppl. 
999;  Cardozo  v.  Bloomingdale.  79  Misc. 

(N.  Y.)  605,  104  N.  Y.  Suppl.  377; 
Murphy  v.  Now  York  City  R.  Co.,  108 
N.  Y.  Suppl.  1021,  58  Misc.  237;  Peters 
V.  Streep.  138  N.  Y.  Suppl.  146.  See 
also  Renault  v.  Simpson-Crawford  uo  , 
108  N.  Y.  Suppl.  700.  Compare  Dett- 
mar  v.  Burns  Bros.,  Ill  Misc.  (N.  Y.) 
189.  181  N.  Y.  Suppl.  146. 

Evidence  of  profits  derived  from  use 
of  machine. — In  the  absence  of  proof 
that  the  owner  of  an  injured  machine 
could  not  hire  another  as  a  substitute, 
evidence  of  the  profits  he  would  have 
derived  from  the  use  of  his  machine  ia 
not  admissible.  Universal  Taximeter 
Cab  Co.  V.  Blumenthal.  143  N.  Y. 
Suppl.  1056. 

45.  Cook  v.  Packard  Motor  Car  Co., 


950 


The  Law  oy  Automobiles. 


value  of  a  motor  vehicle  necessarily  includes  a  substantial 
allowance  for  depreciation  and  repairs,  to  which  the  owner's 
car  while  undergoing  repairs  is  not  being  subjected.  More- 
over, the  rental  value  may  include  a  substantial  allowance 
for  overhead  expenses  and  a  profit  on  the  business  of  rent- 
ing cars.""^  Again,  these  additional  items  entering  into  the 
rental  value  of  a  vehicle  cannot  be  deducted  so  as  to  leave  the 
usable  value,  for  it  does  not  necessarily  follow,  without  evi- 
dence proving  the  fact,  that  the  car  would  probably  have  been 
rented  every  day  or  for  any  given  number  of  days.''^  But,  in 
some  States,  when  the  property  injured  is  a  commercial  truck, 
the  damages  may  be  computed  from  the  reasonable  net  rental 
value  of  the  truck  in  question,  or  of  similar  trucks,  the  lessee 
furnishing  the  driver  and  bearing  all  the  other  expenses  which 
the  owner  would  bear  in  the  operation  of  his  own  car.**  But 
evidence  of  the  rental  value  of  a  pleasure  car,  though  not 


88  Conn.  590,  92  Atl.  413.  L.  R.  A. 
1915C,  319 ;  Hawkins  v.  Garf  ord  Truck- 
ing Co.    (Conn  ),  114  Atl.  94. 

Delay  in  shipment. — The  rental  value 
of  the  machine  has  been  allowed  as  the 
measure  of  damages  in  an  action 
against  a  railroad  for  delay  in  ship- 
ping an  automobile.  McCabe  v.  Chi- 
cago, etc.  R.   Co.,   215  111.   App.  99. 

46  Cook  V.  Packard  Motor  Car  Co., 
88  Conn.  590,  92  Atl.  413,  L.  R.  A. 
1915.  319.  "It  is  clear,  for  example, 
that  the  plaintiff  cannot  recover  the 
rental  value  of  his  car  during  the 
period  of  detention,  for  such  rental 
value  includes  a  substantial  allowance 
for  depreciation  and  repairs,  to  which 
the  plaintiff's  car  has  not,  in  the  mean- 
time, been  subjected.  It  also  includes 
a  substantial  allowance  for  the  over- 
head expenses  and  the  profits  of  carry- 
ing on  the  business  of  renting  motor 
cars;  and  the  plaintiff  was  not  engaged 
in  that  business.  Neither  is  the  plain- 
tiff entitled  to  the  rental  value  of  his 
ear  less  deductions  for  these  items, 
for,  even  if  he  had  been  engaged  in  the 
business     of     rentins     motor     rara.     it 


would  not  follow,  without  evidence  to 
that  effect,  that  the  car  would  prob- 
ably have  been  rented  every  day,  or  for 
any  given  number  of  days."  Cook  v. 
Packard  Motor  Car  Co.,  88  Conn.  590. 
92  Atl.  413. 

47.  Cook  v.  Packard  Motor  Car  Co., 
88  Conn.  590.  92  Atl  413.  L.  R.  A. 
1915C,    319. 

48.  Southern  Ry.  v.  Kentucky  Gro- 
cery Co.,  166  Ky.  94.  178  S.  W.  1162. 
"Wliile  the  amount  to  be  allowed  is  to 
be  determined  according  to  the  market 
value  of  the  use  of  the  property,  it  is 
the  net  usaible  value,  less  the  expense 
of  keeping  up  the  property  which  may 
be  recovered.  In  determining  the  value 
of  the  use  under  the  above  rule,  care 
should  be  taken  not  to  permit  the  fix- 
ing of  an  amount  out  of  all  propor- 
tion to  the  value  of  the  thing  itself; 
otherwise  the  result  is  not  for  com- 
pensation for  use,  but  punishment  for 
a  wrong  in  a  case  where  exemplary 
damages  as  such  would  not  be  allowed  " 
Mutch  v.  Long  Beach  Imp.  Co.  (Cal. 
App.).  190  Pac.  638. 


Measure  of  Damages  for  Injury  to  Automomobile.     9r3l 

furnishing  a  measure  of  damages,  should  be  received  as  a 
fact  proper  to  be  considered  in  determining  the  usable  value/'^ 
However,  in  Neiv  York,  it  is  held  that  evidence  as  to  the  rental 
value  of  the  machine  is  inadmissible  when  it  is  not  shown  that 
the  owner  used  or  had  need  of  the  use  of  another  machine 
during  the  period  of  his  own  was  receiving  repairs.^*^  And 
where  it  appears  that  the  machine  was  used  only  for  purposes 
of  health  and  pleasure,  it  is  held  in  New  York  that  proof  of 
its  rental  value  is  improper.^^  If  rental  value  be  allowed  as 
the  measure  of  damage^  the  aggregate  rental  for  the  full 
period  should  be  the  basis  of  computation,  not  a  price  based 
on  a  daily  or  weekly  rental .^^ 

Sec.  724.  Payments  to  chauffeur  during  repairs. 

One  whose  automobile  has  been  injured  through  the  con 
duct  of  another  is  generally  entitled,  as  a  part  of  his  damages, 
to  such  reasonable  obligatory  expenses  as  have  been  rendered 
fruitless  as  the  natural  consequence  of  the  wrongful  act. 
Thus,  when  the  owner  is  compelled  to  pay  the  salary  of  the 
chauffeur  and  the  owner  has  no  use  for  his  services  ornng 
to  the  car  being  laid  up  for  repairs,  this  expense  may  ho 
charged  against  the  tort-feasor.^^ 

49.  Cook  V.   Packard  Motor  Car  Co.,  W  esteliester    Fisli    Co.,    lOo    Misc.     (N 

88    Conn.    .590     92   Atl.    413,    L    R.    A.  Y.)    595,   17.3  N"    Y.  Suppl.  437. 

1915    319.  51.  Bondy  v.  New  Y'ork  City  R.  Co.. 

5o'.  Murphy    v.    New    York    City    R.  .-0  -Misc.   (N.  Y.)  602,  107  N.  Y.  Suppl. 

Co.,  58   Misc.    (N.   Y.)    237,   lOS   N.  Y.  M.     See  also  Dettmar  v.  Burns  Bros., 

Suppl.   1021.  Ill    Misc.     (N.    Y)     198,    181    N.    Y. 

Taxicab.— One   engaged   in    the   taxi-  Suppl.  146;   Bernheim  v.  Roth,  157  N. 

cab  business,   using  a  number  of  cars,  Y.  Suppl.  902. 

in  case  of  injury  to  one,  may   recover  52.  Perkins  v.  Brown,  132  Tcnn.  294. 

the    rental    value    of   similar   machines  177  S.  W.  1158. 

while    it    is    undergoing    repairs.      The  53.  Cook  v.  Packard   Motor  (  ar  Co, 

owner    cannot    recover    the    estimated  88    Conn.    590.   92    At!     413.    I..    R.    A. 

profits  the  machine  would  have  made.  1915C,  319. 
Naughton      Mulgrew      Motor      Co.      v. 


952  The  Law  of  Automobiles. 

CHAPTER  XXVII. 

CRIMINAL  OFFENSES. 

Section  725.  Criminal  responsibility  for  acts  of  chauffeur — owner. 

726.  Criminal  responsibility  for  ads  of  chauffeur — passenger. 

727.  Criminal  responsibility  for  acts  of  chauffeur — accessory    to     viola- 

tion of  law. 

728.  Speed  regulations — common  law  misdemeanor. 

729.  Speed  regulations — power  of   State. 

730.  Speed  regulations — violation  of  ordinance. 

731.  Speed  regulations— establishment  of  signs  as  to  speed  limited  by 

ordinance. 

732.  Speed  regulations — definiteness  of  statute. 

733.  Speed  regulations — exceeding  "common  traveling  pace." 

734.  Speed  regulations — violation  not  malum  in  se. 

735.  Speed  regulations — intention. 

736.  Speed  regulations — ignorance  of  speed  limit. 

737.  Speed  regulations — exceptions    in   emergency   case — police    and    fire 

apparatus. 

738.  Speed  regulations — warning  autoists  of  speed  trap. 

739.  Speed  regulations— former    jeojpardy. 

740.  Speed  regulations — identification   of  offender. 

741.  Speed  regulations — information  or  indictment. 

742.  Speed  regulations — punishment. 

743.  Speed  regulations — evidence  of  speed. 

744.  Statutes  with  no  prescribed  limit  of  speed. 

745.  Defending  speed  cases — in   general. 

746.  Defending  speed  cases — ^arrests. 

747.  Defending  speed  cases — extenuating  facts  in  defense. 

748.  Defending  speed  cases — pr0t)aring  the  defense. 

749.  Defending  speed  cases— making  tests. 

750.  Defending  speed  cases — that  rate  of  speed  was  on  speedway  where 

permitted. 

751.  Defending  speed  cases — identity  of  defendant. 

752.  Defending  speed  cases — arrests  at  night. 

753.  Defending  speed  cases — venue. 

754.  Defending  speed  cases — evidence  of  peace  officers. 

755.  Defending  speed  cases — evidence  of  speed. 

756.  Defending  speed  cases — speedometer. 

757.  Homicide — reckless  driving  as  murder. 

758.  Homicide — negligent  or  illegal   driving   as  m.nnslanghter. 

759.  Homicide — unusual  speed. 

760.  Homicide— racing  along  public  highways. 

761.  Homicide — accidental  killing. 

762.  Homicide — death  of  passenger  in  motor  vehicle. 

763.  Homicide — liability  of  owner. 

764.  Homicide — burden  of  proof. 


Criminal  Offenses.  953 

Section  765.  Homicide — contributory  negligence  of  decedent  as  a  defense. 
76(5.  Homicide — prior  reputation  of  chauffeur  for  care. 

767.  Assault  and  battery. 

768.  Larceny  or  theft  of  automobile. 

769.  Using  machine  without  consent  of  owner. 

770.  Failure  to  register  machine. 

771.  Failure  of  chauffeur  to  have  license. 

772.  Driving  machine  while  intoxicated. 

773.  Violation  of  law  of  road. 

774.  Failure  to  stop  on  signal. 

775.  Stopping  and  furnishing  identity  in  case  of  accident — constitution- 

ality of  statute. 

776.  Stopping  and  furnishing  identity  in  case  of   accident — intent. 

777.  Stopping  and  furnishing  identity  in  case  of  accident — burdeu  of 

proof. 

778.  Stopping  and  furnishing  identity  in  case  of  accident — time  of  re- 

port. 

779.  Stopping  and  furnishing  identity  in   case  of  accident — no  person 

to  receive  report. 

780.  Light  on  machine. 

781.  Removal    of   manufacturer's  serial   number. 

782.  Beward  for  apprehension  of  offenders. 

Sec.  725.  Criminal  responsibility  for   acts  of   chauffeur  — 
owner. 

Reckless  driving  on  the  part  of  the  operator  of  a  motor 
vehicle  which  results  in  the  death  of  another  traveler  may, 
in  some  cases,  furnish  a  basis  for  a  charge  of  manslaughter.' 
Of  course,  criminal  responsibility  cannot  be  urged  unless  the 
conduct  of  the  operator  was  such  as  to  make  him  civilly  liable 
for  damages  arising  therefrom.^  But  the  owner  of  the  ma- 
chine is  not  generally  liable  to  a  criminal  prosecution  for  the 
neglect  of  the  chauffeur  merely  because  he  was  riding  in  tht- 
maehine  at  the  time  the  offense  was  committed.^  Tn  ease  of 
a  prosecution  for  homicide  arising  from  a  collision  between 
an  automobile  and  a  buggy,  the  owner  of  the  machine  is  not 
to  be  convicted,  though  riding  in  the  machine  at  the  time, 
where  he  was  not  running  the  machine  at  the  time  and  could 
not  have  done  anything  to  have  avoided  the  accident,  and 
there  was  no  evidence  that  it  was  the  habit  of  the  driver  to 

1.  Section  7.')7,  et  scif.  3    Commonwoaltli     \.     Drusobell.     66 

2.  Reg.  V.  Birchall,  4  F.  &  F.   (Eiig.)       Pitts.   J^g.   Jour.    (Pa.)    520. 
1087. 


954  The  Law  of  Automobiles. 

run  dangerously  close  to  other  vehicles  to  the  knowledge  of 
the  owner  without  correction.'*  So,  too,  the  owner  is  not  liable, 
though  riding  in  the  machine,  where  he  gave  no  orders  to  the 
chauffeur,  and  it  appears  that  the  chauffeur  acted  on  his  own 
volition  with  reference  to  the  reckless  conduct  under  con- 
sideration.^ Clearly,  the  owner  of  the  motor  vehicle  is  not 
liable,  if  he  was  not  riding  in  the  machine  at  the  time  of  the 
offense  and  the  machine  was  used  without  his  knowledge  or 
consent.^  Liability  may,  however,  be  imposed,  when  the  owner 
is  controlling  the  operation  of  the  machine,  or  he  may  be 
liable  on  the  theory  that  he  was  an  accessory  to  the  commis- 
sion of  the  offense.  Thus  in  an  English  case,  an  automobilist 
was  competed  of  unlawfully  driving  his  motor  car  at  a  speed 
dangerous  to  the  public.  At  the  hearing  of  the  case  on  appeal 
there  was  a  conflict  of  evidence  as  to  whether  the  car  was 
being  driven  by  the  appellant  or  by  a  lady  seated  by  his  side 
in  the  car ;  but  the  court,  without  deciding  who  was  driving 
the  car,  dismissed  the  appeal,  at  the  same  time  finding  in 
fact  that  if  the  lady  was  driving  she  was  doing  so  mth  the 
consent  and  approval  of  the  appellant,  who  must  have  known 
that  the  speed  was  dangerous,  and  who,  being  in  control  of  the 
car,  could  and  ought  to  have  prevented  it.  The  court  found 
tliat  there  was  evidence  on  which  the  appellant  could  be  con- 
victed of  aiding  and  abetting  the  commission  of  a  crime.'^ 
And  in  a  case  in  Massachusetts  arising  from  the  operation 
of  an  automobile  at  an  excessive  rate  of  speed,  it  was  held 
that  proof  that  the  machine  was  registered  with  the  Massa- 
chusetts Highway  Commission  by  the  defendant  in  his  own 
name  and  was  run  by  the  operator  at  an  illegal  speed  while 
the  defendant  was  in  the  tonneau,  established  prima  facie  that 
the  defendant,  having  power  to  control  the  machine,  either 
knew  or  allowed  it  to  be  illegally  run,  and  he  was  therefore 
guilty.^  And  where  the  regulation  expressly  prohibits  the 
owner  riding  therein  from  permitting  a  certain  conduct  on 

4.  People  V.  Scanlon,  132  N.  Y.  App.       Montcr.  L.  Rep.    (Pa  )    197. 

Div.  528,   117  N.  Y.   Suppl.  .57  7.  Du  Cros  v.  Lamhourne   (1907),  L. 

5.  Commonwealth     v.    Druschell,.,  66      J.   (K.  B.)   50. 

Pitts.  Leo-.  Jour.   (Pa.)   520.  8.  Commonwealth    v.    Sherman.     1,91 

6.  Commonwealth       v.       Bacon.      24       Mass.  439,  78  N.  E.  98. 


Criminal  Offenses.  955 

the  part  of  the  operator  of  tiie  inaehiiK',  the  courts  have  no 
difficulty  in  sustaining  a  criminal  prosecution  against  the 
owner.^  Thus,  under  a  statute  forbidding  the  owner  riding 
in  a  machine  from  causing  or  permitting  the  vehicle  to  be 
operated  at  a  dangerous  speed,  the  owner  may  be  criminally 
liable  for  a  violation,  though  he  was  engaged  in  conversation 
with  his  wife  in  the  rear  seat  and  was  not  conscious  that  the 
machine  was  driven  at  an  excessive  speed." 

Sec.  726.  Criminal  responsibility  for  acts  of  chauffeur  — 
passenger. 

If  the  owner  of  a  motor  vehicle  is  not  criminally  responsible 
for  the  reckless  driving  of  his  chauffeur,"  a  fortiori,  one  who 
is  a  mere  guest  or  passenger  in  the  car  is  not  liable  to  crim- 
inal prosecution.  If,  however,  a  motor  vehicle  is  operated  so 
as  to  violate  the  law  concerning  speed  while  a  guest  is  in  it, 
he  may  be  said  to  be  a  "user"  of  the  machine,  although  he  is 
not  actually  driving.  Some  of  the  State  automobile  acts  in  this 
country  provide  that  no  motor  vehicle  shall  be  driven  beyond 
a  certain  rate  of  speed  at  certain  places.  This  prohibition 
means,  not  only  that  the  person  who  has  his  hands  upon  the 
wheel  shall  not  drive  beyond  the  speed  limit,  but  no  one  shall, 
who  has  it  in  his  power  to  prevent  it,  allow  the  machine  to 
be  driven  faster  than  the  maximum  rate.  A  glaring  instance 
of  the  statutory  criminal  liability  of  a  guest  is  illustrated  by 
an  enactment  such  as  the  following: 

*'No  person  or  persons  shall  be  allowed  to  use,  operate  or 
drive  any  motor  vehicle  .  .  .  at  a  greater  speed  than  a 
mile  in  six  minutes,  etc. ' ' 

It  will  be  seen  that  persons  are  thus  prohibited  from  using 
automobiles  which  are  being  driven  at  a  higher  rate  than  the 
law  prescribes.  In  another  section  of  the  same  a(;t  it  was 
provided  that, 

"Any  person  using  or  operating  a  motor  vehicle     .     .     . 

9.  See  Peo])It>  v.  Colon.  85  Mise.  Harrison.  IS.T  X.  Y.  App.  Div.  812,  170 
(X.  Y.)    229,   148  K  Y.  Suppl.  321.  K    V.    Suppl.    8TG.    rtn'orsin'T   People   v. 

10.  People    V.    Morosini,   X.    Y.   liaw       llairison,  102  Mist'.  151. 
Journal,    April     18,     1918;     People    v.  11.  Section   725. 


956  The  Law  of  Automobiles. 

shall  have  displayed  in  a  conspicuous  place  on  the  front  and 
back  of  said  vehicle  tags  furnished  by  the  State  Highway 
Department,  etc.'* 

These  two  sections  might  be  construed  to  apply  to  guests. 
A  guest  might  also  be  considered  as  a  principal  violator  of 
the  law,  even  though  he  did  not  actually  drive  the  machine  at 
the  time,  if  the  machine  was  under  his  control  and  guidance 
and  he  was  acting  in  the  capacity  of  director  of  its  movements. 

Sec.  727.  Criminal  responsibility  for  acts  of  chauffeur  — 
accessory  to  violation  of  law. 
A  person  who  is  prosecuted  for  driving  an  automobile  at  a 
speed  dangerous  to  the  public  may  be  convicted,  although  it 
may  appear  that  he  was  not  actually  driving  at  the  time,  if 
he  was  in  fact  aiding  and  abetting  the  commission  of  the 
offense.^ 

Sec.  728.  Speed  regulations  —  common  law  misdemeanor. 

To  operate  a  vehicle  along  a  public  road  or  street,  greatly 
to  the  danger  and  inconvenience  of  all  persons  traveling  along 
said  highway,  is  such  a  wrong  as  injuriously  affects  the  rights 
of  the  public,  who  are  entitled  to  travel  along  such  public 
thoroughfare,  laid  out  and  kept  up  by  the  public  for  their 
convenience  and  accommodation,  without  exposure  to  such 
danger  and  inconvenience.  While  any  person  may  drive  his 
vehicle  at  such  speed  as  he  may  please,  yet,  in  enjoying  the 
privilege  of  free  use  of  his  property,  he  has  no  right  to  expose 
others  to  injury  or  to  infringe  upon  the  rights  of  the  general 
public  Running  and  racing  a  vehicle  along  a  public  road,  no 
necessity  being  shown  for  such  speed,  is  not  the  ordinary 
and  proper  mode  in  which  such  roads  are  used  by  prudent 


12.  Buford  V.  Sims,  67  L.  J.  K.  B 
655;  [1898]  2  K.  B.  641;  Du  Cros  v 
Lambourne    (1907),  L.  J.    (K.  B.)    50 

Conviction  of  owner  of  car  as  prin 
cipal  for  aiding   and   abetting  in  tin 


any  person  who  aids  and  abets  the 
commission  of  an  offense  punishable  on 
summary  conviction  may  be  convicted 
on  an  information  charging  him  with 
the  offense  as   principal.     In  this  case 


lawfully  driving  motor  car  at  a  speed  the  owner  was  in  control  and  sitting 

dangerous  to  the  public  held  proper  un-  beside   the   driver.     Du    Cros  v.   Lam- 

der  section  5  of  English  Summary  Jur-  bourne   (1907).  L.  J.    (K.  B.)   50. 
isdiction    Act   of    1848    providing   that 


Criminal  Offenses. 


957 


men.  They  were  not  intended,  by  the  very  purpose  for  which 
they  are  opened  and  kept  up,  for  any  such  use,  but  for  the 
ordinary  and  usual  travel  of  the  public.  Speeding  and  racing 
on  the  public  highways  are  well  calculated  to  disturb  public 
order  and  the  public  rights  are  violated.  To  run  a  race  on  a 
public  highway  or  to  excessively  speed  a  vehicle,  to  the  danger 
and  inconvenience  of  people,  is  a  cominon-law  misdemeanor. 
It  is  proper  to  add,  that  there  may  be  necessity  for  riding  at 
high  speed  along  even  the  public  road,  as  in  cases  of  sick- 
ness, or  to  give  a  neighbor  notice  of  great  personal  danger  to 
his  property.    Such  necessity  is  a  matter  of  defense.^^ 

Sec.  729.  Speed  regulations  —  power  of  State. 

Under  its  police  power,  it  is  well  settled  that  the  State  may 
enact  regulations  prescribing  the  maximum  speed  at  which 
motor  vehicles  shall  be  driven  along  the  public  highways  of 
the  State.^^     A  speed  regulation  is  not  unconstitutional  as 


13.  Speeding  misdemeanor  under 
common  law. — State  v.  Battery,  6 
Baxt.  (Tenn.)  545.  See  also  Redman 
V.  State,  33  Ala.  428.  A  right  of  high- 
way does  not  include  a  right  of  rac- 
ing, and  a  person  who  had  been  a  party 
to  a  hurdle  race  is  jointly  liable  for 
putting  the  hurdles  on  the  ground,  al- 
though lie  took  no  actual  part  in  the 
race.  Sovverby  v.  Wadsworth.  3  F.  & 
r.    (Eng.)    734. 

That  horse  racing  is  illegal,  see 
State  V.  Burgett,  Smith.  340;  Watson 
V.  State,  3  Ind.  123;  Robb  v.  State,  52 
Ind.  218;  State  v.  Fleetwood.  16  Mo. 
448;  State  v.  Wagston,  75  Mo.  107; 
Goldsmith  v.  Stat?,  38  Tenn.  (1  Head) 
154;  State  v.  Catchings,  43  Tex.  654. 
It  is  an  ofTense  for  a  person  to  permit 
his  vehicle  to  be  run  in  a  race  on  a 
•public  highway,  and  a  separate  offense 
for  a  person  to  act  as  a  driver  in  such 
a  race.  State  v.  Ness,  1  Ind.  (1  Cart.) 
64;  see  also  Watson  v.  State,  3  Ind. 
123;  State  v.  Fidler,  26  Tenn.  (7 
Hump.)  502;  Goldsmith  v.  State.  38 
Tenn.  (1  Head)  154,  holding  that  a 
bet  or  a  wager  is  immaterial. 


Speed  contests  on  the  public  high- 
ways are  illeg^il  indictable  nuisances 
and  all  partici])ants  may  be  prosecuted 
together  with  tlie  promoters.  Johnson 
V.  New  York,  109  App.  Div.  (N.  Y.) 
821,  96  N.  Y.  Suppl.  1130.  judgment 
reversed  18G  N.  Y.  139,  78  N.  E.  715. 
14.  California. — Ex  parte  Smith,  26 
Cal.  App.  116.  146  Pac.  82. 

Illinois.— 'Peo])]e  v.  Lloyd,  178  111. 
App.  66;  People  v.  Sumwalt,  178  111. 
App.  357;  People  v.  Beak,  291  111.  449, 
126  N.  E.  201. 

Kansas.— State  v.  Bailey,  107  Kans. 
637.  193  Pac.  354,  citing  Huddy  on 
Automobiles  (5th  Ed.),  §  729. 

il/ame.— State  v.  Mayo,  106  Mo.  62. 
75  Atl.  295,  26  L.  R.  A.    (N.  S.)    502. 

Jlinnesota. — State  v.  Waterman,  113 
Minn.  157.  130  N.  W.  972:  Schaar  v. 
Comforth,  128  Minn.  460,  151  N.  W. 
275. 

.UisNOuri. — City  of  St.  Louis  v.  Ham- 
mond, 199  S.  W.  411. 

Nebraska. — Schultz  v.  State.  88  Nt  b. 
613.  130  N.  W.  972.  34  L.  K.  .\  (N 
S.)   243. 

i\nd  see  sections  57,  230. 


958  The  Law  of  Automobiles. 

class  legislation,  though  a  different  speed  is  thereby  pre- 
scribed than  is  allowable  for  street  cars  or  other  convey- 
ances.^^ One  who  operates  a  motor  vehicle  on  a  public  high- 
way at  a  speed  which  is  unreasonable  under  the  circumstances 
may  be  liable,  not  oiil}^  to  civil  liability  for  damages  thereby 
sustained  by  other  travelers,^*^  but,  if  he  is  thereby  violating  a 
valid  speed  regulation,  he  may  be  subject  to  a  criminal  prose- 
cution." If  his  speed  is  in  excess,  both  of  a  statutory  limita- 
tion and  of  an  effective  municipal  ordinance,  he  may  be  pro- 
ceeded against  under  either  regulation,  but  only  one  judg- 
ment of  conviction  can  be  rendered  against  him  for  a  single 
offense.^^ 

Sec.  730.  Speed  regulations  —  violation  of  ordinance. 

Unless  precluded  by  statute,  it  is  well  established  that  a 
municipality  may  make  reasonable  regulations  prescribing  the 
rate  of  speed  which  shall  not  be  exceeded  by  motor  vehicles 
within  the  corporate  boundaries.^^  The  State,  however,  is  the 
supreme  law  making  power  with  reference  to  the  use  of  high- 

15.  Christy  v.  Elliott.  216  111.  31,  I  mond,  199  S.  W.  411;  C'tv  of  Windsor 
L.  R.  A.  CN.  S.)  215,  74  N.  E.  1035,  3  \-.  Bast  (Mo.  App.).  199  S.  W.  722. 
Ann.  Cas.  487  108  Am.  St.  Rep.  196;  New  York. — People  v.  Untermeyer, 
City  of  St.  Louis  v.  Hammond  (Mo.),  153  App.  Div.  176,  138  N.  Y.  Suppl, 
199  S.  W.  411;  Chittenden  v.  Colura-  334;  People  v.  Fitzgerald,  101  Misc. 
bus.  26  Ohio  Circuit  Rep.  531.  And  see  695.  168  N.  Y.  Suppl.  930;  People  v. 
section  62.  Dwyer,   136  N.  Y.   Suppl,    148;    People 

16.  Section  303,  et  seq.  v.  Bell,   148  N.  Y.  Suppl.  753;   People 

17.  People  V.  Kelly,  204  111.  App.  v.  Ruetiman,  85  Misc.  233.  148  N.  Y. 
201.                                                       .  Suppl.  612. 

Speeding   around   curve. — 'See   Dever-  Ohio. — City   of   Fremont   v.   Keating, 

eaux   V.    State    (Ga.   App.),    106    S.   E.  96  Oh.  St.  468,  118  N.  E.   114. 

739.  Oregon. — ^Kalich   v.   Knapp.  73   Oreg. 

18.  People  V.  Fitzgerald.  101  Misc.  558,  152  Pac.  594;  Everart  v.  Fischer, 
(N.  Y.)   695,  168  N.  Y.  Suppl.  930.  75  Oreg.  316,  145  Pac.  33. 

19.  California.  —  ju.x  parte  Daniels  Pennsylvania. — Radnor  Tp.  v.  Bell, 
(Cal.),  192  Pac.  44.  27  Pa.  Super.  Ct.  1. 

Illinois.     —     Chicago     v.     Kluever,  And  see  sections  70  73. 

257  111.  317.  100  N.  E.  917;  Chicago  v.  Park    commissioners    may    have   the 

Shaw  Livery  Co.,  258  111.  409,  101  N.  power  to  regulate  the  speed  of  automo- 

W.  588.  biles    driving   through    parks   or    park- 

Iowa. — Pilgrim  v.   Brown,  168  Iowa,  ways.      Commonwealth    v.    Tyler,    199 

177,  150  N.  W.  1.  Mass.  490,  85  N.  E.  569.     And  see  sec- 

Missouri. — City  of  St.  Louis  v.  Ham-  tion  73. 


Criminal  Offenses. 


\)b\) 


ways  and  it  may  reserve  all  of  the  burden  of  prescribing 
the  rates  of  speed  upon  itself  and  forbid  municiijalities  from 
passing  regulations  relative  thereto.^^  And  regulations  which 
have  been  duly  enacted  by  the  common  comicil  or  legislative 
body  of  a  city  or  village  may  be  abrogated  by  the  State.  The 
State  may  render  void  a  municipal  ordinance  without  saving 
pending  prosecutions  from  the  effect  of  its  action.^^  And,  in 
some  jurisdictions,  municipalities  are  not  authorized  to  punish 
a  violation  of  their  ordinances  by  resort  to  criminal  process.^^ 
Municipal  ordinances,  to  be  effective,  must  be  reasonable.^ 
The  courts  do  not  generally  take  judicial  notice  of  municipal 
ordinances,  and  the  People,  if  relying  thereon,  must  prove  the 
same.^*  Moreover,  in  some  jurisdictions,  the  ]jurden  is  on  the 
People  of  showing,  not  only  that  the  ordinance  was  passed 
by  the  local  legislative  body,  but  that  all  of  the  details  for  the 
effectiveness  of  the  ordinance  have  been  complied  with,  such 
as  the  publishing  of  the  ordinance  in  the  newspapers,  posting 
the  same,  etc.^  Where,  in  a  prosecution  for  operating  an 
automobile  at  a  speed  in  excess  of  the  regulations  of  a  towai. 


20.  Ex  parte  Smith,  26  Cal.  App. 
116  146  Pac.  82;  Citj'  of  Fremont  v. 
Keating,  96  Oh.  St.  468,  118  N.  E. 
114;  Ex  parte  Wright,  82  Tex.  Cr.  247. 
199  S  \V.  486;  City  of  Seattle  v.  Roth- 
weilcr,  101  Wash.  680,   172  Pac.  825. 

21.  Ex  parte  Wriglit,  82  Tex.  Cr.  247, 
199  S.  W.  486. 

22.  See  Chapman  v.  Selover,  172  N. 
Y.  App.  Div.  858,  159  N.  Y  Suppl.  632, 
wherein  it  was  held  that  there  was  no 
statute  authorizing  the  trustees  of  a 
village  to  make  violation  of  a  lot  al  or- 
dinaT'ce  respecting  the  speed  of  motor 
vehicles  a  crime,  but  that  the  trustees 
in  the  exercise  of  their  power  to  fix  the 
punishment  for  the  violation  of  such 
an  ordinance  are  limited  to  the  im- 
position of  a  fine  to  be  collected  in  a 
civil  action,  except  that  they  may  also 
ordain  that  such  violation  constitutes 
disorderly  conduct. 

23.  City  of  St.  Ijouis  v.  Hammond 
(Mo.),  199  S.  W.  411;  City  of  Wind- 
sor v.  East  (Mo.  App.),  199  S.  W.  722. 


And  see  section  78. 

24.  People  v.  Trainee.  92  Misc.  82, 
155  N.  Y.  Suppl.  1015;  White  v.  State, 
82  Tex.  Cr.  274,  198  S.  W.  965.  And 
see  section  82. 

25.  People  v.  Chapman,  88  Misc.  (N. 
Y.)    469     152  ]Sr.  Y.  Suppl.  204. 

Posting  and  publication. — In  a  pros- 
eeution  for  a  violation  of  a  speed  or- 
dinance, after  proof  that  a  projwsed 
ordinance  had  been  filed  with  the  Sec- 
retary of  State  as  required  by  statute 
and  that  it  had  been  publi-hcd  in  a 
newspaper  as  required  by  law,  but  no 
evidence  was  offered  to  show  that  the 
newspaper  was  the  oflficial  municipal 
paper  or  that  it  was  the  only  newspaper 
published  in  the  municipality,  or  that 
copies  of  the  ordinance  were  posted  in 
three  public  places  as  required  by  the 
law.  it  was  held  that  the  ordinance  was 
of  no  force  and  effect.  People  v.  Chap- 
man, 88  Misc.  (N  Y.)  469.  152  N.  Y. 
Suppl.  204. 


960  The  Law  of  Automobiles. 

it  was  agreed  that  the  regulations  were  ''duly  established," 
such  a  stipulation  is  deemed  to  admit  that  they  were  adver- 
tised and  posted  as  required  by  the  statute  on  the  subject.^ 
It  is,  however,  the  rule  in  some  States  that  an  inferior  court 
having  jurisdiction  in  a  municipality,  will  take  judicial  notice 
of  the  ordinances  of  such  municipality." 

Sec.  731.  Speed  regulations  —  establishment  of  signs  as  to 
speed  limited  by  ordinance. 

In  some  jurisdictions  where  statutes  permit  municipalities 
to  enact  speed  regulations  by  local  ordinances,  it  is  required 
that  signs  shall  be  erected  at  the  territorial  limits  of  the  city 
or  village  so  as  to  inform  motorists  of  the  speed  which  is  per- 
mitted within  its  bounds.  Unless  required  by  statute,  such 
signs  are  not  necessary  to  the  validity  of  the  ordinance.^^  But 
if  required,  it  is  necessary  in  a  prosecution  for  a  violation  of 
the  statute  that  it  be  shown,  not  only  that  the  ordinance  was 
duly  enacted,  but  that  the  proper  signs  have  been  established. 
And  under  such  circumstances  it  is  held  that  an  information 
charging  the  offense  must  allege  the  erection  of  the  sign.^^ 
If  the  statute  under  which  the  ordinance  is  enacted  requires 
an  arrow  on  the  sign  pointing  in  the  direction  in  which  the 
speed  is  to  be  reduced,  a  prosecution  under  the  ordinance  will 

26.  Commonwealth  v.  Sherman,  191  29.  People  v.  Hayes,  66  Misc.  606, 
Mass.  439,  78  N.  E.  98.  124  N.  Y.   Suppl.  417,  wherein  it  was 

27.  City  of  Spokane  v.  Knight,  96  said:  "The  construction  of  the  stat- 
Wash.  403,  165  Pac.  105.  ute  which  compels  the  erection  of  signs 

28.  People  v.  Untsrmyer,  153  N  Y.  upon  all  highways  where  speed  is  to  be 
App.  Div.  176.  138  N.  Y.  Suppl.  334;  reduced  is  consistent  with  its  general 
Eichman  v.  Buchheit,  128  Wis.  385,  object  and  the  evil  sought  to  be  cor- 
107  K  W.  325,  8  Ann.  Cas.  435.  rected.     Violations  of  speed  regulations 

"Within  distance  from  bridge. — An  are  not  crimes  mala  in  se;  they  involve 
ordinance  limiting  the  speed  of  auto-  no  moral  turpitude.  The  legislature, 
mobiles  within  a  radius  of  half  a  mile  therefore,  has  directed  that,  before  one 
from  a  certain  bridge  is  not  invalid  be-  can  be  held  for  violations  of  this  pro- 
cause  it  fails  to  provide  for  establish-  hibited  act,  a  notice  shall  be  given  by 
ing  or  making  in  any  way  the  limits  means  of  a  sign;  and.  if  it  be  plainly 
of  such  district  so  that  a  driver  will  readable  and  contains  what  the  statute 
know  when  he  reaches  it.  Eichman  v.  feays  it  must,  it  then  becomes  actual 
Buchheit.  128  Wis.  385,  107  N.  W.  325,  notice,  whether  seen  or  not." 
8  Ann.  Cas.  435. 


Criminal  Offenses.  961 

fail,  if  compliance  has  not  been  made  with  the  arrow  pro- 
vision.^*' 

Sec.  732.  Speed  regulations  —  definiteness  of  statute. 

As  a  general  proposition  a  statute  which  does  not  describe 
the  offense  with  terms  of  reasonable  certainty  is  not  enforce- 
able as  a  criminal  statute.^^  Thus,  there  is  ground  for  holding 
that  a  statute  that  does  not  prescribe  the  maximum  rate  at 
which  motor  vehicles  may  be  propelled,  but  merely  forbids 
an  ''unreasonable"  speed,  is  not  a  regulation  which  can  be 
enforced  by  a  criminal  prosecution,'^  though  the  statute  might 
be  given  effect  in  civil  actions  between  individuals.^^  And  the 
fact  that  one  clause  of  the  statute  is  so  indefinite  that  the 
courts  will  not  enforce  it  in  a  criminal  prosecution  does  not 
necessarily  annul  the  entire  statute;  the  ])alance  of  the  statute 
may'state  in  express  language  a  speed  which  the  automobilist 
must  not  exceed  under  circumstances.^*  And  it  is  held  that  a 
statute  which  limits  the  rate  of  speed  of  motor  vehicles  to  a 
designated  number  of  miles  per  hour,  is  not  void  for  uncer- 
tainty, because  it  provides  in  another  section  that  the  vehicle 
shall  not  be  driven  at  any  speed  greater  than  is  reasonable 
and  proper,  although  the  latter  section  is  regarded  as  a  limi- 
tation upon  the  speed  rates  specifically  prescribed.^  More- 
over, in  most  States  statutes  prohibiting  dangerous  or  reck- 
less driving  of  motor  vehicles,  or  forbidding  an  unreasonable 
rate,  without  prescribing  definitely  the  limit  of  speed,  are  en- 
forced.^" Regulations  in  some  States  make  a  prescribed  rate 
of  speed  prima  facie  evidence  of  negligence,  but  permit  the 
driver  to  rebut  the  presumption  by  showing  that  in  the  par- 
se. Town  of  Decatur  v.  Gould,  185  12  Ga.  App.  86,  76  S.  E.  779. 
Iowa.  203,  170  N.  W.  449  33.  Strickland    v.    Whatley,    142    Ga. 

31.  Laws  which  create  crimes  ought      208.  83  S.  E.  856;  Elsbery  v.  State,  13 
to  be  so  explicit  in   themselves,   as   by       Ga.  App    86,  76  S.  E.  779. 

reference  to  some  known    standard,   so  34.  Strickland    v.    Whatley,    142    Ga. 

that  all  may  know  what  they  prohibit  802,  83  S.  E.  856;   Elsbeiy  v.  State    12 

and  all  men  may  know  what  it  is  their  ».a.  App.  86,  76  S.  E.  779. 

duty  to  avoid.     U.  S.   v.  Sharp,   I  Pet.  35.  Bvrd   v.   State,   59   Tex.   Cr.   513. 

C.  C.  Rep.  118.  129  S    W.  620.     See  also  State  v.  Mills 

32.  Strickland    v.    Whatley,    142   Ga.  (N.  Car.),  106  S.  E.  677. 
802,    83    S.    E.    856;    Elsbery    v.    State.  36.  Sections  66,  306. 

61 


962  The  Law  of  Automobiles. 

ticular  case  under  consideration  the  speed  was  not  nnreason- 
able.37 

Sec.  733.  Speed  regulations  —  exceeding  "common  traveling 
pace.*' 

An  interesting  legal  question  has  been  decided  by  the  Su- 
preme Court  of  Rhode  Island,  in  a  prosecution  of  an  auto- 
mobilist  under  an  old  statute  which  prohibited  persons  driv- 
ing vehicles  faster  than  **a  common  traveling  pace."  Just 
exactly  what  a  common  traveling  pace  is  or  should  be  was  the 
fact  for  determination  by  the  court.  Since  we  have  in  our 
automobile  laws  specific  prohibitions  against  unreasonable 
and  dangerous  driving,  the  decision  of  the  Rhode  Island  Su- 
preme Court  is  important  and  instructive.  The  opinion  of 
the  court  says:  "It  is  clearly  evident  that  the  safety  of  the 
traveling  public  was  the  object  sought  by  the  act.  Such  safety 
could  not  be  attained  by  permitting  each  vehicle,  each  horse 
or  other  thing,  which  could  be  ridden  or  driven,  to  go  at  a 
traveling  pace  possible  to  it.  There  could  not  be,  with  safety 
to  the  traveling  public  on  foot,  on  horseback  or  in  carriage,  a 
traveling  pace  for  each  individual  who  rode  in  the  streets  or 
highways,  fixed  only  by  the  rate  of  speed  possible  to  the  ani- 
mal or  thing  which  he  rode  or  drove.  Safety  could  not  be 
attained  only  by  requiring  all  to  use  that  prudence  and  cau- 
tion in  the  matter  which  was  ordinarily  used  by  prudent  and 
reasonable  men  when  driving  in  the  streets  or  highways  of 
thickly  settled  towns;  that  is,  a  pace  which  was  reasonable 
and  proper,  considering  the  place  and  circumstances,  a  pace 
which  was  recognized  by  reasonable  men  as  a  common  travel- 
ing pace."^* 

Sec.  734.  Speed  regulations  —  violation  not  malum  in  se. 

The  violation  of  a  statute  or  municipal  ordinance  relative 
to  the  speed  of  motor  vehifles  is  not  considered  as  a  crime 
involving  moral  turpitude.  It  is  considered  as  an  offense 
malum  prohihihim,  not  malum  in  se.^^    Hence,  in  many  cases 

37.  Section  322.  Atl.  1061. 

38.  State  v.  Smith,  29  R.  I.  245,  69  39.  See  v.  Wormser,  129  N.  Y.  App. 


Criminal  Offenses.  963 

the  intention  of  the  party  is  not  a  material  element  of  in- 
vestigation/^ In  an  action  against  the  owner  of  an  automobile 
for  injuries  alleged  to  have  heen  caused  hy  negligence  in 
frightening  a  horse,  it  was  held  that  the  evidence  that  the  de- 
fendant had  been  convicted  of  exceeding  the  speed  limits  fixed 
by  local  ordinances  in  different  places  was  not  competent,  as 
it  had  no  bearing  on  the  question  of  negligence  involved  in 
the  particular  case  at  trial,  and  was  not  evidence  affecting 
the  moral  character  of  the  defendant.*^ 

Sec.  735.  Speed  regulations  —  intention. 

Intention  is  not  generally  an  essential  element  of  violations 
of  motor  vehicle  laws.  The  purpose  of  the  restrictions  is  to 
protect  the  public  and  the  acts  prohibited  by  the  automobile 
laws  are  committed  at  the  peril  of  those  coming  within  the 
statutory  provisions.  Excessive  speeding,  failure  to  regis- 
ter, driving  without  a  license,  lack  of  the  required  equipment, 
operating  a  motor  vehicle  at  night  between  the  designated 
hours  without  the  required  lights,  are  violations  of  the  man- 
datory requirements  which  must  be  obeyed  and  it  is  no  excuse 
that  the  defendant  did  not  know  he  exceeded  the  speed  limit, 
or  that  his  rear  lamp  or  number  tag  had  accidently  dropped 
off,  or  that  he  was  not  complying  with  the  regulations  in  other 
particulars.  The  only  intention  necessary  to  render  a  person 
liable  to  a  penalty  for  a  violation  of  the  automobile  law  is  the 
doing  of  the  act  prohibited.*^  Thus,  the  owner  of  a  machine 
who  is  riding  in  the  rear  seat  and  conversing  with  another 
occupant  of  the  machine  may  be  convicted  of  permitting  the 
chauffeur  to  run  at  an  unlawful  speed,  though  he  was  uncon- 
scious of  the  rate  he  was  traveling.*^  And,  when  one  exceeds 
a  specific  limit  prescribed  by  statute  or  ordinance,  it  wWl  not 

Div.     .596.     11.^     N.     Y.     Suppl.     lOK."^:  42.  People      v.      Thexton.      188      II] 

People    V.    Harrison,    183    N.    Y.    App.  App.  2. 

Div.   812.   170  N.   Y.   Suppl.   876:    Pec  43.  People    v.    Harrison,    183    N.    Y. 

pie   V.    Hayes,    66    Misc.  (N.    Y.)    606.  App.   Div.   812,    170  N.   Y.   Suppl    876. 

124  N.  Y.  Suppl.  417.  reversing    102    Misc.    151,    170    N.    Y. 

40.  Section  735.  Suppl.   876:   People  v.  Morosini,  N.  Y. 

41.  See  V.  Wormser.  129  N.  Y.  A[ip  Law  .Journal.  April  18.  1918.     And  see 
Div.  .596.  113  N.  Y.  Suppl    1093.  sect.ion  726. 


964  The  Law  of  Automobiles. 

avail  liim  to  show  that  the  rate  he  ran  his  machine  was  reason- 
able under  the  circumstances.''^  But,  under  some  speed  regu- 
lations, a  violation  of  the  prescribed  limit  is  only  prima  facie 
wrongful,  and  an  opportunity  is  allowed  the  driver  to  show 
that  the  speed  in  question  was  not  excessive  in  view  of  the 
circumstances.'^  In  a  criminal  prosecution  for  driving  an 
automobile  at  an  unlawful  rate  of  speed,  it  is  no  defense  to 
show  that  the  car  was  under  the  control  of  another  riding  in 
the  machine  unless  the  driver  can  show  that  he  was  under 
duress  and  so  drove  the  car  at  the  instance  and  requirement 
of  another.^ 

Sec.  736.  Speed  regulations  —  ignorance  of  speed  limit. 

The  burden  is  upon  the  driver  of  a  motor  vehicle  to  inform 
himself  as  to  the  rate  of  speed  with  which  the  machine  may 
be  driven  at  different  places.*^  And,  if  he  fails  to  secure  the 
vital  information  and  thereby  exceeds  a  speed  limit,  his 
ignorance  of  the  regulation  affords  no  defense  to  a  prosecu- 
tion. Even  in  the  case  of  an  ordinance  of  a  municipal  corpora- 
tion which  makes  a  special  rate  for  automobilists  within  the 
territorial  limits  of  the  municipality,  the  driver  of  the  ma- 
chine is  bound  to  know  the  speed  limit.  Unless  required  by 
statute,  the  municipal  authorities  are  not  even  obliged  to 
erect  a  sign  at  the  boundary  of  the  municipality  to  warn 
autoists  of  the  speed  limit.*^  And,  where  a  statute  fixes  the 
rate  of  speed  for  "business"  portions  of  a  city,  the  operator 
is  bound  to  ascertain  at  his  peril  when  he  strikes  the  business 
section  of  the  city,  though  exactly  what  is  or  what  is  not  the 
business  part  may  be  a  question  of  fact.*^ 

Sec.  737.  Speed  regulations  —  exceptions  in  emergency  cases 
—  police  and  fire  apparatus. 

It  seems  desirable  that  exceptions  to  the  speed  limits  should 
exist  in  cases  of  emergency,  as  when  necessity  for  the  treat- 

44    People  v.  Ruetiman,  85  Misc.   (N.  47.    People   v.    Dow,    155    Mich.    115, 

Y.)    233,   148  N.   Y.   Suppl.   612:    State  118  N.  W.  745. 

V.  Buchanan,  32  R.  I.  490.  79  Atl.  1114.  48.  Section  731. 

45.  Section  322.  49.  People    v.    Dow,    155    Mich.    115, 

46.  Goodwin    v.    State,    63    Tex.    Cr.  118  N.  W.  745. 
140,  138  S.  W.  399. 


Crimin^vl  OFFE^'sES.  965 

ment  of  the  sick,  or  cases  of  police  officers  seeking  to  arrest 
criminals,  or  when  fire  apparatus  is  hurrying  to  extinguish 
a  fire.  These  considerations,  however,  are  for  the  law  mak- 
ing bodies,  and  the  courts  should  not  graft  onto  the  regula- 
tion an  exception  not  expressed.  Thus,  a  police  officer  may 
violate  the  speed  statute  when  he  is  attempting  to  catch  and 
arrest  automobilists  who  are  also  violating  it.^"  But,  gen- 
erally motor  vehicles  of  the  police  and  fire  departments  are 
expressly  excepted  from  the  speed  regulations.^'  An  ordi- 
nance fixing  speed  limitations  for  use  of  streets  by  vehicles, 
which  excepts  vehicles  operated  by  police  and  fire  departments 
is  not,  by  reason  of  the  exception,  invalid.^^  In  case  of  mili- 
tary necessity  in  time  of  war,  State  regulations  do  not  affect 
the  speed  with  which  persons  in  the  United  States  military 
or  naval  service  may  propel  a  motor  vehicle.^ 

Sec.  738.  Speed  regulations  —  warning-  autoists  of  speed  trap. 
In  a  case  in  England,  it  appeared  that  two  constables,  hav- 
ing measured  certain  distances  on  a  road  much  frequented  by 
automobiles,  were  watching  in  order  to  ascertain  the  pace  at 
which  each  car  passed  over  the  measured  distance,  with  a 
view  to  discovering  whether  it  was  proceeding  at  an  illegal 
rate  of,  speed.  An  autoniobilist  was  arrested,  but  he  gave 
warning  of  the  police  trap  to  approaching  cars,  which  then 
slackened  speed.  There  was  no  evidence  that  the  accused 
was  acting  in  concert  with  any  of  the  drivers  of  the  cars,  or 
that  any  car  when  the  warning  was  given  was  going  at  an 
illegal  pace.  The  court  held  that  the  defendant  was  not  guilty 
of  the  offense  of  obstructing  the  officers  in  the  execution  of 
their  duties.^^ 

50    Kcevil    v.     Ponsford     (Tox.    Civ.  this  exception." 

App.),  173   R.   W.   518.  wherein    it    was  51.  Devin    v.    Ohica^ro     172    111.    App. 

said:      "Peace  officers  arc  not  except"d  246.        See      also     Stale      \.      Gorham 

from   the  operation   of  the  laws  limit  (Was)).),   188  Pac.  457. 

ing  the   speed   of   vehicles  upon   public  52.  Ex  parte  Snowdon.   ]2  (  al.  App. 

highways.        Certainly,     an     exception  521,  107  Pac.  724. 

should  be  made  in  favor  of  those  whose  53.  State  v.  Burton.  +1  R    T.  303.  103 

special  duty  it  is  to  detect  and  arrest  Atl.  962. 

parties  running  in   excess  of  the   legal  54.  Baetable  v.   Little,  L.  P.    '1907), 

limit,     while    discharging    such    duty.  1   K.  B.  59. 
The    courts,    however,    cannot    ingraft 


966  The  T.aw  of  Automobiles. 

Sec.  739.  Speed  regulations  —  former  jeopardy. 

Frequently  an  automobile  driver  is  arrested  for  overspeed- 
ing,  and  when  formal  complaint  is  made  against  him,  he  not 
only  faces  a  charge  of  exceeding  the  speed  limit,  but  some- 
times is  held  to  answer  another  accusation  of  "dangerous 
driving."  Especially  is  this  the  case  where  there  were  ag- 
gravating circumstances  connected  with  the  alleged  offense 
or  the  arrest.  Necessarily  in  many  instances  the  operation 
of  an  automobile  at  a  great  speed  on  the  public  highways  con- 
stitutes "dangerous  driving, ''  but  where  the  public  prosecutor 
complains  against  the  defendant  for  dangerous  driving  and 
has  him  convicted  on  that  charge,  it  should  not  be  within  his 
power  to  convict  the  accused  on  the  charge  of  exceeding  the 
speed  limit.  This  practice  is  illegal  for  the  reason,  that,  if 
the  court  takes  into  consideration  the  speed  of  the  automobile 
on  the  hearing  of  the  dangerous  driving  charge,  and  if  the 
defendant  is  then  prosecuted  on  the  second  charge  of  violat- 
ing the  speed  limit,  he  is  placed  in  jeopardy  twice,  which  is 
prohibited  by  State  constitutions  and  the  common  law.^^ 

One  is  not  generally  considered  as  placed  in  jeopardy  by  a 
mere  accusation  or  arraignment.  Thus,  it  has  been  held  that, 
where  a  person  has  been  arraigned  before  a  magistrate  on  a 
charge  of  excessive  speeding  of  an  automobile  withiij  the  city 
limits  and  committed,  he  inay  thereafter  be  arraigned  for  the 
same  act,  charged  as  a  second  offense,  and  that  his  commit- 
ment for  trial  upon  the  latter  charge  is  not  illegal.^^  But  it 
has  also  been  decided  that  where  a  person  has  been  arraigned 
before  a  magistrate  in  Neiv  Yorlc  city  charged  with  a  violation 
of  the  motor  vehicle  law  and  the  papers  returned  by  the  magis- 
trate show  that  the  defendant  waived  examination  before  him 
and  was  held  for  trial  before  the  Court  of  Special  Sessions, 
the  district  attorney  has  no  power  to  file  an  information 
against  him  as  for  a  second  offense.    In  such  a  case,  however, 

55.  Conviction  of  driving  motor  car  excess  of  twenty  miles  an  hour      Wel- 

in  a  manner  dangerous  to  the  public  ton  v.  Taneborne  (K.  E.  Div. ).  99  Law 

to  procure  whicii  evidence  was  given  as  T.  R.    (N".  S  )    668. 

to    speed    and    the    question    of    speed  56.  Matter    of    Burns,    68    Mi=c.    R. 

taken  into  consideration,  held  a  bar  to  (N".  Y.)    299,  125  N.  Y.  Suppl.  86. 
a  conviction   for  driving  at  a  speed   in 


Criminal,  Offenses.  967 

it  is  decided  that  the  pleading  of  the  so-called  first  offense  as 
a  "second"  offense  may  be  treated  as  surplusage  and  the 
defendant  tried  as  for  a  first  offense." 

Sec.  740.  Speed  regulations  —  identification  of  offender. 

It  has  been  held  that  there  can  be  no  conviction  for  violat- 
ing the  speed  law  where  the  only  evidence  to  connect  the  de- 
fendant with  the  violation  is  the  fact  that  according  to  the 
automobile  register  a  machine  having  the  same  number  as 
the  one  used  in  violation  of  the  law  belongs  to  the  defendant.^^ 

Sec.  741.  Speed  regulations  —  information  or  indictment. 

An  information  for  violating  a  speed  regulation  should  con- 
tain allegations  of  all  the  essential  elements  of  the  offonsc.-^ 
If  the  regulation  makes  the  prescribed  rate  for  a  certain  dis- 
tance an  offense,  the  information  must  allege  that  the  accused 
ran  his  vehicle  faster  than  the  limit  for  the  required  distance.^ 
In  other  words,  if  the  offense  consists  in  maintaining  a  certain 
speed  for  a  given  distance,  the  information  is  insufficient  if 
it  fails  to  allege  that  the  speed  was  maintained  for  the  pre- 
scribed distance.^^  It  may  not  be  necessary  to  allege  the  par- 
ticular point  or  street  where  the  offense  was  committed,^^  yet 

57.  People    v.     Reppin,     126  N.    Y.       (K.  B.  Div.).  99  Law  T.  R.  (N.  S.)  28. 
Snppl.  169.  60.  People    v.    Winston,    155    N.    Y. 

58.  Scraiiton     v.    Hawley.     9  Lack.       App.  Div.  907,  139  N.  Y.  Suppl.  1073. 
(Pa.)   65.  61.  People    v.    Fuchs,    71    Misc.     (N. 

Sufficiency  of  proof  of  previous  con-  Y.  I    69.  129  N.  Y.  Suppl.  1012;  People 

victions    and    of    identity. — Martin    v.  v.  Payne,  71  Misc.    (N.  Y.)   72,  129  N. 

White    (K.    B.    Div.),    103   Law  T.    R.  Y.  Suppl.  1007. 
(N    S.)    23.  62.  White   v.   State    (Tex.   f'r.),    198 

59.  State  v.  Buchanan,  32  R.  I,  490.  8.  W.  964.     See  also  State  v.  Buchanan. 
79  Atl.  1114.  32  R.  L  490,   79   Atl.   1114. 

Language   of   statute. — An    informa-  Proof  of  place   of   offense. — "  While 

tion    in    the    language    of    the    statute  it  was  unnecessary  to  allege  upon  what 

charging  defendant  with  a  violation  of  particular  street  in  the  corporate  limits 

section  10  of  the  Motor  Vehicle  Act  of  of    Hillsboro    appellant    so    unlawfully 

1911  is  sufficient,  since  the  statute  suf-  ran   and   operated   his   automobile,   yet 

ficiently  describes  the  offense.     People  as  the  pleader  alleged  that  it  was  upon 

v.   Levin,    181    111.   App.    429.  East   Elm   street,   it  was   necessary   to 

Sufficiency  of  warning  to  driver  by  prove  that  it  was  upon  this  particular 

constable      of      intended      prosecution  street."     White  v.   State.   S2  Tox.   ^r. 

within    section    9     (2)    of    the    English  274.  198  S.  W.  964. 
Motor  Car  Act  1903.     Jc-sopp  v.  Clarke 


968  The  Law  of  Automobiles. 

the  information  is  defective  if  it  does  not  allege  that  the  locus 
in  quo  is  a  public  highway.''^  An  indictment  alleging  the  com- 
mission of  the  offense  on  a  certain  street,  cannot  be  sustained 
by  evidence  that  it  was  committed  on  another  street.^^  But  a 
prosecution  will  not  be  dismissed  because  the  information 
refers  to  a  chapter  of  the  laws  by  l;he  wrong  number.^^ 

Sec.  742.  Speed  regulations  —  punishment. 

While  unlawful  speeding  of  motor  vehicles  may  in  some 
eases  cause  the  death  of  another  traveler  and  thus  subject  the 
driver  to  a  prosecution  for  homicide,^^  the  unlawful  speeding, 
of  itself,  is  not  generally  classified  as  a  serious  offense,  but 
is  a  misdemeanor  rather  than  a  felony .«^  And,  if  the  fine  is 
not  paid,  the  sentence  may  include  a  provision  that  the  of- 
fender shall  be  confined  in  jail  until  it  is  paid,  the  jail  term 
not  to  exceed  a  limited  number  of  days.''^  Exceeding  the  speed 
limit,  of  itself,  is  an  offense  which  is  ordinarily  punished 
merely  by  the  imposition  of  a  fine  on  the  offender.^^  Where 
a  State  statute  provided  that  a  violation  shall  be  punished  by 
a  fine  not  exceeding  twenty-five  dollars,  it  was  held  that  a  fine 
fixed  by  a  municipal  ordinance  at  a  sum  not  over  fifty  dollars 
was  illegal  and  beyond  the  power  of  the  court  to  impose.''^ 
And,  where  the  jurisdiction  of  the  court  as  to  fines  is  limited 
to  the  sum  of  fifty  dollars,  a  judgment  imposing  a  fine  of  one 
hundred  dollars  is  void."^^    The  statutes  of  the  particular  juris- 

63.  Ex    parte    Worthingtoii.    21    Cal.  Right    to   appeal.— Where    in    case   a 
App.  497.  132  Pac.  82,  fine  exceeds  a   certain   sum  a  right  of 

64.  Nails    V.    State    (Ga.    Apn.).    107  appeal    is   given,   it   is    held   that   if    a 
S.  E.  3.54.    ■  fiiio   to   the   limit   specified    is   imposed 

65.  People    v.    Payne,    71    M'sc.     i  N.  mid  in  addition  thereto  the  perscm  con- 
Y.)    72,  129  N.  Y.  Suppl.   1007.  victed    is    required    to    pay    costs,    the 

66   Sections   757-766.  ;unount  of  the   eonts   cannot   l)e  added 

67.  Commonwealth   v.    Sherman.    19J  to   the   fine  so   as    to   give   a   rialit   of 
Mass.  439.  78  N.  E.  98.  appeal.     Ex  parte  Novis   (K.  B.  Div.), 

68.  Chapman    v.    Selover,    225   N.    Y.  93  Law  T.  R.    (N.  S.)    534. 

417,  122  N.  E.  417.  revtrsing  172  App.  70.  People  v.  Chapman,  88  Misc.   (N. 

Div.  858.  \.)    460.   152  N.  Y.   Suppl.  204. 

69.  See    Sta,te    v.    Hamley.    137  Wis.  71.   People  v.  De  Graff,  56  Misc.    (N. 
458,   119  N.  W.   114.                                            V.)    429,   107  X.  Y.  Suppl.   1038. 


Criminal  Offenses.  969 

diction  must  be  examined  to  determine  the  disposition  of  fines 
collected.'^  " 


Sec.  743.  Speed  regulations  —  evidence  of  speed. 

Questions  arising  out  of  the  proof  of  speed  of  a  vehicle, 
such  as  the  ri^ht  of  occupants  and  bystanders  to  give  opinions 
on  the  question,  are  discussed  in  another  place  in  this  work." 

Sec.  744.  Statutes  with  no  prescribed  limit  of  speed. 

Statutes  have  been  in  force  from  time  to  time  in  some  juris- 
dictions which  do  not  expressly  prescribe  the  limit  of  speed 
for  motor  vehicles  on  the  public  highways,  but  in  general  terms 
prohibit  "reckless"  or  "dangerous"  driving.''^  In  at  least 
one  jurisdiction,  it  has  been  held  that  a  statute  Avhich  merely 
prohibits  driving  at  an  "unreasonable"  speed  is  so  indefinite 
that  it  cannot  be  enforced  as  a  criminal  law,  but  merely  affords 
a  rule  for  application  in  civil  actions."^  But,  generally  such 
statutes  have  been  enforced  in  criminal  as  well  as  civil  cases,^** 
it  being  a  question  for  the  jury  whether  the  speed  of  the  ma- 

72.  See  State  v.  Robinson,  78  N.  H.  153  Pac.  552.  And  see  sections  66,  732. 
286.  99  Atl.  292,  as  to  the  construction  Complaint  or  information. — A  com- 
of  the  statutes  of  New  Hampshire.  plaint  under  a  statute  forbidding  the 

73.  Sections  920-933.  operation  of  a  motor  vehicle  in  a  care- 

74.  Hayes  v.  State,  11  Ga.  App.  371,  less  or  n^ligent  manner,  must  state 
75  S.  E.  523;  State  v.  Welford,  29  R.  the  particulars  wherein  the  operation 
I.  450,  72  Atl.  396;  Smith  v.  Boon,  34  of  the  machine  was  careless  or  negli- 
L.  T.  (Eng.)  593;  Mayhew  v.  Sutton,  gent.  State  v.  Aaron.  90  Vt.  183,  97 
86  L.  T.  (Eng.)  18;  Rex  v.  Wells,  91  Atl.  659.  But  see  State  v.  Welford,  39 
L.  T.  (Eng.)  98;  Throughton  v.  Man-  R.  I.  450,  72  Atl.  396.  And,  whe-e  the 
ning,  92  L.  T.   (Eng.)   855.  statute  covers   only  highways   laid   out 

75.  Empire  L.  Ins.  Co.  v.  Allen,  141  under  statutory  authority,  the  com- 
Ga.  413,  81  S.  E.  120:  Strickland  v.  plaint  should  allege  the  particular 
Whatley,  142  Ga.  802.  83  S.  E.  856:  highway  where  it  is  claimed  the  viola- 
Elsbery  v.  State,  12  Ga.  App.  86,  76  S.  tion  occurred.  State  v.  Aaron.  90  Vt 
E.  779;   Quarles  v.  Gem  Plumbing  Co..  183.  97  Atl.  659. 

18  Ga.  App.  592,  90  S.  E.  92.  Trial  without  jury.— In  .some  states 

76.  Commonwealth  v.  Horsfall,  2Ui  the  legislature  may  provide  for  the 
Mass.  232,  100  K.  E.  362;  State  v.  trial  of  offenders  for  reckless  driving 
Schaeffer.  96  Ohio.  215,  117  N.  E.  220;  of  motor  vehicles  before  a  magistrate 
State  V.  Welford  29  R.  I.  450,  72  Atl.  without  the  intervention  of  a  jury. 
396;  Rex  v.  Wells,  91  L.T.  (Eng.)  98.  Crichton  v.  State.  115  Md.  423.  81 
See  also  Stati^  v.  Pfoit'ir.  96  Kans.  791.  .\i\.  36. 


970  The  Law  of  Automobiles. 

chine  was  '^unreasonable."'^  A  more  popular  form  of  statute 
is  one  which  makes  an  express  limitation  of  speed,  and  then 
generally  forbids  an  "unreasonable"  rate.''^  Under  such  a 
statute,  there  is  no  question  about  the  power  to  enforce  the 
express  limit  in  a  case  which  falls  within  the  language  thereof, 
though  there  might  be  doubt  about  the  criminal  enforcement 
of  the  balance  of  the  act."^^  Statutes  of  this  nature  may  be  so 
drawn  that  a  prima  facie  case  of  violation  is  shown  when  it 
is  proved  that  the  speed  of  a  machine  was  greater  than  that 
mentioned  in  the  act,  but  the  defendant  may  be  allowed  to 
rebut  the  prima  facie  case  by  showing  that  the  speed  was 
reasonable  under  the  circumstances.^" 

Sec.  745.  Defending  speed  cases  —  in  general. 

When  an  automobile  driver  is  arrested  for  violating  the 
speed  law,  he  generally  knows  whether  his  car  traveled  faster 
than  the  legal  limit,  but  there  are  some  cases  where  the  ques- 
tion of  his  speed  is  a  close  one.  In  such  cases  a  doubt  may 
arise  in  regard  to  the  guilt  or  innocence  of  the  defendant,  and' 
there  are  many  elements  which  are  influential  in  a  correct 
estimation  of  the  time  by  the  officer  using  a  stop  watch.  To 
defend  cases  of  this  character  where  there  is  a  fair  question 

77.  No  jury. — When  the  case  is  tried  specified  in  the  statute,  a  prima  facie 
before  a  magistrate  with  no  jury,  the  case  of  guilt  is  made  out  for  the  prose- 
question  whether  the  speed  was  unrea-  cution,  and  the  defendant  is  then  called 
eonable,  is  a  question  of  fact  to  be  de-  upon  to  meet  and  overcome  such  prima 
cided  by  the  magistrate.  People  v.  facie  case;  and  this  is  often  spoken  of 
Sumwalt.  178  111.  App.  357.  as  the  burden  of  proof.     That  is,  in  the 

78.  Strickland   v.   Whatley,    142   Ga.  sense    of    necessity    of    producing    evi 
802,  83  S.  E.  856;   State  v.  Waterman,  dence  to  meet  a  prima  facie  case,  the 
112  Minn.   157,  130  N.  W.  972.  burden  of  proof  passes   from  party  to 

79.  Elsbery  v.  State,  12  Ga.  App.  86,  party  as  the  case  progresses,  while  the 
76  S.  E.  779;  Byrd  v.  State,  59  Tex.  burden  of  establishing  the  guilt  of  the 
Cr.  513.  129  S.  W.  620.  defendant,   as  charged  in  the  informa- 

80.  People  v.  Lloyd,  178  111.  App.  tion,  continues  upon  the  pros.^cution 
66;  People  v.  Sumwalt,  178  111.  App.  throughout  the  trial.  If  a  pi-imu  facie 
357.     And  see  section  322.  case   is   made  out  by   the   proserution, 

Burden  of  proof. — "  As  a  matter  of  and  the  defendant  offers  no  evidence 
law.  the  burden  of  proof  is  upon  the  to  meet  it,  then  the  prima  facie  ease 
prosecution  to  prove  the  guilt  of  the  becomes  conclusive,  and  justifies  a  find- 
defendant  upon  the  whole  evidence.  As  ing  of  guilt."  People  v.  TJoyd,  178  111. 
a  matter  of  proof,  when  it  is  shown  App.  66. 
that  the  rate  of  speed  exceeds  the  rate 


Criminal  Offenses.  971 

in  regard  to  whether  the  law  has  been  violated  is  not  an 
altogether  hopeless  task,  although  it  must  he  admitted  that 
the  odds  are  considerably  against  the  nntomobilist.  There 
are  cases  of  arrest  where  the  speed  laws  are  not  violated,  and 
such  cases  should  on  principle  be  vigorously  defended.  Many 
cases  also  come  up  where  the  speed  laws  are  undoubtedly  vio- 
lated, and  to  defend  such  is  a  waste  of  time  and  labor  unless 
a  very  clear  defence  can  be  made  or  the  circumstances  are  ex- 
tremely mitigating.  It  is  far  better  in  these  instances  to  plead 
guilty  and  escape  with  as  low  a  fine  as  possible. 

Sec.  746.  Defending  speed  cases  —  arrests. 

The  automobilist  arrested  for  violating  the  law  is  taken 
before  a  magistrate  or  police  officer,  and  ordinarily  admitted 
to  bail.  In  some  sections  he  may  have  an  immediate  hearing, 
but  it  is  advisable  where  a  defense  is  to  be  interposed  to  re- 
quest an  adjournment  and  ask  for  a  hearing  at  a  future  day, 
80  that  time  may  be  had  to  communicate  with  counsel  and 
prepare  the  defense.  In  making  arrests  of  automobilists  it 
must  be  borne  in  mind  that  violations  of  the  automobile  laws 
are  not  felonies  but  merely  misdemeanors.  The  method  of 
arresting  an  automobilist  is  of  importance  in  defending  the 
prosecution.  If  an  arrest  is  made  illegally,  either  because 
there  was  not  an  infraction  of  the  law  or  because  of  the  method 
of  making  the  arrest,  then  either  is  at  least  an  extenuating 
circumstance,  which  should  be  influential  in  determining  the 
case  in  favor  of  the  automobilist,  especially  if  he  is  charged 
with  merely  a  technical  violation  of  the  law. 

Sec.  747.  Defending    speed     cases  —  extenuating    facts    in 
defense. 

In  the  trial  of  automobile  speed  cases,  especially  in  pre- 
liminary hearings,  before  committing  magistrates,  it  \^dll  be 
found  that  if  there  is  any  e\ndence  at  all  of  a  violation  of  law 
the  magistrate  will  hold  the  defendant  for  trial,  leaving  the 
question  of  guilt  or  innocence  of  the  accused  to  be  determined 
by  the  court  or  jury  which  examines  into  the  merits  of  the 
case.    In  fact,  it  is  the  imperative  duty  of  binding  over  magis- 


972  The  Law  oi"  Automobiles. 

trates  to  hold  a  defendant  for  trial  if  there  is  any  evidence  of 
a  trustworthy  nature  which  shows  that  he  violated  the  law, 
no  matter  how  much  contradictory  evidence  may  be  produced 
by  the  automobilist,  if  it  does  not  cast  substantial  discredit 
upon  the  testimony  of  the  officer.  All  that  magistrates  at 
preliminary  hearings  need  to  find,  is  probable  cause  that  the 
laAV  was  violated.  Notwithstanding  the  duties  of  magistrates, 
imposed  by  the  law  upon  them,  there  is  more  or  less  discre- 
tion, which  every  judge  is  bound  to  exercise  in  determining 
cases  which  come  up  before  him.  In  the  exercise  of  this  dis- 
cretion magistrates  frequently  dismiss  charges  of  violating 
the  speed  laws,  because,  for  example,  a  physician  was  hurry- 
ing to  the  bedside  of  a  patient ;  a  sick  man  was  in  the  automo- 
bile, being  carried  to  a  hospital.  An  interesting  case  came 
before  a  magistrate  in  the  city  of  New  York,  where  an  auto- 
mobilist was  arrested  for  violating  the  speed  law.  While 
under  arrest  and  being  conducted  to  the  police  station  in  the 
custody  of  the  officer  he  operated  the  car  at  a  slightly  exces- 
sive speed.  Another  complaint  was  entered  against  him  for 
violating  the  speed  law  while  on  his  way  to  the  station.  Ob- 
viously, a  case  of  this  kind  should  be  dismissed,  since  the 
illegal  act  was  performed  while  in  the  custody  of  the  officer 
and  with  his  implied  consent,  as  it  is  not  only  the  duty  of  an 
officer  to  make  an  arrest  after  the  commission  of  a  misde- 
meanor, but  it  is  his  duty  to  arrest  an  offender  at  the  time  of 
committing  an  illegal  act,  thereby  preventing  its  consumma- 
tion. The  magistrate  dismissed  the  second  charge  against 
the  automobilist. 

Sec.  748.  Defending  speed  cases  —  preparing  the  defense. 

It  is  useless  to  go  into  court  to  defend  an  automobilist  for 
violating  the  law  Avithout  making  a  thorough  preparation. 
The  first  thing  that  an  arrested  automobilist  ought  to  do  is 
to  ascertain  the  precise  course  over  which  he  was  timed.  The 
points  or  marks  of  this  course  should  be  determined,  so  that 
before  the  hearing  the  course  can  be  measured  by  the  auto- 
mobilist in  company  with  others,  who  can  act  as  witnesses. 
An  officer's  word  that  the  distance  of  the  course  is  264  feet, 


Criminal  Offenses.  973 

for  example,  should  not  l)e  aceoptod  without  verifieatioii.  The 
officer  may  or  may  not  have  measured  it.  Very  often  the 
policeman  makes  a  rough  guess  as  to  the  distance,  especially 
when  the  automobilist  is  timed  for  the  length  of  a  block.  Tt 
will  not  do  to  guess  at  the  distance  when  an  automobilist  is 
timed  over  a  short  course,  for  a  mistake  of  a  few  seconds,  or 
even  a  fraction  of  a  second,  may  make  legal  the  speed  which 
appeared  illegal.  Always  measure  the  course  over  which  you 
were  timed,  is  the  advice  given  to  automobilists  who  wisli  to 
defend  their  cases. 

Sec.  749.  Defending  speed  cases  —  making  tests. 

If  an  automobilist  is  arrested  for  over-speeding  while 
traveling  up  grade,  which  oftentimes  happens,  it  is  a  good  plan 
to  test  the  car  up  the  grade  with  a  speedometer  and  ascertain 
whether  it  can  travel  at  the  speed  charged.  There  are  many 
other  tests  which  should  be  made,  such,  for  example,  as  de- 
manding that  the  officer  produce  his  stop  watch  so  that  it  can 
be  compared  with  other  stop  watches  in  order  to  see  if  it 
gains.  In  a  case  which  the  writer  defended  some  time  ago,  it 
was  found  that  a  police  officer's  stop  watch  gained  one  second 
in  every  sixty.  Then,  again,  the  ability  of  the  officer  to  use 
a  stop  watch  accurately  should  also  be  tested.  The  condition 
of  the  officer's  eyesight  may  be  very  material,  and  he  should 
be  cross-examined  in  regard  to  his  ability  to  see,  especial] y 
when  the  automobile  was  timed  from  a  point  several  hundred 
feet  distant  from  where  he  stood.  An  ordinary  mode  of  proof 
which  is  given  by  a  police  officer  is  that  he  saw  the  automo- 
bile pass  a  certain  mark  so  many  feet  away  from  him,  pressed 
his  stop  watch  at  that  time,  and  when  he  saw  the  machine 
piss  the  second  mark  he  pressed  his  stop  watch  again,  Avhere- 
upon  he  figured  up  the  speed  rate  from  the  number  of  seconds 
indicated  by  his  timepiece,  which  showed  a  speed  of  twenty- 
five  miles  an  hour.  Did  the  officer  see  the  automobile  pass 
the  first  mark  of  its  course?  If  he  did  see  it,  what  portion  of 
the  machine  passed  the  mark  when  he  first  pressed  the  stop 
watch?  The  front,  middle  or  back?  In  nine  cases  out  of  ten 
the  officer  will  swear  it  was  either  the  front,  middle  or  back 


974  The  Law  of  Automobiles. 

of  the  machine  which  passed  the  mark  when  he  pressed  his 
watch,  and  that  it  was  exactly  the  front,  middle  or  hack  of  the 
machine,  not  even  a  foot  ont  of  the  way  either  one  side  or  the 
other.  Such  testimony  seems  to  be  altogether  too  accurate 
for  reliability  and  should  be  discredited.  But  it  may  be  stated 
that  in  a  large  majority  of  the  cases  the  police  officer  does  not 
actually  see  the  automobile  pass  or  leave  the  first  mark  of 
his  course. 

Sec.  750.  Defending  speed  cases  —  that  rate  of  speed  wa^  on 
speedway  where  permitted. 

Where  in  an  action  for  injuries  sustained  by  being  struck 
by  an  automobile  alleged  to  be  running  at  a  rate  of  speed  in 
excess  of  that  allowed  by  law,  if  a  defendant  seeks  to  avail 
himself  of  the  fact  that  the  place  where  such  speed  was  main- 
tained was  a  race  course  or  speedway,  this  is  a  matter  of  de- 
fense which  he  must  allege  and  prove.^ 

Sec.  751.  Defending  speed  cases  —  identity  of  defendant. 

It  is  not  wise  to  be  excessively  technical  in  prosecuting  an 
automobilist,  nor  is  it  well  to  be  technically  absurd  in  defend- 
ing him;  but  there  are  certain  rights  which  every  defendant 
may  insist  upon  being  accorded  him,  such,  for  example,  as 
the  presumption  of  innocence  and  his  right  to  demand  that 
the  prosecution  prove  its  case  against  him  beyond  reasonable 
doubt.  An  accused  person  is  not  obliged  to  prove  anything 
in  automobile  speed  cases.  The  onus  is  upon  the  prosecution 
to  prove  beyond  reasonable  doubt  two  things: 

First,  that  the  automobile  was  driven  at  a  rate  of  speed 
over  the  legal  limit. 

Second,  that  the  person  arrested  is  the  person  who  com- 
mitted the  illegal  driving. 

Not  only  must  it  be  shown  that  the  rate  of  speed  was  un- 
lawful but  the  accused  must  also  be  identified  as  the  one  who 
was  driving  when  the  law  was  being  violated.  His  identity 
must  be  clearly  and  satisfactorily  established.^^ 

81.  Lefkowit  v.  Sherwood    (Tex.  Civ.  82.  See  section  740. 

App.).  136  S.   W.  850. 


Criminal  Offenses.  975 

Sec.  752.  Defending  speed  cases  —  axrests  at  night. 

The  accuracy  of  timing  autoinol)ilet<  is  reduced  at  night 
time,  especially  if  it  is  very  dark  along  the  highway.  It  is  a 
very  difficult  task  to  see  when  an  automobile  passes  a  certain 
mark  a  considerable  distance  away,  and  the  chances  of  mis- 
take are  so  great  that  the  court  should  look  with  caution  upon 
stop-watch  evidence  of  this  character.  Then,  again,  the  lights 
which  the  machine  ordinarily  carries  are  apt  to  confuse  the 
timer,  since  it  is  impossible  to  see  anything  except  them. 

Sec.  753.  Defending  speed  cases  —  venue. 

One  of  the  burdens  assumed  by  the  prosecution  is  proof 
that  the  crime  was  committed  within  the  jurisdiction  of  the 
court.  It  is  not  generally  required  that  the  information  speci- 
fically state  the  street  or  part  of  street  where  the  violation 
occurred,  yet  if  such  place  is  definitely  stated  in  the  informa- 
tion, the  People  may  be  required  to  prove  that  the  violation 
occurred  there.^^  The  venue,  like  other  elements  of  the  offense, 
may  ordinarily  be  proved  by  circumstantial  evidence.  Thus, 
although  no  witness  has  made  the  direct  statement  that  the 
unlawful  speeding  was  in  a  certain  city,  yet  the  venue  may 
be  held  sufficiently  proved  to  support  a  conviction  on  appeal, 
where  witnesses  have  stated  that  it  occurred  "in  the  city" 
and  upon  certain  named  streets  which  were  in  the  city."  To 
support  a  prosecution  for  unlawful  speeding  on  a  public  high- 
way, it  is  necessary  that  evidence  be  produced  to  show  that 
the  street  or  highway  in  question  was  a  public  thoroughfare.^ 

Sec.  754.  Defending  speed  cases  —  evidence  of  peace  officers. 
Evidence  of  police  officers  should  be  scrutinized  for  interest, 
bias,  or  other  facts  which  might  impair  the  value  of  their 
statements.  Thus,  the  court  should  permit  the  accused  to 
cross-examine  such  a  witness  whether  he  is  employed  by  the 
municipal  authorities  to  follow  automobiles  for  the  purpose 
of  ascertaining  whether  they  are  violating  the  speed  regula- 

83.  White  v.  State,  82  Tex.  Cr.  374,  85.  Alien  v.  Stat«,  74  Tex.  Ct.  623, 
198  S.  W.  964.  169    S.    W.    1151.      See    also   Ex   parte 

84.  City  of  Spokane  v.  Knight,  96  \Yorthiii<^on.  21  Cal.  App.  497.  133 
Wash.  403.   165   Pac.   105.  Pae    82. 


976  The  Law  of  Automobiles. 

tions  and  whether  he  was  paid  a  sum  of  money  for  each  con- 
viction thus  secured.^  But  a  judgment  of  conviction  on  a 
charge  of  operating  a  motor  vehicle  at  an  unlawful  rate  of 
speed  will  not  be  reversed  because  the  magistrate,  on  a  con- 
flict of  testimony  between  the  police  officer  and  the  defendant, 
believed  the  officer.^' 

Sec.  755.  Defending  speed  cases  —  evidence  of  speed. 

There  are  several  different  methods  of  timing  automobiles, 
such  as  by  the  use  of  a  stop  watch,  the  speedometer,  the  photo- 
speed-recorder,  and  opinion  evidence  as  to  speed — given  by 
eye  witnesses  who  may  be  either  trained  or  untrained  in  the 
calculation  of  the  velocity  of  moving  objects.  Speed  alone  is 
an  intangible  thing,  the  estimation  of  which  results  in  a  mathe- 
matical calculation.  It  is  necessarily  composed  of  time  and 
distance,  and  is  relative  to  either  a  stationary  object  or  point, 
or  an  object  or  point  which  is  moving.  The  latter  case  occurs 
when  an  automobile  is  being  timed  by  a  person  who  is  also 
moving  along  the  highway,  such,  for  example,  as  an  officer  on 
a  bicycle,  or  motor  cycle,  or  in  an  automobile.  At  the  outset 
it  should  be  understood  that  no  person  can  be  convicted  of  a 
criminal  offense,  unless  it  is  upon  the  sworn  testimony  of  a 

86.  White  v.  State,  82  Tex.  Ct.  274,  to    rely.      This    court    will   not    invade 

198  S.  W.  964.  the   province   of   a  magistrate   and   in- 

87    People  v.  Ruetiman.  85  Misc.  (N.  terfere  with  his  decision  upon  a  ques- 

Y.  233,  148  N.  Y.  Suppl.  612,  wherein  tion   of   fact,  unless  it  clearly  appears 

it    was    said:      "One    of    the    grounds  that  his  finding  is  not  sustained  by  the 

urged  by  the  defendant   for  a  reversal  evidence  or  that  he  has  made  an  errone- 

of  tlie   judgment  of  conviction   is   that  ous  determination   upon   a   question   of 

the   magistrate   was  not   warranted   on  law.     If  the  evidence  justifies  the  con- 

the   conflict   of   testimony    in    believing  elusion  which  he  reached,  the  jurisdic- 

the  police  officer,  the  only  witness  called  tion  of  this  court  to  review  the  judg- 

by    the    people.      The    question    as    to  ment  of  conviction  must  be  confined  to 

which   witness  was  to  be   believed   was  an   examination   of  the   record,  with   a 

pre-eminently   one    for   the   magistrate,  view    of    ascertaining    whether    it    was 

who    saw    the    witnesses    and    observed  the  result  of  a  fair  and  impartial  hear- 

their  demeanor  and  manner  of  testify-  ing.  or  whether  such  error  or  mistakes 

ing     He  was  therefore  in  a  bettor  posi-  were  committed  as  to  make  it  probable 

tion   to   determine   the   truthfulness   or  that    the    defendant's    rights    were    so 

untruthfulness  of  their  testimony  than  prejudiced  that  in   the  interest  of  jus- 

a  judge  who  reviews  the  case  and  who  tice  there  should  be  a  new  trial." 
has  only  the  written  record  upon  which 


Criminal  Offenses.  977 

witness  who  saw  the  act  committed.  In  the  case  of  an  auto- 
mobile violating  the  speed  law,  the  witness,  if  we  are  to  follow 
the  requirements  of  law,  must  be  able  to  testify  under  oath 
that  he  saw  the  automobile  travel,  that  he  saw  the  defendant 
cause  the  automobile  to  travel,  over  a  certain  designated  and 
measured  space  within  a  certain  measured  lapse  of  time.  As 
suggested,  there  are  quite  a  number  of  elements  in  the  offense 
of  speeding  an  automobile  which  are  to  be  established  in  order 
to  convict  a  driver. 

First  and  foremost,  where  a  stop  watch  is  used  to  time  an 
automobile,  a  measured  distance  along  the  highway  must  have 
been  measured  accurately.  This  distance  must  have  been 
measured  by  the  person  testifying  in  the  witness  chair  and 
who  swears  as  to  the  speed.  It  will  not  do  that  another  per- 
son measured  the  course  and  tol-d  the  officer  that  it  was  a  cer- 
tain number  of  feet  or  yards.  If  the  officer  testifies  that  the 
speed  of  an  automobile  exceeded  a  certain  rate  according  to 
his  stop  watch,  and  he  bases  his  estimation  on  the  distance 
which  the  automobile  traveled  within  the  time,  but  he  merely 
knew  the  distance  from  the  say-so  of  some  other  person  who 
measured  it,  this  testimony  is  incompetent.  It  constitutes 
hearsay,  which  is  never  permitted  in  courts  of  law.  So,  one 
of  the  first  things  for  an  automobilist  to  do  is  to  see  that  no 
hearsay  evidence  is  introduced  against  him  to  accomplish  his 
conviction.  The  measurement  of  the  course  must  be  methodi- 
cally accurate.  Any  old  yard-stick  or  tape-measure  will  not 
do.  The  units  of  measurement  must  be  such  as  are  prescribed 
by  law  and  according  to  the  standards  usually  kept  by  the 
State.  For  an  officer  to  testify  to  the  fact  that  he  measured 
a  certain  distance  along  the  highway  with  a  measure  does  not 
constitute  accurate  measure  of  the  distance  of  the  course,  un- 
less it  is  shown  that  the  measure  used  was  accurate.  He  may 
state  that  he  measured  a  course  with  a  certain  kind  of  a 
measure. 

The  question  of  proof  of  the  speed  of  motor  vehicles,  par- 
ticularly with  reference  to  the  opinions  of  witnesses  on  the 
subject,  is  further  discussed  in  another  place  in  this  work.^^ 

88.  Sections  920-933. 

62 


978 


The  Law  of  Automobiles. 


Sec.  756.  Defending  speed  cases  —  speedometer. 

In  a  prosecution  for  a  violation  of  a  speed  regulation,  evi- 
dence of  a  police  officer  that  he  followed  the  offending  auto- 
mobile on  a  motorcycle  and  that  the  speedometer  on  the  cycle 
registered  a  certain  speed  in  excess  of  the  legal  limit,  is  ad- 
missible.^^ The  fact  that  his  testimony  shows  that  he  relied 
on  the  speed  indicated  by  the  speedometer,  does  not  condemn 
his  evidence  as  hearsay.^*'  The  court  may  properly  exclude 
evidence  as  to  what  police  departments  used  the  Jones  speedo- 
meter, though  offered  for  the  purpose  of  proving  the  accuracy 
of  the  speedometer  belonging  to  the  defendant.^^ 


Sec.  757.  Homicide  —  reckless  driving  as  murder. 

Under  the  common  law  rule,  if  a  man  drives  recklessly  a 
powerful  vehicle  into  a  crowd  and  kills  a  person,  it  may  con- 
stitute murder,  for  if  the  driver  saw  or  had  timely  notice  of 
the  mischief  likely  to  ensue,  and  yet  wilfully  drove  on,  his 


89.  City  of  Spokane  v.  Knight,  96 
Wash.  403,  165  Pac.  105,  wherein  it 
was  said:  "Appellant  next  argues  that 
the  evidence  is  insufficient  to  sustain 
the  verdict,  because  it  does  not  show 
that  the  appellant  operated  his  auto- 
mobile more  than  20  miles  per  hour. 
An  officer  of  the  city  testified,  in  sub- 
stance, that  he  took  the  speed  of  the 
appellant  by  means  of  a  motorcycle,  to 
which  was  attached  a  tested  speedo- 
meter; that  he  took  appellant's  speed 
from  Garfield  street  to  Sherman  street, 
a  distance  of  more  than  a  thousand 
feet,  maintaining  an  equal  speed  at  a 
constant  distance  of  about  50  feet  be- 
hind the  appellant,  and  his  speedometer 
registered  30  miles  an  hour;  that,  be- 
tween two  other  streets,  upon  the  same 
occasion,  he  took  his  speed,  and  the 
speedometer  on  his  motorcycle  regis- 
tered 27  miles  per  hour.  This  same 
witness  testified  that  his  speedometer 
had  been  tested  as  often  as  three  times 
a  week,  and  was  found  to  be  correct. 
The  appellant  testified  that  he  had  a 
speedometer  on  his  automobile,   which 


he  testified  was  correct,  and  which 
showed  that  he  was  traveling  at  less 
than  20  miles  per  hour.  There  was 
some  evidence  that  speedometers  are 
not  accurate,  and  get  out  of  order,  and 
it  is  argued  by  the  appellant  tliat  the 
officer's  speedometer  may  have  been  out 
of  order;  and  did  not  register  the  speed 
correctly;  but  that  was  a  question  for 
the  jury.  Speedometers,  like  other  ma- 
chines, may  get  out  of  order;  but, 
where  they  are  tested  regularly,  they 
may  be  relied  upon  with  reasonable  cer- 
tainty to  determine  accurately  the  rate 
of  speed  at  which  a  machine  is  driven. 
It  cannot  be  said  therefore  that,  be- 
cause speedometers  may  be  out  of  or- 
der, rates  of  speed  may  not  be  meas- 
ured by  instruments  manufactured  for 
that  purpose,  and  which  usually  give 
approximately  correct  rates  of  speed. 
The  question  was  one  for  the  jury  " 

90.  White  v.   State,  83  Tex.  O.  274, 
198  S.  W.  964. 

91.  State  V.  Buchanan,  32  R.  I.  490, 
79  Atl.  1114. 


Criminal  Offenses.  979 

offense  would  be  something  more  than  manslaughter.  In  such 
a  case,  the  presumption  of  malice  arises  from  the  doing  of  a 
dangerous  act  intentionally.^^  The  following  rule  was  laid 
down  in  1  East's  Pleas  of  the  Crown,  263 :  "A  person  driving 
a  carriage  happens  to  kill  another :  If  he  saw  or  had  timely 
notice  of  the  mischief  likely  to  ensue,  and  yet  wilfully  drove 
on,  it  will  be  murder;  for  the  presumption  of  malice  arises 
from  the  doing  of  a  dangerous  act  intentionally.  There  is  the 
heart  regardless  of  social  duty.  If  he  might  have  seen  the 
danger,  but  did  not  look  before  him,  it  mil  be  manslaughter, 
for  want  of  due  circumspection.  But  if  the  accident  happened 
in  such  a  manner  that  no  want  of  due  care  could  be  imputed 
to  the  driver,  it  will  be  accidental  death,  and  he  will  be  ex- 
cused." To  constitute  murder,  however,  in  driving  a  motor 
vehicle  against  another  traveler,  unusual  circumstances  must 
be  connected  with  the  offense.  To  establish  murder,  it  is  re- 
quired that  the  proof  show  such  a  degree  of  recklessness  in 
the  operation  of  the  machine  as  amounts  to  a  mlful  disregard 
of  the  rights  of  others.®' 

Thus,  in  East's  Pleas  of  the  Crown  is  found  the  following 
case  and  comment:  "A  was  driving  a  cart  with  four  horses 
in  the  highway  at  Whitechapel ;  and  he  being  in  the  cart  and 
the  horses  upon  a  trot,  they  threw  down  a  woman  who  was 
going  the  same  way  with  a  burthen  upon  her  head,  and  killed 
her.  Holt,  C.  J.,  Tracy,  J.,  Baron  Burg,  and  the  Recorder 
Level  held  this  to  be  only  misadventure.  But,  by  Lord  Holt, 
if  it  had  been  in  a  street  where  people  usually  pass,  this  had 
been  manslaughter;  but  it  was  clearly  agreed  that  it  could 
not  be  murder. 

''It  must  be  taken  for  granted  from  this  note  of  the  case, 
that  the  accident  happened  in  a  highway  where  people  did  not 
usually  pass;  for,  otherwise,  the  circumstances  of  the  driver 

92.  state  v.  Schutte.  87  N.  J.  L.  15,  subsection  1,  of  the  English  Motor  Car 

93    Atl.    112;    Reg.    v.    Cook,    1    L.    D.  Act  of  1903,  it  was  held  that  evidence 

Raym.    (Ang.)    143,  1  East's  Pleas  of  of  the  speed  at  which  the  machine  was 

the  Crown,  263.  driven   was  admissible.     Hargrcaves  v. 

Evidence    of    speed, — Upon    a    prose-  Baldwin,  93  L.  T.  N.  S.   (Eng. )   311. 

cution   for  driving  "in   a  manner  dan-  93.  People  v.  Barnes,  182  Mich,  179, 

gerous  to  the  public"  under  section  1.  148  N.  W.  400. 


980  /      The  Law  ok  Automobiles. 

being  in  his  cart,  and  going  so  much  faster  than  is  usual  for 
carriages  of  that  construction,  savoured  much  of  negligence 
and  impropriety ;  for  it  was  extremely  difficult,  if  not  impos- 
sible, to  stop  the  course  of  the  horses  suddenly  in  order  to 
avoid  any  person  who  could  not  get  out  of  the  way  in  time. 
And,  indeed,  such  conduct  in  a  driver  of  such  heavy  carriages 
might  under  most  circumstances  be  thought  to  betoken  a  want 
of  due  care,  if  any  though  but  few  persons  might  probably 
pass  by  the  same  road.  The  greatest  possible  care  is  not  to 
be  expected,  nor  is  it  required;  but  whoever  seeks  to  excuse 
himself  for  having  unfortunately  occasioned  by  any  act  of 
his  own  the  death  of  another,  ought  at  least  to  show  that  he 
took  that  care  to  avoid  which  persons  in  similar  situations  are 
most  accustomed  to  do.  Upon  this  supposition  the  death  is 
to  be  referred  to  misadventure,  which  was  occasioned  by  the 
head  of  a  workman's  axe  flying  off  and  killing  a  bystander." 

Sec.  758.  Homicide  —  negligent  or  illegal  driving  as  man- 
slaughter. 
The  death  of  a  traveler  on  the  highway,  when  occasioned 
by  the  grossly  negligent  or  unlawful  management  of  a  motor 
vehicle,  is  generally  to  be  classified  as  manslaughter  rather 
than  murder.^*    If  the  responsibility  is  based  on  negligence, 

94.  State  V.  Melver,  175  N.  Car.  761,  this  State,  in  a  lon^;  line  of  decisions, 
94  S.  E.  683.  "This  is  the  first  case  ns  sufficient  to  reader  a  reckless  or  neg- 
that  has  reached  this  court,  involving  ligent  or  careless  use  criminal,  upon 
cr-'minal  liability  for  homicide  result-  the  theory,  no  doubt,  that  a  want  of 
ing  from  the  operation  of  an  automo-  ordinary  care  in  the  use  of  such  an  in- 
bile,  but  the  principles  of  law  involved  strumentality  in  the  presence  of  others 
are  thoroughly  settled  in  this'  jurisdic-  or  upon  a  crowded  thoroughfare  in  a 
tion,  and  there  can  be  no  doubt  that  city,  or  where  others  were  naturally  ex- 
nnder  the  decisions  of  this  court,  care-  pected  to  be,  is  gross  negligence,  and 
lessness  or  negligence  or  recklcs-siness  in  it  is  quite  apparent  that  such  a  posi- 
the  performance  of  a  lawful  act,  which  tion  is  logically  correct,  for  there  are 
results  in  the  death  of  another,  is  al-  many  instrumentalities  of  death  with 
ways  unlawful  and  criminal  if  tlie  reference  to  which  a  want  of  ordinary 
agency  employed  was  at  the  time  and  care  in  proximity  to  others  is  careless- 
place  of  a  character  that  its  negligent  ness  of  the  grossest  kind.  ...  So 
or  reckless  use  was  necessarily  danger-  while  it  may  be  conceded  that  at  com- 
ous  to  human  life  or  limb  or  property;  mon  law  culpable  negligence  in  a  crim- 
and  this  dangerous  character  of  the  inal  prosecution  had  to  be  of  the  qual- 
agency  employed  has  been  accepted  in  ity  known  as  gross  negligence,  and  it 


Criminal  Offenses. 


981 


the  negligent  conduct  must  have  been  something  more  than 
is  required  on  the  trial  of  an  issue  in  a  civil  action,  but  it  is 
sufficient  in  a  criminal  prosecution  if  it  was  such  as  would  be 
likely  to  produce  death  or  great  bodily  harm.^^  The  conduct 
of  the  driver  is  not  excused  by  a  mistake  in  judgment  brought 
about  by  his  own  reckless  conduct.'*^  Under  modern  statutes, 
when  the  driver  of  a  motor  vehicle  is  guilty  of  some  recklessly 
negligent  act  or  some  infraction  of  statutes  regulating  the 
operation  of  such  machines,  and  death  to  a  pedestrian  or 
other  traveler  thereby  results,  it  is  held  that  the  driver  may 
be  tried  and  convicted  for  manslaughter.^^    For  example,  if 


is  true  no  doubt  that  any  negligence 
less  than  gross  negligence  in  the 
performance  of  a  lawful  act  would  be 
insufficient  to  make  of  an  uninten- 
tional killing  the  offense  of  involuntary 
manslaughter,  .  .  .  but  it  is  not  at 
all  necessary  that  to  attain  this  result 
it  is  necessary  in  all  cases  to  refer  to 
the  culpable  carelessness  or  negligence 
as  gross  negligence,  because  where 
in  an  instruction  the  agency  and 
circumstances  surrounding  the  horn- 
cide  are  described,  the  same  result 
is  obtained  by  treating  as  culpable 
the  careless  use  of  a  necessarily 
dangerous  instrumentality  in  a  public 
place  or  in  such  close  proximity  of 
others  as  to  endanger  their  lives." 
Held  V.  Commonwealth,  183  Ky.  209, 
208  S.  W.  772. 

Intoxication  of  defendant. — ^The  fact 
that  the  driver  of  the  machine  was  in- 
toxicated at  the  time  of  the  homicide 
is  a  very  persuasive  factor  in  determin- 
ing guilt.  State  v.  Salmer,  181  Iowa, 
280,  164  N.  W.  620.  "It  is  gross  and 
culpable  negligence  for  a  drunken  man 
to  guide  and  operate  an  automobile 
upon  a  public  highway,  and  one  doing 
so  and  occasioning  injuries  to  another, 
causing  death,  is  guilty  of  man- 
slaughter. It  was  unlawful  for  de- 
fendant to  operate  his  autoiiiobilc  upon 
the  public  highway  while  ho  was  in- 
toxicated;   made    unlawful    by    .statute. 


and  wrong  in  and  of  itself,  and  it  was 
criminal  carelessness  to  do  so  and  he  is 
guilty  of  manslaughter,  provided  the 
death  of  Agnes  Thome  wa.s  a  proximate 
result  of  his  unlawful  act."  People 
V.  Townsend   (Mich.),  183  N.  W.  177. 

95.  State  v.  Gray  (N.  Car.),  104  S. 
E.  647;  State  v.  Mclver,  175  N.  Car. 
761,  94  S.  E.  682;  State  v.  Bountree 
(N.  Car.),  106  S.  E,  669.  ''But  negli- 
gence alone  which  might  be  sufficient 
to  sustain  a  civil  action  will  not  justify 
a  conviction  for  manslaughter."  State 
V.  Oakley,  176  K.  Car.  755,  97  S.  E. 
616. 

96.  State  v.  McIvcr,  175  N.  Car.  761, 
94  S.  E.  6S2. 

97.  Arkansas. — Madding  v.  State, 
118   Ark.   :)06,   177  S.  W.   410. 

Connecticut. — State  v.  Campbell,  82 
Conn.  671 ,  74  Atl.  927, 18  Ann.  Ca«.  236 ; 
State  V.  Goetz,  83  Conn.  437,  76  Atl. 
1000,  30  L.  R.  A.   (N.  S.)   458. 

Delaware. — State  v.  Long,  7  Boyce's 
(30  Del.)  397.  108  Atl.  36;  State  v. 
Mclvor,  111  Atl.  616;  State  v. 
Kreuger,   111   Atl.   911. 

District  of  Columhia. — Sinclair  v.  l^ 
S.,  48  Wash.  L.  Rep.  454. 

Georgia. — Beams  v.  State  (6a. 
App.),  100  S.  E.  230. 

Illinois. — People  v.  Falkovitch,  280 
111.  321,  117  N.  E.  398;  People  v. 
Camboris,  130  N.  E.  712;  People  v. 
Seliuiirtz.    131    N.   E.   806. 


982 


The  Law  of  Automobiles. 


the  driver  of  an  automobile  holding  conversation  with  a  com- 
panion and  not  looking  ahead  to  see  who  might  he  in  the  high- 
way, kills  a  child,  he  would  be  guilty  of  manslaughter.^^  And 
it  is  held  that  one  exceeding  the  speed  limit  and  therel)y  killing 
a  foot  traveler  or  an  occupant  of  another  vehicle  may  be 
guilty  of  manslaughter.^^    The  general  principle  underlying 


Indiana. — Luther  v.  State,  177  Ind. 
619,  98  N.  E.  640. 

Iowa. — State  v.  Biewen,  169  Iowa, 
256,  151  N.  W.   102. 

JK'on^a*.— State  v.  Bailej^  107  Kans. 
637,   193  Pac.  354. 

Michigan. — People  v.  Harris,  182  N. 
W.  673;  People  v.  Townsend  (Mich.), 
183   N.  W.   177. 

Minnesota. — ^State  v.  Goldstone,  175 
N.  W.  892. 

Missouri. — State  v.  Watson,  216  Mo. 
420,  115  S.  W.  1011;  State  v.  Horner, 
266  Mo.  109,  180  S.  W.  873. 

A^e&ra«fca.— Schultz  v.  State,  89  Neb. 
34,  130  N.  W.  972,  Ann.  Cas.  1912  C. 
495,  33  L.  R.  A.  (N.  S.)  403. 

New  Jersey.— State  v.  Elliott,  110 
Atl.    135. 

North  Carolina.- — State  v.  Mclver, 
175  N.  Car.  761,  94  S.  E.  682 ;  State  v. 
Gray,  104  S.  E.  647 ;  State  v.  Rountree, 
106  S.  E.   669. 

Ofeio.— State  v.  Born,  85  Ohio  St. 
430,  98  N.  E.  108;  State  v.  Schaeffer, 
96  Ohio  St.  215,  117  N.  E.  220;  Sehier 
V.  State,  96  Ohio,  245,  117  N.  E.  229. 

Bhode  Island. — State  v.  Wagner,  86 
Atl.   147. 

S(mth  Carolina. — State  v.  Hanahan, 
111  S.  Car.  58,  96  S.  E.  667. 

Tennessee. — Lauterbach  v.  State 
132  Tenn.  603,  179  S.  W.  130. 

Texas.— Hoffman  v.  St.-ite  (Tex. 
Cr.),  209  S.  W.  747. 

Liquors. — Evidence  that  auto  was 
unlawfully  carrying  liquors  was  re- 
ceived. People  V.  Harris  (Mich.),  183 
N.  W.  673. 

Failure  to  render  assistance  after 
accident.— Where  a   motor   vehicle  has 


faused  the  death  of  a  j)ede.strian  or 
other  traveler  in  the  highway,  the  fact 
that  the  driver  of  the  machine  con- 
tinues his  course  rapidly  and  does  not 
stop  to  render  assistance  to  the  injured 
person,  is  a  circumstance  indicative  of 
guilt.  State  v.  Biewen,  169  Iowa,  256, 
151  N.  W.  102.  Such  conduct  on  the 
part  of  the  driver  may  also  constitute 
u   distinct  offense.     See  section   775. 

Indictment  need  not  describe  the 
particular  character  or  kind  of  the  mo- 
tor vehicle  with  which  the  killing  was 
accomplished.  People  v.  Falkovitch, 
280  111.  321,  117  N.  E.  39S. 

Death  of  officer  jumping  on  car  to 
arrest  driver.  State  v.  Weisengoff  (W. 
Va.),  101  S.  E.  450. 

98.  Knights  Case,  1  Lewin's  Crown 
Cases,  168. 

99.  Connecticut. — State  v.  Goetz,  83 
Conn.  437,  76  Atl.  100,  30  L.  R.  A. 
(N.   S.),   458. 

Delaiv are. —State  v.  Long,  7  Boyce's 
(30  Del.)  397,  108  Atl.  36;  State  v. 
Mclvor,   111  Atl.  616. 

Georgia. — Farrior  v.  State  (Ga. 
App.),  107  S.  E.  67;  Hudson  v.  State 
(Ga.  App.),  107  S.  E.  94. 

Illinois.— Feople  v.  Adams,  289  111. 
339,  124  N.  E.  575;  People  v. 
Schwartz,  131  N.  E.  806. 

Kansas. — State  v.  Bailey,  107  Kans. 
637,  193  Pac.  354. 

Michigan. — People  v.  Pretswell,  202 
Mich.  1,  167  N.  W.  1000;  People  v. 
Schwartz,  183  N.  W.  723. 

Minnesota. — State  v.  Goldstone,  175 
N.  W.  892. 

New  Jersey. — State  v.  Elliott,  110 
Atl.   135. 


Criminal  Offenses.  983 

this  rule  is  that,  where  a  driver  of  an  automobile  shows  a 
wanton  and  reckless  disregard  and  indifference  to  the  rights 
of  others,  a  criminal  intent  is  presumed  rendering  him 
criminally  liable  for  his  acts. 

Sec.  759.  Homicide  —  unusual  speed. 

If  the  driver  of  a  carriage  drives  it  at  an  unusually  rapid 
pace,  and  a  person  is  killed,  though  the  driver  gives  warning 
repeatedly  to  such  person  to  get  out  of  danger;  if  o^^'ing  to 
the  rapidity  of  the  driving  the  person  cannot  get  out  of  the 
way  in  time,  but  is  killed,  the  driver  is  in  law  guilty  of  man- 
slaughter.^ So,  also,  if  two  drivers  of  a  vehicle  drive  on  the 
highway  at  a  furious  rate  of  speed  in  a  race,  and  one  of  them 
runs  over  a  man  and  kills  him,  both  are  guilty  of  manslaughter, 
where  both  were  urging  and  inciting  the  race,  and  it  is  no  de- 
fense that  the  death  was  caused  by  the  negligence  of  the  de- 
ceased himself,  or  that  he  was  either  deaf  or  drunk  at  the 
time.^ 

Sec.  760.  Homicide  —  racing  along  public  highways. 

In  an  early  English  case,^  it  was  held  that,  if  each  of  two 
persons  are  driving  a  cart  at  a  dangerous  and  furious  speed, 
and  they  are  inciting  each  other  to  drive  at  a  dangerous  and 
furious  rate  along  a  turnpike  road,  and  one  of  the  carts  run 
over  a  man  and  kill  him,  each  of  the  two  persons  is  guilty  of 
manslaughter,  and  it  is  no  ground  of  defence,  that  the  death 
was  partly  caused  by  the  negligence  of  the  deceased  himself, 
or  that  he  was  either  deaf  or  drunk  at  the  time.    And  in  an- 

New   York. — People  v.  Darragh,   141  is      rviflenoe      of      guilt.        People      v. 

N.  Y.  App.  Div.  408,  126  N.  Y.  Suppl.  Schwartz    (Til.).    131    N.   E.    806. 

522.  1.  State    v.    Hines    (Minn.),    182   N. 

North  Carolina. — State  v.  Gray,  104  W.  450. 

8.  E.  647;  State  v.  Rountree  (N.  Car.).  2.  People  v.  Daragh,  141  N.  Y.  App. 

106  S.  E.   669.  r)iv.  408,  126  N.  Y.  Suppl.  522;  Laut- 

Ofeio.— State   v.    Schaeffer,    96   Ohio,  erbach  v.  State,  132  Tenn.  603,  179  S. 

St.  215.  W.   130;    Reg.   v.   Tinimins.   7  C.   &  T. 

Tennessee. — Lauterbach      v.      State,  (Eng.)    500. 

132   Tenn.   603,   179   S.  W.   130.  3.  Reg.     v.     Swindall.     2     C.     A     K 

Utah.— Btsite  v.  Lake,  196  Pac.  1015.  (Eng.)    230. 

Flight  of  the  accused  after  the  act 


984  The  Law  of  Automobiles. 

other  English  case,*  the  court  held  that,  if  the  driver  of  a  car- 
riage is  racing  mth  another  carriage,  and,  on  account  of 
being  unable  to  pull  up  his  horses  in  time,  the  first  mentioned 
carriage  is  upset,  and  the  person  is  thrown  off  and  killed,  it 
is  manslaughter  in  the  driver  of  that  carriage.  The  racing 
of  motor  vehicles  along  the  public  highways  generally  results 
in  a  violation  of  the  speed  limits ;  and,  if  such  is  the  case  and 
death  results  to  another  traveler  from  the  commission  of  such 
offense,  a  prosecution  for  manslaughter  can  be  sustained.^ 

Sec.  761.  Homicide  —  accidental  killing. 

For  a  mere  accident  there  is  no  civil  or  criminal  responsi- 
bility. Every  injury  or  death  caused  by  the  operation  of 
vehicles  on  the  public  ways  does  not  result  in  legal  responsi- 
bility. There  must  be  negligence  or  carelessness  in  the  driv- 
ing in  order  to  render  it  wrongful.^  If  the  driver  of  a  vehicle 
uses  all  reasonable  care  and  diligence,  and  an  accident  hap- 
pens through  some  chance  which  he  could  not  foresee  or 
avoid,  he  is  not  to  be  held  liable  for  the  results  of  such  acci- 
dent.'' But  one  who  runs  his  automobile  recklessly  in  a  city 
street  and  thereby  becomes  unable  to  avoid  hitting  a  pedes- 
trian, is  not  entitled  to  an  acquittal  on  a  charge  of  man- 
slaughter merely  because,  when  the  danger  became  imminent, 
he  used  his  best  efforts  to  prevent  a  collision.^  Where  a  wit- 
ness has  testified  fully  on  his  direct  examination  as  to  all  the 
material  circumstances  connected  with  an  accident,  including 
what  he  did  and  what  he  did  not  do,  and  what  the  result  would 
have  been  had  he  done  differently,  he  is  not  entitled  to  state, 
in  addition,  that  he  did  all  that  could  be  done  to  avoid  the 
accident,  for  that  is  but  an  expression  of  his  own  opinion 
upon  a  question  which  is  within  the  province  of  the  jury.* 

4.  Rex  V.  Timmins,  7  C.  &  P.  (Eng.).  7.  Reg.  v.  Murray,  5  Cox.  C.  C.  509. 
499.  8.  State  v.  Campbell,   82  Conn.   671, 

5.  See   sections    728,    758.  74  Atl.  927,  18  Ann.  Cas.  236. 

6.  Reg.  V.  Murray,  5  Cox  C.  C.  9.  State  v.  Campbell,  82  Conn.  671, 
(Eng.)   509.                      •  74  Atl.  937,  18  Ann.  Cas.  2.36. 


Criminal  Offenses.  985 

Sec.  762.  Homicide  —  death  of  passenger  in  motor  vehicle. 

Where  one  undertakes  to  drive  another  in  a  vehicle,  he  is 
compelled  by  law  to  exercise  proper  care  for  the  passenger's 
safety.  If  the  passenger  is  killed  by  the  euli^able  negligence 
of  the  driver,  the  crime  of  manslaughter  may  be  committed.^'' 

Sec.  763.  Homicide  —  liability  of  owner. 

Where  a  collision  occurs  on  the  highway  and  death  is 
caused,  the  person  criminally  responsible  is  the  man  actually 
in  charge  of  the  vehicle  and  whose  negligence  caused  the  acci- 
dent at  the  time  the  collision  took  place.  But  even  he  is  not 
criminally  responsible  for  a  death  caused  by  his  negligence, 
where  he  would  not  have  been  liable  in  a  civil  action."  Ordi- 
narily the  owner  is  not  criminally  liable  for  the  conduct  of 
the  chauffeur,  though  the  circumstances  in  particular  cases 
may  be  such  as  to  charge  him.^^  Thus,  in  one  case,  wliere  the 
conviction  of  the  chauffeur  was  affirmed,  the  conviction  of  the 
owner  who  was  riding  in  the  car  at  the  same  time,  but  was  not 
running  the  machine  and  could  not  have  done  anything  to 
prevent  the  collision,  was  held  to  be  unjustified,  wlioi-e  thei-o 
is  no  evidence  that  it  was  the  habit  of  the  chauffeur  to  run 
dangerously  close  to  the  other  cars  and  wagons  to  the  knowl- 
edge of  the  owner  Avithout  correction.^^ 

Sec.  764.  Homicide  —  burden  of  proof. 

In  an  old  English  case,  where  the  driver  of  a  cah  was 
indicted  for  manslaughter  for  killing  a  woman  and  his  de- 
fense was  that  he  used  due  and  proper  care  in  driving  tlu' 
cab  upon  the  occasion  in  question,  it  was  held  that  the  burden 
of  fjroving  negligence  did  not  lie  on  the  prosecution,  but  Dial, 
upon  proof  of  the  killing,  the  burden  was  cast  on  the  accused 
to  show  that  he  used  due  care."    It  is  thought,  howevoT-.  that 

10.  Beg.    V.    Jones,    22    L.    T.    \.    S.        (Eng.)    1087. 
217,  11  Cox.  C.  0.  544;  State  v.  Block,  12.  Section    725. 

87  Conn.  573,  89  Atl.  167;   Sinclair  v.  13.  People    v.    Scanlon,    l.'J2    N.-    Y. 

U.  S..  (D.  C),  48  Wash.  L.  Rep.  454;  App.  Div.  528,  117  N.  Y.  Suppl.  57. 

Farrior  v.  State  (Ga.  App.),  107  S.  E.  14.  Rosj.    v.    Cavendish,    2    C.    &    K. 

67.  230. 

11.  Roj?.     V.     Birchall,    4     F.    &    F. 


986  The  Law  of  Automobiles. 

in  this  country,  under  modern  statutes  and  rules  of  criminal 
procedure,  the  burden  is  generally  on  the  People  to  prove  the 
absence  of  due  care.  The  ordinary  rule  is  that  the  burden  is 
upon  the  State  to  prove  beyond  a  reasonable  doubt  the  com- 
mission of  the  offense.^^  Moreover,  the  prosecution  is  bound 
to  show  that  the  wrongful  conduct  of  the  motorist  was  the 
proximate  cause  of  the  death  of  the  victim.^*' 

Sec.  765.  Homicide  —  contributory  negligence  of  decedent  as 
a  defense. 

Where  a  person  has,  by  his  driving  of  an  automobile  in  a 
wilful,  careless,  reckless  and  negligent  manner,  or  at  an  un- 
lawful rate  of  speed,  as  defined  by  statute,  caused  the  death 
of  another,  the  negligence  of  such  decedent  is  held,  under 
ordinary  circumstances,  not  to  relieve  the  driver  from  criminal 
liability  for  his  act.^^  Thus,  if  one  running  his  motor  vehicle 
at  a  speed  prohibited  by  statute  kills  a  child  in  the  street,  it 
is  no  defense  to  a  prosecution  for  homicide  that  the  child  sud- 
denly and,  perhaps,  negligently  ran  in  front  of  the  machine.^* 

15.  State  V.  Hanahan,  111  S.  Oar.  Tennessee. — Lauterbach  v.  State,  132 
58,  96  S.  E.  667.  Tenn.  603,  179  S.  W.  130. 

16.  State  V.  Schaeffer,  96  Ohio,  215,  West  Virginia. — State  v.  Weisengoff, 
117  N.  E.  220;  State  v.  Hanahan    (S.  101  S.  E.  450. 

Car.),  96  S.  E.  667.  England.— 'Reg.   v.  Jones,  2  Cox.  C. 

17.  ArTcansas. — See   Bowen  v.    State,      C.  544. 

100  Ark.  232,  140  S.  W.  28.  18.  Lauterbach   v.   State,    132   Tenn. 

Connecticut.— ^i&iQ  v.   Campbell,   82  603,    179    S.   W.    130,    wherein   it   was 

Conn.   671,   74   Atl.   927,   18  Ann.   Cas.  said:      "The   plaintiff  in   error  is   not 

236.  relieved  by  the  fact  that  the  child  ran 

Kentucky. — Held    v.    Commonwealth,  suddenly  in  front  of  the  machine.     One 

183  Ky.  209,  208  S.  W.  772.  who  engages  in  the  performance  of  an 

Minnesota. — State  v.   Hines,   182   N.  unlawful   act   must   take    the   criminal 

W.  450.  consequences    of   whatever   happens    to 

Nebraska. — Schultz  v.  State,  89  Neb.  third  persons  as  a  result  of  that  act. 

34    130   N.  W.   972.  It  was  his  duty  to   anticipate  that  he 

New    Jersey.— State    v.    Elliott,    110  might   encounter,  riot  only  grown  per- 

Atl.  135.  sons,  but  even  little  children,  or  even 

North    Carolina.— ^State    v.    Mclver,  people  who   were   aiBicfed   with   blind- 

175  N.  C.  761,  94  S.  E.  682;  State  v.  ness   or   deafness.     One   who    disobeys 

Oakley,  176  N.  Car.  755,  97  S.  E.  616 ;  the  statutory  rule  as  to  speed  is  acting 

State  V.  Gray,  104  S.  E.  647.  in  defiance  of  law,  and  must  be  held  to 

So7ith   Carolina.— State  v.   Hanahan.  have   anticipated   the  responsibility  of 

111  S.  Car.  58,  96  S.  E.  667.  any  injury  caused  by  his  recklessness." 


Criminal  Offenses.  987 

The  conduct  of  the  deceased,  however,  is  material  in  a  prosecu- 
tion of  this  nature  to  the  extent  that  it  bears  upon  the  negli- 
gence or  wrongful  conduct  of  the  accused.^ 

Sec.  766.  Homicide  —  prior  reputation  of  chauffeur  for  care. 

Where  a  chauffeur  is  charged  with  manslaughter,  evidence 
is  not  admissible  to  show  that  he  had  previously  borne  the 
reputation  of  being  a  careful  driver  and  had  been  so  regarded 
by  those  who  had  ridden  Avith  him.  Such  evidence  does  not 
tend  to  show  that  he  was  not  guilty  of  gross  negligence  at  the 
particular  occasion  of  the  homicide.^" 

Sec.  767.  Assault  and  battery. 

There  can  be  no  doubt  tliat  an  assault  and  liattory  can  be 
committed  by  striking  another  with  an  automobile,  although, 
of  course,  there  must  be  some  evidence  of  criminal  intent.^ 
''But  the  intent  may  be  inferred  from  circumstances  which 
legitimatelj'  permit  it.  Intent  to  injure  may  not  be  implied 
from  a  lack  of  ordinary  care.  It  may  be  from  intentional 
acts,  where  the  injury  was  the  direct  result  of  them,  done  un- 
der circumstances  showing  a  reckless  disregard  for  the  safety 
of  others,  and  a  willingness  to  inflict  the  injury,  or  the  com- 
mission of  an  unlawful  act  which  leads  directly  and  naturally 
to  the  injury.  "22  The  same  general  rules  which  apply  so  as 
to  charge  the  driver  of  a  motor  vehicle  with  homicide  when 
he  has  killed  a  traveler  with  his  machine,^  render  him  liable 

19.  Held  V.  Commonwealth,  183  Ky.  357;  Luther  v.  State.  177  Ind.  619,  98 
209,  208  S.  W.  772;  State  v.  Oakley  N.  E.  640;  Bleiweiss  v.  State  (Ind.), 
(N.  C),  97  S.  E.  616.  119   N.    E.    375;    BleiweisS    v.    State 

20.  State  v.  Goetz,  83  Conn.  437,  76  (Ind.),  122  N.  E.  577. 

Atl.  1000,  30  L.  R.  A.  (N.  S.)  458.  Question    for    jury.— "  The    issue    of 

21.  People  V.  Hopper  (Colo.),  169  intent  is  a  question  of  fact  to  be  de- 
Pac.  152;  People  v.  Clink  (111.),  00  termined  by  the  court  or  jury  trying 
Nat.  Corp.  Rep.  155;  Luther  v.  State,  the  case  from  all  the  evidence  given  at 
177  Ind.  619,  98  N.  E.  640;  Bleiweiss  the  trial,  and  where  there  Is  suflRcient 
V.  State  (Ind.),  119  N.  E.  375;  Coffey  evidence  to  present  an  issue  of  fact  on 
V.  State,  82  Tex.  Cr.  481,  300  S.  W.  that  question,  the  finding  of  the  court 
384;  Tarver  v.  State  (Tex.  Cr.),  202  of  jury  thereon  will  not  be  disturbed 
S.  W.  734.  See  also,  State  v.  Krouger  on  appeal."  Bleiweiss  v.  State  (Ind.\ 
(Del.),   Ill    Atl.  614.  119   K   E.   375. 

22.  People    v.    Hopper    (Colo.).    if.O  23.  Sections  757-766. 
Pac.  152 ;  People  v.  Clink,  216  111.  App. 


988 


The  Law  of  Automobiles. 


as  for  assault  and  battery  when  tlie  injuries  are  not  so  serious 
as  to  result  in  death.^*    As  was  said  in  a  recent  case,^^ ' '  It  re- 


24.  Coloradoi — People  v.  Hoppor, 
169   Pac.   152. 

Georgia. — Deniiaid  v.  State,  14  Ga. 
App.  485,  81  S.  E.  378;  Tift  v.  State, 
17  Ga.  App.  663,  88  S.  E.  41. 

/Htnois.— People  v.  Clink.  316  111. 
App.   357. 

Indiana. — Luther  v.  State,  177  Ind. 
619,  98  N.  E.  640;  Schneider  v.  State, 
181  Ind.  218,  104  N.  E.  69;  Bleiweiss 
V.  State  (Ind.),  119  N.  E.  375. 

Kentucky. — Lyons  v.  Commonwealth, 
176  Ky.  657,  197  S.  W.  387. 

New  Jersey. — State  v.  Schutte,  87 
N.  J.  L.  15,  93  Atl.  112,  affirmed  88 
N.  J.  L.  396,  96  Atl.  659.  See  also, 
State  V.  Albertalli  (N.  J.),  112  Atl. 
724. 

Ohio. — Fishwick  v.  State,  33  Ohio 
Cir.  Ct.  R.  63. 

Pennsylvania.  —  Commonwealth  v. 
BeigdoU,  55  Pa.  Super  Ct.  186. 

Assault  and  battery  may  be  com- 
mitted by  striking  anotlicr  with  an  au- 
tomobile intentionally,  or  by  driving 
the  machine  so  recklessly  as  to  justify 
■  a  jury  in  finding  that  there  was  a 
reckless  disregard  of  human  life  and 
safety.  Dennard  v.  State,  14  Ga.  App. 
485.  81  S.  E.  378.  The  same  is  true 
where,  under  like  circumstances,  the 
automobile  is  driven  against  another 
vehicle  in  which  persons  are  riding, 
whereby  the  collision  occasions  bruises, 
blows,  and  similar  physical  injuiirs  to 
persons  in  the  vehicle  so  struck.  Tift 
V.  State,  17  Ga.  App.  663,  88  S    E.  41. 

Driver  subject  to  sudden  attacks  of 
vertigo. — When  there  is  a  lack  of 
either  actual  or  legally  imputable  in 
tention  to  do  a  certain  act.  th(;ie  may 
be  an  absence  of  criminal  responsibil- 
ity, and  the  act  be  attributable  to  mis- 
fortune or  accident.  Carbo  v.  State, 
4  Ga.  App.  583,  63  S.  E.  140;  Wol'e  v. 
State.   121  Ga.  587.  49  S.  E.   688.     But 


criiiiiii.-il    negligence  may   sometimes  be 
a  sufficient  substitute  for  deliberate  in- 
tention   in    the    commission    of    crime. 
Since    it   would   be   for   a  jury   to   say 
whether  the   act  of  one  who  knew  he 
was    subject    to    occasional    sudden    at- 
tacks of  vertigo  or  like  malady,  which 
rendered  him  wliolly  unable  to  steer  an 
automobile  or  to  control  its  movements, 
in  undertaking  to  drive  such  an  auto- 
mobile at  a  high  rate  of  speed  along  a 
public   iiighway,   was  such   a  disregard 
of   probable   consequences  as  amounted 
under   the   circumstances    in   proof,    to 
criminal  negligence  as  to  one  who  was 
injured  by  the  defendant's  inability  to 
-teer  his  machine,  it  was  not  error  for 
the  court  to  charge,  in  connection  with 
other  instructions  given  the  juiy,  that 
"if.    however,    you   find   beyond    a    rea- 
■^onable  doubt  that  at  the  time  of  ?a:d 
collision  and  injuries  the  defendant  was 
subject  to   frequent  attacks  of  veitigo 
or  similar  afflictions  wl'ic-h,   when  they 
came  on  necessarily  rendered  him  pow- 
erless  to  control   a   moving   automobile 
that  he  might  at  the  time  be  driving; 
and  that,  with  full  knowledge  that  he 
was    sulrject   to    such    attacks   and   the 
t^fTect   of   such   attacks,   defendant   was 
intcntiuiialh'   running    said    automobile 
;it  a   rate  of  speed  so  high  as  to  obvi- 
ously make  said  machine  dangerous  to 
others   traveling   in   vehicles   upon   said 
highway,  and   while  thus  running  said 
car  defendant  suffered  a  customary  at- 
tack  of   such    malady,   which    rendered 
him     ]>owerless    to    control    said    car. 
whereby  said  collision  occurred,  result- 
ing in  such  injuries,  the  collision  would 
not   be    attributable    to    misfortune    or 
iiccidcnt,      but      defendant      would      be 
guilty  of  the  offense  of  an  assault  and 
battery."      Tift   v.   State,    17   Ga.    .\pp. 
(>63,  88  S.  E.  41. 

Instruction.     Til    a    criminal    prosecu- 


Criminal  Offenses.  989 

quires  neither  argument  nor  illustration  to  show  that  the  ex- 
cessive rate  of  speed  at  which  an  automobile  is  driven  is  a 
product  of  the  will  of  its  driver  and  not  the  result  of  his  mere 
inattention  or  negligence.  The  two  cannot  be  confused  any 
more  than  the  hurling  of  a  baseball  bat  into  a  crowd  of  spec- 
tators could  be  confused  with  its  accidentally  slipping  from 
the  hand  of  the  batter.  If  a  blow  inflicted  in  the  former  man- 
ner would  constitute  an  assault,  so  must  a  blow  inflicted  by  a 
wilful  act  applied  to  a  much  more  dangerous  agency,  since  it 
cannot  be  that  what  would  be  a  crime  if  done  with  a  play- 
thing weighing  a  few  ounces  ceases  to  be  a  crime  if  committed 
with  an  engine  w^eighing  thousands  of  pounds  driven  by  many 
horse  powers  of  force.  It  has  often  been  held  that  responsi- 
bility increases  with  the  likelihood  of  injury,  but  never  the 
reverse,  that  I  am  aware  of.  There  is  therefore  no  legal  rea- 
son why  the  crime  of  assault  and  battery  may  not  be  com- 
mitted by  driving  an  automobile  on  a  public  highway  at  a 
rate  of  speed  that  endangers  the  safety  of  other  persons  and 
actually  results  in  such  an  injury." 

The  speed  of  the  car  is  not  necessarily  determinative,  it  is 
held,  w^hether  an  assault  and  battery  has  been  committed. 
Thus,  it  has  been  said  that  the  fact  that  the  car  when  striking 
a  person  was  exceeding  the  speed  limit  fixed  by  statute  is  not 
a  controlling  factor,  but  is  only  a  circumstance  to  be  con- 
sidered in  deciding  whether  the  defendant  was  running  his 
automobile  at  a  rate  of  speed  w^hich,  under  the  existing  con- 
ditions, was  obviously  dangerous  to  pedestrians  or  others 
using  the  highway .^^ 

tion    for   assault   with    an    automobile.  ?3   Atl.   112,  affinned   88  N.  J    L.   396, 

it  is  not  error  for  th'e  court  to  charge  96   Atl.  659. 

the  jury  as  follows:     "Persons  travel-  26    State  v.  Schutte,  88  N.  J.  L.  396, 

ing  in  automobiles  or  buggies  have  the  96  Atl.  659,  wherein  it  was  said:     'A 

lawful  right  to  use  a  public   liigbway.  man    who    deliberately    drives    his    car 

but  in  so  doing  they  should  not,  with-  into  a  mass  of  people  standing  in  the 

out  lawful   justification   or   e\cu=o,    in-  street  looking  at  a  baseball  score  board 

tentionally.      wantonly      or      r;'ckles^ly  is    guilty    of    assault    and    battery    for 

drive  their  vehicle  against  that  of  an-  running   over   some   of   them,   although 

other    person,    to    the    injury    of    sucli  hi.-^-   automobile  is   traveling   far  below 

otber   person."      Tift   v.    State,    17   Ga.  the   speed   limit;    whereas,  one  driving 

App.  663,  88  S.  E.  41.  on  a  lonely  country  road  with  no  pedes- 

25.  State  v.  Schutte.  87  N.  J.  L.   15,  trians  on  it  in  sight  might  be  entirely 


990  The  Law  of  Automobiles. 

The  circumstances  may,  however,  justify  a  conviction  for 
simple  assault  when  they  would  not  warrant  the  jury  in  find- 
ing the  accused  guilty  of  some  form  of  aggravated  assault. 
Thus,  it  has  been  held  that  the  fact  that  a  motorist  operated 
his  machine  recklessly,  whereby  he  struck  and  injured  another 
person,  does  not  establish  the  motorist's  guilt  of  the  crime  of 
assault  ivith  intent  to  inflict  great  bodily  injury,  even  though 
his  mode  of  operation  was  wantonly  negligent,  and  he  must 
be  deemed  to  have  intended  the  result  of  his  acts,  because  the 
intent  to  inflict  such  bodily  injury  is  a  specific  element  of  the 
crime,  and  the  fact  that  the  motorist  accidently  struck  an- 
other will  not  establish  such  intent.  It  appeared  that  actually 
he  did  not  know  of  the  accident  at  the  time  it  occurred.^^  An 
automobile  may  be  a  "deadly  weapon"  within  the  meaning 
of  a  statute  relating  to  assaults.^^ 

Sec.  768.  Larceny  or  theft  of  automobile. 

A  motor  vehicle  is  property  which  may  be  the  sjibject  of 
larceny,  and  in  recent  years  a  considerable  number  of  prose- 
cutions for  the  offense  have  been  reported.^     And,  if  one 

guiltless  of  the   crime  of  assault  and  183  N.  W.  307  -.  Wald  v.  Auto  Salvage 

battery  for  running  over  a  child  which  &   Exch.  Co.,  179  N.  W.  856. 

suddenly  darted  from  a  concealed  posi  Kansas. — State      v.      Bratcher,      105 

tion  by  the  highway,  although  the  au-  Kans.     593.     195    Pac.     734;     State    v. 

tomobile  at  the  time  was  exceeding  the  Phillips,  106  Kans.  192,  186  Pac.  117; 

speed  limit."  State   v.   Phillips,    106  Kans.    192.    186 

27.  State   v.   Richardson,    179    Iowa,  Pac  742. 

770    162  N.  W.  28.  Maryland. — Myers      v.      State,      113 

28.  People    v.    Clink,    216    111.    App        Atl.  92. 

357  Missouri. — State    v.    Thompson,    222 

29.  Alahama.—BeTxnison  v.  State  S.  VV.  789;  State  v.  Weiss  (Mo.  App.). 
(Ala.  App.),  88  So.  211.  219  S.  W.  368. 

Co/orado.— Bush  v.   People,  187  Pac.  ri/iio.— Patterson    v.    State,    96    Ohio 

528.  '^t.  90,  117  N.  E.  169. 

/^/orida.— Sykes     v.     State,     78     Fla.  O/cia/ioma.— Thayer     v.     State,      177 

167    82  So.  778.  P^^     3^1'    McLaughlin    v.    State.    193 

Georgia.— Cfa:r8on    v.    .State,    22    Ga.  Pac.  1010. 

App.    551,    96    S.    E.    500;    Johnson   v.  Texas.— Hamilton    v.    State,    82    Tex. 

State   (Ga   App.),  100  S.  E.  235.  Cr.  554,  200  S.  W.  155;  Moore  v.  State, 

//Hnois.— People    v.    Surace.    129    N.  83  Tex.  Cr.  319,  203  S.  W.  767;  Smith 

E.   504.  V.   State,   83   Tex.   Cr.    485,   203   S.   W. 

Iowa.— State    v.    Hatter,    184    Iowa,  771 ;  Thomas  v.  State,  83  Tex.  Cr.  282, 

878,   169  N.  W.   113;   State  v.  Keller.  20.-]  S.  W.  773;  Moore  v.  State,  85  Tex. 


Criminal  Offenses. 


991 


breaks  into  a  garage  or  other  building  for  the  purpose  of 
stealing  an  automobile,  he  may  be  prosecuted  for  burglary.^ 
Intent  is  an  essential  element  in  the  crime  of  larceny,  and  an 
accused  is  entitled  to  present  facts  showing  that  his  posses- 
sion of  the  automobile  was  not  within  an  intent  to  steal  the 
same.^^    Thus,  when  the  taking  is  not  to  deprive  the  o\\Tier 


Cr.  573,  214  S.  W.  347;  Cone  v.  State 
(Tex.  Cr.),  216  S.  W.  190';  Bride  v. 
State  (Tex.  Cr.),  218  S.  W.  762;  Es- 
cobedo  V.  State  (Tex.  Cr.),  225  S.  W. 
377;  Goodby  v.  State  (Tex.  Cr.),-225 
S.  W.  516;  Smith  v.  State  (Tex.  Cr.), 
227  S.  W.  1105;  Hunt  v.  State  i^Tex. 
Cr.),  229  S.  W.  869;  Smith  v.  State 
(Tex.  Cr.),  230  S.  W.  160;  Hunt  v. 
State  (Tex.  Cr.),  230  S.  W.  406;  Hunt 
V.  State  (Tex.  Cr.),  231  S.  W.  775;  Sie- 
bold  V.  State  (Tex.  Cr.).  232  S.  W.  328. 

Evidence  of  theft  of  gloves  in  auto. 
— In  a  prosecution  for  the  stealing  of 
an  automobile,  evidence  is  admissible 
M'hich  shows  that  a  pair  of  gloves  left 
in  the  automobile  by  the  owner  were 
found  in  the  possession  of  the  defend- 
ant at  the  time  of  his  arrest,  though 
the  commission  of  another  offense  is 
thereby  shown.  People  v.  Cahill,  11 
Cal.  App.  685,  106  Pac.  115. 

Jurisdiction  of  District  Court. — In 
Texas,  it  has  been  held  that  the  theft 
of  an  automobile  is  a  misdemeanor  and 
is  not  triable  in  the  District  Court. 
Greenwood  v.  State,  76  Tex.  Cr.  364. 
174  S.  W.  1049. 

Indictment. — The  description  of  the 
property  in  the  indictment  should  be 
simply  such  as,  in  connection  with  the 
other  allegations,  will  affirmatively 
show  the  accused  to  be  guilty,  will  rea- 
sonably inform  him  of  the  transaction 
charged,  and  will  put  him  in  a  position 
to  make  needful  preparations  for  his 
defense.  Hence,  an  indictment  which 
charges  that  the  accused  "did  wrong- 
fully, fraudulently  and  privately  take, 
steal  and  carry  away,  with  intent  to 
steal  the  same,  one  five-passenger  Ford 


automobile  of  the  value  of  four  hun- 
dred dollars  and  the  property  of  W.  C. 
. Tones, "  is  sufficient.  Carson  v.  State, 
22  Ga.  App.  551,  96  S.  E.  500.  A  de- 
.'icription  of  the  property  as  a  "Ford 
touring  car"  is  sufficient.  Lasher  v. 
Ktate   (Fla.),  86  So.  689. 

Variance. — An  indictmen*.  charged 
the  larceny  of  an  "Overland,"  and  the 
jjroof  showed  the  larceny  of  a  "  Willys- 
Overland. "  Held,  that  the  variance 
(lid  not  amount  to  a  failure  to  sustain 
the  charge  in  the  indictment.  Stewart 
V.  State,  23  Ga.  App.  139,  97  S.  E. 
871. 

Machine  in  garage. — An  indictment 
may  be  sustained  for  the  larceny  of  an 
automobile,  where  the  indictment  al- 
leges the  ownership  of  the  machine  in 
the  garage  keeper  having  possession 
thereof,  though  the  evidence  discloses 
that  another  person  is  the  actual  owner 
and  that  the  garage  keeper  is  merely 
a  bailee.  State  v.  Shoemaker,  96  Ohio 
St.  570,  117  N.  E.  958. 

Attempted  larceny. — ^See  Com.  v. 
Kozlowsky  (Mass.),  131  N.  E.  207. 

30.  State  v.  Orman  (Mo.),  217  S.  W. 
25;  State  v.  Dotson,  97  Wash.  607,  166 
Pac.  769. 

31.  Stilwell  V.  People  (Colo.),  197 
Pac.  239;  Collins  v.  State,  82  Tex.  Cr. 
24,  198  S.  W.  143;  Aeley  v.  State,  84 
Tex.  Cr.  231:  Hunt  v.  State  (Tex.  Cr  ), 
231  S.  W.  775.  See  also  Peopde  v.  Mul- 
vanoy.  286   111.   114,   121  N.   E.  229. 

A  bailee  who  has  lawful  possession 
cannot  commit  larceny.  But  one  who 
obtains  possession  of  personal  property 
by  trick,  device,  or  fraud  with  intent  to 
appropriate   the    property    to    his    own 


992  The  Law  of  Automobiles. 

of  the  property,  but  is  merely  for  the  purpose  of  using  it  for 
a  brief  period,  it  is  held  that  the  crime  of  larceny  or  theft  is 
not  committed^  In  some  jurisdictions,  statutes  have  specially 
created  a  criminal  offense  aimed  against  such  an  unlawful 
use  of  another  motor  vehicle.^^^  But,  if  the  car  is  taken  with- 
out the  owner's  consent  and  is  run  until  the  gasoline  gives 
out  and  is  then  abandoned  by  the  roadside  a  considerable  dis- 
tance from  the  owner's  residence,  the  question  of  the  intent 
to  steal  Ihe  machine  is  one  for  the  jury.^*  Possession  of  an 
automobile  which  has  been  recently  stolen  may  be  prima  facie 
evidence  of  guilt.^  An  indictment  for  receiving  stolen  goods 
may  be  found  against  one  who  receives  an  automobile,  with 
knowledge  of  the  theft.^  And,  if  the  machine  is  in  the  posses- 
sion of  a  bailee,  his  unlawful  conversion  of  it,  or  of  the  pro- 
ceeds, may  constitute  embezzlement.^^ 

Sec.  769.  Using  machine  without  consent  of  owner. 

A  special  provision  of  law  has  been  enacted  in  some  juris- 
dictions providing  a  punishment  for  the  unlawful  use  of  an 

use,   the  owner  or  custodian  intending  (Mo.),  222  S.  W.  789;   State  v.  Weisa 

to   part   with   possession   only   commits  (Mo.  App.),  219   S.  W.   368;   Berry  v. 

larceny    when    he    subsequently    appro-  State  (Tex.  Cr.),  223  S.  W.  212;  Hunt 

priates  it.     Sykes  v.  State,  78  Fla.  167.  v.  State  (Tex.  Cr.),  229  S.  W.  869. 

82  Pac.  778.  36.    Delaware. — State   v.    Derrickson, 

Bad  check. — Giving  a  bad  check  as  114  Atl.  286. 

the    purchase    price    of    an    automobile  Indiana. — Parsons  v.  State,  131  N.  E. 

does'  not  necessarily  constitute  larceny.  ;581 ;  Marco  v.  State,  125  N.  E.  34. 

Patterson  v.  Indiana  Investment,  etc.,  Kansas. — State  v.  Lewark,  106  Kans. 

Co.  (Ind.  App.),  131  N.  E.  19.  184,  186  Pac.  1002. 

32.  State  V.  Boggs,  181  Iowa,  358,  Michigan. — People  v.  Lintz,  203 
164  N.  W.  759 ;  Smith  v.  State,  66  Tex.  Mich.  683,  169  N.  W.  98 ;  People  v. 
Cr.  246,  146  S.  W.  547.  Di-Pietro,  183  N.  W.  22. 

Intention   of   accomplice    is   not   im-  Nebraska. — Sandlovich  v.  State,  176 

portant.     State  v.  Honing  (Iowa),  174  N.  W.  81. 

N.  W.  495.  Texas. — Kolb    v.    State    (Tex.    Cr.), 

33.  Section  769.  228  S.  W.  210. 

34.  Brennon  v.  Commonwealth,  169  37.  Bbtkin  v.  State  (Okla.),  185  Pac. 
Ky.   815,  185   S.  W.   489.  835. 

35.  People  v.  Suraee  (HI.),  129  N.  Conspiracy  to  receive  stolen  automo- 
E.  504;  State  v.  Davis  (Iowa),  179  N.  biles.— See  People  v.  Bond,  S91  111.  74, 
W.  514-;  State  v.  Bratcher,  105  Kans.  125  N.  E.  740;  Commonwealth  v. 
593,  185  Pac.  734 ;  State  v.  Thompson  Harris,  232  Mass.  588,  122  N.  E.  749. 


Criminal  Offenses.  993 

automobile  without  the  owner's  consent.^  The  necessity  of 
such  legislation  is  due  to  the  frequency  with  which  i)ersons 
have  unlawfully  taken  the  machines  of  others  for  a  temporary 
use,  and  to  the  fact  that  a  taking  for  temporary  purposes, 
when  the  wrongdoer  intended  to  return  the  machine  within  a 
brief  period,  is  not  always  regarded  as  an  offense  within  the 
common  law  definitions  of  larceny.^^  There  should  be  no 
doubt  about  the  constitutionality  of  such  an  enactment/^  One 
may  commit  the  offense  if  he  assists  in  driving  the  car  away, 
with  knowledge  of  the  taking,  although  he  did  not  assist  in 
the  taking.^^  A  statute  of  this  character  is  harmonized  with 
the  older  enactments  against  larceny  or  theft,  by  construing 
the  new  law  as  applying  only  to  cases  of  an  unlawful  tem- 
porary use  of  the  machine,  while  the  older  law  covers  the  case 
where  the  wrongdoer  sought  to  deprive  the  owner  permanently 
of  his  property.*^  The  scope  of  a  statute  of  this  character 
may  not  be  restricted  to  the  taking  and  operation  of  a  motor 
vehicle  by  one  who  has  no  relation  whatever  to  the  owner, 
but  may  extend  to  and  include  one  who  may  have  a  general 
relation  or  a  special  relation  to  the  owner,  such  as  servant  or 
bailee,  for  it  may  be  intended  by  the  statute  to  prevent  a  ser- 
vant or  bailee  improperly  taking  and  operating  a  motor 
vehicle  quite  as  well  as  it  is  intended  to  protect  the  owner 
and  the  public  from  the  taking  of  the  same  by  a  stranger.*-'' 

38.  Conspiracy. — In  a  case  in  South  the   taking    of   an   automobile   without 

Carolina  it  was  decirled  that  the  law  of  the  owner's  consent.    State  v.  Davis,  88 

conspiracy   is  not   restricted   to   unlaw-  S.   Car.   229,   70   S.   E.    811,      See   also 

ful  acts  which  affect  the  community  or  State  v.  Martin,  11  S.  C.  352,  98  S.  E. 

public,   as  distinguished   from  an  indi-  127. 

vidual.     And  the  doctrine  was  affirmed  39.  Section  768. 

that  it  is  not  necessary  in  order  to  con-  40.  S'ngleton  v.  Commonwealth,  164 

stitute     a     conspiracy    that    the    acts  Ky.  243,  175  S.  W.  372. 

agreed  to  be  done  should  be  acts  which,  41.  People  v.  Murnamo  (Mich.\  182 

if  done,  would  be  criminal,  but  that  it  X.  W.  62. 

is  enough  if  the  acts  agreed  to  be  done  42.  Sparks  v.  State,  76  Tex.  Cr.  263, 

are  wrongful,  that  is,  amount  to  a  civil  174    S.   W.    351.      See   aFso   Howard   v. 

wrong.     So  in  this  case  it  was  decided  State,  76  Tex.  Cr.  347,  174  S.  W.  824. 

that  while  there  is  no  statute  making  Use    by    garagekeeper. — See    People 

it    criminal   to   use   the   automobile    of  v.  Smith  (Mich.),  182  N,  W,  62, 

another  without  his  consent,  yet  it  is  43.  People  v.  Smith   (Mich.),  182  N. 

clearly  unlawful  to  so  use  it,  and  that  W,  64. 
an  indictment   for   conspiracy   lies   for 

63 


994  The  Law  of  Automobiles. 

In  other  words,  a  chauffeur  employed  to  operate  a  machine, 
or  a  garage  manager  or  a  garage  employee  engaged  to  care 
for  or  repair  a  machine,  who  exceeds  the  contract  of  his  em- 
plojTnent  by  taking  and  operating  his  employer's  machine 
without  his  employer's  consent,  may  be  just  as  amenable  to 
the  provisions  and  punishments  of  such  a  law  as  one,  who 
without  any  relation  to  the  owner,  takes  and  operates  a  ma- 
chine without  the  owner's  consent.^*  The  pivotal  point  in 
prosecutions  imder  such  a  statute  frequently  is  whether  the 
machine  was  operated  without  the  consent  of  the  owner.  If 
one  employed  to  repair  a  car  takes  a  ride  therein  with  the 
chauffeur,  he  may  escape  criminal  liability  by  showing  that 
he  believed  the  chauffeur  was  testing  the  car  in  accordance 
with  the  owner's  direction.*^  The  fact  that  the  accused  has 
been  permitted,  or  allowed,  at  times,  to  drive  the  automobile 
to  the  railroad  station  to  meet  some  member  of  the  family, 
does  not  give  the  consent  of  the  owner,  or  person  in  charge 
of  the  car,  to  drive  it  at  other  times  to  other  places.  Consent 
within  the  meaning  of  the  statute  implies  authority  to  drive 
another's  car,  it  requires  the  sanction  on  the  part  of  the 
owner,  or  person  in  charge  of  the  car,  to  another  to  drive  it.'*^ 
The  word  ''consent"  as  used  in  a  statute  of  this  character 
should  be  interpreted  as  meaning  voluntarily  yielding  the  will 
to  the  proposition  of  another,  acquiescence  or  compliance 
therewith.  The  owner's  consent  must  precede  the  act  of  tak- 
ing, or  assuming  possession  of,  the  motor  vehicle  and  does 
not  relate  to  what  transpires  thereafter.  The  gist  of  the 
offense  is  the  taking  and  operating,  or  causing  a  motor  vehicle 
to  be  taken  or  operated,  by  another,  without  the  consent  of 
the  owner.  Such  a  law  is  not  designed  to  punish  one  who  ob- 
tains consent  of  the  owner  to  take  and  operate  his  motor 
vehicle  by  misrepresentations  or  for  a  fraudulent  purpose, 
but  one  who  takes  possession  thereof  without  the  consent  of 

44.  State  v.  Cusack,  4  Boyce   (Del.)       ownership    of    the   vehicle.      People   v. 
469,  89  Atl.  216.  Kasker,  209  111.  App.  597. 

45.  State  v.  Cusack,  4  Boyce   (Del.)  46.  State  v.  Harris   (Del.),  114  Atl 
469,  89  Atl.   216.                                                   284. 

The     indictment     must     allege     the 


Criminal  Offenses.  995 

the  owner.'*'  The  accused  may  show  tlial  he  had  permission 
to  use  another  machine,  as  such  evidence  bears  on  the  wilful- 
ness of  using  the  machine  in  question.^ 

Sec.  770.  Failure  to  register  machine. 

Various  interestins:  legal  problems  arise  as  to  the  civil  lia- 
bility of  an  owner  of  a  motor  vehicle  when  he  fails  to  have 
the  machine  licensed  and  registered  in  accord  with  the  State 
statutes  on  the  subject.''^  The  law  also  imposes  a  criminal 
liability  on  the  owner  for  a  failure  to  comply  with  the  statute 
in  such  respect.  An  indictment  for  a  violation  of  such  a  stat- 
ute may  be  sufficient  where  it  substantially  follows  the  lan- 
guage of  the  statute.^'*^  So  where  a  statute  provides  that  every 
person  ''desiring"  to  operate  an  automobile  must  obtain,  a 
license  from  certain  officers,  an  indictment  is  not  bad  because 
of  the  omission  of  the  word  "desire,"  the  indictment  other- 
wise substantially  following  the  language  of  the  statute.^^  It 
is  also  a  general  rule  that  matters  of  defense  need  not  be  anti- 
cipated by  the  State  so  as  to  require  an  averment  in  an  indict- 
ment of  facts  which  Avill  render  them  unavailable.^^  And  ex- 
ceptions in  the  statute  need  not  be  negatived  in  the  indict- 
ment.^ An  indictment  for  operating  a  motorcycle  without 
registration  is  sufficient  though  it  does  not  allege  the  opera- 
tion upon  a  street  or  highway  within  the  State,  if  the  statute 
makes  it  an  offense  to  operate  the  machine  at  all  until  it  is 
registered.^* 

47.  State  v.  Boggs,  ISl  lown.  .'{oS.  fication  mark  is  assignor!  for  one  year, 
164  N.  W.   759.  on   the  registration   of  the  car.   and   it 

48.  People  V.  Kepford  (Cal.  Apji.").  is  no  defense  to  a  charge  of  using  a 
199  Pac.  64.  car  on   a   highway  without  registration 

49.  Sections  125-127.  that  no  notice  was  given  to  the  accused 

50.  State  v.  Cobb,  113  Mb.  App.  156,  of  the  expiration  of  the  right.  Cald- 
87  S.  W.  551.  See  Joyce  on  Indict-  well  v.  Hague.  84  L.  ,7.  K.  B.  CEng.) 
ments,  §§  371,  et  seq.  .t43. 

51.  State  V.  Cobb.  113  Mo.  App.  1.5fi.  53.  State  v.  Shafer  (Okla.).  179  Pac. 
87  S.  W.  551.  782. 

52.  Joyce  on  Indictments,  §  279.  54.  State    v.    Seinknecht.    136    Tenn. 
Under  the  English  Motor  Car  Act  of       i.-^n.  iss  S.  W.  534. 

1903,  a  right  to  use  a  general  identi 


996  The  Law  of  Automobiles. 

Sec.  771.  Failure  of  chauffeur  to  have  license. 

In  most  States,  it  is  now  required  that  chauffeurs  shall  be 
duly  licensed,  and  an  unlicensed  chauffeur  is  subject  to  crimi- 
nal prosecution  if  he  drives  an  automobile  on  the  highways 
of  the  State.^5  ^n  employee  of  an  electric  company,  who,  not 
having  a  chauffeur's  license,  uses  in  the  discharge  of  his  duties 
an  automobile  furnished  by  his  employer,  is  properly  con 
victed  of  operating  an  automobile  without  a  chauffeur's 
license.^*' 

Sec.  772.  Driving  machine  while  intoxicated. 

Experience  has  shown  that  a  motor  vehicle  operated  by  an 
intoxicated  chauffeur  is  a  menace  to  other  travelers  and  strict 
measures  must  be  taken  to  suppress  such  conduct.  Hence, 
the  operation  of  a  motor  vehicle  when  in  an  intoxicated  condi- 
tion will  under  modern  statutes  generally  subject  the  offender 
to  a  criminal  prosecution.^^  It  is  not  essential  for  the  viola- 
tion of  such  a  statute,  as  a  general  proposition,  that  the  driver 
should  be  so  intoxicated  that  he  cannot  safely  drive  the  ma- 
chine. The  expression  in  the  statute  ''under  the  influence  of 
intoxicating  liquors"  covers,  not  only  all  well  known  and 

55.  See  chapter  XII.  57.  Helmer    v.     Superior    Ct.     (Cal. 

56.  People  v.  Fulton,  90  Misc.  (N.  App.),  191  Pac.  1001 ;  St.  Clair  v.  State 
Y.)  663,  162  N.  Y.  Suppl.  125,  wherein  (Ga.  App.),  107  S.  E.  570;  Curtis  v. 
it  was  said:  "The  question,  therefore,  Joyce,  90  N.  J.  L.  47,  99  Atl.  933; 
is,  what  effect  shall  be  given  to  sub-  State  v.  Jones  (N.  Car.),  106  S.  E. 
division  4  of  section  289  of  the  High-  827. 

way  Law,  which  reads  as  follows:    'No  As  a  nusiance.— The  operation  of  an 

person   shall  operate  or  drive  a  motor  ;iutomobile   while   intoxicated   is   nrf,   a 

vehicle    as    chauffeur    upon    a    public  public   or   common  nuisance   indicl     .le 

highway — unless      such     person      shall  at  common  law.     State  v.  Rodgers  (N. 

have  complied  in  all  respects  with  the  J.),    102   Atl.   433,   reversing   State  v. 

requirements  of  this  section.'     Section  Rogers  (N.  J.),  99  Atl.  931. 

281  of  the  same  law  provides:     'The  Joinder     with     reckless     driving.— 

chauffeur  shall  mean  any  person  operat-  Where  an  indictment  joined  charges  of 

ing   or  driving  a  motor  vehicle   as  an  reckless   driving  and   of   driving  while 

employee  or  for  hire.'     The  defendant  intoxicated,    a    conviction    for    reckless 

being  an   employee  is  squarely  within  driving    was    sustained,    although    the 

the  prohibition  of  the  statute.    To  hold  question  of  intoxication  was  withdrawn 

otherwise  would  nullify  the  plain  Ian-  by  the   court  after  the  submission  of 

guage  of  the  law,  and,  in  my  opinion,  the  case.     State  v.  Derry,  118  Me.  431, 

the  intent  of  the  legislature."  108  Atl.  568. 


Criminal  Offenses.  997 

easily  recognized  conditions  and  degrees  of  intoxication,  but 
any  abnormal  mental  or  physical  condition  which  is  the  result 
of  indulging  in  any  degree  in  intoxicating  liquors  and  which 
tends  to  deprive  him  of  that  clearness  of  intellect  and  control 
of  himself  which  he  would  otherwise  possess.^  Intoxication 
cannot  be  inferred  solely  from  the  fact  that  the  car  was  driven 
recklessly .^^  To  be  '' intoxicated,"  one  must  generally  be 
affected  by  alcoholic  beverage  to  such  an  extent  as  to  impair 
his  judgment  or  his  ability  to  operate  the  machine.*^  He  need 
not,  however,  have  reached  a  state  of  "drunkenness."^^  .^ 

Sec.  773.  Violation  of  law  of  road. 

In  the  regulation  of  the  use  of  the  public  highways,  the 
Legislature  may  properly  make  a  violation  of  the  law  of  the 
road  a  criminal  offense.^^  The  law  makers,  however,  in  their 
discretion,  may  impose  merely  a  civil  liability  for  a  viola- 
tion.'''^ Under  a  motor  vehicle  statute  providing  in  part  that 
"in  ^cities  or  villages,  or  any  place  where  trafl&c  is  large  or 
on  streets  usually  congested  with  traffic  of  horse-drawn  vehi- 
cles or  street  cars,  slow  moving  vehicles  must  keep  near  the 
right-hand  curb,  allowing  those  moving  more  rapidly  to  keep 
near  the  center  of  the  street,**  it  was  held  that  a  defendant 
may  properly  be  convicted  under  the  statute,  though  he. was 
not  blocking  any  traffic,  but  was  merely  driving  on  the  part 
of  the  street  most  convenient  to  him.*'*  Ordinances  may  regu- 
late the  passage  of  street  cars.*^     A  statutory  provision  mak- 

58.  State  v.  Roger's,  91  N.  J.  L.  212,  wagon  cannot  be  convicted  of  a  crime 

102  Atl.  433.  for   dvivinjc;  on  the  wrong  side  of   the 

69.  People    v.    Weaver,    188    N.    Y.  road  in  the  evening  without  lights. 

App.  Div.  395,  177  N.  Y.  Suppl.  71.  64.  Stnte  v.  Bussian,  111  Minn.  48S, 

60.  People  v.  Weaver,  188  N.  Y.  127  N.  W.  495.  31  L.  B.  A.  (N.  8.) 
App.  Div.  395,  177  N.  Y.  Suppl.  71.  682. 

61.  Hart  v.  State  (Ga.  App.),  105  65.  Nicholls  v.  City  of  Cleveland 
S.  E.  383.  (Ohio),  1-28  N.  E.  164. 

62.  State  v.  Larrabee,  104  Minn.  37.  66.  Hale  v.  State,  21  Ga.  App.  658. 
115  N.  W.  948.  94    S.    E.    823,    wherein    it    wa5    said: 

InsufiScient     complaint.' — Joniechkies  "The  statute  under  consideration  pro- 

V.  State  (Tex.  Cr.),  227  S.  W.  952.  vides  that  the  operator,  when  meeting 

63.  People  v.  Martinitis,  168  N.  Y.  another  vehicle,  'shall  turn  his  vehicle 
App.  Div.  446,  153  N.  Y.  Suppl.  791,  to  the  right  so  as  to  give  one-half  of 
holding    that    the    driver    of    a    farm  the    traveled    roadway,    if    practicable, 


998  The  Law  of  Automobiles. 

ing  it  a  penal  offense  for  the  operator  of  a  motor  vehicle, 
when  meeting  a  vehicle  approaching  from  the  opposite  direc- 
tion, to  fail  to  turn  to  the  right  so  as  to  give  one-half  of  the 
traveled  roadway,  if  practicable,  and  a  fair  opportunity  to  the 
other  to  pass  without  unnecessary  interference,  has  been  held 
to  be  too  uncertain  and  indefinite  to  be  capable  of  enforce- 
ment by  criminal  prosecution.^*^  It  may  be  a  criminal  offense 
to  fail  to  give  a  signal  when  approaching  and  attempting  to 
pass  a  vehicle  moving  in  the  same  direction.^^ 

Sec.  774.  Failure  to  stop  on  signal. 

Statutes  have  been  generally  enacted  so  as  to  require  the 
driver  of  a  motor  vehicle  to  stop  upon  receiving  a  signal  from 
the  driver  of  a  horse-drawn  conveyance,  or  otherwise  manage 
the  machine  so  as  not  to  frighten  the  animal.^^  A  violation  of 
such  a  statute  may  be  made  a  criminal  offense.  An  enact- 
ment of  this  nature  may  be  construed  so  as  to  require  the 
operator  of  the  motor  vehicle  to  stop  upon  a  signal  from  an 
occupant  of  the  carriage,  though  such  occupant  is  not  the 
driver  of  the  horse  or  team.'^^  '  A  statute  of  the  kind  under 
consideration  may  give  the  operator  of  the  machine  some  dis- 
cretion as  to  whether  he  shall  stop.  Thus,  in  at  least  one 
jurisdiction,  it  has  been  enacted  that  he  shall  stop  his  ma- 

and  a  fair  opportunity  to  the  other  to  passing  upon  the  practicability.  How- 
pass  by  without  unnecessary  interfer-  is  the  driver  to  know  in  all  cases  when 
euce.'  But  who  should  determine,  in  he  is  violating  this  statute?  The  re- 
each  particular  case,  whether,  under  maining  portion  of  the  section  under 
the  particular  circumstances  of  that  consideration,  requiring  such  driver  to 
case,  it  was  practicable  for  the  driver  give  a  'fair  opportunity'  to  the  other 
to  give  the  other  party  half  of  the  to  pass  by  without  'necessary  inter- 
traveled  roadway?  Under  certain  cir-  ference,'  needs  no  discussion  to  show 
curastances  one  jury  might  consider  ita  definiteness  and  vagueness.  Prob- 
auch  action  practicable,  and  convict;  ably  no  two  minds  would  agree  on  the 
another  jury,  under  the  same  circum-  naeaning  of  'a  fair  opportunity,'  nor 
stances  might  deem  it  impracticable.  of  'unnecessary  interference.'" 
and  acquit.  If  the  driver  of  the  motor  67.  Russell  v.  State  (Tex.  Cr.),  ^28 
vehicle  deemed  it  impracticable  to  give  S.  W.  566. 

half   of  the  traveled  roadway   and  in  68.  Pinion  v.   State    (Tex.   Cr.),  219 

good  faith  failed  so  to  do,  he  would  S.  W.  831. 

be  convicted  of  the  oifense  should  the  69.  State  v.  Goodwin.   169   Tnd.  265, 

jury    find    he   used    poor    judgment    in  82  N.  E.  459. 


Criminal  Offenses. 


999 


chine,  ''unless  a  movement  forward  shall  be  deemed  neces- 
sary to  avoid  accident  or  injury."'^'' 


Sec.  775.  Stopping  and  furnishing  identity  in  case  of  accident 
—  constitutionality  of  statute. 

Statutes  have  been  enacted  in  some  jurisdictions  requiring 
an  automobilist,  upon  causing  injury  to  property  or  to  an 
other  traveler,  to  stop  his  machine,  and  furnish  his  name  or 
other  means  of  identification  to  the  traveler  injured  or  to  a 
police  officer,  or  to  give  assistance  to  the  persons  injured.'" 
The  flight  of  an  automobilist  after  causing  injury  to  another, 
is  deemed  such  a  serious  offense  that  it  is  made  a  felony  in 
some  jurisdictions.'^  The  constitutionality  of  such  a  statute 
is  affirmed  by  the  courts,  though  there  is  a  strong  argument 
that  it  compels  one  to  give  evidence  against  himself.'^  Such 
a  law  is  affirmed  on  the  ground  that  it  is  within  the  police 
power  of  the  State,'''  and  also  on  the  theory  that  the  State  has 


70.  McCummins  v.  State,  13a  Wis 
236,  112  N.  W.  25. 

71.  People  V.  Finley,  37  Cal.  App. 
291,  149  Pac.  779;  State  v.  Verrill 
(Me.),  112  Atl.  673;  People  v.  Curtis. 
225  N.  Y.  519,  122  N.  E.  623;  Rex  v. 
Hankey,  93  L.  T.  N.  S.  (Eng.)  107. 

Identification. — Error  was  committed 
in  receiving  testimony  to  the  eilect  that 
a  witness  saw  an  automobile  running 
through  a  street  in  the  city  where  the 
accident  occurred  about  twelve  o'clock 
on  that  night  at  a  speed  of  forty  or 
fifty  miles  an  hour,  where  the  witness 
did  not  identify  the  car  nor  state  any 
fact  which  warranted  the  inference 
that  it  was  the  automobile  of  the  de- 
fendant. People  V.  Curtis,  217  N.  Y. 
304,  112  N.  E.  54. 

Res  gestae. — Statements  made  by 
the  injured  person  immediately  after 
the  accident  may  be  roceivod  as  a  part 
of  the  res  ncstae.  People  v.  Curtis, 
225   N.   Y.   .^)19. 

72.  People  v.  Finley,  27  Cal.  App. 
291,  149  Pac.  779;  People  v.  Fodera, 
33  Cal.  App.  8,  164  Pac.  22;  People  v. 


Rosenheimer.  209  N.  Y.  11."),  102  N.  E. 
530,  Ann.  Cas.  1915  A.  161.  46  L.  R. 
A.  (N.  S.)   77. 

73.  J/«.6»?m/.- Woods  v.  State.  15 
Ala.  App.  251,  73  So.  129. 

California. — People  v.  Dillei,  24  Cal. 
App.  799,  142  Pac.  797:  People  v. 
Finley,  27  Cal.  App.  291,  149  Pac.  779; 
People  V.  Fodera,  33  Cal.  App.  8,  164 
Pac.  22. 

Massachusetts.  —  Commonwealth  v. 
Horsfall,  213  Mass.  232,  100  N.  E.  362, 
Ann.  Cas.  1914  A.  682. 

New  York. — People  v.  Rosenheimer, 
209  K  Y.  115,  102  N.  E.  530,  Ann. 
Cas.  1915  A.  161,  46  L.  R.  A.  (N.  S.) 
77,  reversing  146  App.  Div.  875,  130 
N.  Y.  Suppl.  544. 

New  Hampshire. — State  v.  Sterrin, 
78  N.  H.  220,  98  Atl.  482. 

74.  Ex  iiarte  Kneedler,  243  Mo.  632, 
147  S.  W.  983,  Ann.  Cas.  923.  40  L.  R. 
A.  (N.  S.)  622,  wherein  it  was  said: 
"The  atatute  is  a  simple  police  regu- 
lation. It  does  not  make  tlie  accident 
a  crime.  If  a  crime  is  involved,  it 
arises  from  some  other  statute.    It  does 


1000 


The  Law  of  Automobiles. 


plenary  power  over  the  use  of  the  highways,  and  that  the 
operator  of  a  motor  vehicle  in  the  use  of  the  highways  exer- 
cise a  privilege  which  the  law  makers  might  deny  to  him,  and 
that  having  given  him  the  privilege  of  using  the  highways  it 
may  prescribe  the  conditions  under  which  such  use  may  be 
exercised.'^ 


not  attempt  iu  teims  to  authorize  the 
admission    of   the  information   as   evi- 
dence in   a   criminal   proceeding.      The 
mere  fact  that  the  driver  discloses  his 
identity    is   no    evidence   of    guilt,   but 
rather  of  innocence.      (State  v.  Davis, 
108  Mo.  667.)     On  the  contrary,  flight 
is  regarded  as  evidence  of  guilt.     In 
the  large  majority  of  cases  such  acci- 
dents   are   free   from    culpability.      If 
this  objection  to  the  statute  is  valid, 
it   may  as  well  be  urged  against  the 
other    provisions,     which     require     the 
owner  and   chauffeur  to   register  their 
names  and  numbers,  and  to  display  the 
number  of  the  vehicle  in  a  conspicuous 
place  thereon,  thus  giving  evidence  of 
identity,  which  is  the  obvious  purpose 
of  the  provisions.     (St.  Louis  v.  Wil- 
liams, 235  Mo.  503.)     We  have  several 
statutes  which  require  persons  to  give 
information  which  would  tend  to  sup- 
port     possible      subsequent      criminal 
charges,     if     introduced     in     evidence. 
Persons  in   charge   are  required   to   re- 
port accidents  in  mines  and  factories. 
Physicians     must     report     deaths     and 
their    causes,    giving   their   own   names 
and    addresses.      Druggists    must    show 
their  prescription   lists.      Dealers   must 
deliver  for  inspection  foods  carried  in 
stock.     We  held  a  law  valid  whicli  re- 
quired a  pawnbroker  to   exhibit  to   ;in 
officer  his  book  wherein  were  rcgisterod 
articles    received    by   him,    against    his 
objection    based    on    this    same    consti- 
tutional provision.     We  held  this  to  be 
a   mere    police   regulation,    not    invalid 
because  there  might  be  a  possible  crimi- 
nal  prosecution   in   which   it   might    be 
Attempted  to  use  this  evidence  to  sho^\* 


him  to  be  a  receiver  of  stolen  goods. 
(State  v.  Levin,  128  Mo.  588.)  If  the 
law  which  exacts  this  information  is 
invalid  because  such  information,  al- 
though in  itself  no  evidence  of  guilt, 
might  possibly  lead  to  a  charge  of 
crime  against  the  informant,  then  all 
police  regulations  which  involve  identi- 
fication may  be  questioned  on  the  same 
ground.  We  are  not  aware  of  any  con- 
stitutional provision  designed  to  pro- 
tect a  man's  conduct  from  judicial  in- 
quiry, or  aid  him  in  fleeing  from  jus- 
tice." 

75.  People  v.  Rosenheimer,  209  N.  Y. 
115,  102  N.  E.  530,  Ann.  Cas.  1915  A. 
IGl,  46  L.  R.  A.  (N.  S.)  77,  wherein 
it  was  said:  "There  is  one  ground 
upon  which,  in  my  opinion,  the  validity 
of  the  statute  can  be  safely  placed. 
The  legislature  might  prohibit  alto- 
gether the  use  of  motor  vehicles  upon 
the  highways  or  streets  of  the  State. 
It  has  been  so  held  in  State  of  Maine 
\.  Mayo  (106  Me.  62),  and  Common- 
wealth V.  Kingsbury  (199  Mass.  542). 
7^oul>tless  the  legislature  could  not  pre- 
vent citizens  from  using  the  highways 
in  the  ordinary  manner,  nor  would  the 
mere  fact  that  the  machine  used  for 
the  movement  of  persons  or  things 
;i1ong  the  highway  was  novel  justify  its 
I'Nclusion.  But  the  right  to  use  the 
liigliway  by  any  person  must  be  exer- 
i-ised  in  ;i  mode  consistent  with  the 
equal  rights  of  others  to  use  the  high- 
way. That  the  motor  vehicle,  on  ac- 
count of  its  size  and  weight,  of  its 
great  power  and  of  the  great  speed 
which  it  is  capable  of  attaining,  cre- 
ates,   unless    munagcd   by   careful   and 


Criminal  Offenses. 


1001 


Sec.  776.  Stopping  and  furnishing  identity  in  case  of  accident 
—  intent. 

Under  the  hxnguage  of  the  statutes  prohibiting  the  fhght 
of  an  automoMlist  after  an  accident,  the  intent  of  the  accused 


competent  operators,  a  most  serious 
danger,  both  to  other  travelers  on  the 
highway  and  to  the  occupants  of  the 
vehicles  themselves,  is  too  clearly  a 
matter  of  common  knowledge  to  justify 
discussion.  The  fatalities  caused  by 
them  rue  so  numerous  as  to  permit  the 
legislature,  if  it  deemed  it  wise,  to 
wholly  forbid  their  use.  (Otis  v.  Par- 
ker, 197  U.  S.  606;  People  v.  Persce. 
204  N.  Y.  397,  97  N.  E.  877.)  If  the 
legislature  may  declare  it  a  crime  to 
use  a  motor  vehiclo  on  the  highway  un- 
der any  circumstances.  I  do  not  see 
why  it  may  not  equally  declare  it  n 
crime  to  so  use  such  a  vehicle  as  to 
injure  any  one  in  person  or  property. 
That,  in  effect,  is  a  diminution,  not  an 
increase,  of  the  criminality  it  had  the 
power  to  attribute  to  the  use  of  a 
motor  vehicle.  The  provision  now  bo 
fore  us  is  but  a  still  further  diminu- 
tion of  the  statutory  inhibition  the 
legislature  would  be  authorized  to  en- 
act: It  docs  not  declare  it  a  crime  to 
operate  an  automobile  on  the  highway 
or  even  that  in  its  operation  injury  to 
person  or  property  shall  be  a  crime, 
but  only  that  failure  by  the  operator, 
in  case  of  such  injury,  to  identify 
himself  shall  be  criminal.  I  cannot  see 
why  the  greater  power  does  not  include 
the  less.  Of  course,  the  whole  of  this 
argument  rests  on  the  proposition  that 
in  operating  a  motor  vehicle  the  opera- 
tor exercises  a  privilege  which  might 
•be  denied  him.  and  not  a  right,  and 
that  in  a  case  of  a  pri\nlege  the  legis- 
lature may  prescribe  on  what  condi- 
tions it  shall  be  exercised. 
Moreover,  as  already  said,  the  operator 
is  not  obliged  to  ropoit  the  circum- 
stances from  which  his  culpability  may 


1)0  ijif erred  and  if  he  he  culpable  it 
does  not  necessarily  follow  that  he  has 
been  guilty  of  a  crime.  A  distance 
separates  the  negligence  whicli  renders 
one  criminally  liable  from  that  which 
establishes  civil  liability.  That  a  de- 
fendant can  be  compelled  as  a  witness 
to  testify  to  facts  establishing  his  civil 
liability  is  unquestionable.  This  stat- 
ute does  not  prescribe  any  new  criminal 
liability  for  injury  to  persons  by  a 
raotoi-  vehicle.  The  operator  commits 
a  crime  only  when  his  conduct  is  such 
as  would  in  any  other  action  on  his 
part  producing  like  results  make  him  a 
iiiminal.  The  primary  object  of  the 
statute,  in  my  judgment,  is  not  to  con- 
vict any  person  of  crime,  but  to  sub- 
ject him  to  civil  liability.  I  appreciate 
that  when  examined  as  a  witness  in 
a  civil  suit  the  defendant  might  claim 
his  privilege.  I  also  appreciate  that 
the  right  to  justify  a  disobedience  of 
this  statute  by  proof  that  the  circum- 
stances render  him  liable  to  criminal 
prosecution  would  be  of  little  advan- 
tago  to  the  defendant.  He  would  ac- 
quit himself  of  one  crime  only  by 
convicting  himself  of  another.  Never- 
theless when  we  bear  in  mind  not  only 
the  greater  danger  occasioned  by  the 
use  of  motor  vehicles,  but  also  the  fact 
that  the  great  speed  at  which  they  can 
be  run  enables  the  person  causing  injury 
to  readily  escape  undetected,  leaving 
parties  injured  in  person  or  property 
unable  to  tell  from  whom  they  shall 
seek  redress,  I  think  it  involves  no 
violation  of  public  policy  or  of  the 
principles  of  personal  liberty  to  enact 
that  as  a  condition  of  operating  such  a 
machine  the  operator  must  waive  his 
constitutional  privilege  and  tell  who  he 


1002 


The  Law  of  Automobiles. 


is  a  material  element  of  the  offense."'^  Thus,  where  the  accused 
after  a  collision  on  the  highway  waited  for  a  considerable 
time  at  his  own  automobile  which  was  disabled  in  the  acci- 
dent, and  then  sent  another  man  back  to  the  place  of  the  col- 
lision with  instructions  to  disclose  his  identity,  his  conduct 
may  be  a  sufficient  compliance  with  the  statute,  though  such 
agent  fails  to  make  the  disclosure.'^  And  the  accused  may 
claim  that  he  did  not  know  of  the  accident."^  ''Knowledge" 
of  the  injury  within  the  meaning  of  the  statute  may  arise  when 
the  accused  has  actual  knowledge  thereof  or  when  the  cir- 
cumstances are  such  as  to  cause  a  reasonable  person  to  believe 
that  injury  would  flow  from  the  accident.'^ 

Sec.  777.  Stopping  and  furnishing  identity  in  case  of  accident 
—  burden  of  proof. 

With  reference  to  whether  the  burden  is  upon  the  prosecu- 
tion to  show  that  no  report  of  the  accident  was  made  or 


is  to  the  party  who  has  been  injured 
or  to  the  police  authorities,  if,  indeed, 
requiring  him  to  give  such  information 
is  an  impairment  of  his  constitutional 
privilege,  which  we  do  not  decide." 
See  also  State  v.  Sterrin,  78  N.  H, 
220,  98  Atl.  482. 

76.  Commonwealth  v.  Horsfall,  213 
Mass.  232,  100  N.  E.  362. 

77.  Commonwealth  v.  Horsfall.  213 
Mass.  232,  100  N.  E.  362. 

78.  People  v.  Fodera,  33  Cal.  App.  8, 
164  Pac.  22;  Robertson  v.  McAllister, 
19.  Canada  C.  C.  441,  5  D.  L.  R.  476. 

79.  Woods  V.  State,  15  Ala.  App. 
251,  73  So.  129. 

Knowledge  of  injury. — It  is  essential 
to  a  conviction  under  an  indictment  for 
violation  of  subdivision  3  of  sect  ion  290 
of  the  Highway  Law  (L.  1910,  ch. 
374),  that  the  jury  should  be  satisfied 
beyond  a  reasonable  doubt  not  only 
that  an  injury  had  been  caused  to  per- 
son or  property,  but  that  the  defend- 
ant knew  that  such  injury  had  been 
caused,  and  notwithstanding  such 
knowledge  left   the  scene  of   the  acci- 


dent without  giving  his  name,  address 
or  license  number,  and  that  he  neg- 
lected subsequently  to  report  the  in- 
jury to  the  nearest  police  station  or 
judicial  officer  as  the  law  requires. 
People  V.  Curtis,  217  N.  Y.  304,  112 
N.  E.  54. 

Evidence  of  extent  of  injuries. — 
"Upon  the  trial  of  an  indictment  for 
a  violation  of  section  290  of  the  High- 
way Law,  evidence  might  properly  bo 
given  showing  how  much  a  person  was 
injured  in  an  automobile  collision  as 
bearing  upon  the  seriousness  of  the  ac- 
cident and  tending  to  show  that  it 
ought  not  to  have  escaped  the  notice 
and  attention  of  the  defendant.  The 
subsequent  suffering  of  the  injured 
jicrson,  however,  and  the  length  of 
time  he  was  obliged  to  remain  in  the 
hospital  and  the  details  of  the  medical 
or  surgical  treatment  which  Tie  received 
could  have  no  legitimate  bearing  upon 
any  of  the  issues  arising  on  the  trial 
of  the  indictment."  People  v.  Curtis, 
217  N.  Y.  304,  112  N.  E.  54. 


Criminal  Offenses.  1003 

whether  the  burden  is  placed  upon  the  defendant  to  show  a 
proper  report,  it  has  been  said:  "I  think  that  within  the  fair 
purview  of  this  statute  the  people  should  not  be  required 
first  to  show  that  there  was  no  report  to  the  injured  party, 
and  then  to  prove  that  a  police  officer  was  present  and  no  re- 
port made  to  him,  or  that  no  police  officer  was  in  the  vicinity, 
and  then  to  show,  perhaps  as  a  result  of  several  exact  and 
nice  measurements,  that  a  report  was  not  made  to  the  nearest 
police  station  or  judicial  officer.  I  am  convinced  that  this  is 
a  situation  in  which  there  is  a  negative  proposition  which 
does  not  fairly  permit  of  direct  proof,  and  that  it  is  a  matter 
immediately  within  the  knowledge  of  the  defendant  under 
such  surrounding  circmnstances  that  the  onus  probandi 
should  rest  upon  him  to  show  that  a  report  was  made."^ 

Sec.  778.  Stopping  and  furnishing  identity  in  case  of  accident 

—  time  of  report. 

Unless  the  accused  was  injured  personally  in  the  accident, 
or  a  situation  is  created  whereby  an  immediate  report  cannot 
be  made  by  him,  the  statute  will  generally  require  him  to  stop 
and  report  immediately.  If  he  drives  on  several  miles  before 
he  stops,  he  may  be  convicted  of  the  offense.^ 

Sec.  779.  Stopping  and  furnishing  identity  in  case  of  accident 

—  no  person  to  receive  report. 

The  fact  that  the  person  injured  was  unconscious  and  no 
other  person  was  present  to  whom  the  accused  might  report 
the  required  facts  does  not  justify  him  in  at  once  leaving  the 
scene  without  waiting  for  the  arrival  of  a  person  to  whom 
the  information  could  be  given.^^ 

80.  People  v.  McLaughlin,  100  Misc.  defendant  was  at  liberty  to  at  once 
CN.  y.)  340,  165  N.  Y.  Siippl.  54.5.  leave  the  scene  of  the  accident  without 

81.  People  V.  McLaughlin,  100  Misc.  waiting  for  the  arrival  of  any  one  who 
CN.  y.)  340,  165  N.  y.  Suppl.  545.  might     demand    the     information     de- 

82.  State  v.  Sterrin,  78  N.  TI.  220,  scribed  in  the  statute.  It  is  apparent 
98  Atl.  482,  wherein  the  court  expressed  that  the  legislature  could  not  have  in- 
its  views  as  follows:  "It  is  argued  tended  to  make  it  easier  for  the  opera- 
that  because  in  the  present  case  the  tor  of  a  car  to  escape  detection  in  case 
person  injured  was  unconscious,  and  no  of  severe  injury  like  the  one  here  in- 
other  person  was  present,  therefore  the  flicted  than  where  the  injury  was  trifl- 


1004 


The  Law  of  AuTOAtOBiLES. 


Sec.  780.  Lights  on  machine. 

The  motor  vehicle  laws  in  most  jurisdictions  require  the 
installation  of  lights  on  automobiles  and  their  use  at  certain 
hours  in  the  day,  in  some  instances  the  law  specifically  pre- 
scribing the  kind  of  lights.^^  The  violation  of  such  provisions 
is  usually  made  a  misdemeanor.^*  The  statutes  may  also  re- 
quire the  illumination  of  the  back  plate  on  the  vehicle.^  A 
statute  requiring  lights  on  a  machine  operated  during  a  cer- 
tain period  does  not  apply  when  one  has  left  his  vehicle  beside 
the  highway  with  the  machinery  dead.*^ 


iug.  The  object  was  to  secure  infor- 
mation in  cases  where  identification 
might  be  difficult  if  the  statute  was 
not  observed.  Nor  is  it  true  that  this 
intent  is  not  fairly  expressed  by  the 
language  used.  The  statute  means  that 
the  person  causing  the  injury  must  re 
tuni  to  the  place  of  the  accident  and 
there  remain  for  a  sufficient  time  U> 
give  'proper  persons'  a  reasonable  op- 
portunity to  demand  of  him  the  infoi- 
mation  which  fhe  statute  requires  that 
he  should  give  upon  such  demand.  It 
is  manifest  that  what  conduct  will  or 
will  not  amount  to  a  compliance  with 
this  obligation  must  vary  with  the 
varying  eireumstancea  of  the  individual 
cases.  If  there  could  be  a  case  where 
it  was  evident  that  no  person  who  could 
make  the  demand  was  likely  to  appeal', 
and  therefore  the  operator  of  the  car 
could  be  excused  for  not  waiting  for 
such  appearance,  the  situation  in  this 
case  was  not  one  to  warrant  any  such 
coneluaion.  The  place  where  the  colli- 
sion occurred  was  a  city  street,  and  the 
time  shortly  before  6  o'clock  in  the 
afternoon.  There  was  every  reason  to 
believe  that  some  one  would  shortly 
appear  to  whom  the  required  informa- 
tion coiild  be  given  if  demanded.  It 
was  not  even  shown  that  the  defendant 


went  away  because  he  thought  there 
was  not  likely  to  be  an  opportunity  to 
give  information.  On  the  contrary,  his 
own  testimony  establishes  the  fact  that 
he  left  to  avoid  being  identified  as  the 
person  responsible  for  what  had  oc 
eurred.  Tlie  evidence,  if  believed, 
proved  that  the  statute  had  been  vio- 
lated, and  the  case  was  properly  sub- 
mitted to  the  jury." 

83.  Sections  344-346. 

84.  Ex  parte  Hinkelman  (Cal.),  191 
Pac.  682;  Nelson  v.  State  ((Ja.  App.), 
107  S.  E.  400;  State  v.  Claiborne,  185 
Iowa,  170,  170  N.  W.  417,  3  A.  L.  B. 
392. 

Conviction  for  driving  a  motor  car 
without  a  light  is  held  in  England  to 
be  a  conviction  for  "an  offense  in  con- 
nection with  the  driving  of  a  motor 
car"  within  the  meaning  of  fhe  Motor 
Car  Act  1903,  3  Edw.  7,  ch,  36,  §  4, 
which  makes  it  competent  for  the  court 
before  whom  a  person  is  convicted  to 
cause  the  particulars  of  the  conviction 
to  be  indorsed  upon  any  license  held  by 
him.  Ex  parte  SjTnes  (K.  B.  Div.), 
103  Law  T.  E.  (N.  S.)  428. 

85.  Brown  v.  Crossley.  80  L.  J.  K.  B. 
(Eng.)   478. 

86.  State  v.  Bixby,  91  Vt.  287,  100 
Atl.  42. 


Criminal  Offekses. 


1005 


Sec.  781.  Removal  of  manufacturer's  serial  number. 

In  a  few  States,  penal  laws  have  been  f-nacted  forbidding 
one  from  having  in  his  possession  a  motor  vehicle  from  which 
the  manufacturer's  serial  number  or  other  distinguishing 
identification  mark  has  been  removed.  The  purpose  of  such 
an  act  is  to  prevent  the  defacing,  covering  or  destruction  of 
the  number  or  mark,  to  preserve  the  identity  of  vehicles,  and 
thereby  protect  the  public  against  violations  of  the  law.  The 
constitutionality  of  such  a  regulation  has  been  sustained.^' 


87.  People  v.  Fernow,  286  111.  627, 
122  N.  E.  155.  wherein  it  was  said: 
"The  motor  vehicle  has  become  thr 
most  common  and  efficient  agency  for 
the  commission  of  crime  and  tho  chief 
instrumentality  employed  by  crimi- 
nals to  avoid  detection  and  escape 
punishment,  and  one  of  the  metliods 
employed  is  to  destroy  the  evidence  of 
identity.  Motor  vehicles  have  also  bo- 
come  very  frequent  subjects  of  larceny, 
and  the  removal  or  change  of  the  serial 
number  is  a  convenient  method  for  pre 
venting  identification  and  recovery. 
One  committing  a  crime,  even  the  mopt 
serious,  and  escaping  in  an  automo- 
bile, would  be  more  difficult  of  appre 
hension  if  the  serial  number  or  identi- 
fication mark  should  be  removed.  Tho 
section  is  a  legitimate  and  proper  exer 
cise  of  the  police  power.  The  argu 
ment  that  the  section  conflicts  with  th«- 
Bill  of  Eights  and  the  Fourteentli 
Amendment  to  the  Constitution  of  the 
United  States,  which  prohibit  depriva- 
tion of  life,  liberty,  or  property  with- 
out due  process  of  law,  is  that  the  sec 
tion  creates  a  crime  without  guilty 
knowledge  or  intent,  because  the  manu- 
facturer's serial  number  or  distinguish- 
ing mark  may  have  been  changed  with- 
out the  knowledge  of  the  person  hav- 
ing possession  of  the  motor  vehicle, 
and  may  have  been  changed  before  the 
law  went  into  effect.  At  common  law 
a  crime  consisted   of   an  unlawful   net 


with  evil  intent,  and  in  crimes  created 
\)y  statute  a  specific  intent  may  be 
n'(|nired  so  that  the  intent  and  act 
may  constitute  the  crime,  and  in  such 
f-ases  the  intent  must  be  alleged  and 
]iroved.  Where  a  specific  intent  is  not 
an  element  of  the  crime  it  is  not  always 
necessary  that  a  criminal  inteut  should 
exist.  In  the  exercise  of  the  police 
power  for  the  protection  of  the  public 
the  performance  of  a  specific  act  may 
constitute  the  crime  regardless  of  either 
knowledge  or  intent,  both  of  which  are 
immatprial  on  the  question  of  guilt. 
For  the  cflTectivp  protection  of  the  pub- 
lic the  burden  is  placed  upon  the  indi- 
vidual of  ascertaining  at  his  peril 
^\•hether  his  act  is  prohibited  by  crimi- 
nal statute.  .  .  The  argument 
that  the  .^fction  is  class  legislation  by 
singling  out  particular  persons  and 
casting  a  burden  upon  them  is  on  the 
giound  that  persons  having  possession 
of  buggies,  wagons,  binders,  plows,  and 
other  articles  of  personal  property  are 
exempted  from  the  restrictions  placed 
upon  those  having  motor  vehicles.  It 
is  too  clear  for  argument  that  the 
articles  mentioned  are  not  used  in  the 
commission  of  crime  as-  motor  vehicles 
arc,  and  that  the  public  needs  no  pro- 
tection against  them  by  registration 
with  the  secretary  of  state  or  a  serial 
number.  The  act  applies  to  all  in  the 
same  situation,  and  is  not  subject  to 
any  of  the  objections  made." 


1006  The  Law  of  Automobiles. 

Sec.  782.  Reward  for  apprehension  of  offenders. 

It  has  been  held  in  one  State  that  the  district  attorney  of  a 
county  has  no  authority  to  offer  rewards  to  be  paid  to  per- 
sons furnishing  evidence  upon  which  convictions  may  be  had 
of  anticipated  violations  of  the  Motor  Vehicle  Law,  and  that 
the  audit  of  claims  by  the  county  auditing  board  for  such  re- 
wards may, be  restrained  by  a  taxpayer.^  Moreover,  it  is 
thought  that  constables  and  deputy  sheriffs  would  not  be  en- 
titled to  recover  such  rewards,  though  the  offer  were  legal, 
as  the  arrest  of  offenders  violating  the  law  is  a  part  of  their 
duty.^^ 

88.  McNeil  v.  Board  of  Supervisors  89.  McNeil  v.  Board  of  Supervisors 

of  Suffolk,  County  114  N.  Y.  App.  Div.      of  Suffolk  County,  114  N.  Y.  App.  Div. 
761,  100  N.  Y.  Suppl.  239.  761,  100  N.  Y.  Suppl.  239. 


Manufactuuers  or  Motor  Vehicles.  1007 


CHAPTER  XXVIII. 

MANUFACTURERS  OF  MOTOR  VEHICLES. 
Section  783.  Scope  of  chapter. 

784.  Relation  with   dealers   and   salesmen  —  agency   defined. 

785.  Relation   with  dealers  and   salesmen  —  nature  of  contract  between 

manufacturer  and  dealer. 

786.  Relation  with  dealers  and  salesmen  —  mutuality  of  contract. 

787.  Relation    with    dealers    and    salesmen — definiteness    of    order    for 

machines. 

788.  Relation  with  dealers  and  salesmen  —  interstate  commerce. 

789.  Relation  with  dealers  and  salesmen  —  remedy  of  dealer  for  failure 

*  of  manufacturer  to  perform  contract. 

790.  Relation  with  dealers  and  salesmen  ^ —  recovery  by  dealer  of  deposit. 

791.  Relation  with  dealers  and  salesmen  —  return  of  parts  to  manufac- 

turer. 
702.  Relation    with    dealers    and   salesmen  —  sales   by    manufacturer    in 
dealer's  exclusive  territory. 

793.  Relation    with    dealers    and    salesmen  —  sales    not    authorized    by 

manufacturer. 

794.  Relation   with  dealers   and   salesmen  —  authority   of  agent  to  bind 

manufacturer. 
79.5.  Relation  with  dealers  and  salesmen  —  ratification  by  manufacturer 
of  unauthorized  acts  of  agent. 

796.  Relation  with  dealers  and  salesmen  —  termination  of  contract. 

797.  Relation  with  dealers  and  salesmen  —  dealer  and  sub-dealer. 

798.  Relation  with  dealers  and  salesmen  —  fixing  price  for  sale  by  dealer. 

799.  Relation  between  manufacturer  and  consumer  —  in  general. 

800.  Relation  between  manufacturer  and  consumer  —  liability  for  injury 

from  defect. 

801.  Relation  between  manufacturer  and  consxuner  —  duty  to  make  re- 

pairs. 

802.  Relation  between  manufacturer  and  consiuner  —  sharing  profits  with 

consumer. 

803.  Trade  marks. 

Sec.  783.  Scope  of  chapter. 

This  chapter  is  intended  to  cover  certain  matters  relating 
peculiarly  to  the  manufacturers  of  motor  vehicles,  such  as 
their  relations  with  their  agents  and  dealers,  and  their  liabil- 
ity for  injuries  sustained  by  purchasers  of  vehicles  from 
agents,  etc.  Matters  relating  to  the  sales  of  vehicles,  as  be- 
tween the  parties  to  such  sales,  are  discussed  in  another  chap- 
ter.i 

1.  Chapter  XXX. 


1008  The  Law  of  Automobiles. 

Sec.  784.  Relation  with  dealers  and  salesmen  —  agency  de- 
fined. 

Leg-ally  speaking,  it.  is  said  ' '  an  agency,  within  the  meaning 
of  the  automobile  trade,  consists  in  giving  to  the  agent  the  ex- 
clusive right  to  purchase  for  cash  from  the  manufacturer 
machines  at  a  discount  from  the  list  price,  and  to  retail  them 
to  customers  within  specified  territory  at  the  full  list  price. 
In  other  words,  no  commission,  as  such,  is  paid  to  an  agent  on 
the  sale  of  a  machine,  but  he  has  the  exclusive  right  to  certain 
territory  and  purchases  on  his  own  account  for  cash  at  an 
agreed  upon  discount  from  the  retail  list  price. '  '•"  Where  one 
party  requests  another  to  perform  valuable  services  in  effect- 
ing the  sale  of  an  automobile,  agreeing  "  to  protect  "  him  if 
such  sale  is  made,  and  the  influence  and  solicitation  of  the 
party  so  engaged  are  the  efficient  cause  in  effecting  the  sale, 
such  contract  should  be  construed  in  the  light  of  the  surround- 
ing circumstances,  and  the  party  may  be  entitled  to  commis- 
sions.^ 

Sec.  785.  Relation  with  dealers  and  salesmen  —  nature  of  con- 
tract between  manufacturer  and  dealer. 

It  is  sometimes  important  to  determine  whether  the  relation 
between  the  manufacturer  of  motor  vehicles  and  the  local 
dealer  who  sells  them  to  customers  is  that  of  principal  and 
agent.  If  such  relation  is  shown  to  exist,  the  manufacturer 
may  be  bound  by  the  acts  of  the  dealer  under  the  rules  of  the 
law  of  principal  and  agent.^*  The  relation  is  determined  by 
the  language  of  the  contract  between  the  parties  and  by  the 
acts  of  manufacturer  in  permitting  the  dealer  to  hold  himself 
out  to  others  as  an  agent.  As  a  general  rule,  however,  the 
relation  is  not  that  of  principal  and  agent,  and  the  manufac- 
turer is  not  bound  by  the  statements  or  conduct  of  the  dealer.* 
An  agency  is  not  created  although  the  contract  is  entitled 

2.  Frederickson  v.  Locomobile  Co.  of       87  So.  279. 

America,  78  Neb.  775,  111  N.  W.  845.  4.  Banker  Bros.  Co.  v.  Pennsylvania, 

3.  Frederickson  v.  Locomobile  Co.  of  222  U.  S.  210,  32  Sup.  Ct.  Rep.  38; 
America,  78  Neb.  775.  Ill   N.  W.  845.       Bendix  v.  Staver  Carriage  Co..  174  111. 

3-a.  Nichols  v.  Kissel  Motor  Car  Co.,       App.  589;    Short  v.  Metz  Co..   165  Ky. 
144  Minn.   137.   174  N.  W.   733;    Anti-       319,  176  S.  W.  1144. 
cich  V.  Motor  Car  Inn  Garage   (Miss.), 


Manufacturers  of  Motor  Vehicles.  1009 

"  Agency  Agreement,"  and  purports  to  grant  to  the  dealer 
an  exclusive  agency  in  a  certain  territory.^  But  where  the 
dealer  merely  takes  an  order  for  the  approval  of  the  manu- 
facturer, the  dealer's  commission  to  be  fifteen  per  cent,  of  the 
list  price,  the  transaction  does  not  amount  to  a  sale  to  the 
dealer  at  eighty-five  per  cent,  off  the  list  price.^  The  contract 
may  be  one  of  consignment,  rather  than  of  sale,  to  the  dealer  -J 
and  the  dealer  may  be  factor  rather  than  a  purchaser  or 
agent.^  The  manufacturer  of  automobile  supplies  and  one 
selling  them  on  a  commission  are  not  ordinarily  partners.'^ 
One  may  not  testify  that  he  was  acting  as  an  agent  for  the 
manufacturer  in  making  a  sale,  for  such  testimony  is  a  mere 
conclusion;  the  Avitness  should  state  the  facts  showing  his 
relation  with  the  manufacturer,  leaving  to  the  court  or  jury 
the  question  whether  he  was  an  agent.^^  If  the  contract  be- 
tween the  manufacturer  and  dealer  is  in  writing,  it  should  be 
produced  as  the  best  evidence  of  the  relation  between  the  par- 
ties.ii 

Sec.  786.  Relation  with  dealers  and  salesmen  —  mutuality  of 
contract. 

A  contract,  in  order  to  be  binding,  must  be  mutual.^-  An 
agreement  between  the  manufacturer  of  motor  vehicles  and  a 
dealer  contemplating  that  the  dealer  shall  purchase  a  certain 
number  of  machines  during  a  year  and  binding  him  in  other 
respects,  but  not  binding  the  manufacturer  to  sell  the 
machines,  and  giving  the  manufacturer  the  privilege  of  can- 
.  ;a 

"5.  Bendix    v.    fStaver    Carriage    Co.,  '      7.  Cole  Motor  Car  Co.  v.  Hurst.  228 

174    111.    App.    389.      "The    mere    fact  Fed.  2S0. 

that   th'^   parties    entitled   their   agree-.  8.  Overstreet  v.   Hancock    (Tex.  Civ. 

ment  an  'Agency  Agreement'  does  not  App.).  177  S.  W.  217. 

make   it   such,   even   when   followed  by  9.  Fehnrenbach       v.       Stults       (Mo. 

a  grant   of   an   exclusive  right   to  sell,  App.),  206  S.  W.  578. 

where  it  appears   from  the  whole  con-  10.  Ford      Motor      Co.     v.     Livcsay 

tract  that  the  parties  intended  that  the  (Okla.),  160  Pac.  901. 

title   to   the   property    involved   should  11.  Ford      Motor      Co.     v.      Livesay 

pass   to   the  alleged   'agent'   upon   de-  (Okla.),  160  Pac.  901. 

livery."      Bendix    v.    Staver    Carriage  12.  Velie     Motor     Co.    v.     Kopmeier 

Co..  174  111.  App.  589.  Motor   Car    Co..   194   Fed.   324,   114   C. 

6.  Whitney  v.   Briggs.  92   Misc.    (N.  C.  A.  284. 
Y.)    424,  156  N.  Y.  Suppl.  1107. 

64 


1010  The  Law  of  Automobiles. 

celling  the  agreement  at  any  time  but  not  giving  sucli  right  to 
the  dealer,  is  void  for  want  of  mutuality.^^^   And  the  fact  that 
there  is  a  clause  in  the  contract  permitting  its  cancellation  by 
either  party  '*  for  just  cause,"  does  not  supply  the  mutuality 
required  for  its  enforcement.^*     The  mere  appointment  of  the 
dealer  as  an  agent  for  the  sale  of  the  machines  does  not  cure 
the  lack  of  mutuality,  as  the  position  of  agent  is  an  empty 
thing  unless  backed  up  by  an  enforceable  agreement  on  the 
part  of  the  manufacturer  to  deliver  such  automobiles  as  the 
dealer  might  be  able  to  sell.^^^    But  where  the  contract  has 
been  acted  upon  during  its  entire  period,  it  will  not  be  ques- 
tioned for  lack  of  mutuality  so  far  as  it  has  been  executed,  and 
to  that  extent  it  measures  and  controls  the  rights  of  the  re- 
spective parties.i^    A  contract  is  mutual  and  binding  on  both 
parties  thereto  where  it  is  apparent  that  plaintiff's  agreement 
to  maintain  a  sales  office,  to  buy  one  of  defendant's  motor  cars 
and  keep  it  as  a  sample,  and  to  use  all  reasonable  efforts  to 
sell  such  cars  formed  an  important  part  of  the  consideration 
for  defendant's  promise  to  furnish  cars,  to  give  an  exclusive 
territory  and  to  give  a  discount  on  all  sales  made  therein  by 
either  plaintiff  or  itself.^^    And,  where  the  contract  requires 
ordinarily  the  delivery  of  machines  by  the  manufacturer  to 
the  dealer,  it  is  not  unenforceable,  because  it  also  provides  that 
if  by  reason  of  fire,  strikes  or  other  cause,  the  manufacturer 
should  be  unable  to  make  delivery,  he  would  return  the  deposit 
and  not  be  liable  for  commissions  or  damages.^ 


18 


Sec.  787.  Relation  with  dealers  and  salesmen  —  deflniteness 
of  order  for  machines. 
A  provision  in  a  contract  requiring  the  dealer  to  take  a  cer- 
tain number  of  cars  during  a  year,  with  no  further  description 

13.  Velie  Motor  Co.  v.  Kopmeier  15.  Goodyear  v.  Koehler  S.  G.  Co., 
Motor  Car  Co.,  194  Fed.  324,  114  C.  159  App.  Div.  116,  143  N.  Y.  Suppl. 
C.  A.  284;   Oakland  Motor  Car  Co.  v.       1046. 

Indiana  Automobile  Co.,  201  Fed.  499;  16.  Gile  v.  Interstate  Motor  Car  Co., 

Tift  V.  Shiver    (Ga.   App.),  102  S.  E.  27  N.  Dak.  108,  145  N.  W.  732. 
47;  Goodyear  v.  Koehler  S.  G.  Co.,  159  17.  Bendix   v.    Staver   Carriage    Co., 

App.  Div.  116,  143  N.  Y.  Suppl.  1046.  174  111.  App.  589. 

14.  Oakland  Motor  Car  Co.  v.  In--  18.  Meade  v.  Poppenherg,  167  N.  Y. 
diana  Automobile  Co.,  201   Fed.  499.  App.  Div.  411,  153  N.  Y.  S>uppl.  182. 


Manufacturers  of  Motor  Vehicles.  1011 

of  the  kind  of  cars  to  be  taken,  is  too  indefinite  for  enforce- 
ment, where  it  appears  that  the  manufacturer  makes  more 
than  one  class  of  machines. ^^  Under  such  an  agreement  there 
is  no  means  provided  for  the  identification  of  the  oars,  and  it 
is  without  force  as  a  contract  for  future  sale  and  delivery.^^ 

Sec.  788.  Relation  with  dealers  and  salesmen  —  interstate 
commerce. 

A  contract  for  the  shipment  of  automobiles  from  a  manufac- 
turer in  one  State  to  a  dealer  in  another  State,  is  for  an  inter- 
state shipment  on  an  interstate  contract.^  Its  validity,  there- 
fore, with  reference  to  anti-trust  laws,  is  to  be  determined  ac- 
cording to  the  federal  law  rather  than  according  to  the  law  of 
the  State  of  the  dealer.--  But,  as  between  the  ultimate  pur- 
chaser of  a  vehicle  and  the  dealer,  both  of  whom  reside  in  the 
same  State  where  the  transaction  is  consummated,  the  sale  is 
not  a  matter  of  interstate  commerce,  though  the  dealer  pro- 
cures the  car  from  a  manufacturer  from  another  state  and  the 
purchaser  obtains  a  warranty  directly  from  the  manufacturer 
and  pays  the  freight  on  the  machine.^^ 

Sec.  789.  Relation  with  dealers  and  salesmen  —  remedy  of 
dealer  for  failure  of  manufacturer  to  perform 
contract. 

If  the  contract  between  the  dealer  and  the  manufacturer 
binds  the  latter  to  furnish  certain  cars  for  the  dealer's  cus- 
tomers, and  the  manufacturer  fails  to  perform  his  part  of  the 
contract,  the  dealer  may  maintain  an  action  against  him  for 
the  recovery  of  his  damages.^*  The  measure  of  damages  in 
such  a  case,  when  the  dealer  has  an  opportunity  to  make  sales. 
may  be  the  difference  between  the  price  he  agreed  to  pay  and 

19.  Oakland    Motor    Car   Co.    v.    In-       Fed.  280. 

diana   Automobile   Co.,   201    Fed.    499;  22.  Cole  Motor  Car  Co.  v.  Hurst,  228 

Wheaton    v.    Cadillac    Automobile   Co.,  Fed.  280. 

143  Mich.  21,  106  N.  W.  399.  23.  Banker    Bros.    Co.    v.    Pennsyl- 

20.  Oakland  Motor  Car  Co.  v.  In-  vania.  222  U.  S.  210,  32  Sup.  Ct.  Rep. 
diana   Automobile   Co..   201    Fed.    499;  38. 

Tift  V.  Shiver    (Ga.   App.),   102  S.   E.  24.  French    v.    Pullman    Motor    Oar 

47.  Co..  242  Pa.  St.   136,  88  Atl.  876. 

21.  Cole  Motor  Car  Co.  v.  Hurst,  228 


1012  The  Law  ojb^  Automobiles. 

their  value  if  they  had  been  delivered.-'^  The  manufacturer, 
however,  may  relieve  himself  from  liability  for  failure  to  ship 
a  machine  by  inserting  in  the  agency  contract  a  provision  to 
the  effect  that  he  will  not  be  required  to  honor  orders  for 
machines.^^  If  the  dealer  is  given  an  "  exclusive  "  right  to 
sell  cars  witliin  a  certain  territory,  a  sale  by  the  manufacturer 
directly  to  a  person  within  such  district  may  constitute  a 
breach  of  the  agency  agreement  and  the  dealer  may  recover 
damages.^'^  If,  however,  the  dealer  makes  a  sale  outside  of 
his  territory,  he  would  not  ordinarily  be  entitled  to  recover 
any  commission  thereon,  but  a  different  situation  may  arise 
when  he  shows  that  after  making  such  a  sale  the  manufacturer 
agreed  to  pay  him  a  commission.-^  If  the  dealer  arranges 
for  the  sale  of  a  vehicle  and  the  manufacturer  refuses  to  make 
the  delivery,  the  dealer  may  be  entitled  to  recover  the  commis- 
sions he  would  have  earned.-^  And  clearly,  in  the  absence  of 
some  counterclaim  or  affirmative  defense,  the  dealer  will  be 
entitled  to  commissions  on  cars  which  have  been  sold  and  de- 
livered by  him  within  his  territory .^^ 

25.  Studebaker   Corp.   v.   Dodds,   161  French's    net    profits,    after    deducting 

Ky.  542,   171   S.  W.  167.  all  those  matters."     French  V.  Pullman 

Measure  of  damages. — In  one  case,  Motor  Car  €o.,  242  Pa.  St.  136,  88  Atl. 
the  court  charged  as  follows.  "  The  876.  See  also,  Orester  v.  Dayton  Rub- 
commissions  on  the  cars  to  which  Mr.  ber  Mfg.  Co.,  228  N.  Y.  134,  126  N.  E. 
French   was   entitled   are   fixed   by   the  510. 

contract,    and    they    are    easily    calcu-  26.  Kilker    v.    Ford    Motor    Co.,    36 

lated.     After  you  have  ascertained  the  S.  Dak.  293,  164  N.  W.  57. 

number   of   cars,   if   any,   on   which   he  27.  Section  792. 

was   refused   a   delivery,   y.ou   may   as-  28.  Garfield    v.    Peerless    Motor    Car 

certain  the  amount  of  the  commissions.  Co..  189  Mass.  395,  75  N.  E.  695. 

But  that  would  not  be  the  measure  of  29.  Dildine   v.   Ford   Motor   Co.     159 

damages.      His    net    profits,    after    de-  Mo.   App.  410,   140   S.  W.   627;    Pixlee 

ducting  all  the  expenses  of  carrying  on  v.   Buick   Motor   Co.    (Mo.   App.),   198 

the    office — cost   of    employees,    cost   of  Si.  W.  86. 

advertising,  cost  of  keeping  the  cars  in  30.  Pixlee  v.  Buick  Motor  Co.    (Mo. 

the   repair   shop   and   garage,   and   the  App.),  198  S.  W.  86.     See  also,  Brok- 

cost    of    everything    incidental    to   the  hausen  v.  Ford  Motor  Co.,  210  111.  App. 

business — would    be     the    m,easure    of  418. 

damages.       It     would     onlv     be     Mr.  , 


Manufacturers  of  Motor  Vehicles.  1013 

Sec.  790.  Relation  with  dealers  and  salesmen  —  recovery  by 
dealer  of  deposit. 

As  a  part  of  the  contra^-t  between  a  dealer  and  a  manufac- 
turer of  motor  vehicles,  the  dealer  is  generally  required  to 
deposit  a  certain  sum  of  money  with  the  manufacturer  as  a 
part  pa\Tnent  on  machines  to  be  shipped  to  the  dealer  or  as 
security  for  some  other  pui^^ose.  Upon  the  performance  of 
his  contract  of  agency,  the  dealer  is  entitled  to  a  return  of  the 
deposit.'^^  But  merely  the  fact  that  he  was  unable  to  sell  the 
required  number  of  machines,  although  he  diligently  tried  to 
do  so,  w\\\  not  necessarily  entitle  him  to  recover  the  fund.-"^^ 
If  he  fails  to  order  the  number  of  cars  he  agreed  to  take,  he 
cannot  recover  the  deposit,  when  he  proves  no  breach  of  con- 
tract on  the  part  of  the  manufacturer.^^  But,  if  the  manufac- 
turer cancels  the  agency,  without  just  cause,  the  dealer  may 
thereupon  be  entitled  to  recover  the  deposit.^*  Or,  if  the  manu- 
facturer is  unable  or  fails  to  deliver  the  cars  anticipated  by 
the  parties,  the  deposit  may  be  recovered.^^  The  contract 
may  contain  a  provision  permitting  the  manufacturer  to  re- 
tain such  deposit  as  liquidated  damages  in  case  of  a  breach 
of  the  contract  by  the  dealer;  such  a  provision  is  not  in  the 
nature  of  a  penalty,  because  from  the  nature  of  the  case,  it  is 
extremely  difficult,  if  not  impossible,  to  fix  actual  damages.-^*"' 

31.  Price  v.  Hornburg,  101  Wash.  damage.s  for  a  failure  to  perform,  shall 
472,  172  Pac.  575.  See  also  Reichert  be  treated  as  liquidated  damages,  or 
V.  Russell  Motorcar  Co.,  186  Iowa  437,  as  a  penalty,  is  always  dependent  on 
170  N.  W.  441.  the   intention   of   the   parties.     Carson 

32.  Gile  V.  Interstate  Motor  Car  Co..  v.  Arvantes,  10  Colo.  App.  3S2,  385, 
27  N.  Dak.  108,  145  N.  W.  732.  '.0  Pac.   1080;    13  Cy...   p.  00.     In   ar- 

33.  Meade  v,  Poppenbcrg.  167  N.  Y.  riving  at  that  intention,  there  is  no 
App.  Div.  411.  153  N.  Y.  Suppl.  182.  single    te^t    for    all    case-;.      In    most, 

34.  Drake  v.  White  S.  M.  Co.,  133  numerous  rules  must  Ic  applied.  Due 
N.  Y.  App.  Div.  446,  118  N.  Y.  Suppl.  ueighl  should  and  will  be  given  the 
178;  Overstreet  v.  Hancock  (Tex.  Civ.  words  used,  but  such  words  are  not  al- 
App.),  177  S.  W.  217.  See  also  Bert-  way.s  controlling.  Though  a  sum  is 
holf  v.  Fish,  182  Iowa  1308,  166  N.  W.  designated  as  'liquidated  damages,'  it 
713.  may  be  construed  :is  .t  '  penalty.'  or,  if 

35.  Clark  v.  G«rliiiger  Motor  Car  called  a  '  penalty.'  it  may.  nevertheless, 
Co.,  100  Wash.  1,  170  Pac.  142.  be  held  to  be  '  liquidated  damages'  in 

36.  Bilz  V.  Powell.  .")0  Colo.  4S2.  117  tho'^e  cases  where  it  is  plain,  from  all 
Pac.  344;  Gile  v.  Interstate  Motor  Car  the  facts  and  circumstances,  that  such 
Co.,  27  N.  Dak.  108,  145  N.  W.  732.  was  the  intent  of  the  parties.  How- 
'•  Whether  a  sum  fixed  by  contract  as  cvor.  when  the  intention  is  once  ascer- 


1014  The  Law  of  Automobiles. 

In  such  a  case,  if  tlie  dealer  fails  to  perform  the  contract,  he 
will  be  unable  to  recover  the  deposit.'"  But,  if  the  dealer  fails 
to  perform  his  part  of  the  contract,  the  manufacturer  is  not 
necessarily  confined  to  the  deposit  as  the  extent  of  his  dam- 
ages, but  he  may  show  that  he  has  sustained  further  injury .^^ 
When  the  dealer  fails  to  take  the  number  of  cars  he  has  agreed 
to  take,  the  manufacturer  may  recover  the  profits  thereby  lost, 
that  is,  the  difference  between  the  price  agreed  to  be  paid  for 
the  cars  not  taken  and  the  cost  thereof  to  the  manufacturer.^^ 

Sec.  791.  Relation  with   dealers  and   salesmen  —  return   of 
parts  to  manufacturer. 

Where  the  plaintiff  undertook  the  sale  of  automobiles  and 
appliances  for  the  defendant  as  its  agent  in  a  certain  locality, 
and  was  entitled  under  the  contract  to  return  to  the  defendant 
certain  extra  parts  for  automobiles  which  he  had  purchased 
during  the  term  of  the  contract,  or  within  thirty  days  after  its 
termination,  and  to  receive  credit  for  said  parts  returned,  the 
plaintiff  was  entitled  to  recover  for  parts  actually  returned, 
where  they  were  accepted  by  the  defendant,  although  they 
were  not  returned  within  the  time  limited  by  the  contract,  for 
the  acceptance  by  the  defendant  without  objection  was  a 
waiver  of  the  time  limit.  The  recovery,  in  such  a  case,  may 
be  based  on  the  value  of  the  goods  at  the  time  of  the  purchase. 
and  not  at  the  time  of  redelivery.^^ 

tained,   it  controls,   and   courts   cannot  than  they  have  made  for  themselves.'  " 

justly    make    a    new    contract    tor    the  Bilz  v.    Powell.  50  Colo.   482,   117  Pac. 

parties,   as  they   might  have   made,   in  344. 

the      light      of      subsequent      events.  37.  Bilz  v.  Powell,  50  Colo.  482,  117 

Whether    it   was   folly   or   wisdom   for  Pac.  344;  Gile  v.  Interstate  Motor  Car 

the  parties  to  so  contract,  concerns  no  Co.,  27  N.  Dak.   108,  145  N.  W.  732. 

one  but  themselves.     Courts  '  have  said  38.  Poppenberg   v.    Owen    &   Co..    84 

■that    the    law    relative    to    liquidated  Misc.   126,  146  N.  Y.  Suppl.  478. 

damages,  has  always  been  in  a  state  of  39.  Poppenberg   v.    Owen    &    Co..    84 

great  uncertainty;    and   that  this   has  Misc.   126,  146  N.  Y,  Suppl.  47S. 

been  occasioned  by  judges  endeavoring  40.  Ford    v.     Ford    Motor    Co..     179 

to   make    better    contracts    for   parties  App.  Div.  472. 


Manufacturers  of  Motor  Vehicles.  1015 

Sec.  792.  Relation  with  dealers  and  salesmen  —  sales  by  manu- 
facturer in  dealer's  exclusive  territory. 

When  a  dealer  has  the  exclusive  agency  to  sell  vehicles  in  a 
certain  territory,  he  is  entitled  to  recover  damages  against  the 
manufacturer  for  machines  sold  by  others  in  the  territory.*^ 
A  contract  making  one  an  "  excluf^ive  agent  "  is  not  to  be  dis- 
tinguished from  a  contract  giving  "  exclusive  sale."  ^-  It  has 
been  held  that,  in  the  absence  of  proof  of  a  trade  usage  to  the 
contrary,  the  dealer  cannot  recover  commissions  for  a  sale  to 
a  resident  of  his  district,  but  made  wholly  outside  thereof.^^ 
But  a  custom  of  the  trade  to  the  effect  that  the  dealer  shall 
have  commissions  on  all  sales  made  to  residents  of  his  district 
is  admissible,  and  on  such  proof  he  may  be  entitled  to  commis- 
sion on  a  sale  made  out  of  his  district  to  a  resident  therein.^^ 
The  sale  of  a  "  taxicab  "  may  be  a  violation  of  an  exclusive 
agency  for  '^  automobiles."^^  If  the  contract  does  not  pro- 
vide for  the  amount  of  damages  to  which  the  dealer  shall  be 
entitled  in  such  a  contingency,  and  there  is  no  ti'ddc  custom* 
which  would  entitle  the  dealer  to  his  commissions  on  the  sale, 
the  damages  are  not  necessarily  the  commissions  he  would 
have  earned  on  the  sale,  but  are  the  actual  damages  which  he 
can  show  he  has  sustained.^^  In  such  a  case,  to  recover  sub- 
stantial damages,  the  dealer  should  show  that  he  could  have 
made  the  sale  had  there  not  been  a  transgression  on  his  dis- 
trict.^'^  The  amount  of  profits  of  which  the  dealer  was  de- 
prived, is  the  measure  of  his  damages.^^    This  may  lie  com- 

41.  Illsley  V.  Peerless  Motor  Car  Co..  S.  W.  1094.  See  also  Cedar  Rapids 
171  111.  App.  459;  Ford  v.  Ford  Motor  Auto  &  Supply  Co.  v.  JeflFrey  &  Co., 
Co.,  179  N.  Y.  App.  Div.   472;   Cofield       139  Iowa   7.   116  N.  W.   1054. 

V.  Jenkins  Motor  Co..  89  S.  Car.   419,  44.  Garfield    v.    Peerless    Motor    Car 

71    S.    E.   9(59;    Ovorstreot   v.    Hancock  Co.,  189  Mass.  395.  75  N.  E.  695. 

(Tex.  Civ.  App.),   177  8'.  W.  217.    See  45.  Wier     v.     American     Locomotive 

also    Swain    v.    Kleiber,    39    Cal.    App.  Co.,  215  Mass.  303,  102  N.  E.  481. 

178  Pac.  728.  46.  Illsley     v.    Peerless    Motor    <  ar 

42.  Illsley  v.  Peerless  Motor  Car  Co.,  Co..  177  111.  App.  459. 

177  111.  App.  459.  47.  Illsley    v.    Peerless     Motor     Car 

43.  Haynes  Automobile  Co.  v.  Wood-       Co.,  177  111.  App.  459. 

ill   Automobile  Co.,   163   Cal.    102,    124  48.  Schiffman  v.  Peerless  Motor  Car 

Pac.  717,  4  L.  R.  A.  (N.  S.)  971;  Parry  Co..   13  Cal.   App.  600,  110   Pac.  460; 

v.  American  Motors  Calif.  Co..  25  Cal.  Sparks    v.    Reliable,    etc.,    Car    Co..    85 

App.  706,  145  Pac.  165;  Nickels  v.  Pre-  Kans.  29.   116  Pac.  363. 
Witt   Auto   Co.    (Tex.    Civ.    App.).    149 


1016  The  Law  of  Automobiles. 

piited  to  be  tlie  discount  from  tlie  list  price  to  which  the  dealer 
was  entitled  after  taking  out  the  expenses  of  making  the 
sales.^'^  The  fact  that  the  actual  sale  was  made  by  the  manu- 
facturer at  less  than  the  list  price,  does  not  mitigate  the 
amount  of  damages."^^  It  has  been  held  in  soome  jurisdictions 
that  the  commissions  the  dealer  would  have  earned,  furnish 
the  measure  of  damages  in  case  the  manufacturer  violates  the 
exclusive  provision  of  the  agency  contract.^^ 

Sec.  793.  Relation   with   dealers   and   salesmen  —  sales   not 
authorized  by  manufacturer. 

One  employed  as  an  automobile  salesman  for  a  commission 
by  the  manager  of  a  department  for  the  sale  of  commercial 
automobiles,  without  authority  to  make  contracts  covering  the 
department  for  the  sale  of  automobiles  for  pleasure  use,  is  not 
entitled  to  commissions  for  a  sale  of  an  automobile  for 
pleasure  use.^*^ 

Sec.  794.  Relation  with  dealers  and  salesmen  —  authority  of 
agent  to  bind  manufacturer. 

The  terms  of  the  contract  and  the  acts  of  the  manufacturer 
in  holding  out  one  as  his  agent,  determine  whether  the  rela- 
tion of  principal  and  agent  exists.^^  Assertions  of  the  agent 
as  to  his  authority  are  not  relevant  on  the  question.^^     The 

49.  Wier  v.  American  Locomotive  told  him  that  he  was  the  agent  of  ap- 
Co.,  215  Mass.  303,  102  X.  E.  481.  pcllee,  iind  when  he  signed  the  receipt 

50.  Wier  v.  American  Locomotive  of  that  date  he  added  to  his  name  the 
Co.,  215  Mass.  303,  102  N.  E.  481.  words  "Agent  Metz  Company."     It  i3 

51.  Overstreet  v.  Hancock  (Tex.  a  well-established  rule  that  one  cannot 
Civ.  App.),  177  S.  W.  217;  Eastern  make  a  contract,  or  bind  another,  as 
Motor  Sales  Corp.  v.  Apperson-Lee  an  .igent  of  such  other,  by  pretending 
Motor  Co.,  117  Va.  495.  85  S.  E.  479;  that  he  is  an  agent,  or  stating  that  he 
Cofield  V.  Jenkins  Motor  Co..  89  S.  Car.  is  such.  To  bind  one  upon  a  contract 
419,  71  S.  E.  969.  made  by  another  such  other  must  have 

52.  Dahlman  v.  Wliite  Co..  132  N.  authority  to  make  such  contract  from 
Y.  Suppl.  771.  the   one  sought  to  be  bound,   and   the 

53.  Short  V.  Metz  Co.,  165  Ky.  319,  contract  must  be  one  within  the  scope 
176  S.  W.  1144.  See  also  Hughey  v.  of  the  authority  given;  or  else  the  one 
Sbarbaro,  181  111.  App.  396.  sought   to   be   bound    upon    a   contract 

54.  Short  v.  Metz  Co.,  165  Ky.  319.  made  by  another  must  have  by  some 
176  S.  W.  1144,  wherein  it  was  said:  word  or  act,  either  before,  or  at  the 
"  The  appellant  says  that  Humphreys  time  of,  the  making  of  the  contract, 


Manufacturers  of  Motor  Vehicles.  1017 

sales  manager  of  a  manufacturer  has  the  authority  to  bind 
the  company  by  an  admission  as  to  its  lial)ility  to  pay  to  one 
of  its  agents  a  commission  on  the  sah'  ol'  ;i  iiiacliine.''" 

Sec.  795.  Relation  with  dealers  and  salesmen  —  ratification 
by  manufacturer  of  unauthorized  acts  of  agent. 
Although  a  contract  made  by  an  agent  of  an  automobile 
company  is  not  binding  on  the  company  because  of  the  lack  of 
the  agent's  authority,  it  is  a  well  settled  rule  of  the  Law  of 
Agency  that  the  ]irincipal  may  subsequently  ratify  the  author- 
ized act  so  that  he  will  become  bound  by  the  contract.  But, 
before  ratification  can  be  binding,  the  principal  must  have  had 
some  knowledge  of  the  material  facts  of  the  transaction,  and 
he  must  have  intended  to  ratify  the  agent's  acts.^'*'  The  fact 
that  the  company  has  received  and  accepted  from  the  agent  a 
part  of  the  purchase  price  for  an  automobile,  is  not  neces- 
sarily a  ratification  of  the  acts  of  the  agent.  And  the  fact 
that  the  company  did  not  promptly  repudiate  the  acts  of  the 
agent,  will  not  necessarily  bind  it,  where  the  failure  to  repu- 
diate did  not  act  to  the  prejudice  of  the  party  dealing  with 
the  act.^^  But  it  has  been  held  that,  where  a  principal  accepts 
the  proceeds  of  a  sale  made  by  an  agent  having  authority  to 
sell,  he  is  bound  by  the  agent's  guaranty  as  to  the  condition  of 
the  machine,  where  the  same  was  the  inducing  cause  of  the? 
sale.^^ 

Sec.  796.  Relation  with  dealers  and  salesmen  —  termination 
of  contract. 
An  agency  agreement  may  be  terminated  by  the  expiration 
of  the  time  limit  mentioned  therein.     Or,  under  certain  cir- 

estopped     himself     from     denying    the  and     appellant     Humphreys     had     any 

authority  to  act  for  him,   of  the  one  authority  to  make  a  contract  for  ap- 

making  the  contract; 'or  else  the  con-  pellee,     but     conclusively     show?     his 

tract  must  have  been  made  by  one  act-  want  of  such  authority." 

ing  on  behalf  of  the  one  sought  to  be  55.  Garfield    v.    Peerless   ^Totor  Car 

bound,   although   not  authorized  to  do  Co.,  189  Mass.  395.  75  S.  E.  695. 

BO,  and  thereafter  the  one  sought  to  be  56.  Short  v.  Metz  Co..  165  Ky.  319. 

bound  must  have  ratified  the  unauthor-  176  S.  W.  1144. 

ized  contract  made  for  him.     As  above  57.  Short  v.  Metz  Co..   165  Ky.  319. 

stated,  the  evidence  not  only  fails  to  •176  S.  W.  1144. 

show  that  at  the  time  of  the  making  58.  Washburn  v.  Ranier  Co.,   130  N. 

of    the    contract    between    Humphreys  Y.  App.  Div.  42.  114  N.  Y.  Suppl.  424. 


1018 


The  Law  of  Automobiles. 


cumstances,  the  maimfactiirer  is  entitled  to  terminate  the 
agreement  before  the  arrival  of  the  specified  time.  Thus,  when 
an  agency  is  given  to  a  partnership  and  the  member  of  the 
firm  with  whom  the  mannfactnrer  was  acquainted  and  upon 
whom  he  relied  in  the  management  of  the  agency,  retires  from 
the  firm,  the  agency  msj  be  terminated.-^*^  And  where  a 
dealer,  who  has  agreed  to  give  his  entire  time  to  the  business, 
negotiates  with  other  manufacturers  and  attempts  to  set  up  a 
rival  business  of  his  own,  the  manufacturer  is  justified  in 
terminating  the  contract.^^  Where  one  of  the  conditions  of 
the  agency  contract  is  that  the  dealer  shall  conduct  the  agency 
satisfactorily  to  the  manufacturer,  the  manufacturer  may 
terminate    the    arrangement    upon    becoming    dissatisfied.^^ 


59.  VVheaton  v.  Cadillac  Automobile 
Co.,  143  Mich.  21,  106  N.  W.  399. 

60.  Bilz  V.  Powell,  50  Colo.  482,  117 
Pac.  344,  wherein  it  was  said :  "  In 
the  employment  of  plaintiff  the  de- 
fendant bargained  for  the  former's  dis- 
interested skill,  diligence,  zeal  and 
fidelity  for  the  latter's  exclusive  bene- 
fit. When  defendant  discovered  the 
lack  of  these  in  plaintiff,  he  had  the 
right  to  discharge  him  and  terminate 
the  employment.  A  principal  need  not 
keep  in  his  employ  an  agent  who  is 
working  against  him,  and  using  the 
confidential  information  obtained  by 
reason  of  the  relation  to  undermine  the 
business  of  such  principal." 

61.  Isbell  V.  Anderson  Carriage  Co., 
170  Mich.  304.  136  N.  W.  457,  wherein 
it  was  said :  "  Contracts  of  this  gen- 
eral character,  known  as  '  satisfaction 
contracts.'  in  which  one  party  agrees 
to  perform  his  part  to  the  satisfaction 
of  the  opposite  party,  are  fruitful  and 
frequent  sources  of  litigation,  owing  to 
the  disappointments  they  so  often 
bring  to  the  party  who  has  taken  the 
chance  of  performing  satisfactorily. 
and  the  difficulty  of  ascertaining  what 
really  constitutes  satisfaction,  which 
primarily,  is  but  a  mental  process. 
S'uch  contracts  are  enforceable,  how-* 
ever,  to  the  extent  the  intention  of  the 


contracting  parties  can  be  ascertained. 
If  j^arties  voluntarily  assume  the  ob- 
ligations and  hazards  of  a  satisfaction 
contract,  their  legal  rights  are  to  be 
determined  and  adjudicated  according 
to  its  provisions.  It  is  elementary 
that  courts  cannot  make  contracts  for 
parties  nor  relieve  them  of  the  conse- 
quences of  their  contracts,  however  ill- 
advised.  In  many  cases  of  this  nature 
which  have  been  before  various  tri- 
bunals, there  is  recognized  two  quite 
well-defined  classes — one  where  th© 
personal  taste,  feeling,  sensibility, 
fancy,  or  individual  judgment  of  the 
party  to  be  satisfied  are  especially  in- 
volved; the  other  where  mechanical 
utility  or  operative  fitness  in  relation 
to  which  some  standard  is  available 
are  bargained  for.  In  the  former  class 
the  authorities  preclude  disputing  the 
propriety  or  reasonableness  of  the 
declaration  of  dissatisfaction  on  the 
l>art  of  the  individual  entitled  to  exer- 
cise it.  It  is  said  to  be  with  him  pure- 
ly a  personal  matter  of  which  he  is 
made  the  sole  judge.  It  being  his 
right  to  say  whether  he  is  satisfied  or 
not,  it  cannot  be  left  to  another  to  say 
that  he  ought  to  be  satisfied.  In  the 
latter  class  of  cases  the  authorities  are 
more  conflicting.  In  numerous  deci- 
sions    it    has     been     held,    under    the 


Manufacturers  of  Motor  VfiHiCLES.  1019 

Under  a  contract  for  an  exclnsivc  agency  in  a  certain  dis- 
trict,^- tlie  dealer  is  generally  entitled  to  commissions  on  sales 
which  have  been  made  in  his  district  before  the  termination  of 
the  contract.®"  And  this  is  so  though  the  delivery  of  the  ma- 
chine is  not  accomplished  until  after  the  termination.®''  But, 
in  the  absence  of  bad  faith  on  the  part  of  the  manufacturer,  he 
is  not  entitled  to  commissions  on  a  sale  made  after  the  termi- 
nation, although  some  of  his  prior  work  may  have  aided  the 
sale.*'''  And  where  the  contract  provides  for  commissions 
only  on  machines  consigned  during  its  life,  the  agent  is  not 
entitled  to  commissions  when  the  order  is  procured  such  a 
short  time  before  the  expiration  of  the  contract  that  delivery 
is  impossil)le  before  such  time.*""  If  the  manufacturer  wrong- 
fully terminates  the  agency,  the  dealer  is  entitled  to  maintain 
an  action  for  the  damages  he  has  sustained.®^  The  fact  that 
the  damages  which  are  sustained  by  the  dealer  in  such  a  case 
are  somewhat  difficult  of  ascertainment,  does  not  furnish  a 
reason  for  the  denial  of  recovery,  if  there  can  be  found  from 
the  evidence  a  reasonably  certain  basis  for  computation.®^     If 

phraseology  of  the  contracts  being  con-  \\;iik  done  and  methods  pursued  were 

sidered     and     the     attending     circum-  not  satisfactory." 

stances,  that   not   only   the  honesty   of  62.  Section  792. 

the     declared    dissatisfaction    may    )u'  63.  Eastern    Motor    Sales    Corp.    v. 

questioned,    hut    even,    in    special     in  Vpperson-Loe  Motor  Co.,  117  Va.   495, 

stances,   the  adequacy   and   reasonable-  S")  S.  K.  479. 

ness  of  the  ground  for  such  action  are  64.  Kastern    Motor    Sales    Corp.    v. 

open   to  investigation.   .   .   .  We  think  Apperson-Ijee  Motor  Co.,  117  Va.  495, 

the  contract  under   consideration  falls  S5  S.  E.  479. 

more  closely  within   the  former  class.  65.  Parry  v.  American  Motors  Calif. 

It  was  an  agency  in  the  nature  of  em-  Co.,  25  (al.  App.  70fi.  145  Pac.  165. 

ployment  to  render   services   involving  66.   Ford     Motor     Co.     v.     Crawford 

something  more  than  the  operative  fit-  Auto  Co.    (Tex.  Civ.  App.).  206  S.  W. 

ness   or   mechanical    utility  of  a  tang-  108. 

ible      thing.        It      involved     personal  67.  Holton    v.    Monarch    Motor    Car 

tr-fficiency,    energy,     initiative,    business  CO..  202  Mich.  693,  168  N.  W.  539. 

experience     and    ability    to    formulate  68.  "   As   is   frequently   the  case  the 

methods  and  make  them  successful,  as  actual    damages    suffered    by    plaintiflFs 

well  as  cooperation  and  confidential  re-  were    somewhat    difficult  of  ascertain- 

lations  with  defendant,  of  such  a  char-  ment,    but   this   fact   does   not   furnish 

acter  as  to  lead  to  the  conclusion  that  a   reason   for  denyinj,'  all   recovery   for 

the  parties  contemplated,  and  provided  prospective    profits,    if    there    can    be 

for,   the    right   of   defendant    to   lermi-  found    in   the   testimony   a   reasonably 

nate   the   relationship    when,   according  certain  basis  for  ccimputiug  them.  The 

to   its    own    fancy    and    judgment,    the  jxrio*!    for    wbicli    the   contract  should 


1020 


The  Law  oe  Automobiles. 


an  automobile  salesinau  is  wrongt'iilly  discharged,  tlie  prima 
facie  measure  of  liis  damages  is  tlie  amount  of  his  wages  for 
the  unexpired  temi,  less  what  he  actually  earned  during  the 
unexpired  period  in  whatever  occupation  or  what  he  might 
have  earned  with  reasonable  diligence  in  other  employment  of 
the  same  general  nature.^^ 


be  in  force  was  limited  and  definite. 
The  number  of  cars  which  the  plain- 
tiflfs  agreed  to  purchase  was  definite. 
The  profit  of  plaintiffs  upon  each  class 
of  car  was  definite.  The  amount  of 
business  done  by  them  in  the  2% 
months  which  they  had  operated  under 
the  contract  was  definite  and  ascertain- 
able. The  number  of  cars  sold  by  de- 
fendant during  the  balance  of  the  con- 
tract year  was  shown.  The  number  ol 
agencies  established  was  shown.  The 
number  of  cars  contracted  for  and  with 
whom  contracted  were  shown.  It  was 
further  shown  that  the  general  demand 
for  gasoline  motor  cars  in  the  country 
in  1914  outran  the  supply  up  to  July 
Ist.  With  this  and  other  like  data 
before  the  jury  it  was  proper  to  sub- 
mit to  them  the  question  as  to  what, 
if  anything,  plaintiffs  had  lost  by  be- 
ing deprived  of  the  right  to  complete 
their  contract."  Holton  v.  Monarch 
Motor  Car  Co.,  202  Mich.  271,  168  N. 
W.  539. 

69.  Bertholf  v.  Fisk,  182  Iowa  1308. 
166  N.  W.  713.  "  It  was  the  duty  of 
the  plaintiff  to  reduce  his  damages  by 
reasonable  effort  to  obtain  other  em- 
ployment. ITiis  duty  went  no  farther, 
however,  than  that  he  should  seek 
other  employment  of  the  same  general 
nature.  He  was  not  bound  to  seek  em- 
ployment of  a  different  nature.  On 
the  other  hand,  it  was  not  forbidden 
to  him  to  seek  employment  of  a  dif- 
ferent nature  or  to  engage  therein.  If 
the    plaintiff    had    made    a    reasonable 


effort    to     secure    employment    of    the 
same  general   nature  and   failed,    such 
effort  would  be  conclusive  upon  the  de- 
fendant.    If  he  failed  to  seek  employ- 
ment of  the  same  general  nature,  then 
it  was  still   open  to  the  defendant  to 
show    in    reduction    of    damages    what 
employment  of  such  general  nature  the 
plaintiff    could    with    reasonable    effort 
have  obtained  and  what  he  could  have 
earned    therein.      The    plaintiff's    case 
was  not  as  a  matter  of  law  forfeited 
by    his    failure    in    that   regard.      Hia 
failure  to  make  the  effort  simply  sub- 
jected him  to  the  same  rule  of  miti- 
gation as  he  would  have  been  subject 
to   if  a  reasonable  effort  on  his  part 
would    have    resulted     in    such    miti- 
gation.     On    the    other    hand,    if    the 
plaintiff   chose  other    occupation    of   a 
different  nature,  it  was  open  to  the  de- 
fendant at  his  ojjtion  to  show  plain- 
tiff's   actual    earnings     in    such    occu- 
pation   in   redu(;tion   of  damages.     The 
plaintiff   would    commit   no   wrong   by 
choosing    such    other    occupation.     An 
employee  wrongfully  discharged  is  not 
bound    to    acquire    the   consent    of   his 
former  employer  to  engage  in  some  dif- 
ferent occupation.     He  is  bound   only 
to  use  reasonable   effort   to  reduce  his 
prima  facie  damages.  He  is  not  bound 
to   extend   this    effort   beyond    employ- 
ment of  the  same  general  nature.    But, 
if  he  does  engage  in  different  employ- 
ment,   he    had    not    thereby    sinned." 
Bertholf   v.   Fisk.    182  Iowa    1308,   166 
N.  W.  713. 


Manufacturers  of  Motor  Vehicles.  1021 

Sec.  797.  Relation  with  dealers  and  salesmen  —  dealer  and 
sub-dealer. 

One  employed  by  a  dealer  to  assist  in  the  sale  of  automo- 
biles, is  not  generally  considered  a  partner  of  the  dealer,  al- 
though the  basis  of  his  compensation  is  a  percentage  of  the 
profits.''^'^  Where  an  agent  for  the  sale  of  machines  has  a  sub- 
agent  who  agrees  to  take  a  certain  number  of  machines  but 
fails  to  do  so,  the  measure  of  damages  is  ordinarily  the  differ- 
ence between  the  cost  to  the  agent  and  the  selling  price  to  the 
sub-agent;  -but,  if  the  dealer  is  able  to  sell  all  of  the  ma- 
chines he  can  procure  of  the  manufacturer  notwithstanding 
the  default  of  the  sub-agent  the  damages  he  sustains  are  only 
nominal."^^  It  is  an  implied  condition  of  the  contract  between 
the  agent  and  a  sub-agent  that  the  agent  will  bo  able  to  furnish 
the  machines  which  are  sold  by  the  sub-agent ;  and,  if  a  sale 
fails,  through  no  fault  of  the  customer,  he  is  entitled  to  re- 
cover the  deposit  he  made  at  the  time  of  the  order,  and  neither 
the  agent  nor  the  sub-agent  can  retain  such  deposit  from  the 
customer.'^^  But,  where  the  dealer  expressly  excepts  himself 
from  liability  to  the  sub-dealer  in  case  the  manufacturer  fails 
to  dehver  the  required  number  of  cars,  the  sub-dealer  is  not 
entitled  to  recover  compensation  from  the  dealer  for  his  loss 
of  time  in  attempting  to  make  salesJ^ 

Sec.  798.  Relation  with  dealers  and  salesmen  —  fixing  price 
for  sale  by  dealer. 
It  is  within  the  power  of  the  manufacturer  of  a  motor 
vehicle  to  dictate  the  price  at  which  the  machine  and  its  parts 
shall  be  sold  by  its  dealers.^*  Neither  State  nor  federal  anti- 
trust laws  are  violated  by  the  acts  of  the  manufacturer  in  par- 
celing out  exclusive  agencies  for  districts  and  then  prohibiting 
the  sale  of  machines  at  less  than  a  certain  price.^^     But  after 

70.  Studebaker   Corp.   v.   Dodds     161  73.  Clark    v.    Gerlinger    Motor    Car 
Ky.  542,  171  S.  W.  167.  C"o..  100  Wash.  1,  170  Pac.  142. 

71.  Tedford    Auto   Co.   v.   Horn.    113  74.  Sec    Baran    v.    Goodyear    Tire   & 
Ark.  310.  168  S.  W.  133.  Rubber  Co.,  256   Fed.  571;   Whitney  v. 

72.  Bancs    v.    Farr.    209    Mass.    339.  Bisrfis    92   Misc.    (N.   Y.)    424,    156   N. 
95  N.  E.  841.     See  also  Clark  v.  Gi^r-  Y.  Suppl.  1107. 

linger  Motor  Car  Co.,  100  Wash.  1,  170  75.  Cole  Motor  Car  Co.  v.  Hurst.  228 

Pac.   142.  Ffd.  280,  wherein  it  was  said:    "Sure- 


1022 


The  Law  of  Automobiles. 


the  machine  has  passed  from  the  deak-r  into  the  bands  of  a 
third  person,  who  is  under  no  eantractual  relations  witli  IIm- 
manufacturer,  the  latter  has  no  control  over  the  machine  or 
equipment."^ 

Sec.  799.  Relation  between  manufacturer  and  consumer  —  in 
general. 
If  the  manufacturer  sells  a  motor  vehicle  to  a  customer, 
without  the  intermediary  of  an  agent  or  dealer,  the  relation 
between  the  parties  is  that  of  vendor  and  vendee,  and  their 
rights  are  determined  according  to  the  Law  of  Sales."^"  Or,  if 
the  dealer  making  a  sale  is  merely  an  agent  of  the  manufac- 
turer, then  the  ordinary  relation  of  vendor  and  vendee  would 
exist  between  the  parties.  But,  as  is  stated  above,'^^  the  dealer 
is  not  generally  an  agent  of  the  manufacturer  so  as  to  bind 
the  latter  by  his  representations.    Where  the  dealer  is  not  an 


ly  the  Cole  Company  had  the  right  to 
determine  that  its  agents  should  sell 
its  cars  at  its  own  price.  True,  h« 
was  given  the  privilege  of  selling  in 
certain  counties,  and  no  others,  and  he 
was  restricted  from  selling  the  cars  of 
other  motor  car  companies  in  the  same 
counties;  but  this  method  is  an  ordi- 
nary instrumentality  by  which  manu- 
facturers and  others  display  and  dis- 
pose of  their  goods  and  comodities,  and 
make  sure  of  payment,  if  they  can.  It 
is  not  restrictive  of  trade  in  any  sense. 
Insurance  companies,  and  many  other 
occupations  and  trades,  parcel  out 
their  territory  to  diflFerent  agents,  and 
make  similar  arrangements.  That  it 
could  not  defeat  competition  is  obvious 
to  the  court.  There  are  a  multitude  of 
other  companies  from  whom  purch- 
asers can  readily  obtain  motor  cars, 
varying  in  little,  if  anything,  from  the 
perfectibility  of  the  car  made  by  the 
plaintiff  company.  It  is  common 
knowledge  that  most,  if  not  all,  of  such 
motor  companies  avail  themselves  of 
similar  arrangements.  The  public,  in- 
deed, finds  it  no  small  task  to  avoid 
the    competition    and    solicitations    of 


the  agents  or  consignees  of  such  com- 
panies. Periodicals  of  every  descrip- 
tion portray,  advertise  and  enlarge 
upon  the  variety  and  superiority  of 
their  excellencies.  There  surely,  then, 
has  been  no  restraint  of  this  trade. 
Was  it  not,  then,  easily  possible  that 
in  the  flourishing  counties  of  the  Lone 
Star  State  enumerated  in  the  contract, 
notwithstanding  the  same,  anyone 
might  have  pvirchased  a  Ford,  a  Cad- 
illac, a  Pierce-Arrow,  a  Packard,  a 
Chalmers,  a  Hudson,  or  any  other  of 
the  multitudinous  machines  which  are 
being  constantly  maniifactured  and 
offered  for  sale  at  widely  varjing 
prices?  Where,  then  is  the  restraint 
of  trade  in  this  transaction?  It  exists 
in  the  refusal  of  the  defendant  to  pay 
the  balance  he  owes  for  the  automo- 
biles he  received,  which,  since  capital 
is  timorous,  may  have,  for  the  future, 
some  restraining  effect  upon  similar 
arrangements." 

76.  Ford  Motor  Co.  v.  International 
Automobile  League,  209  Fed.  235. 

77.  Chapter  XXX. 

78.  Section  785. 


Manufacturers  of  Motor  Vehicles. 


1023 


agent  of  the  manufacturer,  the  custouKT  puixhasing  a  car  of 
the  dealer  cannot  maintain  an  action  against  the  manufacturer 
for  a  failure  to  make  a  delivery J^  or  for  breach  of  war- 
rantyJ^* 


Sec.  800.  Relation  between  manufacturer  and   consumer  — 
liability  for  injury  from  defect. 

It  is  a  rule  of  the  Law  of  Torts  that  the  manufacturer  of 
articles  inherently  dangerous,  such  as  poisons  and  explosives, 
for  example,  may  be  liable  to  a  third  person  who  becomes  the 
owner  thereof  through  purchase  from  another  and  who  is  in- 
jured by  reason  of  negligence  in  the  manufacture  of  the  ar- 
ticle. Whether  this  doctrine  applies  to  motor  vehicles  is  a 
question  on  which  there  is  a  conflict  of  decisions.  In  the  Cir- 
cuit Court  of  Appeals,  it  was  held  that  a  manufacturer  was 
not  liable  for  injuries  sustained  by  one  riding  in  an  automo- 
bile when  a  wheel  of  the  machine  broke,  the  manufacturer 
having  purchased  the  wheels  of  a  reputable  manufacturer.^** 
And  similar  doctrine  has  been  supported  in  Ohlahoma.^^ 
On  the  other  hand,  other  State  courts  have  sustained  the  lia- 
bility of  the  manufacturer  in  such  cases.*^-     xind  it  has  been 


79.  Anderson  v.  White  Co..  liS  Wash. 
568,  123  Pac.  1000. 

79-a.  Piper  v.  Oakland  Motor  Co. 
(Vt.),   109   Atl.   911. 

80.  Cadillac  Motor  Co.  v.  Johnson. 
221  Fed.  801.  This  decision,  however, 
was  subsequently  overruled  on  a  sec- 
ond appeal  in  the  same  litigation. 
Johnson  v.  Cadillac  Motor  Co..  261 
Fed.  878,  8  A.  L,  R.  1023. 

81.  Ford  Motor  Co.  v.  Livesay 
(Okla.),  160  Pac.  901.  wherein  it  waa 
said:  "It  is  a  general  rule  that  a 
manufacturer  or  vendor  is  not  liable 
to  third  parties  who  have  no  con- 
tractual relations  with  him  for  negli- 
gence in  the  construction,  manufac- 
ture, or  sale  of  the  articles  he  han- 
dles. In  the  leading  case  of  Winter- 
bottom  V.  Wright,  10  M.  &  W.  109,  the 
rule  is  placed  upon  the  ground  of  pub- 
lic policy.     There  would  be  no  end  of 


litigation  if  the  manufacturers  were 
fo  be  held  liable  to  third  persons  for 
every  act  of  negligence  in  the  con- 
struction of  the  machines  they  make 
after  the  ))arties  to  whom  they  have 
sold  them  have  received  and  accepted 
them." 

82.  MacPhcrsdn  v.  Buick  Motor  Co., 
217  X.  Y.  382!  Ill  N.  E.  1050,  affirm- 
ing KiO  N.  Y.  App.  Div.  35,  145  N.  Y. 
Suppl.  4()2.  The  Court  of  Appeals  in 
this  case  said:  '■  We  hold,  then,  that 
the  principle  of  Thomas  v.  Winchester 
is  not  limited  to  poisons,  explosives 
and  things  of  like  nature,  to  things 
which  in  their  normal  operation  are 
implements  of  destruction.  If  the 
nature  of  a  thing  is  such  that  it  is 
reasoiuibly  certain  to  place  life  and 
limb  in  peril  if  it  is  negligently  made, 
it  is  then  a  thing  of  danger.  It«  nature 
gives    warning   of   the   consequences   to 


1024 


The  Law  of  Automobiles. 


held  that  the  liability  of  the  manufacturer  may  extend,  not 


be  expected.     If  to  the  element  of  dan- 
ger there  is  added  knowledge  that  the 
thing    will    be  used  by    persons    other 
than  the  purchaser,   and  used  without 
new    tests,  then,    irrespective  of    con- 
tract, the  manufacturer  of   this  thing 
of  danger  is  under  a  duty  to  make  it 
carefully.     That    is   as   far   as  we   are 
required  to  go  for  the  decision  of  this 
case.     There   must  be   knowledge  of  a 
danger,  not  merely  possible,  but   prob- 
able.    It  is  possible  to  use  almost  any- 
thing in  a  way  that  will  make  it  dan- 
gerous    if     defective.       That     is     not 
enough     to    charge    the    manufacturer 
with    a   duty    independent   of   his    non- 
tract.     Whether  a  given  thing  is  dan- 
gerous  may   be    sometimes   a   question 
for  the  court  and  sometimes  a  question 
for    the    jury.      There    must    also    be 
knowledge  that  in  the  usual  course  of 
events   the    danger   will  be   shared   by 
others    than   the   buyer.     Such  knowl- 
edge  may   often   be   inferred   from   the 
nature   of   the   transaction.     But  it   is 
possible    that  even    knowledge  of    the 
danger  and  of  the  use  will  not  always 
be  enough.     The  proximity  or  remote- 
ness of  the  relation  is  a  factor  to  be 
considered.     We  are  dealing  now  with 
the    liability    of   the    manufacturer    of 
the   finished   product,   who   puts   it   on 
the    market    to    be  used    without    in- 
spection  by    his    customers.     If   he    is 
negligent,  where  danger  is  to  be  fore- 
seen,  a   liability   will   follow.     We  are 
not  required  at  tlii-  time  to  say  that 
it  is  legitimate  to  go  back  of  the  man- 
ufacturer  of  the   finished   product  and 
hold    the    manufacturers    of  the  com- 
ponent   parts.      To    make    their   negli- 
gence a  cause  of  imminent  danger  an 
independent    cause    must    often    inter- 
vene; the  manufacturer  of  the  finished 
product  must  also  fail   in  his  duty  of 
inspection.      It  may   be   that  in   those 
circumstances    the    negligence    of    the 
earlier  members  of  the  series  is  too  re- 
mote to  constitute,  as  to  the  ultimate 


user,  an  actionable  wrong.  (Beven  on 
Negligence,  3d  Ed..  50,  51,  54;  Whar- 
ton on  Negligence,  2d.  Ed.,  sec.  134; 
l.oeds  V.  N.  Y.  Tel.  Co.,  178  N.  Y.  118, 
70  N.  E.  219;  Sweet  v.  Perkins,  196  N. 
Y.  482,  90  N.  E.  50;  Hayes  v.  Hyde 
Park,  153  Mass.  514,  516,  27  N.  E. 
522.)  We  leave  that  question  open. 
We  shall  have  to  deal  with  it  when  it 
arises.  The  difficulty  which  it  sug- 
gests is  not  present  in  this  case.  There 
IS  here  no  break  in  the  chain  of  catise 
and  effect.  In  such  circumstances  the 
presence  of  a  known  danger,  attend 
ant  upon  a  known  use,  makes  vigil- 
ance a  duty.  We  have  put  aside  the 
notion  that  the  duty  to  safeguard  life 
and  limb,  when  the  consequences  of 
negligence  may  be  foreseen,  grows  out 
of  contract  and  nothing  else.  We  have 
put  the  source  of  the  obligation  where 
it  ought  to  be.  We  have  put  its  source 
in  the  law." 

See  also  Quackenbush  v.  Ford  Motor 
Co.,  153  N.  Y.  Suppl.  131.  wherein  the 
court  says:  "  A  modern  automobile 
properly  equipped  with  brakes  and  as- 
sembled in  harmony  with  the  plans 
underlying  the  construction,  is  not  in- 
herently a  dangerous  machine.  In  the 
hands  of  a  reasonably  intelligent  and 
careful  operator  it  involves  no  greater 
hazards  to  the  public  than  a  team  of 
horses  attached  to  a  wagon.  But  this 
theoretically  safe  machine  becomes  in- 
herently unsafe  when  it  is  improperly 
assembled  or  when  the  brakes  are  con- 
structed of  materials  which  will  not 
stand  the  necessary  strain  upon  them; 
such  an  automobile,  designed  for  use 
upon  the  highways  (and  this  court 
may  take  judicial  notice  of  the  use  to 
which  such  vehicles  are  commonly 
put),  is  a  menace  to  the  safety  of  the 
public,  and  it  devolves  the  duty  upon 
the  manufacturer  to  use  proper  ma- 
terials and  to  use  due  care  in  the  as- 
sembling of  such  materials  in  the 
completed  machine,  and  the  character 


Manufacturers  of  Motor  Vehicles. 


1025 


only  to  the  owner  of  the  machine,  but  also  to  one  riding 
therein.^^ 


Sec.  801.  Relation  between  manufacturer  and  consumer  — 
duty  to  make  repairs. 
The  manufacturer  of  a  motor  vehicle  may  bind  itself  to 
make  repairs  thereto  at  its  own  expense  for  a  prescribed 
period,  but  on  the  expiration  of  such  period,  its  duty  to  make 
such  repairs  will  cease.®* 

Sec.  802.  Relation  between  manufacturer  and  consumer 

sharing  profits  with  consumer. 

Where  a  manufacturer  of  automobiles,  for  the  purpose  of 

giving  publicity  to  its  products,  advertised  that  it  would  give 

to  all  retail  buyers  of  its  automobiles  a  certain  share  of  its 

profits  during  the  cun-ent  year,  providing  it  sold  a  certain 


of  the  injuries  resulting  from  defective 
materials  and  construction  has  noth- 
ing to  do  with  the  question  of  the 
manufacturer's  duty.  .  .  .  The  manu- 
facturer had  no  more  right  to  send  out 
a  ear  with  a  brake  which  was  not 
properly  tested  than  he  had  to  send 
out  a  car  with  a  wheel  which  was  not 
up  to  the  standard." 

Bill  of  particulars.— In  an  action  by 
the  owner  of  an  automobile  against  the 
manufacturer  to  recover  for  injuries 
received  by  the  plaintiff  in  an  accident 
caused  by  the  breaking  of  a  part  of  the 
steering  gear,  the  court  should  be 
liberal  in  granting  to  the  defendant  a 
bill  of  particulars  as  to  the  defects  in 
construction  or  material  which  the 
plaintiff  will  rely  on  to  establish  the 
case.  The  defendant  is  entitled  to  a 
bill  of  particulars  as  to  whether  the 
very  general  allegations  charging  neg- 
ligence with  respect  to  the  manufac- 
ture of  the  entire  automobile  and  all 
of  its  parts  and  the  testing  thereof 
were  intended  to  be  limited  by  more 
specific  allegations  in  a  later  para- 
graph confining  the  negligence  to  the 
steering  apparatus,   and  if   they  were 

65 


not  intended  to  be  &o  limited  to  par- 
ticularize with  respect  to  them.  The 
defendant  is  entitled,  also  to  particu- 
lars as  to  the  parts  of  the  steering  ap- 
paratus alleged  to  be  worn  and  of  in- 
sufficient size  and  as  to  the  parts  al- 
leged to  have  been  omitted  in  the  con- 
struction. The  defendant  is  not  en- 
titled to  particulars  as  to  the  experi- 
ence of  the  plaintiff  in  driving  auto- 
mobiles or  the  exact  time  of  the  ac- 
cident since  those  questions  can  have 
no  bearing  on  the  issues.  But  the  de- 
fendant is  entitled  to  particulars  as 
to  the  exact  place  where  the  accident 
happened,  the  speed  of  the  car  at  the 
<ime  of  the  accident,  and  whether  the 
plaintiff  put  on  the  foot  brake  or  the 
emergency  brake  and  whether  she 
claims  either  of  them  was  defective. 
Drake  v.  National  Motor  Car  Corp., 
195  App,  Div.   113. 

83.  Olds  Motor  Works  v.  Shaflfer, 
145  Ky.  616,  140  S.  W.  1047,  37  L. 
R.  A.  (N.  S.)  560,  Ann.  Cas.  1913  B. 
689. 

84.  Barry  v.  American  Locomotive 
Auto  Co.,  113  N.  Y.  Suppl.  826. 


1026 


The  Law  of  Automobiles. 


number  of  cars,  one  who  purchased  an  automobile  from  an 
agent  of  the  defendant,  or  the  purchaser's  assignee,  is  entitled 
to  receive  a  share  of  the  j^rofits,  the  conditions  of  the  adver- 
tisement having  been  fulfilled,  and  payment  cannot  be  refused 
upon  the  ground  that  the  bill  of  sale  of  the  car  given  by  the 
agent  some  months  after  the  actual  sale  stated  that  the  sale 
did  not  come  within  the  provisions  of  the  defendant's  offer. 
The  agreement  of  the  defendant  through  its  advertisement  is 
an  entirely  different  transaction  than  the  sale  of  the  car  be- 
tween the  purchaser  and  the  agent.  Such  a  promise  to  divide 
profits  is  not  a  mere  gratuity,  but  a  request  to  the  public 
which,  when  acted  upon,  is  binding.^^ 


Sec.  803.  Trade  marks. 

Valid  trade  marks  of  the  manufacturers  of  motor  vehicles 
and  their  accessories  will  be  protected  by  the  courts.^^    Thus 


85.  Ford  v.  Ford  Motor  Co.,  181  N. 
Y.  App.  Div.  28,  168  N.  Y.  Suppl.  176. 
See  also  Ford  v.  Ford  Motor  Co.,  179 
N.  Y.  App.  Div.  472. 

86-  Trademarks. — Wifch  the  great 
variety  of  automobile  supplies  and  ac- 
cessories continually  being  placed  upon 
the  market  and  sold  under  various 
trade  names,  it  is  not  to  be  wondered 
at  that  the  trademarks  under  which 
certain  supplies  and  accessories  are 
sold  should  be  infringed.  An  inten- 
tional infringement  of  this  character 
certainly  cannot  be  tolerated  for  an  in- 
stant. There  are  instances,  however, 
where  a  party  or  a  concern  may  adopt 
a  trade  name  or  trademark  in  ignor- 
ance of  the  fact  that  another  already 
uses  a  similar  trade  name  or  mark.  Of 
course,  under  such  circumstances  the 
subsequent  use  of  the  trade  name  is 
illegal  and  an  injunction  may  be  pro- 
cured to  stop  it.  The  public  certainly 
have  a  right  to  fair  dealing,  and  the 
conduct  of  a  business  in  such  a  man- 
ner that  there  is  an  express  or  im- 
plied representation  that  the  goods  or 
business  of  one  man  are  the  goods  or 
business  of  another  is  an  illegal  depre- 


dation not  only  upon  the  public  but 
upon  the  dealer. 

In  order  to  obtain  the  advantage  of 
one's  good  will  and  reputation  in  the 
conduct  of  his  business,  and  the  quali- 
ties of  the  article  which  he  handles,  it 
has  been  the  custom  for  a  long  time 
to  affix  to  the  goods  employed  in  the 
particular  business  a  name  or  some 
particular  mark  to  distinguish  these 
goods  from  similar  goods  produced  by 
others  engaged  in  the  same  business. 
ITiese  distinguishing  marks  are  called 
trademarks,  and  their  use  has  been 
very  general  in  all  countries  from 
ancient  times. 

A  trademark  may  be  defined  as  a 
name,  sign,  symbol,  or  device  which  is 
applied  or  attached  to  the  goods  of- 
fered for  sale  in  the  market,  so  as  to 
distinguish  them  from  other  goods 
sold  by  others. 

A  trademark  in  order  to  be  valid 
must  be  distinctive.  It  also  must  have 
some  actual  physical  connection  with 
the  goods.  It  is  sufficient,  however,  if 
the  mark  is  affixed  either  upon  the 
goods  themselves  or  upon  a  box  or 
wrapper  containing  them,   or   in  some 


Ma^jufacturers  or  Motor  Vehicles. 


1027 


the  Ford  Motor  Company  can  enjoin  a  ilealer  from  advertis- 
ing auto  parts  as  Ford  articles,  wliere  tiiey  are  not  made  by 
such  company,  but  are  adapted  for  use  on  ''  Ford  "  cars.^''^ 
And  the  manufacturer  of  "  Imperial  "  automobile  tires  can 


other  way  physically  atta(;hed  to  the 
article.  An  unlawful  business  cannot 
secure  a  valid  trademark,  and  a  trade- 
mark must  not  be  in  itself  illegal  or 
immoral  or  against  puVjlic  policy.  No 
sign  or  symbol  can  be  used  as  a  valid 
trademark  which  from  the  fact  con- 
veyed by  its  primary  meaning  others 
may  employ  with  equal  truth  and  with 
equal  rights  for  the  same  purposes. 
Arbitrary  and  fanciful  words  may  con- 
stitute a  valid  technical  trademark, 
such,  for  example,  as  the  word  "  Star," 
as  applied  to  shirts,  and  "  Ideal."  as 
applied  to  fountain  pens,  etc. 

Newly  coined  and  invented  words 
may  also  constitute  valid  trademarks. 
These  are  frequently  found  in  the  au- 
tomobile trade,  and  may  be  proitect^d 
against  infringement. 

The  color  of  an  article  or  label,  or 
its  form  or  size,  can  rarely  if  ever  1)€ 
protected  as  a  technical  trademark. 
Neither  can  the  name  of  the  substance 
out  of  which  it  is  manufactured  be 
protected. 

Words  of  quality,  character,  grade, 
excellence,  popularity,  processes  of 
manufacture,  purpose  of  use,  ingre- 
dients, geographical  terms,  are  usually 
incapable  of  being  protected. 

Trademarks  and  trade  names  are  ac- 
quired by  mere  adoption  and  u-se. 
Statutory  provisions  for  the  regis- 
tration of  trademarks,  as  a  general 
rule,  apply  only  to  words,  marks,  or 
symbols  which  have  already  become 
trademarks  by  adoption  and  use.  The 
purpose  of  registry  is  simply  to  f;icili- 
tate  the  remedy.  Registration  confers 
no  new  rights.  The  exclusive  ri/zht  to 
the  trade  name  belongs  to  the  on»'  who 
was  first  to  appropriate  and  use  it  in 
connection  with  the  goods  in  question, 
and  not  to  the  inventor  or  the  one  who 


lirst  suggested  it.  Th(!  necessity  of 
iis»?  is  vital.  The  popular  misappre- 
hension that  a  trademark  miLst  be 
registered  in  order  to  be  protected 
should  be  corrected.  Those  who  first 
use  a  trademark  may  enjoin  others 
who  seek  to  use  a  similar  device,  sym- 
l)ol,  or  mark,  and  who  attempt  to 
trade  on  the  goo<l  iianif  and  good  will' 
of   another's   business. 

87.  Ford  Motor  Co.  v.  Wilson,  223 
Fed.  808,  wherein  it  was  said:  "While 
ihc  defendant  has  a  right  to  inform 
'lie  public  that  he  is  manufacturing 
articles  suitable  for  use  on  Ford  ma- 
chines, he  should  not  be  permitted  ±o 
advertise  them  as  Ford  articles,  but 
should  be  required  to  dei^cribe  them  in 
such  way  as  to  indicate  that  they  are 
not  manufactured  by  the  complainant, 
.  .  .  Even  had  the  complainant  some 
knowledge  of  the  description  of  the  de- 
lendanfs  articles  as  Ford  articles, 
mere  nonaction,  or  the  ignoring  of  a 
few  instances  of  violation  of  right, 
could  not  deprive  it  of  the  right  to 
stop  an  luiauthorized  use  of  its  name 
when  such  use  became  of  considerable 
magnitude,  nor  could  it  confer  upon 
the  defendant  any  right  to  put  forth 
his  goods  with  what  must  be  held  to 
be  a  misrepresentation  as  to  origin. 
While  the  defendant  may  have  con- 
sidered himself  morally  justified  in 
calling  those  articles  Ford  articles,  be- 
lause  they  were  adapted  for  use  in 
Ford  machines,  such  an  option  would 
Ijc  erroneous,  since,  in  common  ao- 
ceptation.  the  word  '  Ford  '  would  in- 
dicate, not  merely  adaptation  to  use 
in  Ford  machines,  but  articles  manu- 
factured by  the  complainant  company. 
It  is  in  the  latter  respect  that  the  de- 
tondant  has  violated  the  complainant's 
rights." 


1028  The  Law  of  Automobiles. 

enjoin  defendants  who  have  organized  a  corporation  under 
the  name  of  ''  Imperial  Tire  Company  "  and  who  are  making 
tires  with  the  name  "  Imperial  "  moulded  thereon.^^  But  it 
has  been  held  that  the  manufacturer  first  making  lamps  with 
a  flaring  front  is  not  entitled  to  a  monopoly  of  the  words 
"flare  front. "^^  And  the  words  "Yellow  Taxicab  Com- 
pany ' '  may  be  acquired  as  a  valid  trade  mark,  so  that  a  use 
of  a  similar  name  by  another  may  be  enjoined.^^ 

88.  McGraw  Tire  &  Rubber  0>.  v.  90.  Yellow  Cab  Co.  v.  Cook's  Taxi- 
Griffith,  198  Fed.  566.  cab  Co.,  142  Minn.  120,  171  N.  W.  269. 

89.  Rushmore  v.  Manhattan,  etc.,  Patents. — ^Machine  for  making  tire 
Stamping  Works,  163  Fed.  939,  19  L.  casings.  Firestone  Tire  &  Rubber  Co. 
R.  A.   (N.  S.)  269.  V.  Seiberling,  257  Fed.  74. 


Insurance.  1029 

CHAPTER  XXIX. 

INSURANCE. 

Section  804.  Fire  insurance  —  construction  of  policy. 

805.  Fire  insurance  —  insurable  interest. 

806.  Fire  insurance  —  false  representations. 

807.  Fire  insurance  —  chan-j^e  of  title. 

808.  Fire  insurance  —  incumbrance  on  property. 

809.  Fire  insurance  —  private  garage  warranty. 

810.  Fire  insurance  —  safe-guarding  machine. 

811.  Fire  insurance  —  use  for  rent  or  hire. 

812.  Fire  insurance  —  determination  of  amount  of  loss. 

813.  Fire  insurance  —  acceptanc^e  of  repairs  in  lieu  of  money. 

814.  Fire  insurance  —  valued  policy. 

815.  Collision  insurance in  general. 

816.  Collision  insurance  —  collision  with  stationary  objects. 

817.  Collision  insurance  —  exception   for  damage  in   striking  portion  of 

road 

818.  Collision  insurance — exception  in  case  of  upset  of  machine. 

819.  Collision  insurance —  damage  while  in  garage. 

820.  Collision  insurance  — amount  of  recovery. 

821.  Collision  insurance — recovery    for    damage    against    third    person 

though  insured. 

822.  Collision  insurance  —  subrogation  of  insurer. 

823.  Indemnity  insurance  —  nature  and  validity  of  insurance. 

824.  Indemnity  insurance  —  authority  of  company  to  write. 

825.  Indemnity  insurance — stipulation  to  defend  "suits." 

826.  Indemnity  insurance  —  assumption  of  defense  of  action. 

827.  Indemnity  insurance  —  indemnity  of  partners. 

828.  Indemnity  insurance — action  against  officer  of  insured  corporation. 

829.  Indemnity  insurance  —  age  of  driver. 

830.  Indemnity  insurance  —  change  of  use  of  machine. 

831.  Indemnity  insurance — notice  to  insurer  of  accident. 

832.  Indemnity  insurance  —  failure  of  insured  to  co-operate  with  insurer 
832a.  Indemnity  insurance  —  interference    with    negotiations    for    com- 
promise. 

833.  Indemnity  insurance  —  necessity  of  trial  of  action. 

834.  Indemnity  insurance  —  consent  of  insurer  to  settlement. 

835.  Indemnity  insurance  —  amount  of  recovery  by  assured. 

836.  Indemnity  insurance  —  evidence    of    insurance    in     action    against 

insured. 

837.  Indemnity  insurance  —  action  by  injured  person  against  insurance 

company. 

838.  Theft  insurance  —  conversion  without  intent  to  commit  crime. 

839.  Theft  insurance  —  larceny  by  trick  or  device. 

840.  Theft  insurance  —  by  persons  not  in  service  of  o\vner. 

841.  Theft  insiu-ance — stealing  proceeds  of  sale  of  automobile. 

842.  Theft  insurance  —  sufficiency  of  proof  of  theft. 


1030  The  Law  of  Automobiles. 

Section  843.  Theft  insurance  —  amount  ot  rtamage. 

844.  Theft  insurance  —  subrogation  of  insurer. 

845.  Accident   insurance. 

Sec.  804.  Fire  insurance  —  construction  of  policy. 

A  policy  of  insurance  should  be  interpreted  by  the  rules 
which  are  applicable  to  other  written  contracts  for  the  pur- 
pose of  ascertaining  and  giving  effect  to  the  real  intention  of 
the  parties.  It  should  be  construed  strictly  against  the  in- 
surer and  favorably  to  the  insured,  when  there  is  doubt  or  am- 
biguity in  its  terms,  as  it  is  supposed  to  be  prepared  by  the 
former.  But  the  object  of  the  contract  being  to  afford  an 
indemnity  against  loss,  it  should  be  so  considered  as  to  ef- 
fectuate this  purpose,  rather  than  in  a  way  which  will  defeat 
it.  It  should  have,  from  every  point  of  view,  a  fair  and  rea- 
sonable construction,  unless  it  be  so  clearly  and  unambigu- 
ously expressed  as  not  to  require  construction,  when  its  words 
will  be  taken  in  the  plain  and  ordinary  sense.^  The  rule  that 
an  insurance  policy  is  to  be  liberally  construed  in  favor  of  the 
insured  is  not  carried  to  the  extent  of  construing  the  policy 
contrary  to  its  manifest  intent  and  express  condition.^ 

Sec.  805.  Fire  insurance  —  insurable  interest. 

All  insurance  policy  issued  on  an  automobile  to  one  who  has 
no  insurable  interest  in  the  machine  is  void ;  and,  upon  the  as- 
signment of  such  policy  to  another,  the  assignee  has  no  rights 
thereunder.^ 

Sec.  806.  Fire  insurance  —  false  representations. 

Whether  a  misrepresentation  or  concealment  will  avoid  a 
policy  of  insurance  depends,  as  a  general  proposition,  upon 
its  materiality  to  the  risk  undertaken.*    An  alleged  misrepre 
sentation  made  in  an  application  for  insurance  upon  an  auto 
mobile  is  not  a  warranty,  and,  if  proved  to  be  untrue,  does  not 

1.  Growell  V,  Maryland  Motor  Car  4.  British,  etc.,  Ins.  Co.  of  Liverpool 
Ins.  Co.,  169  N.  Car.  35.  85  S.  E.  37.  v.  Cummings,  113  Md.  350,  76  Atl.  571. 

2.  Marmon  Chicago  Co.  v.  Heath,  An  incorrect  statement  of  the  num- 
205  111.  App.  605.  ber  of  the  machine  does  not  necessarily 

3.  O'Neill  V.  Queen  Ins.  Co.  230  avoid  the  policy.  White  v.  Home  Mut. 
Mass.  269,  119  N.  E.  678.  Ins.  Assoc.   (Iowa),  179  N.  W.  315. 


Insurance. 


1031 


avoid  the  policy,  unless  it  is  material  to  the  risk  assumed  by 
the  insurer.'"^  The  burden  of  showing  the  falsity  of  the  repre- 
sentation as  well  as  its  materiality  is  upon  the  insurance  com- 
pany.^ A  representation  as  to  the  age  or  year  of  manufac- 
ture of  a  motor  vehicle  is  generally  deemed  a  material  one, 
and  an  assured  who  has  falsely  stated  such  matter  in  his  ap- 
plication, may  be  unable  to  collect  insurance  in  case  of  dam- 
age by  fire."  Indeed,  it  has  been  held  that  the  fact  that  the 
erroneous  statement  was  made  innocently  will  not  aid  the  as- 
sured.*^ In  such  a  case  it  is  also  held  not  to  be  important  that 
the  agent  saw  the  car  and  that  he  might  have  learned  the  true 
facts,  it  appealing  that  he  was  in  fact  a  broker  rather  than  an 


5.  British,  etc.,  Ins.  Co.  of  Liverpool 
V.  Cummings,  113  Md.  350,  76  Atl.  571. 

6.  British,  etc.,  Ins.  Co.  of  Liverpool 
V.  Cummings,  113  Md.  350,  76  Atl. 
571;  Zackwik  v.  Hanover  F.  Ins.  Co. 
(Mo.  App.),  225  S.  W.  135. 

7.  Soloman  v.  Federal  Ins.  Co.,  176 
Cal.  133,  167  Pac.  859;  Smith  v.  Amer- 
ican Automobile  Ins.  Co.,  188  M-o. 
App.  297,  175  S.  W.  113;  Reed  v.  Stt. 
Paul  Fire  &  M.  Ins.  Co.,  165  N.  Y. 
App.  Div.  660.  151  N.  Y.  Suppl.  274: 
Harris  v.  St.  Paul  Fire  &  Mariiu'  In-. 
Co.,  126  N.  Y.  Suppl.  lis.  lompun 
St.  Paul,  etc.,  Ins.  Co.  v.  Huff  (Tex. 
Civ.  App.),  172  S.  W.  755.  "  The  mis- 
representation that  the  car  was  a  1910 
model  while  it  was  in  fact  a  1906 
model,  was  clearly  a  misrepresentation 
of  a  material  fact.  It  is  impossible  for 
Insurance  agents  to  ascertain  the  con- 
dition of  the  cjir  from  its  outside  ap- 
pearance. The  condition  largely  de- 
pends upon  the  wearing  of  the  gears, 
which  are  concealed  within  metal 
bound  cases.  It  also  largely  depends 
upon  the  year  of  the  manufacture,  as 
it  is  a  matter  of  common  knowledge 
that  in  the  manufacture  of  automo- 
biles changes  are  made  from  year  to 
year  to  remedy  defects  that  are  found 
to  exist,  and  to  add  to  the  conveniences 
and  safety  in  the  use  of  the  car.  as  are 


shown  to  be  important  through  experi- 
ence. It  is  matter  of  common  knowl- 
edge that  in  1912  a  1910  Premier  was 
of  value  greatly  in  excess  of  that  of  a 
1906  Premier  of  the  same  model.  So 
that  there  was  a  clear  misrepresen- 
tati6n  of  a  material  fact  which  as  mat- 
ter of  law  vitiates  the  defendant's  con- 
tract." Reed  v.  St.  Paul  Fire  &  M. 
Ins.  Co.,  165  N.  Y.  App.  Div.  660,  151 
N'.  Y.  Suppl.  274.  "  If  the  fact  that 
the  machine  is  five  years  old  instead 
I  if  two  is  not  material  to  the  risk  we 
camidt  «ec  well  what  would  be.  But, 
however  this  may  be,  certainly  the 
company  has  a  perfect  right  to  say  it 
will  not  insure  an  automobile  that  is 
over  five  years  old.  And  if  the  car  was 
represented  to  the  company  to  be  only 
two,  when  it  was  five  years  old,  and 
the  company  had  no  means  nor  oppor- 
I  unity  of  knowing  any  different,  then 
there  was  no  contract  of  insurance  en- 
tered into  by  the  company  with  refer 
ence  to  this  car.  Hence,  we  think  the 
representation  as  to  the  age  of  the  car 
was  material  to  the  risk  as  a  matter 
of  law."  Smith  v.  American  Automo- 
bile Ins.  Co.,  188  Mo.  App.  297,  175  S. 
W.   113. 

8.  Smith  V.  American  Automobile 
Ins.  Co.,  188  Mo.  App.  297.  175  S.  W. 
113. 


1032  The  Law  of  Automobiles. 

agent  of  the  company.^  But,  on.  the  other  hand,  it  has  been 
held  that,  where  the  application  correctly  gives  the  make, 
horse  power,  and  manufacturer's  number  of  the  machine,  but 
innocently  misstated  the  year  of  manufacture,  and  it  appeared 
that  the  insurer's  agents  had  information  at  hand  to  determine 
the  age  of  the  car  from  the  number,  it  was  charged  with  notice 
of  the  age  and  was  estopped  to  assert  the  misstatement  as  a 
defense.^^  And,  under  similar  circumstances,  it  has  been  held 
to  be  a  question  for  the  jury  whether  the  misstatement  was 
material."  A  statement  as  to  the  cost  of  the  car  to  the  in- 
sured, especially  in  the  case  of  a  ''  valued  "  poHcy,  is  mate- 
rial, and  if  falsely  stated  may  avoid  the  policy.^^ 

Sec.  807.  Fire  insurance  —  change  of  title. 

Where  an  insurance  policy  covering  an  automobile  contains 
a  provision  that  it  shall  be  void  in  case  of  a  change  of  title, 
such  provision  is  binding  upon  the  insured  and  if  he  sells  such 
automobile  the  policy  will  be  invalidated.^^*'  Thus  where  the 
owner  of  such  a  vehicle  entered  into  two  transactions  the  first 
of  which  constituted  a  sale  with  a  chattel  mortgage  to  secure 
the  purchase  money  and  the  second  of  which  constituted  a 
complete  surrender  of  the  chattel  mortgage,  it  was  held  that 

9.  Smith  V.  American  Automobile  could  have  been  apprised  of  them,  it 
Ins.  Co..  188  Mo.  App.  297,  175  S.  W.  has  no  right  to  set  up  its  ignorance  aa 
113.  an  excuse.  It  must  be  treated  as  know- 

10.  British,  etc.,  Ins.  Co.  of  Liver-  ing  what  it  ought  to  have  known.'  The 
pool  V.  Cummins,  113  Md.  350,  76  Atl.  year  in  which  the  car  was  built  was 
571,  wherein  it  was  said:  "As  was  not  within  the  peculiar  knowledge  of 
said  by  Chief  Justice  McSherry  in  the  appellee,  nor  had  he,  after  furnish- 
Monahan  v.  Mutual  Insurance  Co.,  103  ing  Smith  with  the  said  number,  any 
Md.  157,  63  Atl.  212,  5  L.  R.  A.  759:  means  or  opportunities  of  ascertaining 
'  All  the  cases  which  hold  the  contract  this  fact  that  were  not  equally  access- 
of  insurance  to  be  vitiated  by  the  mere  ible  to  Smith,  the  agent  of  the  com- 
rejiresentation  of  a  mere  fact  when  no  pany,  whose  duty  it  was  to  pass  upon 
warranty  is  involved  have  relation  to  the  application." 

facts   which   were,   or   which   ought  to  11.  Locke    v.     Royal     Ins.    Co.,    220 

have     been      peculiarly,     within      the  Mass.  202,  107  N.  E.  911. 

knowledge  of  the  applicant,  and  which  12.  Soloman  v.  Federal  Ins.  Co.,  176 

were  not  within  the  knowledge  of  the  Gal.  133.  167  Pae.  859. 

insured.       If    the    company    ought    to  12-a.  Cranston     v.      California     Ins 

have    known    of    the    facts,    or    with  Co.,  94  Oreg.  369.  185  Pac.  292. 

proper   attention   to   its   own   business 


Insurance.  1033 

there  was  a  completed  sale  which  avoided  the  policy.^^  But, 
where  a  policy,  provided  that  a  chang^e  of  ownership  of  the 
property,  without  the  written  consent  of  the  insurance  com- 
pany, rendered  the  policy  void,  and  that  agents  of  the  com- 
pany could  not  waive  any  provision  of  the  policy  unless  the 
waiver  was  written  upon  the  policy  or  attached  thereto,  yet 
where  the  local  agent  of  the  company  knew,  before  he  issued 
the  policy  that  the  automobile  had  been  sold  by  the  assured, 
it  was  held  that  the  company  was  bound  by  such  knowledge, 
and  was  estopped  from  setting  up,  as  a  defense  to  a  suit  upon 
the  policy,  the  noncompliance  of  the  plaintiff  with  the  policy.^^ 

Sec.  808.  Fire  insurance  —  incumbrance  on  property. 

It  has  been  held  that  a  provision  in  a  jjolicy  of  insurance  on 
an  automobile  that,  if  the  property  be  or  become  encumbered 
by  a  chattel  mortgage,  the  policy  shall  be  void,  is  a  valid  pro^ 
vision,  and  if  the  assured  so  encumbers  the  machine,  the  in- 
surance company  has  the  right  to  insist  that  its  liability  under 
the  policy  has  terminated.^^ 

Sec.  809.  Fire  insurance  —  private  garage  warranty. 

Where  a  policy  of  insurance  on  an  automobile  contains  a 
clause  that,  in  consideration  of  the  reduced  rate  at  which  the 
policy  is  written,  it  is  understood  that  the  property  insured 
shall  be  kept  or  stored  in  a  certain  private  garage,  with  the 
privilege,  however,  to  operate  the  car  and  to  house  in  any 
other  building  for  a  period  not  exceeding  fifteen  days  at  any 
one  time,  providing  the  car  is  en  route,  visiting,  or  being 
cleaned  or  repaired,  it  has  been  held  that  a  permanent  re- 
moval of  the  machine  to  another  State  renders  the  insurance 
contract  void.^^    The  provision  for  keeping  it  in  a  private 

13.  Hamilton     v.     Fireman's      Fund       (Mich.),  183  N.  W.  61. 

Ins.   Co.    (Tex.  Civ.   App.),  177  S.  W.  16.  Lummus     v.     Fireman's     Funds 

173.  Ins.  Co.,  167  N.  C.  654,  83  S.  E.  688, 

14.  Commercial  Union  Assur.  Co.  v.  wherein  the  court  said:  "The  con- 
Lyon,  17  Ga.  App.  441,  87  S'.  E.  761.  tention    of   the   defendant   is   that  the 

15.  Springfield  F.  &  M.  Ins.  Co.  v.  policy  became  forfeited  because  of  this 
Chandler,  41  App.  D.  C.  209.  breach  of  the  private  garage  warranty. 

Insurance  by  conditional  vendee. —  The  plain  tiflf  contends  that  the  breach 
See    Baker    v.     Northern     Assur.    Co.       of   warranty   was    immaterial,   because 


1034 


The  Law  of  Automobiles. 


garage  may  be  waived  by  the  (company,  as  where  its  general 
agent  advises  the  assured  that  the  company  has  no  objection 
to  certain  visits  to  other  places. ^^  An  application  stating 
that  the  machine  is  usually  kept  in  a  private  garage,  does  not 
avoid  the  policy,  though  it  appears  that  it  was  kept  in  a  lean- 
to  or  a  bam,  especially  where  the  company  was  charged  with 
knowledge  where  the  machine  was  kept.^^ 


Sec.  810.  Fire  insurance  —  safe-guarding  machine. 

Where  a  policy  contains  no  provision  requiring  the  owner 
of  the  vehicle  to  safeguard  the  machine  after  a  hre,  the  fact 
that  there  were  two  fires  occurring  a  few  days  apart  which 
resulted  in  the  destruction  of  the  machine  and  that  the  owner 
was  negligent  in  safeguarding  the  machine  after  the  first  fire, 
does  not  defeat  a  recovery  on  the  policy.^'*  The  negligence  of 
the  owner  does  not  generally  constitute  a  defense.^^ 


it  in  no  way  contributed  to  the  loss, 
citing  Kevisal,  §  4808.  This  position 
is  untenable.  In  construing  that  sec- 
tion, this  court  has  held  that,  in  ap- 
plication for  a  policy  of  insurance, 
every  fact  stated  will  be  deemed  ma- 
terial which  would  materially  in- 
fluence the  judgment  of  an  insurance 
oomtpany  either  in  accepting  tlie  risk 
or  in  fixing  the  rate  of  premium. 
Bryant  v.  Insurance  Co.,  147  N.  C.  181, 
60  S.  E.  983.  It  is  further  held  in  the 
same  case  that  it  is  not  necessary,  in 
order  to  defeat  a  recovery  upon  such 
policy  of  insurance,  that  ia,  material 
misrepresentation  by  the  applicant 
must  be  shown  to  have  contributed  in 
some  way  to  the  loss  for  whic'h  in- 
demnity is  claimed.  See  also  Fish- 
blate  V.  Fidelity  Co.,  140  N.  C.  589, 
63  S.  E.  354.  Nothing  is  bettor  sottled 
than  that  the  location  of  the  propfrty 
insured  is  essentially  material  in  con- 
tracts of  insurance,  and  enters  largely 
into  the  consideration  of  the  company 
in  fixing  the  rate  of  premium.  The 
clause  of   the  policy   in  this   case,  con- 


taining this  warranty,  expressly  de- 
clares that  a  reduced  rate  of  premium 
is  granted  because  of  the  insertion  oi 
this  provision  in  the  contract.  The 
contention  of  the  plaintiff  that  the 
policy  could  remain  dormant  for  six 
months,  and  then  be  revived  sud- 
denly because  the  property  was 
bvuned  up  in  a  repair  shop,  is  ut- 
terly untenable.  When  the  owner 
took  the  automobile  away  from  the 
garage  in  Columbus,  it  was  not  for  a 
temporary  purpose.  There  was  a  re- 
moval of  the  property  permanently  to 
another  State  which,  under  the  pro- 
visions of  the  policy  which  we  have 
cited,  rendered  the  contract  of  in.sur- 
ance  void." 

17.  Commercial  Union  Assur.  Co.  v. 
Hill    (Tex.  Civ.  App.),  167  S.  W.  1095. 

18.  White  V.  Home  Mut.  Ins.  Assoc. 
(Iowa),  179  N.  W.  316. 

19.  St.   Paul,   etc.,    Ins.    Co.    v.    Huff 
(Tex.  Civ.  App.),  172  S.  W.  755. 

20.  \'\Tiite  V.  Home  Mut.  Ins.  As'?oc. 
(Iowa),  179  N.  W.  315. 


Insurance.  1035 

Sec.  811.  Fire  insurance  —  use  for  rent  or  hire. 

Fire  insurance  policies  on  motor  vehicles  used  for  the 
pleasure  or  business  purposes  of  the  owner  frequently  contain 
a  provision  that  the  machine  shall  not  be  used  for  carrying 
passengers  for  compensation,  and  that  it  shall  not  be  rented 
or  leased.  Such  a  provision  is  valid  and  its  violation  results 
in  the  avoidance  of  the  policy.^^  Where  a  policy  of  fire  insur- 
ance on  an  automobile,  issued  to  plaintiff  and  one  who  bought 
the  automobile  from  plaintiff  and  gave  back  a  mortgage  for 
part  of  the  purchase  price,  provides  that  the  automobile  shall 
not  be  used  for  renting  pui*poses  or  for  hire,  and  the  evidence 
shows  that  such  car  was  used  mainly,  if  not  entirely,  for  livery 
purposes  by  such  mortgagor,  there  can  be  no  recovery  under 
the  policy.^^  But  such  a  provision  does  not  forbid  the  casual 
carrying  of  passengers  for  hire  upon  a  particular  occasion, 
without  making  a  business  of  candying  passengers.^^  The 
condition  in  a  policy  of  fire  insurance  issued  on  an  automobile 
to  the  mortgagee  and  mortgagor  of  the  car,  as  their  respective 
interests  might  appear,  that  the  car  shall  not  be  used  for  rent- 
ing purposes  or  for  hire,  applies  to  both  the  mortgagor  and 
the  mortgagee.^^  In  some  States,  the  violation  of  the  clause 
as  to  renting  does  not  avoid  the  policy,  unless  the  injury  to 
the  machine  ensued  at  a  time  when  the  clause  was  so  violated.^^ 

21.  Orient  Ins.  Co.  v.  Van  Zandt  plated,  not  a  single  act  of  renting  or 
Drug  Co.,  50   Okla.  558,   151   Psic.  323.  using  the  oar   for  hire,  a  mere  caeaal 

22.  Marmon  Chicago  Co.  v.  Heath,  or  isolated  instance,  and  that  too, 
205  111.  App.  605.  without   the  knoavledge   or   consent    of 

23.  Crowell  v.  Maryland  Motor  Car  the  owner,  but  something  of  a  more 
Ins.  Co.,  169  N.  C.  35,  85  S.  E.  37;  Com-  permanent  nature.  19  Cv-c.  736.  This 
mercial  Union  Assur.  Co.  v.  Hill  (Tex.  car  was  not  'rented'  in  the  sonse  of 
Civ.  App.),  167  S.  W.  1095.  Compare  that  word  as  employed,  in  the  policy, 
Elder  v.  Federal  Ins.  Co.,  213  Mass.  but  it  was  used  by  the  plaintiff's  scr- 
389,  100  N.  E.  655.  "  The  clause  in  vant  to  carry  the  hunters  to  the  coun- 
this  policy,  upon  the  alleged  violation  trj%  but  this  can  hardly  be  considered 
of  which  the  defendant  relies  to  de-  as  being  engaged  in  the  '  passenger 
feat  a  recovery^  provides  tihat  the  service.'  "  Crowell  v.  Maryland 
motor  car  insure^l  'will  not  be  rented  Motor  Car  Ins.  Co..  169  N.  Car.  35,  85 
or  used    for   passenger   service   of   any  S^'.  E.  37. 

kind    for   hire,   except   by   special    con-  24.  Marmon     Chicago    Co.  v.   Heath. 

sent   of   the  company    indorsed   on    the  205  111.  App.  615. 

policy.'     It  is  apparent,  we  think,  that  25.  Berrynian  v.  Maryland  Motorcar 

the    parties,    by    f.hi«    clau^-.    .•nntem-  Ins.  Co.    (Mo.  App.).  204  S.  W.  738. 


1036  The  Law  of  Automobiles. 


Sec.  812.  Fire  insurance  —  determination  of  amount  of  loss. 

Insurance  policies  generally  provide  that,  when  the  insurer 
and  the  assured  are  unable  to  agree  as  to  the  amount  of  the 
damage,  the  parties  shall  each  appoint  an  appraiser,  and  in 
case  of  the  failure  of  the  appraisers  to  agree  an  umpire  shall 
be  chosen,  the  decision  of  the  two  to  be  final  on  the  "amount  of 
damage.  If  the  umpire  and  one  of  the  appraisers  agree  as  to 
the  amount  of  injury,  it  is  not  necessary  that  the  other  ap- 
praiser sign  the  award.-^  But  one  appraiser  and  the  umpire, 
cannot  proceed  arbitrarily  and  exclude  the  other  appraiser 
from  consideration  in  the  matter.  Each  appraiser  is  entitled 
to  notice  of  the  meetings  and  to  be  heard  on  the  questions  in 
dispute.-"  The  fact  that  the  property  is  totally  destroyed  by 
fire  does  not,  in  those  cases  where  "  valued  "  policies  are  not 
in  force,  preclude  an  appraisement  of  the  loss.-^  Nor  is  an 
insurance  company  precluded  from  an  appraisal  because  it 
admits  liability  to  a  certain  amount.^® 

Sec.  813.  Fire  insurance  —  acceptance  of  repairs  in  lieu  of 
money. 

Where,  after  an  injury  to  an  automobile  truck  by  fire,  the 
company  and  the  owner  agreed  that  the  company,  in  lieu  of 
making  a  cash  settlement  for  the  loss,  should  repair  the 
machine,  it  was  held  that  the  arrangement  constituted  a  new 
contract  between  the  parties  which  terminated  their  rights 
under  the  policy,  and  the  fact  that  the  repairs  were  unreason- 
ably delayed  did  not  authorize  the  owner  to  maintain  an  ac- 
tion on  the  policy.  The  only  remedy  for  the  owner  in  case  ot 
imreasonable  delay  in  repairs,  is  for  damages  for  breach  of 
the  agreement  to  repair.^^ 

26.  Union   Marine  Ins.   Co.   v.   Char-       La.   114,  66  So.  558. 

lie's  Tr.  Co.,   186   Ala.  443.   65  So.  78.  30.  Gaffey  v.  St.  Paul,  etc.,  Ins.  Co., 

27.  Jones  v.  Orient  Ins.  Co.,  184  Mo.  221  N.  Y.  113,  116  N.  E.  778,  reversing 
App.  402,  171  S.  W.  28.  Gaffey  v.  St.  Paul  Fire  &  M.  I.  Co.,  164 

28.  Hart  v.  Springaeld,  etc.,  Co.,  136  N.  Y.  App.  Div.  381,  149  N.  Y.  Suppl. 
La.  114,  66  So.  558.  859;    Letendre   v.    Automobile   Ins.   Co. 

29.  Hart  v.  Springfi.^d,  et«.,  Co.,  136  of  Hartford   (R.  I.),  112  Atl.  783. 


Insurance.  1037 

Sec.  814.  Fire  insurance  —  valued  policy. 

A  statute  providing  that  ' '  no  company  shall  take  a  risk  on 
any  property  ...  at  a  ratio  greater  than  three-fourths 
of  the  value  of  the  property  insured,  and  when  taken,  its  value 
shall  not  be  questioned  in  any  proceeding  *'  is  held  to  be  some- 
thing more  than  what  is  usually  regarded  as  a  valued  policy 
statute  in  that  it  contains  an  inhibition  against  every  company 
in  taking  a  risk  at  a  greater  value  than  specified  and  estops 
the  company  after  a  valid  policy  is  issued  from  disputing  that 
the  subject  matter  of  the  insurance  was  of  a  value  at  the  time 
the  policy  was  issued  not  only  equal  to  the  amount  of  the 
insurance  written  thereon,  but  one-fourth  more  as  well.  Rep- 
resentation, however,  in  this  respect  if  falsely  made  with  a 
fraudulent  intent  would  it  is  held  have  a  different  effect.  In 
this  connection  the  court  said :  "It  seems  to  be  entirely  clear 
that  the  statute  is  designed  only  to  conclude  the  matter  of  the 
value  of  the  subject  of  insurance  stipulated  in  a  policy  con- 
tract fairly  entered  into  with  respect  to  such  valuation.  In 
other  words,  false  and  fraudulent  representations  of  fact,  not 
mere  expressions  of  opinion,  designedly  made  with  sinister 
motive  relative  to  the  value  of  the  property  as  an  inducement 
to  the  contract  of  insurance  fixing  the  valuation,  if  believed 
and  acted  upon  by  the  insurer  so  as  to  cause  the  company  to 
issue  a  policy  considerably  in  excess  of  the  true  value  of  the 
property  at  the  time,  should  be  regarded,  not  only  as  material 
to  the  risk,  but  sufficient  to  render  the  contract  void  from  its 
inception.  In  this  view  such  matter  may  be  shown  in  defense 
notwithstanding  the  valued  policy  statute.  "^^ 

Sec.  815.  Collision  insurance  —  in  general. 

Insurance  policies  are  written  ui)on  motor  vehicles  to  in- 
demnify the  owner  from  injuries  to  the  machine  sustained 

31.  Farber   v.   American   Automobile  sought  to  prove  the  actual  value  of  the 

Ins.  Co.,  191  Mo.  App.  307.   177  S.  W.  «!ar   by   evidence   of  Avhat   it  cost  him. 

675.       See   also   as     to     valued    policy.  and  also  of  what  it  cost  his  vendor,  he 

Zackwith  v.  Hanover  F.  Tns.  Co.    (Mo.  cannot  on   appeal   urge  that  the  v:ilu- 

App.).  225  S".  VV.  135.  ation   stated  in  the  policy   is  controll- 

Eviaence    of    value,— Where,     in     a  jng.      Hoffman    v.    Prussian    Nat.    Ins. 

policy     of    automobile    insurance,     the  Co..   181   N.  Y.   App.   Div.  412,   168  N. 

plaintiff's  car  was  "  valued  at  the  sum  Y.   Suppl.   841. 
in:<ured,"  but  the  plaintiff  alleged  ana 


1038 


The  Law  of  Automobiles. 


from  collisions  with  other  vehicles  or  obstructions.  The  bur- 
den is  upon  the  assured  to  show  that  the  object  with  which  the 
machine  collided  was  one  within  the  terms  of  the  policy .^^  ^ 
recovery  may  be  had  under  such  a  policy  for  injuries  caused 
to  an  automobile  by  the  falling  of  the  scoop  of  a  steam 
shovel  .^^ 


Sec.  816.  Collision  insurance  —  collision  with  stationary  ob- 
jects. 

Policies  of  the  type  imder  consideration  generally  permit  a 
recovery  for  injuries  occasioned  by  a  collision  with  either  a 
moving  or  a  stationary  body.^^  In  fact  the  expression  ' '  col- 
lision with  "  as  used  in  a  policy,  may  be  deemed  equivalent  to 
*'  striking  against  "  so  that  the  owner  will  be  entitled  to  a 
recovery  for  striking  a  stationary  object,  though  the  policy  is 
not  explicit  on  the  point.^^    And  the  stationary  body  may  be 


32.  Rouse  v.  St.  Paul  F.  &  M.  ins. 
Co.  (Mo.  App.),  219  S.  W.  689;  Har- 
denbergt  v.  Employers'  Liability  As- 
3ur.  Corp.,  80  Mis«.  (K  Y.)  522,  141 
X.   Y.   Suippl.   502. 

Unlawful  transportation  of  liquors. 
— Cohen  v.  Chicago  Bonding  &  Ins.  o. 
(Minn.),  178  N.  W.  485. 

33.  Universal  Service  Co.  v.  Ameri 
can  Ins.  Co.   (Mich.).  181  X.  W.  1007. 

34.  See  Cantwell  v.  General  Acci- 
dent, etc.,  Assur.  Corp.,  205  111.  App. 
335. 

"  Object "  defined. — In  construing  an 
automobile  against  a  collision  with 
any  other  automobile,  vehicle  or  ob- 
ject, the  court  said: 

"  We  cannot  concede  to  the  view 
that  the  word  '  object '  as  used  in  the 
policy  should  be  construed  to  mean 
'  some  object  similar  to  an  automo- 
bile or  vehicle.'  We  are  inclined  to 
the  view,  and  so  hold,  that  the  word 
*  object '  should  be  construed  in  the 
ordinary  and  usual  acceptation  of  the 
word,  and  that  the  rule  of  ejusdem 
generis    is    not    apiplicable.      The    word 


'  object '  in  its  proper  significance  im- 
plies that  which  is  visible  or  tangible, 
and  as  here  used  should  be  construed 
in  the  broad,  common,  and  usual  ac- 
ceptation of  the  word.  We  are  more 
confirmed  in  our  view  that  the  rule  of 
ejusdem  generis  was  not  intended  to 
ap^ly  to  this  provision  of  the  policy 
by  the  words  used  in  the  policy  itself; 
for,  while  the  policy  covered  damage 
to  the  automobile  by  being  in  collision 
with  any  other  automobile,  vehicle,  or 
object,  it  specifically  excludes  '  damage 
caused  by  striking  any  portion  of  the 
roadbed,  or  by  striking  the  rails  or  ties 
of  street,  steam,  or  electric  railroads,' 
and  if  the  contention  of  the  appellant 
that  the  word  '  object '  was  intended 
to  cx>ver  only  '  some  object  sianilar  to 
an  automobile  or  vehicle '  were  cor- 
rect, then  there  would  be  no  need  for 
setting  out  in  the  policy  the  specific 
exception  above  noted.'"  Rouse  v.  St. 
Paul  F.  &  M.  Ins.  Co.  (Mo.  App.), 
219  S.   W.  689, 

35.  Lepman   v.   Employers'   Liability 
Assur.  Corp.,  170  111.  App.  379. 


Insuuaxck.  1039 

either  land  or  water.^*"  Thus,  a  recovery  has  been  allowed 
where  a  machine  ran  off  a  bridge  and  was  precipitated  into 
the  water  below.^'^  But,  when  the  injury  is  caused  by  turning 
in  the  ditch  at  the  side  of  the  road  to  pass  another  vehicle,  and 
in  returning  to  the  center  one  of  the  wheels  collapsed  and  there 
was  no  proof  of  an  object  in  the  road  to  cause  the  collapse, 
the  insurer  cannot  recover.^^  And  where  one  side  of  the 
machine  settles  in  the  ground  until  it  overturns,  there  is  no 
collision  within  the  meaning  of  the  policy .^^ 

Sec.  817.  Collision  insurance  —  exception  for  damage  in  strik- 
ing portion  of  road. 

Insurance  policies  against  injuries  from  collision,  generally 
except  damage  caused  ''  by  striking  any  part  of  the  roadbed." 
The  guttering  and  sidewalk  along  a  highway  are  not  a  part  of 
the  thoroughfare  within  the  meaning  of  such  an  exception.'*'^ 
And  the  owner  can  recover  for  damages  arising  from  striking 
an  embankment  outside  of  the  traveled  part  of  the  roadbed.'*^ 
But  it  is  held  that  the  curbing  or  curbstone  of  a  street  is  such 
a>"  portion  of  the  roadbed  "  and  such  an  "  impediment  conse- 
quent upon  the  condition  thereof  "  as  to  preclude  one  whose 
automobile  has  been  damaged  by  collision  therewith  from  re- 
covering therefor  upon  a  policy  insuring  the  automobile 
against  loss  or  damage  "  caused  solely  by  collision  with  an- 
other object,  either  moving  or  stationary,"  but  "  excluding 
.  .  .  all  loss  or  damage  caused  by  striking  any  portion  of 
the  roadbed  or  any  impediment  consequent  upon  the  condition 
thereof."*^  Under  a  policy  containing  such  an  exception, 
there  can  be  no  recovery  for  an  injury  caused  by  running  oif 
the  main  road  and  down  an  embankment  into  a  river.*^ 

36.  Harris  v.  American  Casualty  39.  Bell  v.  American  Ins.  Co. 
Co.,  83  N.  J.  Law,  641.  85  Atl.  194,  44        (Wis.),   181  N.  W.  733. 

L.   R.   A.    (N.  ^S.)    70,    Ann.   ('as.    1914  40.  Stix  v.  Travelers'  Indemnity  Co., 

B.  846.  175  Mo.  App.  171,  157  S.  VV.  870. 

37.  Harris  v.  American  Casualty  41.  Rouse  v.  St.  Paul,  F.  &  M.  Ins. 
Co.,  83  N.  J.  Law,  641,  85  Atl.  194,  44  Co.   (Mo.  App.),  219  S.  \V.  689. 

L.   R.   A.    (N.   S.)    70.   Ann.   Cas.    1914  42.  Gibson  v.  Georgia  L.  Ins.  Co.,  17 

B.  846.  Ga.   App.  43,  86  S.   E.  335. 

38.  Hardenbergh  v.  Employers'  Lia-  43.  Wettemgil  v.  United  States 
bility  Assur.  Corp.,  80  Misc.  (N.  Y.)  Lloyds,  157  Wis.  433.  147  N.  W.  360, 
522.   141   N.  Y.  Suppl.  502.  Ann.   Caa.   1915   A.   626. 


1040 


The  Law  of  Automobiles. 


Sec.  818.  Collision  insurance  —  exception  in  case  of  upset  of 
machine. 

Collision  policies  sometimes  except  damage  from  a  collision 
due  wholly  or  in  part  to  upsets.  And  it  has  been  held  that  an 
insurer  may  recover  for  injuries  to  a  machine  running  off  a 
bridge  and  ' '  colliding  ' '  with  the  water  below,  as  the  landing 
upside  down  in  the  water  was  the  result  of  a  collision.^'*  But 
where  the  upset  was  at  the  edge  of  a  bank  when  the  driver 
was  attempting  to  make  a  quick  turn,  it  was  held  that  the  dam- 
ages were  the  result  of  falling  over  the  bank,  not  the  result 
of  a  collision.^^ 


Sec.  819.  Collision  insurance  —  damage  while  in  garage. 

Where  an  automobile  standing  in  a  garage  was  damaged  by 
the  second  floor  of  the  garage  falling  on  it,  it  was  held  that 
the  accident  was  not  the  result  of  ''  collision  "  contemplated 
by  the  policy.*^ 


44.  Harris  v.  American  Casualty 
Co.,  83  N.  J.  L.  641,  85  Atl.  194,  44  L. 
R.  A.  (N.  S.)  70,  Ann.  Cas.  1914  B. 
846. 

45.  Stuht  V.  United  States  Fidelity 
&  Guaranty  Co.,  89  Wash.  93,  154  Pac. 
137. 

46.  O'Leary  v.  St.  Paul  Fire  &  Mar- 
ine Ins.  Co.  (Tex.  Civ.  App.).  196  S. 
W.  574,  where  it  Avas  said:  "The 
proposition  of  appellant  is  as  follows: 
'The  word  "collision"  includes  with- 
in its  meaning — when  it  is  used  in  a 
policy  of  insurance  on  a  vehicle,  which 
policy  expressly  provided  that  it  shall 
not  be  considered  a  collision  when  the 
vehicle  is  damaged  by  striking  any 
portion  of  the  roadbed,  or  the  rails,  or 
ties  of  street,  steam,  or  electric  rail- 
roads— the  falling  of  any  object  upon 
the  vehicle  while  the  vehicle  is  sta- 
tionary.' On  the  other  hand,  it  is  con- 
tended thait  tHe  alleged  collision  in 
which    the    automobile    was    damaged 


was  not  such  as  was  contemplated  by 
the  terms  of  the  policy.  We  have 
read  the  clause  of  the  policy  carefully, 
and  have  arrived  at  the  conclusion 
that  the  contention  of  appellant  is  not 
sound,  and  that  this  court  would  not 
be  justified  in  holding  that  the  al- 
leged collision,  in  which  the  automo- 
bile v/as  damaged,  was  such  as  was 
contemplated  by  the  terms  of  the 
policy.  The  car  was  in  a  garage.  The 
second  floor  of  the  building  or  garage 
falling  upon  the  car  caused  the  dam- 
age. Surely  it  cannot  be  said  that  it 
was  the  intention  of  the  parties,  as  as- 
certained from  the  terms  of  the  policy, 
that  the  word  '  collision  '  was  broad 
enough  to  cover  such  daimage  as  oc- 
curred in  the  instant  case,  and  that 
appellee  would  be  called  upon  to  pay 
a  loss  caused  by  the  falling  of  a  build- 
ing upon  the  car  Avhiln  the  car  was 
lieinsr  left  in  tlie  same." 


Insurance.  1041 

Sec.  820.  Collision  insurance  —  amount  of  recovery. 

Where  a  collision  policy  provides  that  the  insurer  shall  not 
be  liable  in  any  event  for  more  than  the  actual  cost  of  suit- 
able repairs  to  the  property  injured,  the  measure  of  damages 
is  held  to  be  the  actual  cost  of  repairs.*'^  In  some  states  a 
collision  insurance  policy  is  a  '*  valued  "  policy.*^ 

Sec.  821.  Collision  insurance  —  recovery  for  damage  against 
third  person  though  insured. 

In  case  of  an  injury  to  a  motor  vehicle  occasioned  by  the 
negligence  of  a  third  person,  in  an  action  by  such  owner 
against  the  negligent  party,  the  fact  that  the  plaintiff  had  the 
machine  insured  against  the  injury  in  question  and  that  the 
insurance  company  has  paid  the  damage,  is  not  admissible  for 
the  purpose  of  reducing  the  plaintiff's  damage  in  the  action 
at  bar.^^  The  mere  inquiry  of  counsel  as  to  whether  the  plain- 
tiff had  collision  insurance,  may  be  sufficient  to  justify  a  new 
trial,  although  the  objection  to  the  question  was  sustained,  the 
jury  instructed  to  disregard  it,  and  the  counsel  was  repri- 
manded.^^ 

Sec.  822.  Collision  insurance  —  subrogation  of  insurer. 

The  insurance  policy,  as  well  as  the  common  law  doctrine 
of  the  Law  of  Insurance,  permit  the  insurer  to  be  subrogated 
to  the  rights  of  the  assured  as  against  third  persons  causing 
the  injury  for  which  the  insurance  company  must  recompense 
the  owner  of  the  vehicle.  In  some  states,  the  owner  may 
maintain  the  action  against  the  negligent  party  in  his  own 
name  as  plaintiff  but  to  the  use  of  the  insurance  company." 
If  the  assured  defeats  the  right  of  subrogation,  he  may  be 
precluded  from  recovery  of  the  insurance  moneys.  Where  a 
policy  insuring  against  loss  on  an  automobile  for  collision 

47.  Lepman  v.  Employer's  Liability  Rvs.  Co.  of  St.  Louis  (Mo.  App.).  203 
Assur.  Corp..  170  111.  App.  379.  S.  W.  481. 

48.  Wolff  V.  Hartford  F.  Ins.  Co.  51.  Southern  Garage  Co.  v.  Brown. 
(Mo.  App.),  223  S.  W.  810.  187    Ala.    484.    65    So.    400;  Wyker   r. 

49.  Hill  V.  Condon,  14  Ala.  App.  Texas  Co.,  201  Ala.  585,  79  So.  7. 
332,  70  So.  208.  See  also  Everhard  v.  Dodge  Bros.,  202 

50.  Aqua   Contracting  Co.   v.   United  Mich.  48.  167  N.  W.  953. 

66 


1042  The  Law  of  Automobiles. 

contains  a  subrogation  clause,  it  is  held  that,  if,  after  a  loss 
within  the  terms  of  the  policy  the  insured  effects  a  settlement 
with,  and  releases  the  wrongdoer,  the  legal  effect  is  to  destroy 
the  insurer's  right  of  subrogation  and  will  therefore  discharge 
the  latter  from  its  obligation  to  pay  him  to  the  full  extent  to 
which  he  has  defeated  the  insurer's  remedy  of  subrogation. 
The  legal  effect  of  the  settlement  being  to  give  a  full  and  com- 
plete release  to  the  wrongdoer,  the  insured  is  thereby  pre- 
cluded from  maintaining  an  action  on  the  policy .^^  Where  an- 
automobile  collided  with  a  street  car  causing  injury  both  to 
the  machine  and  to  the  owner,  the  maintenance  of  an  action 
by  the  owner  against  the  street  railway  company  for  the  per- 
sonal injuries  sustained,  does  not  bar  an  action  by  the  insur- 
ance company  under  its  right  of  subrogation  against  the  rail- 
way company  for  the  injury  to  the  macMne.^'^ 

Sec.  823.  Indemnity  insurance  —  nature  and  validity  of  insur- 
ance. 

Another  form  of  insurance  which  is  generally  applied  to 
motor  vehicles  is  indemnity  insurance  whereby  the  insurer 
agrees  to  hold  the  owner  of  the  machine  harmless  from  actions 
maintained  against  him  for  injuries  occasioned  to  third  per- 
sons by  the  operation  of  the  machine.  The  validity  of  such 
insurance  is  sustained,  when  written  by  an  insurance  company 
having  authority  to  insnre  such  risk.-'^*  It  is  not,  however, 
' '  insurance  on  automobiles. ' '  ^^ 

Sec.  824.  Indemnity  insurance  —  authority   of   company   to 
write. 
Not  every  insurance  company  is  authorized  to  enter  into 
contracts  of  insurance  of  the  special  form  known  as  indem- 
nity insurance.^^    This  class  of  insurance  is  not  "  insurance 

52.  Maryland  Motor  Car  Co.  v.  Haz-  55.  American  Automobile  Ins.  v. 
zard   (Tex.  Giv.  App.),  168  S.  W.  1011.  Palmer,  174  Mich.  295,  140  N.  W.  557. 

53.  Underwriters  v.  Vicksburg  Trac-  56.  See  American  Fidelity  Co.  v. 
tion  Co.,  106  Miss.  244,  63  So.  455.  Bleakley,    157    Iowa,    442,    138    N.    W. 

54.  Gould  V.  Brock,  221  Pa.  St.  38,  508;  State  v.  New  Jersey  Indemnity 
69   Atl.    1122;    Tinline  v.   White   Cross  Co.    (N.  J.),   113  Atl.  491. 

Ins.  Co.,  151  L.  T.  Jour.   (Eng.),  434. 


Insurance.  1043 

on  automobiles,"  and  a  company  may  not  have  authority  to 
write  indemnity  insurance,  though  it  can  effect  insurance  on 
automobiles.^^ 

Sec.  825.  Indemnity  insurance  —  stipulation  to  defend 
''suits." 
The  word  suit  as  applied  to  legal  controversies  is  held  to 
mean  in  its  technical  sense  a  proceeding  in  equity  and  in  its 
broader  sense  includes  the  prosecution  of  a  demand  or  claim 
generally  where  the  party  suing  claims  to  obtain  something 
to  which  he  has  a  right,  a  mode  authorized  by  law  to  redress 
civil  injuries.  Such  a  meaning  is  to  be  given  to  this  word  as 
used  in  a  policy  which  contains  a  stipulation  that  the  insurer 
will  defend  any  suits  which  may  at  any  time  be  brought 
against  the  assured  on  account  of  injuries  sustained  in  the 
operation  of  his  automobile.^^ 

Sec.  826.  Indemnity  insurance  —  assumption  of  defense   of 
action. 

In  an  action  for  injuries  from  the  operation  of  a  motor 
vehicle,  an  indemnity  company  will  not  be  restrained  from  ap- 
pearing with  its  own  counsel  and  defending  the  action  on  be- 
half of  the  defendant.^^   An  indemnity  company,  by  assuming 

57.  American  Automobile  Ins.  v.  least  an  approximatx>  law  of  averages. 
Palmer,  174  Mich.  295,  140  K  W.  the  insurance  against  loss  from  any 
55j_  such  occurrence  has  been  recognized  as 

58.  Patterson  v.  Standard  Accident  a  legitimate  subject  of  protection  to 
Ins.  Co.,  178  Mi«h.  288,  144  N.  W.  491,  the  individual  by  a  guaranty  of  in- 
51  L.  R.  A.  (N.  S.)  583,  Ann.  Gas.  demnity  from  some  party  undertaking 
1915  A.  632.  to  distribute  and  divide  the  loss  among 

59.  Gould  V.  Brock,  221  Pa.  St.  38.  a  number  of  others  for  a  premium  giv- 
69  Atl.  1122,  wherein  it  was  said:  ing  them  a  prospect  of  profit.  There 
"There  was  a  time  when  all  insurance,  is  nothing  in  this  case  that  even  re- 
and  especially  of  life,  was  looked  upon  motely  discloses  the  taint  of  mainte- 
with  suspicion  and  disfavor,  but  it  was  nance,  even  at  common  law,  much  less 
only  because  regarded  as  a  species  of  of  the  principle  of  maintenance  as  ad- 
wagering  contract.  That  time  has  long  ministered  at  the  present  day  with  a 
gone  by.  And,  with  the  intelligent  clearly  defined  limitation  to  cases  ot 
study  of  political  economy  bringing  actually  malicious,  dangerous  or  il- 
the  recognition  of  the  fact  that  even  legal  intermeddling  with  other  parties' 
the  most  apparently   disconneoted   and  litigation." 

sporadic  occurrences  are  subject  to  at 


1044  The  Law  of  Automobiles. 

the  defense  of  an  action,  which  is  settled  on  the  recommenda- 
tion of  its  own  attorney,  is  generally  liable  under  the  policy.^^ 
Where  a  casualty  company  by  letter  assumes  the  defense  of 
an  accident  action  against  the  owners  of  an  automobile  which 
it  had  insured,  under  a  reservation  of  policy  rights  and  with- 
out assuming  any  liability  for  any  judgment  that  might  be 
recovered  in  the  action,  the  reservation  of  the  rights  means 
only  that  the  company  will  assume  the  defense  of  the  action 
from  such  liability,  if  any,  as  it  must  assume  under  the 
policy.®^  But  the  indemnity  company,  by  assuming  the  de- 
fense to  the  action,  does  not  waive  the  objection  that  the 
vehicle  was  operated  in  violation  of  law  by  a  person  under 
the  age  limit,  where  the  insured  falsely  represented  to  the 
company  the  immature  driver  was  accompanied  by  a  duly 
licensed  chauffeur  and  that  there  was  no  violation  of  the  law.^^ 

Sec.  827.  Indemnity  insurance  —  indemnity  of  partners. 

Where  a  policy  was  issued  to  the  members  of  a  partnership, 
it  has  been  held  not  to  cover  a  loss  which  might  come  to  either 
member  as  individuals  through  the  operation  of  the  automo- 
bile by  another  partnership  composed  of  themselves  and  an- 
other to  which  the  automobile  had  been  loaned.^^ 

Sec.  828.  Indemnity  insurance  —  action  against  officer  of  in- 
sured corporation. 

Where  an  indemnity  policy  is  issued  to  a  corporation  own- 
ing a  motor  vehicle,  and  provides  for  indemnity  to  the  cor- 
poration only  for  a  judgment  rendered  against  such  corpora- 
tion, the  insurance  company  is  not  liable  to  pay  a  judgment 
rendered  against  a  stockholder  of  such  corporation  for  negli- 
gence in  the  operation  of  the  machine  while  conveying  such 

60.  Hartigan     v.     Casualty     Co.     of       Y.  Suppl.  145, 

America,    97     Misc.    464,     161     N.    Y.  62.  Morrison     v.     Royal     Indemnity 

Suppl.  145,  reversed  on  other  grounds,  Co.,  180  N.  Y.  App.  Div.  709,  167  N. 

227  N.  Y.  175.  124  N.  E.  789.     See  also  Y.   Suppl.   732. 

Fullerton   v.    U.    S.   Casualty    Co.,    184  63.  Hartigan     v.     Casualty     Co.     of 

Iowa  219.  167  N.  W.  700.  America,  227  N.  Y.  175,  124  N.  E.  789, 

61.  Hartigan     v.     Casualty     Co.     of  reversing,    97    Misc.    464,    161     N.    Y. 
America,  97  Misc.   (N.  Y.)  464,  161  N.  Suppl.  145. 


Insurance.  1045 

stockholder,  and  the  fact  that  the  assured  employs  counsel  to 
defend  the  action  does  not  change  the  result.^^ 

Sec.  829.  Indemnity  insurance  —  age  of  driver. 

Indemnity  insurance  policies  generally  except  from  their 
operation  cases  of  injury  which  result  from  the  operation  of 
the  vehicle  by  an  infant  under  a  certain  age,  such  as  sixteen 
years,  for  example.  Or  they  may  provide  for  no  liability  in 
case  the  machine  is  driven  in  violation  of  law,  and  under  such 
a  provision  a  valid  regulation  prohibiting  persons  under  eigh- 
teen to  operate  machines  may  have  the  effect  of  relieving  the 
company  from  the  results  of  a  particular  injury.^^  If,  for 
any  reason,  the  regulation  prescribing  the  age  of  the  driver 
is  invalid,  its  violation  is  not  a  '*  violation  of  law,"  and  the 
insurer  is  not  thereby  relieved  from  liability.^^  In  the  ab- 
sence of  such  a  clause  in  a  policy,  it  has  been  held  that  tJie 
fact  that  the  owner  authorized  and  procured  a  violation  of  the 
criminal  laws  in  respect  to  the  age  of  the  driver  does  not  pre- 
clude a  recovery  on  the  policy,  when  there  is  no  allegation 
that  the  violation  of  the  statute  was  the  proximate  cause  of 
the  accident.^^  Where  the  child  under  the  prescribed  age  had 
been  running  the  machine,  but  prior  to  the  accident  in  ques- 
tion, the  owner  had  resumed  control  thereof  with  the  excep- 
tion that  the  child  was  allowed  to  sound  the  horn,  the  injury 
may  be  covered  by  the  policy.^^  Where  a  policy  is  to  indem- 
nify the  owner  of  an  automobile  against  loss  for  bodily  in- 
juries inflicted  upon  others,  provided  that  the  insurer  is  not 

64.  Rock     Springs     Distilling  Co.   v.  65.  Morrison     v.     Royal     Indemnity 

Employers'    Indemnity     Co.,     160    Ky.  Co.,    180  N.  Y.   App.   Div.   709,   167  N. 

317,    169    S.    W.    730,   wherein    it   was  Y.   Suppl.    73:d:    Royal    Indemnity    Co. 

said:     "If  the  distilling  comp^^ny  had  v.   Schwartz    (Tex.  Civ.   App.).   172  S. 

not  defended  the  suit  brought  by  Hazel  W.   .581.     See  also,   ^lannheimer   Bros, 

against  Rosenfeld,  clearly  there  would  v.    'Kansas     Casualty    &     S'urety     Co. 

have  been  no  liability  of  the  indemnity  (Minn.),  180  N.  W.  229. 

company  for  the  payment  of  the  judg-  66.  Royal         Indemnity         Vo.         v. 

ment  against  Rosenfeld.     To  allow  the  Schwartz    (Tex.  Civ.  App.).   172  S.  W. 

distilling     comj>any.    by    its   voluntary  581. 

act    of    defending    the    suit,    to    bring  67.  Messersmith    v.    American    Fidel- 

within  the  policy  a  loss  for  whi<;h  the  ity  Co.,   187   X.   Y.   App.   Div.   35,   175 

insured  would   not  otherwise  be   liable  N.  Y.  Suppl.  169. 

would  be  to  impose  upon  the  insurer  a  68.  Williams    v.    Xels^.n.    228    Mass. 

risk  it  did  not  assume."  191,  117  N.  E.  189. 


1046  The  Law  of  Automobiles. 

to  be  liable  while  the  aiitomo])ile  is  driven  **  by  any  person 
under  the  age  fixed  ])y  law  "  or  nnder  the  age  of  sixteen  in 
any  event,  such  clause  is  to  be  construed  as  referring  solely 
to  the  minimum  age,  not  less  than  sixteen  at  which  one  may 
lawfully  drive  a  motor  vehicle.  It  is  therefore  held  that 
where  a  statute  permits  a  person  sixteen  years  of  age  or  over, 
although  not  licensed,  to  operate  a  motor  vehicle,  if  accom- 
panied by  a  licensed  operator,  that  age  must  be  regarded  as 
the  minimum  fixed  by  law,  and  the  insurer  cannot  escape  lia- 
bility because,  at  the  time  of  the  accident  in  question,  the 
operator,  who  was  an  unlicensed  person  over  sixteen,  was  not 
accompanied  by  a  licensed  operator.^^ 

Sec.  830.  Indemnity  insurance  —  change  of  use  of  machine. 

Where  a  policy  of  indemnity  insurance  against  loss  and 
expense  resulting  from  claims  for  damages  by  reason  of  the 
ownership,  maintenance  or  use  of  an  automobile  truck,  after 
containing  a  general  warranty  that  the  truck  was  to  be  used 
for  ^*  delivery  "  purposes,  recited  that:  *'  None  of  the  auto- 
mobiles herein  described  are  rented  to  others  or  used  to  carry 
passengers  for  a  consideration,  actual  or  implied,  except  as 
follows;"  and  no  exceptions  were  stated,  said  provision 
should  be  construed  as  a  warranty  merely  that  the  truck  was 
not  rented  at  the  time  the  policy  took  effect.'^^ 

Sec.  831.  Indemnity  insurance  —  notice  to  insurer  of  accident. 

Indemnity  policies  generally  provide  that  the  insured  shall 
give  notice  to  the  insurer  of  an  accident  from  which  liability 
may  arise.  Such  a  requirement  must  receive  compliance  by 
the  assured,  or  his  indemnity  will  fail.'^i  When  the  policy 
provides  for  *'  immediate  "  notice,  a  reasonable  construction 
must  be  given  to  the  word  ''  immediate. "  ^"^  If  it  is  not  ap- 
parent at  the  time  of  the  occurrence  that  the  accident  was 

69.  Brock  v.  Travelers'  Ins.  Co.,  88  Corp.,  96  Neb.  213,  147  N.  W.  465,  52 
€onn.  308,  91  Atl.  279.  L.  R.  A.  (N.  S.)  227. 

70.  Mayor,  Lane  &  Co.  v.  Commer-  72.  Chapin  v.  Ocean  Accident  &  G. 
cial  Casualty  Ins.  Co.,  169  N.  Y.  App.  C^rp..  96  Neb.  213,  147  N.  W.  465,  52 
Div.  772,  155  N.  Y.  Suppl.  75.  L.   R.   A.    (N.  S.)  227. 

71.  Chapin   v.   Ocean   Accident    i^'   ij. 


Insurance.  1047 

within  the  terms  of  the  policy,  but  subsequent  facts  suggest 
that  liability  arise,  then  notice  within  a  reasonable  time  is 
sufficient J"'^  But  a  three  months'  delay  in  giving  notice  of  the 
accident  to  an  insurer  whose  office  was  but  twenty-five  or 
thirty  miles  away  is  unreasonable/*  And  a  delay  of  ten  days, 
during  which  period  an  action  was  commenced  against  the 
insured,  has  been  held  to  avoid  the  policy.'^'''  The  fact  that 
the  insurer  undertook  to  defend  the  suit  after  a  delayed  notice, 
is  not  a  waiver  of  the  delay .'^^  Where  the  policy  requires  the 
assured  to  give  immediate  written  notice  to  the  insurer  upon 
the  occuiTence  of  an  accident  with  the  fullest  information  ob- 
tainable and  further  requires  him  to  give  like  evidence  with 
full  particulars  if  a  claim  is  made  on  account  of  such  accident, 
it  is  necessary  for  the  assured  to  give  notice  in  each  case  of 
accident  in  order  to  preserve  the  benefit  of  the  policy,  although 
the  accident  being  slight,  he  has  no  immediate  reason  to  sup- 
pose that  a  claim  would  be  made  against  him  by  the  perscm 
insured/^ 

Sec,  832.  Indemnity  insurance  —  failure  of  insured  to  co-oper- 
ate with  insurer. 
Where  the  policy  requires  the  insured  to  co-operate  with 
the  insurance  company  in  defending  actions,  a  failure  to  com- 
ply with  such  requirement  may  preclude  a  recovery  against 
the  company.  This  result  may  happen  when  the  assured  fails 
to  set  up  the  contributory  negligence  of  the  person  injured."^^ 
But  the  assured  is  not  required  to  set  up  a  defense  which  is 
clearly  untenable."^ 

73.  Chapin    v.   Ocean   Accident  &   G.       W.  729. 

Corp.,  96  Nob.  213,   147  N.  W.  465,  52  77.  Haas    Tobacw    Co.    v.    American 

L    R.  A.   (N.  S.)  227.  Fidelity  Co.,  178  N.  Y.  App.  Div.  267, 

74.  Oakland  Motor  Oar  Co.  v.  An.er-       165  N.  Y.  Suppl.  230. 

ican    Fidelity    Co..    190   Mich.    74.    155  78.  Collins    Exr's   v.   Standard   Acci- 

N    W.  729.  <lcnt   Ins.  Co..   170   Ky.   27,   185   S.   W. 

75.  Ha:ts    Tobacco    Co.    v.    American        112. 

Fidelity  Ok).,  178  N.  Y.  App.  Div.  267,  79.  Collins   Exr's   v.   Standard    Acci- 

165  N.  Y.  Suppl.  230.  dent  Ins.   Co.,    170  Ky.   27.    1S5   S.   W. 

76.  Oakland  Motor  Car  Co.  v.  Amer-  IJi. 
ican  Fidelity  Co.,  190  Mich.  74,  155  N. 


1048  The  Law  of  Automobiles. 

Sec.  832a.  Indemnity  insurance  —  interference  with  negotia- 
tions for  compromise. 

An  indemnity  policy  may  forbid  the  interference  by  the  in- 
sured with  negotiations  for  compromise  between  the  indem- 
nity company  and  the  injured  person.  But  the  fact  that  the 
insured  tells  the  injured  person  that  he  was  insured  and  would 
try  to  get  a  settlement  for  him  and  that  a  lawyer  coming  to 
see  him  represented  the  company,  is  not  sufficient  to  avoid  the 
policy  for  ' '  interference. ' '  ^'^ 

Sec.  833.  Indemnity  insurance  —  necessity  of  trial  of  action. 

A  provision  of  an  indemnity  policy  that  no  action  shall  lie 
against  the  insurer  to  recover  for  any  loss  or  expense  to  the 
assured  under  the  policy,  unless  it  shall  be  brought  for  loss 
or  expense  actually  sustained  "  after  actual  trial  of  the 
issue  "  is  satisfied  where  the  assured  refrains  from  settling 
an  action  against  him  until  after  a  complete  record  of  the 
facts  relating  to  his  liability  has  been  made  by  the  presenta- 
tion of  all  of  the  evidence,  especially  where  the  insurer  has 
broken  his  contract  by  refusing  to  defend  the  action  brought 
against  the  assured.^^  When  the  assured  settles  an  action 
before  judgment,  he  assumes  the  risk  in  an  action  against  the 
insurer  of  showing  not  only  a  liability  covered  by  the  policy, 
but  the  amount  of  the  liability,  and  the  recovery  against  the 
insurer  may  be  limited  by  the  loss  sustained,  even  though  the 
evidence  may  show  that  the  settlement  was  for  less  than  the 
liability.  Hence,  in  an  action  by  an  assured  against  the  in- 
surer to  recover  the  amount  paid  by  the  plaintiff  in  settlement 
of  an  action  after  the  close  of  the  evidence,  but  before  judg- 
ment, it  is  error  for  the  court  to  hold  as  a  matter  of  law  that 
the  settlement  is  binding  on  the  assured,  without  other 
proofs.^^ 

80.  Hopkins     v.     American     Fidelity       Oiv.  772,  155  K  Y  Suppl.  75. 

Co.,  91  Wash.  680,  158  Pac.  535.  82.  Mayor,   Lan^'   &    Co.   v.   Commer- 

81.  Mayor,  Lane  &  Co.  v.  Commer-  cial  Casualty  Ins.  Co.,  169  N.  Y.  App. 
cial  Casualty  Ins.  Co.,  169  N.  Y.  App.       Div.  772,  155  N  Y.  Suppl.  75. 


Insurance.  1049 

Sec.  834.  Indemnity  insurance  —  consent  of  insurer  to  settle- 
ment. 

Where  an  assured  settles  a  claim  for  damages  without  the 
consent  of  the  insurance  company,  in  violation  of  a  provision 
of  the  policy  of  indemnity  insurance  that  "  the  assured  ma} 
settle  any  case  at  the  company's  expense  if  the  company  shall 
have  previously  i^ven  its  consent  in  writing,"  the  company  i.^ 
released  from  all  liability  to  the  assured. ^^  But  it  has  been 
held  that,  where  the  insurer  fails  to  perform  its  contract  duty 
to  defend  an  action  brought  against  the  assured,  it  waives  the 
right  to  the  benefit  of  provisions  precluding  the  assured  from 
settling  without  its  consent  and  limiting  its  liability  to  losses 
sustained  by  the  assured  by  judgment  after  the  trial  of  the 
issues.^*  Where  a  policy  indemnifying  an  assured  against 
liability  for  personal  injuries  resulting  from  the  operation  of 
an  automobile  required  the  insurer  to  defend  actions  brought 
against  the  assured,  and  prohibited  the  latter  from  assuming 
any  liability  or  settling  any  claim  without  the  written  consent 
of  the  insurer,  and  after  judgment  had  been  rendered  against 
the  assured  in  an  action  which  the  insurer  defended,  the  latter 
induced  the  assured  to  refrain  from  prosecuting  an  appeal  by 
assurance  that  it  would  take  such  appeal  itself,  because  the 
verdict  was  against  the  evidence  and  because  reversible  errors 
had  been  committed,  the  insurer  by  neglecting  to  take  such 
appeal  became  liable  to  the  assured  for  the  amount  paid  by 
him  in  settling  the  judgment  in  excess  of  a  sum  paid  by  the 

83.  Kennelly     v.     London    Guarantee  during     the     life     of     the     policy     the 

&   Accident  Co.,   Ltd.,   184   N.   Y.   App.  plaintiff,    in    an    action    for    damages 

Div.  1,  171  K  Y.  Suppl.  423.     See  also,  brought    by    one    injured    through    the 

Utterback-Gleason  Co.  v.  Standard  Ac-  operation     of    hi.s    automobile,    settles 

cident   Ins.   Co..    193   N.    Y.    App.    Div.  the    claim    in    an    amount    a    part    of 

646,   184  N.  Y.  Suppl.  862.  w<hich  defendant   refused   to  pay,  it  is 

Settlement     by     owner. — Where     by  not  liable   to   plaintiff  for  the  amount 

the   t.erms    of   a    poiioy,   by   which    dc  which    he    (-ontributetl    to    the    settle- 

fendant   agreed    to    indemnify    plaintiff  ment   of    the   claim   in    excess   of   that 

up  to  a  certain   fixed  amount   against  paid     by     defendant,.       T^evin     v.     New 

accideotft  occurring   in    relation    to   the  England   Casualty    Co.,    101    Misc.    (N- 

operation    of    his    automnbile,    and    in  Y.)    402,   166  N.   Y.   Suppl.    1055. 

the   event    of    a    suit    against    him    t«t  84.  Mayor,   Liuu'   &   Co.    v.   Commer- 

defend    the    same,    det'ondant    is    under  cial  Casualty   Ins  Co.,   169  N.  Y.   App. 

no  duty   to   settlo   a.  claim,   and   where  T>iv.  772,   155  X.  V.  J^tippl.  75. 


1050  The  Law  of  Automobiles. 

insurer,  and  this  is  true,  although  the  amount  of  the  judgment 
exceeded  the  amount  of  the  policy.^^  In  ease  of  a  collision 
between  two  vehicles,  the  fact  that  the  indemnity  company 
insuring  one  makes  a  settlement  and  pays  a  sum  of  money  to 
the  other,  does  not  estop  insured  from  maintaining  an  action 
against  the  other  for  the  injuries  he  has  hustained  to  his 
machine.^^ 

Sec.  835.  Indemnity  insurance  —  amount  of  recovery  by  as- 
sured. 

Under  indemnity  policies  written  according  to  the  usual 
form,  the  insured  is  liable  to  pay  to  the  assured  the  reason- 
able expenses  incurred  by  the  latter  in  defending  the  action 
brought  against  him  by  the  third  person.^'^  Thus,  if  the  owner 
is  required  to  pay,  or  has  become  liable  to  pay,  attorney  fees 
to  defend  himself  on  the  action,  a  reasonable  fee  may  be 
charged  against  the  insurance  company.®^  A  clause  limiting 
the  company's  liability  to  the  actual  intrinsic  value  of  the 
property  damaged  or  destroyed,  which  should  not  be  greater 
than  the  actual  cost  of  the  repair  or  replacement  thereof,  is 
not  construed  so  as  to  relieve  the  company  from  liability  to 
an  assured  who  is  compelled  to  pay  for  the  depreciation  in  an 
injured  vehicle,  in  addition  to  the  cost  of  repairs.^^ 

Sec.  836.  Indemnity  insurance  —  evidence  of  insurance  in  ac- 
tion against  insured. 
In  an  action  against  the  owner  or  operator  of  a  motor 
vehicle  by  a  person  injured  from  the  operation  thereof,  evi- 

85.  McAleenan  v.  Massachusetts  87.  Mayor,  Lane  &  Co.  v.  Commer 
Bonding  Ins.  Co.,  173  N.  Y.  App.  Div.  cial  Casualty  Ins.  Co.,  169  N.  Y.  App. 
100,  159  N.  Y.  Suppl  401,  affirmed  219       Div.  772,  155  K  Y.  Suppl.  75. 

K    Y.    563,    114   N.   E.    114.      See  also  88.  Christison    v.    St.    Paul    Fire    & 

Mc Alleenan    v.   Massachusetts  Bonding  Marine    Ins.    Co.,    138    Minn.    51,    163 

&    Ins.    Co.,    179   N".    Y.   App.    Div.    34.  N.    W.    980;    Royal    Indemnity    Co.    v- 

166    N.    Y.    Suppl.    185;    McAleenan   v.  Schwartz    (Tex.   Civ.   App.),   172  S.  W. 

Massachusetts  Bonding  &  Ins.  Co.,  190  581. 

N.  Y.  App.  Div.  657,  180  N.  Y.  Suppl.  89.  Christison    v.    St.    Paul    Fire    & 

287.  Marine    Ins.    Co.,    138    Minn.    51,    163 

86.  Burham     v.    Williams,     198     Mo.  N.  W.  980. 
App.   18,   194  S.  W.  751. 


Insurance.  1051 

dence  should  not  be  received  to  show  that  the  defendant  was 
insured  against  liability  for  the  accident.^o    If  evidence  of  the 
indemnity  is  brought  out  without  objection,  the  court  should 
charge  the  jury  that  they  should  not  consider  the  fact  in  reach- 
ing their  verdict.»^     The  plaintiif's  counsel  should  not,  in  the 
presence  of  the  jury,  offer  to  prove  that  the  defendant  carried 
indemnity  insurance."-     Even  the  misconduct  of  counsel  in 
asking  about  the  defendant's  insurance,  though  objection  to 
the  question  is  sustained,  may  constitute  error.^^     But  the 
admission  of  such  evidence  is  not  reversible  error  when  it  is 
brought  out  by  the  defendant.^^    It  may  be  improper  for  the 
plaintiff's  attorney  to  ask  the  jury  upon  their  qualifying  ques- 
tions which  indicate  that  the  defendant  is  insured.^s     The 
error,  however,  is  not  generally  beyond  cure.^Q    And,  if  the 
plaintiff's  counsel  is  acting  in  good  faith,  it  is  proper  for  him 
to  state  to  the  court  that  he  understands  an  indemnity  com- 
pany is  interested  in  the  case  and  to  ask  that  the  jury  be 
qualified  on  the  point  as  to  whether  any  of  them  have  any 
interest  in  such  company.^?     And  certain  admissions  made  by 
the  defendant  at  the  time  of  the  accident  in  question  may  be 

90.  Livingstone    v.    Dole,     167    Iowa  94.   Ward    v.    Teller    Reservoir    &    I 

639,  16/    X.  W.  639;   Akin  v.  Lee,  20f.  Co.,    GO    Colo.    47,    153   Pac.    219-    Mc- 

N.  Y.  20.  99  N.  E.  85,  Ann.  Cas.  1914  Xamara    v.    Leipzi«r,    180    N"    Y    App 

A.  947;    Griessel   v.   Adeler,    183   Y  Y.  Div.  515,  167  N.  Y.  Suppl.  981    8  A   L 

App.   Div.   816,   171    N.   Y.   Suppl.   183;  R.  480.     See  also  Uithoven  v.'  Snyder 

Tinckuell    v.    Ketdhman,    78    Misc.    (N.  (Mich.)    1S2   NT.  W    80 

Y.)   419,   139  N.  Y.  Suppl.  620;    Cono  On  redirect  examination  of  plaintiff 

ver    V.    Bloom,     (Pa.)     112    Atl.     752:  A  judgment   for   n   plaintiff  will   not 

Scranton  Gas  &   Water  Co.  v.  Weston.  necessarily    be    reversed    because    it    i« 

63  Pa.  Super.  Ct.  570;   Bianchi  v.  Mil-  .ioveloped   casually   on   his  redirect   ex- 

lar,    (Vt.)    Ill   Atl.  524.  amination  dhat  the  defendant   was  in- 

91.  Bkilaek     v.     Blacksher,     1 1     Ala.  ^red,   the  inquiry   in  question    having 
App.  o45,  66  So.  863.  been  directed  to   matters  developed  on 

92.  Martin  V.  Lilly,  188  Ind.  139.  121  his      cross-examination.        Granini      y. 
:  .  E.  443.  Corini,   100  Wash.   687,   171    Pa.c.    1007- 

93.  Tincknell    v.    Ketcham,    78    Misc.  95,  Citizens  Co.  v.  Lee.   182  Ala   561 
i.N.    Y.)    419,    139    N.    Y.    Suppl.    620.  62  So.  199. 

See    also    Smith     v.    Yellow    Cab    Co.,  96.  Baldarachi   x.    I.ach,    (Cal    App.) 

^Wis.)    180   N-.   W.    125,   where  it   was  186  Pac.  1060. 

thought   that  the  error  did  not  require  97.  Beattv    v.    Palmer,    196    Ala.    67. 

a  reversal   under   the  .  circumstances  of  71  So.  422. 

that  case. 


1052 


The  Law  of  Automobiles. 


received,  though  incidentally  they  disclose  the  fact  that  he 
carried  indemnity  insurance.^^ 

Sec.  837.  Indemnity  insurance  —  action  by  injured   person 
against  insurance  company. 

An  action  cannot  generally  be  maintained  by  the  injured 
person  directly  against  the  indemnity  company  insuring  the 
owner  of  a  vehicle  against  liability,  although  the  owner  is  in- 
solvent and  the  indemnity  company  has  defended  the  action 
against  such  owner.^^  But  a  statute  which  permits  the  injured 
person  to  bring  an  action  directly  against  the  indemnity  com- 
pany, is  a  proper  exercise  of  legislative  power,  if  not  retro- 
actively applicable  to  insurance  policies  already  in  force.^  An 


98.  Magee  v.  Vaughan,  212  Fed.  278, 
134  C.  C.  A.  388. 

Evidence  that  a  defendant,  in  an  ac- 
tion for  negligence,  is  insured  in  a 
casualty  company  is  incompetent;  and 
it  is  reversible  error  in  an  action  to 
recover  for  injuries  to  a  plaintiff,  who 
was  run  into  by  an  automobile,  to 
admit  testimony  that  the  defendant 
stated,  in  a  conversation  after  the  ac- 
cident, that  he  was  insured  against 
such  accidents.  Akin  v.  Lee,  206  N.  Y 
20,  99  K  E.  85,  Ann.  Caa.  1914  A.  947. 

Ebowledge  by  juror  of  insurance. — 
The  faot  that  a  juror  during  a  recess 
heard  it  mentioned  that  an  insnrance 
company  was  interested  in  the  case, 
may  authorize,  but  does  not  compel,  a 
new  trial.  Lounsbury  v.  MeCormick, 
(Mass.)   129  N.  E.  598. 

99.  Goodman  v.  Georgia,  etc.,  Co., 
189  Ala.  130,  66  So.  649;  Luger  v. 
Wendell,   (Wash.)    199  Pac.  760. 

1.  Lorando  v.  Gethro,  228  Mass.  181, 
117  N.  'E.  185,  wherein  it  was  said: 
"No  constitutional  right  of  the  in- 
surer or  of  the  assured  is  violated  by 
enabling  one,  who  has  recovered  a 
judgment  against  the  latter  on  a 
liability,  against  loss  from  which  he  j.« 
protected  by  contract  with  the  insurci, 
to  bring  an  action  in  his  own  name. 
Such  a  judgment  creditor  has  a  direct 


interest  in  the  performance  of  the  un- 
dertakings in  the  contract  of  casualty 
insurance.  It  may  be  that  the  only 
source  from  which  his  debtor  can  se- 
cure money  enough  to  pay  his  judg- 
ment will  be  from  the  proceeds  of 
that  insurance  contract.  .  .  .  The 
statute  is  reasonable  in  its  purpose 
and  effect.  Its  obvious  design  is  to 
afford  to  the  assured  of  modest  re- 
sources the  direct  benefit  of  his  insur- 
ance. It  well  might  be  a  practical  im- 
possibility for  an  assured  who  has 
complied  with  every  other  term  of  his 
contract  and  has  paid  all  premiums 
demanded  by  the  insiurer,  first  to  pay 
the  loss  and  damage  for  which  he  was 
liable  and  against  which  he  was  in- 
sured. The  man  without  capital  or 
credit  might  be  powerless  to  meet  his 
obligation  and  put  himself  in  position 
to  recover  against  the  insurer.  The 
man  of  slender  resources  or  doing  a 
considerable  business  on  small  capital 
might  be  forced  into  bankruptcy,  and 
get  little  or  no  benefit  from  the  in 
surance  for  which  he  had  paid.  The 
persons  injured  by  accidents,  for  which 
such  classes  of  assured  might  be 
liable,  wovild  be  in  effect  remediless  a? 
to  practical  results  for  the  damages 
sustained  by  them.  It  well  might  bo 
thought    by    the    legislatiure    a    sound 


Insueancb.  1053 

important  feature  of  such  a  statute  is  to  give  to  the  person 
injured  a  certain  beneficial  interest  in  the  proceeds  of  that 
policy.  It  does  not  enlarge  or  modify  in  any  respect  the  sub- 
stantial liability  created  by  the  contract  of  insurance.  It 
merely  enables  the  person  suffering  the  initial  damages,  out 
of  which  grows  the  loss  to  the  assured,  to  acquire  a  lien 
against  the  loss  arising  under  the  policy,  and  to  enforce  it  in 
his  own  name.  When  a  statute  is  in  force,  giving  special 
force  and  effect  to  a  particular  contract,  parties  who  enter  into 
such  a  contract  are  held  to  contemplate  and  assent  to  the  force 
and  effect  attributed  to  it  by  such  statute.-  The  statute  may, 
however,  not  apply  to  a  husband's  action  for  injury  to  his 
wife.^ 

Sec.  838.  Theft  insurance  —  conversion  without  intent  to 
commit  crime. 
Certain  insurance  companies  are  authorized  to  insure  the 
owners  of  motor  vehicles  against  loss  by  theft.^  To  recover 
under  such  a  pohcy,  it  is  necessary  for  the  assured  to  prove 
that  the  machine  in  question  was  taken  under  such  circum- 

public   policy    that    casualty   insurance  essential    -uaranteos    of    our  Constitu- 

sliould  become  an  effective  instrumen-  tion." 

tality  for  both  the  assured  and  the  in-  2.  Lorando  v.  Gethro,  228  Mass.  181. 

iurcd,    and    not    be    a    snare    to    the  Ul  N.  E.  18o. 

issured  and  a  barren  hope  to  the  in-  3.  Williams    v     Nelson,    228    Mass. 

lured      If  the  legislature  believed  this,  191,  117  N.  b..  189. 

t    reasonably    might    decide    to    frame  4.  Pleadings  in  action  on  policy  in- 

.  a    trms   o'  policies   of  casualty  in-  suring  against  theft^  See  Troy  Auto 

surance  and  to  provide  means  for  their  mobile  Exchange  v.  Home  Ins^Co     102 

enforcement  to  the  end  that  these  re-  Misc.    (N.   Y.)    331.    169   N.   Y.   Suppl. 

suits  might  be  avoided,  and  to  declare  796. 

that    policies    lacking    the.e    requisites  Transfer     of     macIune.-^. hen     the 

.hould    not   be   written,   or   if   written  owner    sold    the    machme    covered    by 

should  be  ineffective  as  to  these  terms.  the  policy,  and  purchased  a  new  one. 

When   confessedly   the  general  subject  a    loss    before   the    company   transfers 

of   insurance  is  under   legislative   con-  the  insurance  to  the   new   e^.   -  "ot 

trol,  there  is  a  broad  latitude  of  choice  covered.      Palmer    v.    Bu  1    Dog    Au^o 

as    to   the    means   which    may   be   em-  Ins.  Co.  Assoc.,  204  HI.  ->7.  1-8  N.  h.. 

ployed  to  reach  results  thought  to  be  499.                                             t,,,i«,h    v 

desLble.     The  principle  here  declared  Conditional    <>^^^'-^l^^  ^^^^^'^  ^• 

and  the  decisions   upon   ^vhich   it  rests  Globe,  etc.,  Ins.  Co.,   (Ma.s.)   129  N.  E. 


290. 


do   not   derogate    in    any    degree    from 

the    right    of    freedom    of    reasonable 

contract   and  the  right  to  acquire  and  ,.  ,    ,on   xt    w    q71 

possess  property  whicli  are  among  the       Co..   (Mich.)    181  N.  W.  973 


the    right    of    freedom    of    reasonable  Waiver     of    .^^^xce     f  ^  /f  ;-?; 

contract   and  the  right  to  acquire  and        Stone   v    Amencan   Mutual    Auto   Ina. 


1054  The  Law  of  Automobiles. 

stances  that  the  taking  would  constitute  the  crime  of  larceny. 
When  the  taking,  although  unlawful  and  tortious,  merely  con- 
stitutes a  trespass  or  civil  wrong,  the  insurance  comjDany  is 
not  liable  for  its  loss.^  If  taken  under  a  bona  fide  claim  of 
right,  it  is  not  a  crime,  and  not  within  the  protection  of  the 
insurance.*^  Or,  if  the  taking  of  the  machine  is  done  with  the 
aninio  revertendi,  the  loss  is  not  within  the  policy.'''  Thus, 
where  employees  of  a  shop  where  the  machine  had  been  left 
for  repainting  took  it  for  the  purpose  of  a  ''  joy  ride,"  it  was 
held  that  there  was  no  ciiminal  intent  to  deprive  the  owner 
of  it  permanently  and  that  the  car  was  not  stolen  within  the 
intention  of  such  a  policy.^  But  under  a  policy  insuring 
against  loss  or  damage  "  by  theft,  robbery  or  pilferage  " 
there  was  held  to  be  a  loss  within  the  terms  of  the  policy  where 
one  who  borrowed  the  machine  for  a  specific  purpose  and  to 
go  to  a  specific  place,  went  beyond  that  place  and  never  re- 
turned the  car  but  abandoned  it  in  a  remote  section  of  another 
State  in  a  badly  damaged  condition  without  any  notice  to  the 
owner,  from  which  place  it  was  not  recovered  for  several 
weeks  af ter.^  The  word  ' '  pilferage  ' '  in  such  a  policy  means 
petty  larceny.^*^ 

5.  Georgia.— KsiTtford     Ins.     Go.     v.       Pac.  559,  L.  R,  A.   1915  B.  327. 
Wimbush,    12   Ga.   App.   712,   78   S.   E-  9.  Federal     Ins.    Co.     v.     Hiter,     164 
265;  Gunn  v.  Globe  &  Rutgers  F.  Ins.       Ky.  743,  176  S.  W.  210. 

Co.  (Ga.  App.),  101  S.  E.  691.  10.  Stuht    v.    Maryland    M.    C.    Ins. 

7rid/o«a.— Michigan  Ins.  Co.  v.  Wil-  Co.,    90     Wash.     576,     156     Pac.     557. 

lis,  57  Ind.  App.  256,  106  N.  E.  725.  "  The    words    '  theft,'    '  robbery  '    and 

il/o«<ana.— Valley   Mercantile   Co.   v.  '  pilferage  '       are       well       understood. 

St.  Paul  Fire  &  M.  Ina.  Co.,  49  Mont.  They  were  used  in  this  policy  in  their 

430,  143  Pac.  559,  L.  R  A.  1915  B.  327.  common    and    ordinary    meaning.      If 

New  York. — ^Rush     v.     Boston     Ins.  the    automobile    wus   stolen,    or    if    it 

Co  ,  88  Misc.  48,  150  N.  Y.  Suppl.  457.  was  robbed  or  pilfered   of  any   of  its 

Washington. — Stuht  v.  Mviryland  M  accessories,   or   of  personal  effects  left 

C.  Ins.  Co.,  90  Wash.  576,  156  Pac.  557.  therein,   to   the   amount   of    $25,    then 

6.  Rush  V.  Boston  Ins.  Co.,  88  Misc.  the  insurance  company  would  be  lia- 
(N.  Y.),  48,  150  N.  Y.  Suppl.  457.  ble."      Stuht   v.   Maryland   M.    C.   Ins. 

7.  Felgar  v.  Home  Ins.  Co.,  207  III.  Co.,  90  Wash.  576,  156  Pac.  557. 
App.  492;  Stuht  v.  Maryland  M.  C.  "Pilfering"  has  but  one  meaning,  and 
Ins.  Co.,  90  Wash.  576,  156  Pac.  557.  is    some    form   of   stealing.      Felgar  v, 

8.  Valley  Mercantile  Co.  v.  St.  Paul  Home  Ins.  Co.,  207  111.  App.  492. 
Fire  &  M.  Ins.  Co.,  49  Mont.  430,   143 


Insurance.  1055 

Sec.  839.  Theft  insurance  —  larceny  by  trick  or  device. 

A  policy  insuring  the  owner  of  an  automobile  against  theft, 
robbery  or  pilferage  by  any  person  or  persons  other  than 
those  in  the  employment,  service  or  houseliold  of  the  insured, 
has  been  held  not  to  cover  a  common-law  larceny  of  the  auto- 
mobile by  trick  or  device.  Hence,  the  insured  cannot  recover 
on  such  policy  where  he  merely  alleges  and  proves  that  he 
delivered  the  automobile  to  third  persons  for  the  purpose  of 
sale  and  that  they,  through  a  conspiracy  to  steal  automobiles, 
converted  the  car  to  their  own  use  and  stole  the  same.  The 
alleged  larceny  was  under  the  form  and  guise  of  a  business 
transaction  conducted  by  the  insured  himself  and  was  not 
within  the  terms  of  the  policy.^^ 

Sec.  840.  Theft  insurance  —  by  persons  not  in   service   of 
owner. 

Provisions  in  policies  insuring  against  theft  generally  pro- 
vide that  the  company  shall  not  be  liable  when  the  propeity 
is  stolen  by  one  '*  in  the  employment,  service  or  household  of 
the  assured."  This  may  preclude  a  recovery  when  the 
machine  is  stolen  by  the  owner's  nephew,  who  was  visiting  the 
owner.12  But  a  theft  by  an  employee  of  a  public  garage 
keeper  at  whose  garage  the  car  is  kept,  has  been  held  to  be  a 
loss  within  the  policy.^^  Where  the  garage  in  which  plaintiff's 
automobile  was  cared  for,  was  under  the  control  of  a  corpora- 
tion of  which  plaintiff  was  president,  evidence  that  the  care- 
taker of  the  garage  was  implicated  in  the  theft  of  the  auro- 

11.  Delafield  v.  London  &  I^anca-  one  we  are  here  dealing  with  in  this 
shire  F.  Ins.  Co.,  177  N.  Y.  App.  Div.  policy  was  to  guard  the  company 
477,  164  N.  Y.  Suppl.  221.  against  liability  for  such  thefts  as  we 

12.  Rydstrom  v.  Queen  Ins.  Co.  of  have  in  this  case,  and  to  prevent  fraud 
America  (Md.),  112  Atl.  586,  wherein  and  collusion  by  and  between  the  as- 
it  was  said:  "The  policy,  as  the  Ian-  sured  and  persons  in  a  liousehold  or 
guage  clearly  indi<-ates  and  means,  was  in  the  assured's  services  or  employ- 
to   insure  against    theft,   robbery,   etc.,  ment." 

'except  by  a  person  or  persons  in  the  13.  Schmid    v.    Heath,    173    111.    App. 

assured's   household,'  and   if   the   theft  649. 

was  committed  by  a  person  or  persons  14.  Callahan    v.    London    &    Lanca- 

in    the    assured's    household,    the    c«m-  shire   Fire   Ins.   Co.,   98    Misc.    (N.    Y.) 

pany  would  not  be  liable.     The  object  589,   163  N.  Y.  Suppl.  32? 

and  purpose  of  an   exception  like  the 


1056  The  Law  of  Automobiles. 

mobile,  which  was  thereafter  and  while  in  his  possession 
wrecked  in  a  collision,  does  not  establish  that  the  damage  was 
done  by  one  in  the  employment  or  service  of  plaintiff  within 
the  meaning  of  such  a  policy.^* 

Sec.  841.  Theft  insurance  —  stealing  proceeds  of  sale  of  auto- 
mobile. 

Where  the  owner  of  an  automobile  transferred  possession 
of  an  automobile  to  another  for  the  purpose  of  sale,  and  the 
latter  sold  it  and  appropriated  the  proceeds  to  his  own  use,  it 
was  held  that  the  insurance  company  was  not  liable  to  the 
former  owner. ^^ 

Sec.  842.  Theft  insurance  —  sufficiency  of  proof  of  theft. 

The  burden  is  upon  the  assured  of  showing  that  the  loss  of 
the  automobile  was  occasioned  through  the  larceny  of  some 
person  other  than  those  persons  in  his  employment,  service, 
household;  but  the  necessary  facts  can  be  shown  by  circum- 
stantial evidence.^^  It  may  be  a  question  for  the  jury,  or  the 
facts  may  be  uneontroverted  so  that  no  jury  question  is  pre- 
sented.^" The  plaintiff  is  not  required  to  prove  his  claim 
beyond  a  reasonable  doubt,  as  would  be  required  in  a  criminal 
prosecution  for  the  theft  of  the  machine.^^  Where  the  plain- 
tiff, in  an  action  upon  a  policy  insuring  his  automobile  against 
theft,  proves  that,  after  he  had  driven  it  aboard  a  ferryboat 
close  up  to  the  front,  put  on  the  emergency  brake  and  stopped 

15.  Siegel  v.  Union  Assur.  Soc,  153  nor  can  the  law  hold,  that  the  defend- 
N.  Y.  Suppl.  661,  wherein  the  court  ant  under  its  policy  is  liable  for  a 
said,  per  Finelite,  J. :  "  All  dominion  theft,  larceny,  or  pilferage.  The  plain- 
over  said  car  had  been  transferred  to  tiff  failing  to  submit  proper  proof 
R.  W.  Lewis,  Incorporated,  for  the  under  the  policy,  no  liability  exists, 
moment,  and  the  said  R.  W.  Lewis,  and  the  court  was  justified  in  dismiss- 
Incorporated,    having    disposed    of    fhe  ing  the  complaint." 

automobile     the     same     day     without  16.  Kansas   City   Regal   Auto   Co.   v. 

awaiting  further  instructions  from  the  Old  Colony  Ins.  Co.,  187  Mo.  App.  514, 

plaintiff  on  the  following  morning  and  174  S.  W.  153. 

appropriating  the  proceeds   thereof   to  17.  Stone  v.  American  Mutual  Auto 

its   own   use   and   benefit,   the   plaintiff  Ins.  Co.   (Mich.),  181  N.  W.  973. 

putting    the   automobile    in    possession  18.  Kansas   City   Regal   Auto   Co.   v. 

of  a  person  who  has  disposed  of  it  and  Old  Colony  Ins.  Co.,  187  Mo.  App.  514, 

appropriated  the  proceeds,  I  fail  to  see,  174  S.  W.   153. 


Insurance.  1057 

the  engine,  he  went  into  the  cabin  before  the  boat  started  and 
a  few  minutes  later  when  the  boat  was  on  the  river  came  out 
and  the  machine  was  gone,  the  chain  at  the  rear  of  the  boat 
lying  loose  on  the  deck  and  the  gate  at  the  rear  half  open,  he 
makes  out  a  prima  facie  case  and  is  entitled  to  recovery.^^ 

Sec.  843.  Theft  insurance  —  amount  of  damage. 

A  poHcy  of  the  character  under  discussion  is  construed  to 
cover  all  damage  resulting  or  which,  in  the  contemplation  of 
the  parties,  might  result,  from  theft,  which  would  include  dam- 
ages caused  by  reckless  driving  or  handling  of  the  car  and 
storage  of  the  same,  or  any  use  which  destroyed  its  value  in 
whole  or  in  part.  If,  following  the  theft,  the  car  should  be 
recovered  intact,  in  the  same  condition  it  was  before  the  theft, 
plaintiff's  only  damage  would  be  expenses  incurred  in  recov- 
ering the  car  and,  perhaps,  in  addition,  the  value  of  its  use 
during  the  period  between  the  theft  and  the  recovery  of  the  car. 
If  the  car  were  damaged  or  destroyed  while  in  the  custody  of 
the  thief,  plaintiff's  damage  would  include  also  the  diminution 
or  loss  of  value  of  the  car  thus  stolen.^**  If,  after  being  stolen, 
it  is  wrecked  and  totally  destroyed,  the  insurer  is  liable  for  its 
value. -^  These  policies  may  contain  a  provision  for  the  arbi- 
tration of  differences  over  the  value  of  the  property.  A  pro- 
vision in  a  policy  of  insurance,  that  if  there  is  a  difference  as 
to  the  value  of  the  property  no  right  of  action  should  exist 
until  after  an  appraisal,  is  waived  by  proof  that  plaintiff,  dur- 
ing an  endeavor  to  adjust  the  loss,  was  told  by  defendant's 
authorized  representative  that  they  "  would  not  do  a  damn 
thing  "  as  is  also  a  provision  of  the  policy  which  required 
sixty  days  to  elapse,  after  notice  of  loss,  before  suit  is 
brought.^^  ,The  recovery  of  the  property  may  affect  the  sum 

19.  Chepakoflf       v.       National       Ben  shire  Fire  Ins.  Co.,  98  Misc.    (N.  Y.) 

Franklin   Fire   Ins.   Co.   of   Pittsburgh,  589,  163  N.  Y.  Suppl.  322. 

97  Misc.  (N.  Y.)   330,  161  N.  Y.  Suppl.  21.  Callahan    v.    I.K)ndon    &    Lanca- 

283.  shire  Fire  Ins.  Co.,  98  Misc.    (N.  Y.) 

Larceny   by   discharged    employee. —  .iS9,  163  N.  Y.  Suppl.  322. 

See  Pask  v.  London  &  Lancashire  Fire  22.  Callahan    v.    London    &    Lanca 

Ins.  Co.,  211  ni.  App.  27.  sbire  Fire  Ins.   Co..  98  Misc.    (N.   Y.> 

20..  Callahan    v.    London    &     Lanca-  589,  163  N.  Y.  Suppl.  322. 

67 


1058  The  Law  of  Automobiles. 

to  which  the  insured  is  entitled.  Under  some  i^olieies,  if  the 
machine  is  not  recovered  within  sixty  days  after  the  loss,  the 
insured  can  collect  the  entire  insurance  moneys,  although  the 
machine  is  recovered  before  the  institution  of  a  suit  therefor.^ 

Sec.  844.  Theft  insurance  —  subrogation  of  insurer. 

The  insurance  company,  after  payment  of  loss  under  a 
policy  against  theft,  is  entitled  to  be  subrogated  to  the  rights 
of  the  owner.  That  is,  he  is  entitled  to  recover  damages  of 
the  wrongdoer.  Moreover,  wher6  the  car  was  in  the  hands  of 
bailee  at  the  time  of  the  theft,  if  the  insurance  company  can 
show  negligence  on  the  part  of  such  bailee  which  contributed 
to  the  theft,  he  may  recover  of  such  bailee.^* 

Sec.  845  —  Accident  insurance. 

An  injury  resulting  from  slipping  and  falling  while  crank- 
ing an  automobile  is  "  accidental  "  within  the  meaning  of  an 
accident  policy.^^  And,  if  one  slips  while  pulling  a  tire  off  a 
machine,  the  resulting  injury  may  be  deemed  "  accidental. "  ^^ 
Where  an  accident  policy  provides  for  a  double  indemnity 
"  if  the  bodily  injury  is  sustained  by  the  assured  .  .  . 
while  in  or  on  a  public  conveyance  .  .  .  provided  by  a 
common  carrier  for  passenger  service  "  one  who  is  injured 
while  riding  in  an  automobile  which  he  had  hired  from  a  liv- 
eryman and  which  was  operated  by  a  driver  furnished  by  the 
latter,  who  served  any  applicant,  is  held  to  be  riding  in  a 
public  conveyance  as  that  term  is  used  in  the  foregoing 
clause.^^  Similarly,  indemnity  can  be  recovered  if  one  is  in- 
jured while  riding  in  a  taxicab,  for  a  taxicab  is  a  common  car- 

23.  O'Connor  v.  Maryland  Motorcar  25.  Preferred  Accident  Ins.  Co.  v. 
Ins.  Co.,  187  111.  204,  122  N.  E.  489,  Patterson,  213  Fed.  595,  130  C.  C.  A. 
3  A.  L.  R.  787.     See  also  O'Connor  v.       175. 

Maryland  Motorcar  Co.,  211   111.  App.  26.  Lickleider  v.  Iowa  State  Travel- 

549.  ing   Men's    Assoc,    184   Iowa   423,    168 

24.  Stevens      v.      Stewart  -  Warner       N.  W.  884. 

Speedometer  Corp.,  223  Mass.   44,  111  27.  Fidelity  &  Casualty  Co.  v.  Join- 

N.  E.   771.  er   (Tex.  Civ.  App.),  178  S.  W.  806. 


Insurance.  1059 

rier.^®  And  a  railroad  attorney,  while  riding  in  an  automo- 
bile constructed  so  as  to  run  on  the  rails,  may  be  considered 
as  a  passenger  in  a  public  conveyance.^^ 

28.  U.  S.  Casualty  Co.  v.  Elleson,  65  Casualty  Co..  232  Pa.  210,  81  Atl.  212, 

Oolo.  252,  176  Pac.  279.  37  L.  R.  A.  (N.  S.)  618.     See  also  Tur- 

28.  Anderson  v.  Fidelity  &  Gastialty  ner   v.    Fidelity    &   Casualty    Co.,    274 

Co.,  228  N.  Y.  475,  127  N.  E.  584,  9  A.  Mo.    1078,   203  S.   W.    1078.      And  see 

L.    R.    1544,    affirming,    183    App.    Div.  section  132. 
170,  170  N.  Y.  Suppl.  431;  Primrose  v. 


1060  The  Law  of  Automobiles. 


CHAPTER  XXX. 

SAI^ES  OF  MOTOR  VEHICLES. 

Section  846.  Scope  of  chapter. 

847.  Capacity  of  parties  to  sale  —  infants. 

848.  Capacity  of  parties  to  sale  —  agents. 

849.  Capacity  of  parties  to  sale  —  municipal  corporations. 

850.  Capacity  of  parties  to  sale  —  private   corporations. 

851.  Delivery. 

852.  Validity  of  sale  —  violation  of  motor  vehicle  laws. 

853.  Validity  of  sale — machine  to  be  used  for  unlawful  purpose. 

854.  Validity  of  sale  —  statute  of  frauds. 

855.  Validity  of  sale  —  seller  not  owning  machine. 

856.  Fraud  and  deceit. 

857.  Warranties  —  in  genera;l. 

858.  Warranties  —  caveat  emptor. 

859.  Warranties  —  "  seller's  talk." 

860.  Warranties  —  machine  sold  on  "  usual  warranty." 

861.  Warranties  —  guaranty  of  satisfaction. 

862.  Warranties  —  warranty  of  future  service. 

863.  Warranties  —  implied  warranty  of  fitness. 

864.  Warranties  —  effect  of  express  contract  on  implied  warranty. 

865.  Warranties  —  damages. 

866.  Warranties  —  parol  evidence  to  show  warranty. 

867.  Warranties  —  waiver  of  breach  of  warranty. 

868.  Warranties  —  statements  of  agent. 

869.  Remedies  of  seller. 

870.  Remedies  of  purchaser  —  in  general. 

871.  Remedies  of  purchaser  —  rescission  of  contract. 

872.  Remedies  of  purchaser  —  recovery  of  purchaise  price. 

873.  Tax  on  sales. 

874.  Tax  on  dealers. 

Sec.  846.  Scope  of  chapter. 

This  chapter  is  intended  to  cover  the  law  of  the  sales  of 
motor  vehicles,  their  parts,  and  accessories.  It  includes  such 
topics  as  the  capacity  of  parties  to  buy  and  sell  automobiles, 
warranties  and  their  breach,  and  the  rights  of  the  parties  to  a 
contract  of  sale.  In  another  chapter  is  discussed  the  ques- 
tions which  arise  out  of  claims  against  a  vehicle  in  the  nature 
of  liens  or  contracts  of  conditional  sale.^  So,  the  questions 
as  to  whether  the  purchaser  or  seller  of  a  vehicle  is  liable  for 
the  injuries  occasioned  by  the  neghgent  handling  of  the  ma- 
chine to  another  traveler.^ 

1.  Chapter  XXXI.  2.  See  secitions  647,  648,  665. 


Sales  of  Motor  Vehicles.  1061 

Sec.  847.  Capacity  of  parties  to  sale  —  infants. 

The  purchase  by  au  infant  of  a  motor  vehicle,  is  voidable. 
That  is,  within  a  reasonable  time  after  reaching  his  majority 
he  may  disaffirm  the  contract  and  recover  what  he  has  paid  or 
parted  with  pursuant  to  such  contract,  if  he  return  what  he 
received.'^  The  infant  has  the  right  of  disaffirmance  although 
the  contract  of  sale  states  that  he  is  at  least  twenty-one  years 
of  age.*  And  it  has  been  held  that  depreciation  in  the  value 
of  the  property  returned  cannot  be  shown  to  defeat  or  reduce 
the  recovery.  On  disaffirming  the  contract  and  returning  the 
article  purchased  during  infancy,  tlie  money  paid  thereon  may 
be  recovered,  though  the  value  of  its  use  while  the  infant  had 
it  may  exceed  the  payment  made  upon  it.^  The  infant  should 
account  for  any  damage  to  the  car  that  was  caused  l)y  his  tort- 
ious acts,  but  he  cannot  be  compelled  to  account  for  damages 
caused  by  his  ignorance  or  unskillfulness  in  operating  the  car.^ 
And  an  infant  who  sells  a  vehicle  may  rescind  the  same  and 
recover  the  property.'''  It  is  the  privilege  of  the  minor  only  to 
disaffirm  the  sale  or  contract,  and,  until  he  does  so,  the  other 
party  is  bound  by  it.  The  minor,  when  he  becomes  of  age, 
may  regard  the  contract  as  beneficial,  and  choose  to  affirm  it. 
If,  however,  he  elects  to  disaffirm  it,  he  annuls  it  on  both  sides, 
ab  initio,  and  the  parties  revert  to  the  same  situation  as  if  the 
contract  had  not  been  made.  Until  some  notice  is  given  by 
the  minor  of  his  purpose  to  annul  the  contract,  or  he  does 
some  act  significant  of  that  intention,  the  other  party  is  bound, 
and  cannot  reclaim  the  property  nor  treat  the  contract  as  void 
or  voidable.^  If  a  guardian  uses  the  trust  funds  to  purchase 
an  automobile  for  his  personal  use  and  the  seller  has  knowl- 
edge of  tlip  wrongful  use  of  the  funds,  both  the  guardian  and 

3.  Raymond    v.    General    Motorcycle  5.  EeynoJds  v.  Garber-Buick  Co.,  1S3 
Co.,  230  Mass.  54.  119  N.  E.  359;  Rey-       Mich.   157.   149  N.  W.  985. 

nolds   V.   aarber-Ruick    Co..   183    Mich.  6.  Wooldridge    v.    Lavoic     (\.    IT.). 

157,  149  N.  W.  985;  Stanhope  v.  Sham-  104  Atl.   346. 

bow,    54    Mont.  '  360.     170    Pac.     752 :  7.  Pmott  v.   Eyaii.   1S7   Ala.   .396,  05 

Wooldridfr,.  v.  Lavoie  (N.  H.).  104  Atl.  So.  828. 

346.  8.  Smott   v.   Ryan.   187   Aln.   396.   65 

4.  Raymond    v.    General    Motorcycle  So.  828. 
Co.,  230  Mass.  .54.   119  N.  E.  359. 


1062  The  Law  of  Automobiles. 

the  seller  are  liable  for  a  conversion  of  the  funds;  and  the 
surety  on  the  guardian's  bond  may  be  subrogated  and  may 
maintain  an  action  against  the  seller  therefor.^ 

Sec.  848.  Capacity  of  parties  to  sale  —  agents. 

One  dealing  with  an  agent  is  bound  to  be  on  his  guard  as  to 
the  extent  of  the  agent's  authority.^*^  The  mere  fact  that  one 
has  possession  of  an  automobile  and  claims  to  have  the  right 
to  sell  it,  does  not  give  a  good  title '  thereto  as  against  the 
lightful  owner  who  has  given  no  authority  to  sell  it.^^  An 
agent  having  power  to  make  a  sale  of  a  vehicle  is  deemed  to 
have  implied  authority  from  his  principal  to  make  such  war- 
ranties in  respect  thereto  as  the  law  would  imply  had  the  sale 
been  made  by  the  principal  personally,  and  in  addition  has 
implied  authority  to  make  in  the  name  of  the  principal  such 
warranties  of  the  quality  and  condition  of  the  property  as  are 
usually  and  customarily  made  in  like  sales  of  similar  property 
at  the  time  and  place.^^  If  a  selling  agent  represents  that  a 
second  hand  car  is  a  new  machine,  the  principal  may  be  liable 
to  the  purchaser.^^  It  is  well  settled  that  neither  the  fact  of 
agency  nor  the  extent  of  his  authority  can  be  proved  by  the 
declarations  of  the  alleged  agent ;  but  when  an  agent  makes  a 
contract  or  does  any  act  representing  his  principal,  his 
declarations  made  at  the  time  explanatory  of  the  act  are  in 
some  jurisdictions  admissible  in  evidence  on  behalf  of  either 
party.^^  The  original  absence  of  authority  in  an  agent  may 
be  cured  by  a  subsequent  ratification  of  his  acts  by  the  prin- 

9.  American  Surety  Co.  v.  Vaun,  135  11.  Pierce  v.  Fioretti,   140  Ark.  306, 
Ark.  291,  205  S.  W.  646.                                  215  S.  W.  646;   Stults  v.  Miltenberger, 

10.  Hutchinson  v.  Scatt  (Cal.  App.),       176  Ind.  561,  96  N.  E.  581. 

169  Pac.  415;    Canales  v.  Earl,  N.  Y.  12.  Nixon  Mining  Drill  Co.  v.  Burk, 

Law   Journal,   Jan.  21,    1918;    Holmes  132   Tenn.   481,    178  S.  W.    1116.     See 

V.  Tyner   (Tex.  Civ.  App.),  179  S.  W.  also    International    Harvester    Co.    v. 

887;     Piper    v.    Oakland     Motor    Co.  Lawyer   56   Okla.    207,    155   Pac.   617; 

(Vt.),  109  Atl.  911.     See  also  Hoyt  T.  Farnham  v.  Akron  Tire  Co.    98  Wash. 

Schillo,  etc.,  Co.,  185  111.  App.  628.  484,  167  Pac.  1081. 

An    agent    having   possession   of   an  13.  Anticich  v.  Motor  Oar  Inn  Gar- 
automobile    for    sale   cannot,   without  age   (Miss.),  87  So.  279. 
dissolving  the  agency,  exercise  adverse  14.  Western  Investment  &  Land  Oo. 
powers  to  the  agency.     Watson  v.  Her  v.  First"  Nat.  l^ank,  23  Colo.  App.  143, 
man,   118  Miss.  264,  79  So.  92.  128  Pac.  476. 


Sales  of  Motor  Vehicles.  1063 

cipal,  but  the  ratification  will  not  take  place  until  the  principal 
is  fully  advised  of  the  agent's  transactions.'^'  Agency,  in 
some  cases,  is  a  question  of  fact  for  the  jury.^^ 

Sec.  849.  Capacity  of  parties  to  sale  —  municipal  corporations. 

Municipal  corporations  are  generally  allowed  to  f)urchase 
motor  vehicles  for  the  use  of  various  departments  of  the 
municipal  government.'^  Thus,  the  power  to  purchase  and 
use  motor  veliicles  for  police  and  fire  purposes  is  unques- 
tioned. And  an  automobile  may  be  purchased  for  the  use  of 
those  officials  charged  with  the  maintenance  of  the  public  high- 
ways.^^  Thus,  in  one  case  justifying  the  purchase  of  an  auto- 
mobile for  use  by  a  body  charged  with  the  superintendence  of 
the  public  highways,  it  was  said :  ' '  With  the  more  recent  de- 
mands for  better  roads  and  more  secure  bridges  and  ferries 
in  all  sections  of  the  country  —  in  the  rural  or  country  dis- 
tricts, and  often  at  points  remote  from  the  county  site  or  mar- 
ket places,  as  well  as  in  urban  localities  —  greater  engineer- 
ing skill  and  improved  machinery  and  facilities  are  necessary, 
in  the  construction  and  maintenance  of  these  public  agencies. 
If  a  board  of  revenue  or  court  of  county  commissioners  may 
employ  skilled  architects  to  make  plans  for  county  ferries, 
bridges,  and  buildings,  it  may  provide  for  like  superintend- 
ence and  inspection.  So  also,  if  the  necessary  material, 
equipment,  and  labor,  for  the  proper  construction  and  main- 
tenance of  the  public  roads,  bridges,  and  ferries  may  be  pur- 
chased or  engaged,  and  the  services  of  a  competent  engineer 
or  inspector  are  required  to  construct  or  supervise  such  pub- 
lic improvements,  there  can  be  no  doubt  of  the  right  to  con- 
tract therefor.    And  if  the  right  exists  to  contract  for  this  in- 

16.  Hutchinson    v.     Scatt.     35    Cal.  17.  Vale  v.  Boyle,  179  Cal.  180,  175 

App.  171,   169  Pac.  415.  Pac.   787;   Burns  v.  City  of  Nashville. 

16.  Denby  Motor  Truck  Co.  v.  Mcar?  142  Tenn.  541.  221  S.  W.  828. 

(Tex.  Civ.  A7)p.).  229  S.  W.  994.  18.  Enslcr  Motor  Co.  v.  O'Rear,  196 

Ratification.— A    father    may    ratify  Ala.  481,  71   So.  704;   Hollis  v.  Weis- 

the  unauthorized  act  of  his  son  in  pur-  singer.    142   Ky.   129.    134    S.   W.    176; 

chasing  an  automobile,  so  that  he  will  Porter  v.  Fletcher.  153  N.  Y.  App.  Div. 

become   liable   for   the   purchase   price.  470,    138   N.   Y.   Suppl.   557.     Compare 

Dillon  V.  Patterson,  22  Oa.   App.  209  Miles  Auto  Co.  v.  Dorsey,  163  Ky.  692, 

95  S.  E.  733,                                                •  174  S.  W.  502. 


1064  The  Law  of  Automobiles. 

spection  and  supervision,  then  the  right  to  maintain,  and  to 
transport  such  inspectors  from  one  portion  of  the  county  to 
another,  in  the  discharge  of  this  public  service,  cannot  be 
doubted.^^ 

Sec.  850.  Capacity  of  parties  to  sale  —  private  corporations. 

An  automobile  company  will  be  bound  by  the  representa- 
tions of  its  general  sales  manager  made  in  the  sale  of  a  ma- 
chine.-*^  And  an  officer  of  a  corporation,  such  as  the  secre- 
tary, for  example,  may  generally  purchase  an  automobile  in 
the  name  of  the  company  for  use  in  its  business.^^  A  person 
occupying  the  offices  of  president  and  general  manager  of  a 
corporation  may  buy  a  motor  vehicle  in  its  behalf  .-- 

Sec.  851.  Delivery. 

The  machine  delivered  by  the  seller  of  a  motor  vehicle  must 
correspond  with  one  ordered  by  the  purchaser.  Where  tlie 
contract  is  for  an  automobile  ^'  fully  equipped  as  per  cata- 
logue," and  the  catalogue  shows  the  machine  with  a  particu- 
lar equipment  of  tires  and  rims,  the  car  tendered  must  be"  simi- 
larly equipped,  although  tlie  printed  specifications  there  do 

19.  Ensley  Motor  Co.  v.  O'Rear,  196  the  agent's  authority  contained  in  the 
Ala.  481,  71   So.  704.  by-laws  and  ot  which  he  has  no  knowl- 

20.  Joslyn  v.  Cadillac  Automobile  edge.  And  the  appointment  of  such 
Co.,  177  Fed.  863,  101  C.  C.  A.  77.  general  manager  carries  with  it  an  im- 

21.  Meister  &  Sons  Co.  v.  Wood  &  plication  of  authority  on  the  part  of 
Tatum  Co.,  26  Cal.  App.  584,  147  Pac.  such  agent  to  represent  himself  a.s 
1)81.  possessing  the  full  powers  usually  as- 

22.  Western  Investment  &  Land  Co.  cribed  to  such  an  office.  .  .  .  The  fore- 
V.  First  National  Bank  23  Colo.  App.  going  principles  apply  with  peculiar 
143,  128  Pac.  476,  wherein  it  was  said:  force  when,  as  in  the  instant  case,  the 
"  The  public  would  be  absolutely  with-  offices  of  president  and  general  man- 
out  protection  in  dealing  with  corpo-  ager  unite  in  one  man.  so  that  he  bc- 
rations  if  it  were  not  for  the  rule  that  comes,  in  effect,  the  corporation  itself 
their  executive  and  managing  officers,  so  far  as  the  public  is  concerned.  It 
or  agents,  by  whatever  name  called.  has  been  repeatedly  held  in  this  State 
possess  implied  power  to  bind  the  cor-  that  a  manager  of  a  private  corpo- 
poration  by  acts  and  contracts  done  ration  in  such  business  as  the  sale  of 
and  made  in  the  conduct  of  ordinary  lumber  at  retail  had  no  authority,  by 
business;  and,  such  being  the  law,  an  virtue  of  his  employment  merely,  to 
innocent  stranger  dealing  with  a  cor-  borrow  money  on  the  credit  of  his 
poratioii  through  such  an  agent  will  company,  or  to  give  its  note  there- 
not  be   affected  by   any    limitation    of  fore." 


Sales  of  Motor  Vehicles.  1065 

not  require  such  equipment,  as  the  cuts  in  the  catalogue  are  a 
part  thereof  as  much  as  the  specifications.-^  Where  under  a 
contract  for  the  sale  of  machines  to  be  delivered  at  specified 
dates,  and  the  seller  was  not  obliged  to  deliver  until  the  buyer 
indicated  the  particular  type  of  body  to  be  placed  on  the  cars 
and  the  color  they  were  to  be  painted,  the  buyer  cannot  hold 
the  seller  for  a  breach  of  the  contract  where  he  has  failed  to 
specify  such  particulars  as  he  desired.-*  Where  a  contract 
for  the  sale  of  an  automobile  provides  for  delivery  on  or  be- 
fore a  certain  date,  and  that  in  the  event  of  delivery  not  being 
made  within  a  specified  time  after  such  date,  the  purchaser 
might  cancel  the  order  and  demand  a  return  of  the  deposit 
paid,  the  purchaser  by  calling  in  the  seller  and  making  in- 
quiries concerning  possible  delivery  several  months  after  the 
date  fixed,  waives  his  right  to  a  delivery  on  the  specified 
date.-^  If  the  purchaser  extends  the  time  of  delivery,  he  can- 
not before  the  expiration  of  the  extended  period  rescind  the 
sale  for  failure  of  delivery.-*"'  In  some  cases  delivery  is  essen- 
tial to  the  passing  of  title  to  a  vehicle  sold ;  in  other  cases  de- 
livery is  not  necessary ;  and  whether  the  title  passes  in  a  given 
case  is  to  be  determined  from  the  facts  of  the  particular 
transaction.-'  Where  it  is  the  intention  of  the  parties  that 
title  to  the  machine  shall  not  pass  until  inspection  and  accept- 
ance and  pa^nment  of  the  purchase  price,  the  title  does  not 
pass  until  such  paynnent.-^  Ordinarily,  the  purchaser  of  a 
machine  is  to  be  allowed  an  opportunity  of  inspecting  it  be- 
fore title  passes,  and  a  deUvery  which  affords  no  opportunity 
for  inspection  may  be  insufficient  to  pass  title.-^     Where  title 

23.  John    Hemwall    Automobile    Co.       Co.,  168  Wis.  537,   170  N.  W.  951. 

V.  Michigan  Avenue  Trust  Co.,  195  111.  27.  Kentucky     Motor     Car     Co.     v. 

App.  407.  Darenkamp,    162   Ky.   219,    172   S.    W. 

24.  Murphy  v.  Moon  Motor  Car  Co.,  524;  Harshman  v.  Smith  (N.  Dak.), 
147  N.  Y.  App.  Div.  91,  131  N.  Y.  176  N.  W.  3.  See  also,  Minniek  v. 
Suppl.  873.  Denver    Motor    Co.    (Tex.    Civ.    App.). 

25.  Grigg.s       v.       Renault       Selling  227  S.  W.  365. 

Branch,  Inc..  179  N.  Y.  App.  Div.  845.  28.  Halflf    Co.    v.    Jones     (Tex.    Civ. 

167  N.  Y.  Suppl.  355.  App.),  169  S.  W.  906. 

Rescission  of  contract  on  account  of  29.  Lange    v.    Interstate    Sales    Co. 

delayed     delivery.— Boland     v.     Smith  (Tex.  Civ.    App.),   166  S'.  W.   900. 

(Cal.  App.),  190  Pae.  825.  When  title  passes. — ^When  goods  are 

i26.   .Albright  v.  Stegeman  Motor  Car  transferred   by   one   person    to   another 


1066  The  Law  of  Automobiles. 

has  passed,  the  purchaser  may  recover  dama.g-es  of  the  rail- 
road for  its  delay  in  delivering  the  machine  or  for  damages 
occasioned  thereto.^*^ 

Sec.  852.  VaJidity  of  sale  —  violation  of  motor  vehicle  laws. 

Under  a  statute  providing  that  unless  a  motor  vehicle  is 
registered  with  the  State  officials  within  ten  days  after  its 
sale,  the  sale  is  invalid,  a  contingent  condition  subsequent  is 
attached  to  every  sale,  so  that  the  agreement  becomes  abor- 
tive if  the  new  owner  does  not  properly  register  the  machine. 
The  sale  in  such  a  case  being  invalid,  the  law  leaves  the  par- 
ties where  it  found  them,  and  the  former  owner  can  replevin 
the  machine  or  recover  its  value,  but  he  cannot  recover  on  a 
note  given  for  its  purchase  price.^^  In  some  states  it  is  re- 
quired as  a  preventative  of  theft  that  the  seller  of  a  second- 
hand machine  cannot  offer  it  for  sale  without  having  in  his 

physical  possession  the  tax  collector's  receipt  for  the  license 
fee.32 

Modern  statutes,  in  some  states,  require  that  upon  the  sale 
of  a  used  machine,  it  shall  have  thereon  the  manufacturer's 
serial  number,  and  that  the  original  bill  of  sale  shall  be  as- 
signed to  the  purchaser.     Such  a  regulation  is  constitutional.^'^ 

Sec.  853.  Validity  of  sale  —  machine  to  be  used  for  unlawful 
purpose. 

It  has  been  held  that  the  fact  that  the  manager  of  a  news- 
paper purchasing  an  automobile  intended  to  give  it  away  in 

for  sale  and  disposition  by  the  Ivatter,  chaser  of  the  same  and  the  title  there- 

the   question   whether   the   relation    of  to    at    once    passes    to    him.       Fulton 

the   parties    is   that   of   principal    and  Motor  Truck   Co.   v.  Gordon,  etc,   Co. 

agent,  or  of  vendor  and  vendee,  is  de-  (Neb.),  181   N.  W.   162. 

termined  by  the  nature  of  the  trans-  30.  Patterson    v.    Chicagx>,    ct*.,    R. 

action,    and    not   by    the    name    Avliich  Co.,  95  Minn.  57,  103  N.  W.  621 ;  Arm- 

they  give   to  it.     If   in   such   case   the  strong  v.  Chicago,  etc.,  Ry.  Co.,  35  S. 

transferee     upon     delivery    to  him    uc-  Dak.    398,    152    N.    W.    696;    Houston, 

quires     absolute     dominion     over     the  etc.,    Ry.    Co.    v.    Iverson     (Tex.    Civ. 

goods,  with  the  right  to  sell  and   dis-  App.),  196  S.  W.  908. 

pose  of  them  at  such  prices  and  upon  31.  Swank   v.   Moison,   85   Oreg.   662, 

such  terms  as  he  shall  see  fit  and  be-  166  Pac.  962. 

comes  bound  to  pay  a  stipulated  sum  32.  Overland     Sales     Co.     v.     Pierce 

for  them,  either  at  a  specified  time  or  (Tex.  Civ.  App.)   225  S.  W.  284. 

upon     the    happening     of    any   futuro  33.  Stein  v.  Scarpa  (N.  J.),  114  Atl. 

event,  as,  for  instance,  when  he  shall  245. 

have  sold  thean,  he   becomes  the  pur- 


Sales  of  Motor  Vehicles.  1067 

a  popularity  contest  conducted  by  the  paper  and  that  such 
contest  was  possibly  a  lottery,  did  not  affect  the  validity  of 
the  contract  between  the  newspaper  and  the  former  owner.^** 

Sec.  854.  Validity  of  sale  —  statute  of  frauds. 

Statutes  of  frauds  have  been  enacted  in  every  state  requir- 
ing that  contracts  for  the  sale  of  personal  property  over  a 
certain  value  to  be  in  writing  signed  by  the  party  sought  to  be 
bound  by  the  contract,  unless  a  part  of  the  purchase  price  is 
paid  or  a  part  of  the  property  is  delivered.  The  exact 
phraseology  differs  in  some  of  the  States.  The  value  of 
motor  vehicles  generally  exceeds  the  prescribed  value  so  that 
executory  contracts  for  the  sale  of  such  machines  are  usually 
within  the  terms  of  the  statute.^'"*  But,  according  to  the  gen- 
eral practice  of  dealers,  a  part  of  the  purchase  price  is  re- 
quired at  the  time  of  the  sale,  and  hence  the  statute  is  satis- 
fied.^^ A  completed  contract  is  established  when  it  appears 
that  a  party  signed  a  blank  order  for  a  particular  machine  and 
gave  a  check  for  a  substantial  part  of  the  purchase  price,  al- 
though it  was  understood  that  he  was  to  send  another  check 
for  the  same  amount  in  place  of  the  check  given,  the  substitu- 
tion being  to  enable  him  to  furnish  a  check  properly  numbered 
out  of  his  own  check  book.^'^  The  clause  of  the  statute  re- 
quiring agreements  to  answer  for  the  debt,  etc.,  of  another  to 
be  in  writing  does  not  extend  to  an  agreement  whereby  two 
persons  become  joint  promisors  and  co-debtors  of  the  seller; 
and,  hence  when  a  machine  is  sold  to  a  son,  but  the  father 
jointly  promises  with  the  son  to  pay  the  purchase  price,  the 
father  may  be  liable  though  the  agreement  is  not  reduced  to 
writing.^® 

Sec.  855.  Validity  of  sale  —  seller  not  owning  machine. 

The  fact  that  a  dealer  or  other  person  agreeing  to  sell  a 
motor  vehicle  is  not  an  owner  of  one,  does  not  necessarily  \n- 

34.  Watkins  v.  Curry,  103  Ark.  414,       417,  144  N.  W.  887. 

147  S.  W.  43.  37.  American    Auto    Co.    v.    Perkins, 

35.  Poplin   V.   Brown,   200  Mo.   App.       83  Conn.  520,  77  At].  954. 

255,  205  S.  W.  411.  38.  Bryant    v.    Panter     (Oree.).     178 

36.  Meyer    v,     Shapton,     178     Mich.       Pac.  989. 


1068  The  Law  of  Automobiles. 

validate  tlie  contract.  In  case  even  of  the  non-existence  of  a 
thing  which  is  the  subject  of  an  executory  contract  of  sale,  the 
agreement  may  be  enforceable,  and  it  becomes  the  duty  of  the 
vendor  to  produce  or  acquire  it."*^  Where  the  owner  of  a 
motor  vehicle  stands  by  and  permits  another  to  sell  the  ma- 
chine without  objection,  the  owner  will  generally  be  estopped 
to  dispute  the  title  of  the  purchaser.  But  such  estoppel  does 
not  arise  unless  the  purchaser  by  his  reliance  on  the  conduct 
of  the  parties  suffered  substantial  loss  or  altered  his  condition 
for  the  worse.^^  In  some  States  one  wlio  procures  an  automo- 
bile by  fraudulent  purchase  cannot  convey  a  good  title  to  a 
third  person  as  against  the  original  owner.*^  In  other 
States,  the  third  person,  if  a  purchaser  in  good  faith  and  for 
value,  acquires  a  good  title.*- 

Sec.  856.  Fraud  and  deceit. 

If  false  representations  of  material  facts  are  made  in  the 
sale  or  purchase  of  ^  motor  vehicle,  the  innocent  party  may 
be  entitled  to  recover  damages  on  the  theory  of  fraud  or  de- 
eeit..^^  Thus,  a  false  representation  as  to  the  age  or  model  or 
length  of  time  a  motor  vehicle  has  been  in  use,  is  actionable.^* 

39.  Meyer  v.  Shapton,  178  Mich.  417,  were  made  to  him;  second,  that  lie  be- 
144  N.  W.  887.  lieved  them  to  be  true;   third,  that  his 

40.  Martin  v.  Browii,  199  Ala.  250,  reliance  on  them  wa&  an  act  of  ordi- 
74  So.  241.  nary  prudence;    and,  fourth,  that  they 

41.  Knapp  v.  Lyman  (Oal.  App.),  influenced  his  action.  If  any  of  these 
186  Pac.  385.  elements   is   unsustained  by  proof,  the 

42.  Patterson  v.  Indiana  Investment,  whole  defense  mus.t  fail."  Morbrose 
etc.,  Co.  (Ind.  App.),  131  N.  E.  19;  Investment  Co.  v.  Flick,  187  Mo.  App. 
Linn  v.  Reid   (Wash.).  196  Pac.  13.  528,  174  S.  W.  189. 

43.  Luckenback  v.  Smith,  14  Cal.  Conveyance  in  fraud  of  creditors.— 
App.  139,  111  Pac.  266:  Checkly  v.  Prickett  v.  Peterson  (N.  Dak.).  179 
Joseph    Lay    Co.,    171    111.    App.    252;  N.  W.  718. 

Jones   v.   Magoon,    119   Minn.   434,    138  44.  Luckenback    v.     Smith,     14    Oal. 

X.  W.  686;  Darby  v.  Weber  Implement  App.   139,   111   Pac.   266;   Munn  v.  An- 

Co.    (Mo.   App.).' 208   S.   W.    116.      See  thony     (Oal.     App.).     171     Pac.     1082; 

also    Fleming   v.    Gerlinger   Motor    Oar  Knight  v.  Bent«l   (Oal.  App.),  179  Pac. 

Co.,  86  Greg.   195,   168  Pac.  289.      'To  406:     Conroy    v.    Ooughlon    Auto    Co., 

maintain    his    right    to    diminish    the  181  Iowa  916,  165  N.  W.  200;   Ross  v. 

stipulated    price    of    the    car    by    the  Reynolds.    112   Me.    223.    91    Atl.    952; 

amount    of    damages    he    sustained    in  Avery    Co.    v.    Staples    Mercantile    Oo. 

consequence   of   the   fraud,   it   devolved  (Tex.  Civ.  App.),  183  S.  W.  43;   Great 

\ipon   defendant   to   sliow:     First,   that  Western     Motors,      Inc.,      v.     Hibbard 

false  representations   of  material  facts  (Wash.).  192  Pac.  958. 


Sales  of  Motor  Vehicles.  1069 

The  sale  of  a  used  car  as  a  new  one  furnishes  ground  for 
legal  relief  to  the  pureliaser.^-"'  A  representation  that  a  motor 
vehicle  is  in  good  running  condition,  may  be  a  statement  of  a 
fact  or  an  expression  of  opinion,  according  to  the  understand- 
ing of  the  parties.'*'^  AVhere  a  purchaser  contracts  for  a  new 
motor  vehicle  in  good  condition,  and  the  one  delivered  is  not 
siich  and  the  seller  knows  the  condition  of  the  machine  at  the 
time  he  receives  the  consideration  from  the  purchaser,  the 
purchaser  ma}"  rescind  the  sale  and  recover  the  i)urchase 
money,*^  or  recover  damages.''^  And  a  misrepresentation  as 
to  the  horse  power  of  the  machine  may  be  ground  for  afford- 
ing the  purchaser  relief.*'"^  And,  too,  where  a  prospective  pur- 
chaser is  led  to  believe  that  a  third  person  desires  to  purchase 
the  machine  in  question,  there  may  be  a  charge  of  fraud.^^ 
The  rule  of  caveat  envptor  imposes  the  duty  on  the  purchaser 
of  giving  the  machine  a  reasonable  inspection,  and  he  cannot 
rely  on  the  statements  of  the  vendor  as  to  obvious  defects,  but 
as  to  hidden  defects  he  may  rely  on  the  representations  of  the 
vendor.^^    Thus,  a  purchaser  may  rely  on  a  statement  that 

45.  Anticich  v.  Motor  Car  Inn  Ca-  soundness.  Where  a  vendee,  by  neglect 
rage    (Miss.),   87   So.   279.  and    indiflerence    to    liis    own    interest, 

46.  Ross  V.  Reynolds,  112  Me.  22.3.  (lormits  liimsclf  to  he  overreached,  the 
91   Atl.  952.  law      afford-      him      no      redress,      be- 

47.  Taylor  v.  Fii-st  Nat.  Bank,  25  cause  of  his  owu  conduct  is  blame- 
VVyo.  204,   167  Pac,  707.  worthy.     If  he  has  the  opportunity,  he 

48.  Great  Western  Motors,  Inc.,  v.  must  investi;:;ate;  if  the  article  is  be- 
Hibbard   (Wash.),  192  Pac.  958.  lore  him  and  its  defects  are  apparent, 

49.  Joslyn  v.  Cadillac  Automobile  lie  may  not  rely  on  the  statement  of 
Co ,  177  Fed.  863,  101  C.  C.  A.  77;  the  vendor  that,  the  article  is  soimd. 
Halff  v.  .Jones  (Tex.  Civ.  App.i.  160  Imt  must  look  for  himself.  If  he  can 
S.  W.  906.  read,  he  must  read  the  contract  of  sale 

50.  Kanaman  v.  Hubbard  (Tex.  Civ.  before  its  execution,  and  may  not  take 
App),  160  S.  W.  304.  the   vendor's   word   as   to   its   content.^. 

51.  Morbrose  Investment  Co.  v  in  short,  the  vendee  must  make  rea- 
Flick,  187  Mo.  App.  ,528,  174  S.  W  sonable  use  of  opportunity,  and  his 
189.  "  The  rule  of  caveat  emptor  failure  to  do  this  leaves  him  remcdi- 
imposed  on  defendant,  who  ha«l  an  op  loss,  no  matter  what  the  conduct  of 
portunity  of  inspecting  the  car  before*  the  vendor  may  be.  Caveat  emptor 
buying  it,  the  duty  of  making  a  rea-  does  not  apply  to  hidden  defects  which 
sonable  examination,  and,  as  to  those  are  not  open  to  discovery  by  a  vendee 
defects  which  would  have  been  discov-  who  exercises  reasonable  care  in  tb.> 
erable  to  one  in  his  situation  who  ob-  examination  and  testing  of  the  subject 
served  reasonable  care,  he  cannot  com-  matter  of  the  negotiation.  As  to  such 
plain    of    the    false    representations    or  defects    he    is    entitled    to    rely    upon 


1070  The  Law  era'  Automobiles. 

the  car  lias  been  rebuilt,  but  not  on  a  statement  as  to  the  ex- 
terior of  the  ear,  such  as  the  painting,  etc^-  The  purchaser 
of  the  vehicle  may  be  the  party  who  is  guilty  of  fraud,  as 
where  he  makes  false  statements  as  to  the  consideration 
which  he  is  giving  for  the  macliine,  and,  in  such  a  ease  the 
seller  may  recover  of  the  buyer  the  difference  between  the 
value  of  the  vehicle  and  of  the  property  taken  in  exchange 
therefor.^^  In  an  action  for  deceit,  it  is  generally  necessary 
for  the  complaining  party  to  show  that  the  representations 
were  false  to  the  knowledge  of  the  opposing  party;  but  in  an 
action  for  the  rescission  of  the  contract,  it  is  sufficient  if  it  is 
shown  that  the  representations  were  in  fact  false  and  that 
he  had  a  right  to  rely  on  them  and  did  so  rely,  and  was  thereby 
deceived  into  entering  into  the  contract.^'*  To  entitle  one  to  a 
rescission  of  the  sale,  however,  the  misrepresentation  must  be 
one  which  worked  damage  to  the  complaining  party.^^  When 
a  party  seeks  to  recover  damages  for  fraud,  he  must  generally 
show  that  the  fraudulent  representations  results  in  a  pecuni- 
ary injury  to  him;  but,  where  the  fraud  is  relied  upon  as  a 
defense  to  the  enforcement  of  an  executory  contract,  it  is 
sometimes  held  that  if  the  false  representations  relate  to  a 
material  fact  the  law  implies  that  the  defrauded  party  has 
suffered  an  injury  sufficient  to  defeat  a  recovery.^^  The  fact 
that  the  bill  of  sale  for  the  automobile  states  that  the  instru- 
ment contains  the  entire  agreement  between  the  parties,  and 
that  no  representations,  warranties,  or  conditions,  other  than 
those  appearing  in  the  bill  of  sale,  shall  be  binding  on  the 
parties,  does  not  preclude  the  purchaser  from  introducing 
parol  evidence  to  show  frauaulent  representations  made  by 

representations  of  soundness  made  by  Hinckley  v.  Starrett,  91  ELans.  181,  137 

the  vendor,  and  the  latter  will  not  be  Pac.   18. 

heard  to  say  that  the  vendee  should  54.  Halff  Co.  v.  Jones  (Tex.  Civ. 
not  have  believed  him."  Morbrose  In-  App.),  169  S.  W.  906;  Smith  v.  Co- 
vestment  Co.  V.  Flick,  187  Mo.  App.  lumbua  Buggy  Co.,  40  Utah,  .580,  123 
528,  174  S.  W.  189.  Pac.  580.     See  also  Cheekly  v.  Joseph 

52.  Morbrose      Investment      Co.      v.  Lay  Co.,  171  111.  App.  252. 

Flick,    187    Mo.    App.    528,    174    S.    W.  55.  Alamo  Auto  Sales  Co.  v.  Herms 

189.  (Tex.  Civ.  App.),  184  S.  W.  740. 

53.  Van   Vliet-FIetcher   Auto   Co.   v.  56.  Case    Threshing    Machine    Co.    v. 
Crowell,  171   Iowa,  64,  149  N.  W.  861;  Webb   (Tex.  Civ.  App.),  181  S.  W.  853. 


S.VLES  OF  Motor  Vehicles.  1071 

the  vendor.^^  When  the  purchaser  has  been  fraudulently  im- 
posed upon  by  the  vendor  of  an  automobile,  but  nevertheless 
makes  a  payment  upon  and  ftives  a  renewal  note  for  the  con- 
sideration after  discovery  of  the  fraud,  he  thereby  waives  the 
fraud  and  affirms  the  contract.'"'' 

Sec.  857.  Warranties  —  in  general. 

Warranties  in  the  sale  of  chattels  are  divided  into  two 
classes,  express  warranties  and  implied  warranties.  To  cre- 
ate an  express  warranty,  it  is  not  necessary  that  the  word 
''  warrant  "  be  used;  nor  is  any  other  precise  form  of  expres- 
sion required  by  the  law.^^  Any  affirmation  of  the  quality  or 
condition  of  the  thing  sold,  not  uttered  as  a  matter  of  opinion 
or  belief,  made  by  the  seller  at  the  time  of  the  sale,  for  the 
puipose  of  assuring  the  buyer  of  the  truth  of  the  fact 
affirmed,  and  inducing  him  to  make  the  purchase,  if  so  re- 
ceived and  relied  on  by  the  purchaser,  is  an  express  war- 
ranty.^^  Whether  a  statement  is  a  warranty  may  be  a  matter 
of  intention.  The  test  for  determining  the  question  is  said 
to  be  whether  the  vendor  assumes  to  assert  a  fact  of  which 
the  buyer  is  ignorant,  or  merely  states  an  opinion,  or  his  judg- 
ment, upon  a  matter  of  which  the  vendor  has  no  special  knowl- 

57.  Tifl'any  v.  Times  Square  Auto  i-ireumstances  in  connection  with  all 
Co.,  168  Mo.  App.  729,  154  S.  W.  865:  the  evidence  on  the  trial,  and  when 
Case  Threshing  Machine  Co.  v.  Wobb  such  deduction  is  made,  if  it  rests 
(Tex.  Civ.  App.),  181  S.  W.  853;  upon  proper  and  suflBcient  evidence,  it 
Avery  Co.  v.  Staples  Mercantile  Co.  becomes  proof  as  a  fact  of  warranty." 
(Tex.  Civ.  App.),  183  S.  W.  43.  But  Denver  Suburban  Homes  &.  Water  v. 
see  Munn  v.  Anthony  (Cal.  App.),  171  Frigate,  163  Colo.  423,  168  Pac.  33. 
Pac.  1082.                    *  Capacity    of    truck. — See  Oldfield  v. 

58.  Adams  v.  Overland  Automobile  International  Motor  C«.  (Md.),  113 
Co.   (Tex.  Civ.  App.),  202  S.  W.  207.  Atl.  632. 

59.  Denver  S^urburban  Homes  &  Wa-  60.  Hackett  v.  Lewis  (Cal.  App.), 
ter  V.  Frigate  (Colo.),  168  Pac.  33;  173  Pac.  Ill;  White  Automobile  Co.  v. 
White  Automobile  Co.  v.  Dorsey,  119  lX>r9ey,  119  Md.  251,  86  Atl.  617; 
Md.  251,  86  Atl.  617.  "  No  special  Summers  v.  Provo  Foundry  &  Machine 
form   of  words  is  necessary   to  create  Co.,  53  Utah,  320,  178  Paa  916. 

a  warranty.     An  averment  at  the  time  Carrying  capacity   of   truck.— State- 

of  the  sale  is  a  warranty,  provided  the  ments  by  the  seller  as  to  the  carrying 

jury    find    from    the    evidence    on    the  capacity  of  a  truck,  may  constitute  an 

trial  it  was  so  intended;  and  such  in-  •'xpre^s    warranty.      Hackett    v.    Lewis 

tention   may  be  reached   as   an   infer-  (Cal.  App.),   173  Pac.   111. 
cnce   or  deduction   from   the    facts   and 


1072  The  Law  of  Automobiles. 

edge,  and  on  wliich  the  buyer  may  also  be  expected  to  have  an 
opinion  and  to  exercise  his  judgment.*^^  Where  a  machine 
is  warranted  against  defects  in  manufacture  and  workman- 
ship, an  agreement  by  the  seller  to  overhaul  the  car  without 
cost  after  a  trip  is  not  a  part  of  the  warranty,  but  is  a  special 
agreement.^2  ^  warranty  made  after  the  contract  of  sale  is 
completed  is  inoperative  unless  there  is  a  new  consideration 
to  support  it.^^  Where  a  vehicle  is  purchased  from  a  dealer 
who  does  not  stand  in  the  relation  of  agent  to  the  manufac- 
turer, and  at  the  time  of  the  sale  he  delivers  to  the  purchaser 
the  manufacturer's  warranty  of  the  machine  which  is  con- 
ditioned upon  the  purchaser  registering  the  sale  with  the 
manufacturer,  and  the  purchaser  fails  to  perform  the  condi- 
tions, and  the  dealer  makes  no  express  warranties,  the  pur- 
chaser has  no  remedy  for  alleged  breach  of  warranty.^* 

Sec.  858.  Warranties  —  caveat  emptor. 

The  rule  of  caveat  emptor  —  let  the  buyer  beware  —  is  ap- 
plicable in  the  sale  of  motor  vehicles,  as  well  as  of  other 
articles  of  personal  property.  In  the  absence  of  an  express 
warranty  or  a  warranty  which  is  implied  by  the  law  under 
some  circumstances,  the  rule  of  caveat  emptor  applies.  It  is 
a  general  rule  that  if  an  article  is  sold  for  any  and  all  pur- 
poses for  which  it  is  adapted,  and  not  by  a  manufacturer  or 
producer  for  a  particular  purpose,  and  it  is  open  to  inspection 
by  the  buyer,  the  rule  of  caveat  emptor  applies.^^  But  in  the 
case  of  a  sale  with  dn  express  warranty  of  condition,  the  doc- 
trine of  caveat  emptor  does  not  apply.^®  Hence,  under  such 
a  warranty,  where  the  purchaser  had  no  knowledge  of  the 
defects  in  the  machine,  the  fact  that  he  had  an  opportunity  to 
examine  the  machine  and  failed  to  exercise  his  opportunity, 
will  not  bar  him  from  relief  for  a  violation  of  the  warranty.^* 

61.  International    Harvester     Co.     v.       App.),   176  S.   W.   152. 

Lawyer,  56  Okla.  207,  155  Pec.  617.  65.  Woods  v.   Nichols,  92  Kans.  258. 

62.  Warren   v.    Renault    Freres   Sell-        140  Pac.   862. 

ing  Branch,  195  111.  App.  117.  66.  Kloek     v.     Newbury.     63     Wash. 

63.  Underwood      v.     Colburn     Motor       153.  114  Pac.   1032. 

Car  Co.,  166  N.  C.  458,  82  S.  E.  855.  67.  Klock     v.     Newbury,     63     Wash. 

64.  Simmons    v.    Rugglcs    (Tex.    Civ.        I.i3.  114  Pac.   1032. 


Sales  of  Motor  Vehicles.  1073 

Sec.  859.  Warranties  —  "  seller's  talk." 

Some  latitude  is  allowed  aiitoiiiobilc  salesmen  in  giving 
opinions  and  praise  of*  their  machines,  before  their  statements 
will  be  held  to  constitute  a  warranty.*''*'  A  mere  puffing  state- 
ment by  the  seller  as  to  the  quality  of  an  article  sold  or  ex- 
changed is  generally  regarded  as  an  expression  of  opinion 
and  of  itself  does  not  constitute  a  warranty.^'^  Thus,  state- 
ments by  an  automobile  agent  that  the  machine  had  been  run 
as  a  demonstrating  car  about  500  miles  and  was  in  first  class 
condition,  is  thought  to  be  merely  "  seller's  talk."  '^'^'  So,  too, 
representations  relative  to  a  demonstrating  car  that  it  was  in 
first  class  condition,  as  good  as  new  car,  and  that  it  was  guar- 
anteed to  go  eleven  miles  to  a  gallon  of  gasoline  on  the  aver- 
age, do  not  constitute  a  guaranty.'^i  And  a  statement  that 
tires  on  a  car  "  are  good  for  two  thousand  miles,"  may  be 
regarded  merely  as  the  opinion  of  the  vendor."^^  Similarly,  a 
statement  that  tires  on  an  automobile  are  "  as  good  as  new," 
is  not  a  statement  of  a  present  existing  fact  made  to  induce 
the  purchase,  but  is  merely  the  expression  of  an  opinion."^"' 
Likewise,  in  the  case  of  a  sale  of  an  automobile  to  a  rural  mail 
carrier,  a  statement  that  it  would  give  swifter  and  better  ser- 
vice than  the  horse  the  carrier  was  using  is  only  an  expression 
of  opinion  or  belief  on  which  the  purchaser  may  use  an  inde- 
pendent judgment,  and  must  be  regarded  as  mere  commenda- 
tion and  not  as  a  warranty.'''^  In  some  cases  the  question 
whether  statements  are  intended  and  understood  as  waj'- 
ranties,  or  simply  as  selling  arguments,  is  determined  from 
the  circumstances  of  the  case,  but  the  burden  of  showing  that 
the  statements  were  intended  as  a  warranty  is  upon  the  pur- 
chaser."^^   Under  the  Uniform   Sales  Act,   which   has   been 

68.  Warren     \.     Walter    Automobile       Gehee,  136  Ark.  597,  207  S.  W.  37. 
Co.,  50  Misc.  605,  99  N.  Y.  Suppl.  396.  72.  Woods  v.  Nichols,  9-2  Kans.  258. 

69.  Woods  V.  Nichols,  92  Kans.  258.       140  Pac.  862. 

140  Pac.   S62;   International   Harvester  73.  Warren     v.     \\'alter     Automobile 

Co.  V.  Lawyer.  56  Okla.  207.   155   Pac.  Co.,  50  Misc.  605.  99  N.  Y.  Suppl.  396. 

617.  74.  Farris    v.    Alfred.    171    111.    App. 

70.  Morley      v.      Consolidatetl      Mfff.  172. 

Co.,  196  Mass.  257,  81   N.  E.  993.  75.  Rittenhouse-Winterson    Auto   Co. 

71.  Smith    V.    Bolster.    70    Wash.    1,       v.  Kissner.    129  Md.   102,  98   Atl.   361: 
125  Pac.  1022.     Compare  BrowTi  v.  Mc- 

68 


1074  The  Law  of  Automobiles. 

enacted  in  many  States,  any  affirmation  of  fact  or  any  promise 
by  the  seller  relating  to  the  goods  is  an  express  warranty,  if 
the  natural  tendency  of  such  affirmation  or  promise  is  to  in- 
duce the  buyer  to  purchase  the  goods,  and  if  the  buyer  pur- 
chase the  goods  relying  thereon,  but  no  affirmation  of  the 
value  of  goods  or  any  statement  purporting  to  be  a  statement 
of  the  seller's  opinion  only  shall  be  construed  as  a  war- 
rantyJ^ 

Sec.  860.  Warranties  —  machine  sold  on  "  usual  warranty.'* 
In  an  action  by  the  purchaser  of  an  automobile  for  a  breach 
of  warranty  in  the  sale  which  he  claims  was  sold  under  the 
'^  usual  warranty,"  the  burden  is  upon  him  to  show  what  the 
* '  usual  warranty  ' '  was.'^^ 

Sec.  861.  Warranties  —  guaranty  of  satisfaction. 

Motor  vehicles  are  sometimes  sold  under  a  guaranty  that 
they  shall  give  satisfaction.  Under  a  guaranty  of  this  nature, 
a  purchaser  who  is  dissatisfied  with  his  purchase  may  return 
the  machine  and  recover  the  payment  made  thereon."^*^  A 
guaranty  of  this  nature  will  survive  the  acceptance  of  the  ma- 
chine by  the  purchaser  and  allow  him  a  reasonable  time  to  be- 
come dissatisfied."^^     A  determination  by  the  purchaser  made 

76.  Rittenhouse-Winterson  Auto  Co.  '  on  a  max?hine  like  the  one  he  pur- 
V.  Kissner,  129  Md.  102,  98  Atl.  361;  chased  was  for  one  year  is  not,  in  the 
Summers  v.  Provo  Foundry  &  Ma-  absence  of  evidence  tending  to  show 
chine  Co.,  53  Utah   320,   178  Pac.  916.  that    Mrs.    Smith    was    an    authorized 

77.  Johnson  v.  Studebaker  Corp.,  agent  of  the  defendant,  and  in  the  face 
160  Ky.  567,  169  S.  W.  992,  wherein  of  positive  evidence  to  the  effect  that 
it  was  said!  "Plaintiff  might  have  she  was  not  an  authorized  agent,  corn- 
shown  by  the  officers  who  were  author-  petent  to  prove  what  the  usual  guar- 
ized   agents  of  the  company  what  the  anty  was." 

usual  guaranty  was  at  the  time  of  his  78.  Boeder  v.  Kenmore  Mfg.  Co..  181 

purchase;    or    he    might    have    shown  111.   App.   463;   Walker  v.   Grout   Bros, 

that  its  authorized  agents  at  that  par-  Automobile  Co.,  124  Mo.  App.  628,  102 

tieular   time,   in   maJking   sales   of    de  S.   W.   25;    Dochtermann,   etc.,    Co.   v. 

fendant's    automobiles,    were   giving   a  Fiss,  Doerr   &  Carroll  Horse  Co.,   155 

particular    guaranty.      This,    however,  App.  Div.  162,  140  N.  Y.  Suppl.  72. 

he  failed  to  do.    The  mere  fact  that  he  79.  Bedford  v.  Hoi-Tan  Co.,   143  N. 

or    two    former    purchasers    had    been  Y.    App.    Div.    372,    128   N.   Y.   Suppl. 

told  by  Mrs.  Smith  thait  the  guaranty  578. 


Sales  of  Motob  Vehicles.  1075 

in  good  faith  that  the  warranty  has  not  been  fulfilled  is  usually 
conclusive.®^ 

Sec.  862.  Warranties  —  warranty  of  future  service. 

A  representation  that  a  motor  vehicle  will  give  a  certain  de- 
gree of  service  for  a  given  period,  may  or  may  not  be  a  war- 
ranty, depending  on  the  form  of  the  statement.  A  statement 
of  this  class  is  not  merely  a  prediction  of  the  service  which 
may  be  expected.®^  In  some  cases  it  may  be  construed  as 
warranty.®^  An  automobile  vendor  by  such  an  agreement 
warrants  that  the  machine  is  in  a  fit  condition  for  use  and  that 
it  will  run  the  given  period  when  used  as  contemplated  by  the 
parties,  with  proper  care  and  use,  if  the  purchaser  makes  the 
necessary  repairs  incident  to  such  use.®^  Or,  if  not  a  war- 
ranty, it  may  be  construed  as  an  agreement  to  furnish  certain 
repairs  and  equipment  thereto  so  as  to  keep  the,  machine  in 
proper  running  condition  during  the  term.  The  distinction 
may  be  important,  for  the  purchaser  would  have  the  right  to 
rescind  the  sale  in  case  of  a  breach  of  warranty,  but  would 
not  have  such  privilege  if  the  contract  were  construed  merely 
as  an  agreement  to  keep  the  machine  in  repair. ^^  A  guaranty 
that  the  automobile  will  be  free  from  defects  for  a  year  car- 
ries with  it  necessarily  a  contract  of  warranty  that  the  auto- 
mobile is  at  the  time  of  the  sale  of  sufficiently  good  workman- 
ship and  materials  to  run  a  year  under  ordinary  and  proper 
use  without  manifesting  defects.^^  Where  the  provisions  of 
the  contract  of  an  automobile  company  in  respect  to  the  re- 
pairing or  replacing  of  parts  of  the  car  which  might  break  in 

80.  Halff  V.  Jones  (Tex.  Civ.  App.),  to  be  capable  of  standing  proper  nse 
169   S.   W.   906.  for  one  year,   ordinary   wear  and   tear 

81.  rvittenhouse-Winterson  Auto  Co.  excepted,  and  that  they  would  become 
V.  Kissner,  129  Md.  102,  98  Atl.  361.  answerable   for   any   defect  that  might 

82.  rtittenhouse-Winterson  Auto  Co.  occur  during  that  time  not  due  to  im- 
V.  Kissner,  129  Md.  102,  98  Atl.  361;  proper  use  of  the  car  by  defendant." 
Beecroft  v.  Van  Schaick,  104  N.  Y.  Miller  v.  Zander,  85  Misc.  499,  147  N. 
Suppl.  458.  Y.  Suppl.  479. 

83.  Jones    v.    Keefe,    159    Wis.    584,  84.  Miller   v.   Zander.    85   Misc.    (N. 
150  N.   W.   954.     •' Plaintiffs,  by   their  Y.)    499,  147  N.  Y.  Suppl.  479. 
guaranty    for    one    year,    agreed,    not  85.  Miller  v.  Zander,  85  Misc.  (N.  Y. 
merely   to  make   rep;uvs,   Imt   th:it   the  499,  147  N.  Y.  Suppl.  479. 
automobile  was  so  well  constructed  as 


1076  The  Law  of  Automobiles. 

normal  service  liad  expired  by  limitation  and  the  only  part  of 
the  agreement  that  remained  in  force  was  a  provision  for  an 
overhauling  of  the  car,  it  was  decided  that  there  was  no  liabil- 
ity to  furnish  new  parts,  except  in  the  course  of  overhauling, 
which  it  was  to  do  at  its  factory.^^  Statements  that  the  ma- 
chine can  be  driven  over  the  roads  in  a  certain  vicinity  may 
constitute  an  express  warranty.^''^ 

Sec.  863.  Warranties  —  Implied  warranty  of  fitness. 

It  is  a  general  rule  in  the  law  of  sales  that  when  machinery 
is  sold  for  a  particular  purpose  and  the  purchaser  trusts  to 
the  judgment  or  skill  of  the  manufacturer  or  dealer,  there  is 
an  implied  warranty  that  the  property  shall  be  reasonably  fit 
for  the  purposes  for  which  it  is  to  be  applied.^^  This  doctrine 
is  applied  whether  the  subject  of  the  contract  is  already  manu- 
factured and  in  stock,  or  is  to  be  made  on  the  purchaser's 
order.^^  So,  too,  in  the  case  of  a  sale  of  automobile  chains  by 
sample,  the  seller  warrants  by  implication  that  the  chains  are 
fit  for  the  purpose  they  are  intended  to  serve.'''^  But  where 
the  purchaser  selects  liis  own  machine  and  assumes  the  pro- 
priety of  his  selection,  and  the  dealer  delivers  him  the  selected 
machine,  there  is  no  warranty  that  it  is  fit  for  the  purchaser's 

86.  Barry    v.    American    Locomotive  Car  Co.,  78  Oreo-.  2.30.   152  Pac.  888. 
Automobile  Co.,  113  N.  Y.  Suppl.  826.  89.  Berg    v.     Rapid    Motor    Vehicle 

87.  International    Harvester    Co.    v.  Co.,  78  N.  J.  Law,  724,  75  Atl.  933. 
Lawyer.  56  Okla.  207,  155  Pac.  617.  90.  Steering  Wheel  Co.   v.   Fee  Elec. 

88.  /wdio-wa.— Hart-Kraft  Motor  Co.  Car  Co..  174  Mich.  512,  140  N.  W. 
V.  Indianapolis  Motor  Car  Co.,  183  10 It'.,  wherein  the  court  said:  "There 
Ind.  311,  109  N.  E.  39.  seom.s  to  be  in  the  authorities  no  dis- 

Kentucky. — International,     etc.,     Co.  agreement  that  the  rule   in  such  cases 

V.  Bean,   159  Ky.  842,   169  S'.  W.  549;  is   that   there   is   an   implied   warranty 

International  Harvester  Co.   v.  Porter,  of  the  reasonable  fitness  of  the  article 

160  Kv.  509,  169  S.  W.  993.  for  the  use  intended,  and  from  a  care- 

Michigan. — Buick  Motor  Col  v.  Reid  ful  examination  of  the  cases  upon  the 

Mfg.   'Co.,    150   Mich.    118.    113   N.    W.  suljjcct    it    is    apparent    that    no    dis- 

59]_  tinction    can    be    made     in    the    appli- 

Missouri. — Boulware   v.  Victor  Auto  cation    of    this    rule    lietween    cases    of 

Mfg.  Co.,  152  Mo.  App.  567,  134  S.  W.  this    class    and    cases    where    the    ma- 

7;    Harvev   v.   Buick   Motor    Co.    (Mo.  chinery    or   other    articles    are    ordered 

App.),  177  S.  W.  774.  from     manufacturers     for     a     certain 

Neio  Jersey. — Berg   v.    Rapid   Motor  specified     purpose,    where    reliance    is 

Vehicle  Co..  78  N.  J.  Law.  724.  75  Atl  .  bad    upon    the   skill    and   judgment   of 

f)33_  such   manufacturer." 

Oregon. — Bouchet    v.    Oregon    Motor 


Sales  of  Motor  Vehicles.  1077 

purposes."'  Nor  will  a  warranty  be  implied  in  the  sale  of  a 
second  hand  niachine.'^-  And  there  is  no  implied  warranty 
as  to  the  length  of  time  that  the  crank  shaft  on  the  machine 
will  stand  the  strain  of  use.^'  An  implied  warranty  of  this 
nature  does  not  require  more  than  reasonable  fitness  for  the 
purpose.  Absolute  perfection  is  not  implied.'^^  And  it  has 
been  held  that  when  the  sale  is  by  a  dealer,  not  by  the  manu- 
facturer, there  is  no  implied  warranty  as  to  latent  defects.®'' 
It  is  the  duty  of  the  purchaser  under  an  implied  warranty  to 
inspect  the  property  purchased  within  a  reasonable  time  after 
its  delivery .^^ 

Sec.  864.  Warranties  —  effect  of  express  contract  on  implied 
warranty. 

In  some  States  it  is  held  that,  when  there  is  a  written  con- 
tract for  the  sale  of  a  motor  vehicle,  wliicli  contains  certain 
express  warranties  relative  to  the  machine,  there  is  no  room 
for  the  law  to  imply  other  warranties.'^^  In  other  States  an 
implied  warranty  of  fi.tness  is  given  effect,  though  the  contract 

91.  Flaherty  v.  Maine  Motor  Car-  purchase, — in  other  words  the  ma- 
riage  Co.  117  Me.  376,  104  Atl.  627.  chine   was    an    automobile    in    running 

92.  Lamb  v.  Otto  (Cal.),  197  Pac.  order,  and,  after  the  purchase,  was  ac- 
147.  tually  used  by  the  plaintiff  nearly  if 

93.  Morley  v.  Consolidated  Mfg.  Co.,  not  quite  two  months  before  the  shaft 
196  Mass.  257,  81  N.  E.  993,  wherein  it  broke.  If  the  shaft  had  been  stronger 
was  said:  "We  are  also  of  opinion  it  might  have  lasted  for  a  longer  time, 
that  there  was  no  implied  warranty  There  is  no  claim  of  fraud.  Under 
as  to  the  length  of  time  this  crank  these  circumstances  we  think  that 
shaft  would  stand  the  strain  of  use.  there  was  no  implied  warranty  as  to 
The  subject  of  sale  was  an  automobile.  the  length  of  time  the  shaft  would 
Even  if  it  be  assumed  that  the  plain-  last,  but  as  to  that  the  doctrine  of 
tiff  had  the  right  to  think  the  sale  was  caveat  emptor  is  applicable." 

made    by    the    manufacturer,    still    the  94.  Harvey  v.  Buick  Motor  Co.   (Mo. 

machine    was   not   made   especially    for  App.),  177  S.  W.  774. 

the  plaintiff,  but  on   the  contrary  was  95.  Hoyt    v.  ITainsworth    Motor    Co. 

(me  which  had  been  considerably  used.  (Wash.),   192  Pao.  919. 

and  it  was  bought  l)y  him  at  what  he  96.  Buick    Motor    Co.    v.  "Reid    Mfg. 

knew  was  a  sum  below  the  usual  price  Co..  1-50  Mich.  118,  113  N.  W.  591. 

for  a  new  machine  of  the  same  kind.  97.  United    Motor     Atlanta    Co.    v. 

If  it  be  said  that  he  had   the  right  to  Paxon   Bros..    14   Ga.   App.    172,   80  S. 

suppose  it  was  fit   to  run    the  answer  E.  704;   Payne  v.  Ohal-Max  Motor  Co. 

is  that  it  was  fit  to  run.     Every  part  (Ga.    App.),    104    S.    E.    453:    Mull    v. 

essential    to   the    running    of    the    ma-  Touchberry.    112    S.    Car.    422.    100    S. 

(bine    was    there    at    the    time    <»f    the  E.    152. 


1078  The  Law  of  Automobiles. 

is  in  writing  and  specifies  other  warranties  by  the  seller.^^ 
*'  An  express  warranty,  to  exclude  an  implied  warranty,  must 
be  of  such  a  character  as  to  make  it  apparent  that  the  express 
warranty  contains  all  the  obligations  assumed  by  the  war- 
rantor." ®^  Both  warranties  may  exist  without  conflict,  when 
ihe  implied  warranty  is  wholly  independent  of  the  matter  con- 
templated by  the  express  one  or  where  the  express  warranty 
relates  only  to  some  particular  quality  of  the  car.^  But  an 
implied  warranty  has  been  given  effect,  even  when  the  con- 
tract expressly  provides  that,  **  This  express  warranty  ex- 
cludes all  implied  warranties, "  ^  But  generally  a  warranty 
will  not  be  implied  when  the  contract  is  written  and  contains 
certain  warranties  and  then  provides  that  no  others  are  to  be 
implied.^ 

Sec.  865.  Warranties  —  damages. 

As  a  general  rule,  in  case  of  a  breach  of  warranty  in  the 
sale  of  a  motor  vehicle  or  other  personal  property,  the  meas- 
ure of  the  purchaser's  damage  is  the  difference  between  the 
actual  value  of  the  machine  and  the  value  if  it  had  been  as 
represented.*     The  burden  is  upon  the  purchaser  to  show  that 

98.  Hart-Kraft  Motor  Co.  v.  Indian-  tended  use."  International,  etc..  Co.  v. 
apolis  Motor  Car  Co.,  183  Ind.  311.  109  Bean,  159  Ky.  842,  169  S.  W.  549. 
N.  E.  39;  International,  etc.,  Co.  v.  99.  Bonlware  v.  Victor  Auto  Mfg. 
Bean,  159  Ky.  842,  169  iS.  W.  549;  Co.,  152  Mo.  App.  567.  134  S.  W.  7. 
Boulware  v.  Victor  Auto  Mfg.  Co.  152  1.  Hart- Kraft  Motor  Co.  v.  Indian- 
Mo.  App.  567,  134  S.  W.  7.  "It  mu&t  apolis  Motor  Car  Co.,  183  Ind.  311, 
be  borne   in   mind    that   the    warranty  109  N.  E.  39. 

of   fitness  for  a   particular  u.sc.   which.  2.  International,    etc  .,  Co.    v.     Bean, 

is   implied   by   law   where   a    manufac-  "  1.59  Ky.  842,  169  S.  W.  549. 

turer    sells    machinery    for    a    purpose  3.  Oldfield     v.     International     Motor 

made    known    to    him     by    the    buyer  Co.    (Md.),  113  Atl.  632. 

thereof,  relying  on  the  skill  and  judg-  4.  California. — ^Moss    v.    Smith.    185 

ment  of  the  manufacturer  in  selecting  Pac.   385. 

machinery   adapted    thereto,   is   a  war-  Georgia. — Ceylona      Co.      v.      Selden 

ranty  which  attaches  itself  to  the  con-  Truck  Sales   Co.,  23  Ga.   App.   275,   97 

tract   of   sale,   independent  of   any  ex-  S.  E.  882. 

press    representation    by  the  manufac-  Illinois. — Overall    v.    Chicago    Motor 

turer    of    the    suitability    of    the    ma-  Car  Co.,  183  111.  App.  276. 

chinery   for   such   u.sc.     It   attaches  by  Kentucky. — Studebaker        Corp.      of 

implication  of  law  as  a  direct  result  of  America  v.  Miller,   169  Ky.  90,   183  S. 

the  communication  by  the  buyer  to  the  W.  256. 

manufacturer  of  tlie  nature  of  the   in-  Maryland. — ^White     .Automobile     Co. 


Sales  of  Motor  Vehicles.  1079 

he  has  sustained  damage  through  the  Ijreaoh  of  the  warranty  ;^ 
and  lie  cannot  recover  without  competent  evidence  of  the  value 
of  the  machine  with  the  defects.^  The  price  actually  ])aid, 
however,  is  strong  prima  facie  evidence  of  its  value  if  it  had 
corresponded  with  the  warranty .'^  But  the  price  received  at 
a  private  sale  a  year  later,  is  inadmissible  to  show  the  value 
at  the  time  of  the  warranty.^  Where  the  warranty  is  to  sup- 
ply without  charge  any  part  of  the  automobile  which  is  shown 
to  be  defective,  the  proper  measure  of  damages  is  the  cost  of 
supplying  such  defective  part  plus  the  loss  or  damage  which 
is  shown  to  be  the  natural  and  proximate  results  of  the 
breach.^  If  the  vendor,  after  being  notified  by  the  purchaser 
that  the  car  is  not  in  the  condition  as  warranted,  authorizes 
the  purchaser  to  make  repairs  to  the  machine  and  agrees  to 
pay  therefor,  the  purchaser  may  be  entitled  to  recover  the 
cost  of  such  repairs. ^^  But,  ordinarily,  the  purchaser  cannot 
recover  both  the  cost  of  repairs  and  the  difference  in  value, 
for  that  woi^ld  constitute  double  damages. ^^ 

V.   Dorsey,    119   Md.   251,  86   Atl.   617;  operation  rather  than  to  defects  in  the 

Rittenhouse-Winterson      Auto     Co.     v.  machine.     Conner  v.  Schnell  &  Weaver 

Kissner,   129  Md.   102,  98  Atl.  361.  (Tex.  Civ.  App.i     210  S.  W.  753. 

New  York. — Isaacs    v.    Wanamaker,  6.  White     Automobile    Co.    v.     Dor- 

189  N.  Y.   122,  81  N.  E.  763;    Bedford  .sey,  119  Md.  251,  86  Atl.  617;   Barley 

V.   Hoi-Tan   Co.,   143   N.    Y.   App.   Div.  v.  Shinn,  80  Wash.  240,   141   Pac.  326. 

372,    128   N.   Y.   Suppl.   578;    Miller  v.  Ann.  Cas.  1916  B.  96. 

Zander,  85  Misc.    (N.  Y.)    499,   147  N.  7.  White  Automobile   Co.   v.   Dorsey. 

Y.  Suppl.  479.  119  Md.  251,  86  Atl.  617. 

North  Caroiina.— Underwood  v.   Col-  8.  Bedford  v.  Hoi-Tan  Co.,  143  N.  Y. 

bum  Motor  Car  Co.,  166  N.  C.  458,  82  App.  Div.  372,  128  N.  Y.  Suppl.  578. 

S.  E.  855.  9.  Rossbach    v.    Fincher    Motor    Car 

Texas. — Lewis     v.    Farmers     &     Me-  Co.,  178  HI.  App.  559. 

ehanics  Nat.  Bank   (Civ.  App.),  204  S.  10.  Bakersfield  &  V.  R.  Co.  v.  Fair- 

W.   888.  banks  M.  &  Co..  20  Cal.  App.  412,  129 

Utah. — Sttudebaker  Bros,  of  Utah  v.  Pac.   010;    Underwood    v.   Colburn    Mo- 
Anderson,  50  Utah   319,   167  Pac.  663.  tor  Car  Co..  166  N.  Oar.   458,  82  S.  E. 

5.  Overall  v.  Chicago  Motor  Car  Co.,  855. 

183  111.  App.   276.  11.  Studebaker  Corp.   of   America   v. 

Defects    from    operation. — The    pur-  Miller.    169    Ky.    90,    183    S.    W.    256. 

chaser  cannot  recover  on  the  warranty.  Compare    Underwood    v.    Colburn    Mo- 

when    the    failure    of    the    car    to    run  tor  Car  Co..   166  N.  Car.  458.  82  S.  E. 

properly    is    due    to   his    own    careless  855. 


1080  The  Law  of  Automobiles. 

Sec.  866.  Warranties  —  parol  evidence  to  show  warranty. 

The  genera]  rule  is,  that,  when  a  written  contract  for  the 
sale  of  property  contains  the  entire  agreement  between  the 
parties,  parol  evidence  of  contemporaneous  agreements  is  in- 
admissible to  vary  the  written  agreement.^-  Thns,  it  is  held 
that,  where  a  machine  is  sold  under  a  written  contract,  j^lain 
and  unambiguous  in  its  terms  and  containing  a  statement  that 
there  have  been  no  verbal  understandings,  agreements,  prom- 
ises or  agreements  except  those  specified  therein,  parol  evi- 
dence of  representations  as  to  the  age  and  condition  of  the 
car,  alleged  to  have  been  made  by  the  vendor  in  negotiating 
the  sale,  is  not  admissible.^^  And  where  a  written  contract 
for  the  sale  of  an  automobile  was  explicit  and  unamgibuous 
as  to  the  horse  power  of  the  machine,  the  purchaser  cannot,  in 
the  absence  of  fraud  or  deceit,  recover  for  the  breach  of  an 
alleged  oral  warranty  to  the  effect  that  the  motor  would  de- 
velop greater  power.^'*  But,  if  the  written  instrument  on  its 
face,  is  not  the  final  repository  of  the  entire  agreement,  parol 
evidence  may  be  received  to  show  the  other  portions  of  the 
contract. 1-5  Thus,  where  the  guarantee  on  the  sale  is  stated 
to  be  ''  as  per  cat., "  the  purchaser  may  show  the  nature  of  the 
g-uarantee  by  oral  evidence.^  ^  And  a  mere  order  for  a  ma- 
chine, though  containing  certain  express  warranties,  will  not 
exclude  oral  evidence  tending  to  show  facts  which  will  raise 
an  implied  warranty  of  fitness.^'  Greater  latitude  is  allowed 
to  show  fraud  in  the  sale  of  the  machine  than  is  allowed  to 
prove  a  breach  of  warranty.^'' 

12.  Federal   Truck   &    Motors   Co.   v.  hand   machine   as    u    part   of   the   pur- 

Tompkins     (Ark.),     231     S.     W.     553;  chase   consideration.     Rafferty   v.   But- 

Lamb    v.    Otto    (Cal.).    197    Pac.    147:  ler,  133  Md.  430,   105  Atl.  530. 

Hogan    V.    Anthony     (Cal.    App.).    198  13.  Jones  v.  Kopfe,  1.59  Wis.  ,584,  150 

Pac.  47;    Studebaker  Corp.  of  America  X.  W.  954. 

V    Miller,   169  Ky.  90,   183   S.  W.  256;  14.  Colt  v.  Demarest  &  Co.,  159  App. 

Hebard  v.   Cutler,  91   Vt.   218.   99  Atl.  Div.  394,  144  K  Y.  Suppl.  557. 

^79.  15.  White    Automobile    Co.    v.    Dor- 
Consideration   of  contract. — Where  a  sey,  119  Md.  251.  S6  Atl.  617;  Bouohet 

fontraot  for  the  sale  of  an  automobile  v.  Oregon  Motor  Car  Co..  78  Oreg.  230, 

provides    for    a    money    consideration,  152  Pac^  888. 

the    purchaser    cannot    show    by    parol  16.  Craig   v.    Cliicago    Coach    &   Car- 

that  the  seller  agreed  to  take  a  second  riage  Co.,   172  III.   App.  564. 


Sales  of  Motor  Vehicles.  1081 

Sec.  867.  Warranties  —  waiver  of  breach  of  warranty. 

The  unconditional  acceptance  of  property  that  has  been  de- 
hvered  at  a  later  date  or  in  a  less  quantity  than  is  stipulated 
in  the  contract,  may  constitute  a  waiver  of  such  breach  of  the 
contract.i^     But,  the  purchaser  is  entitled  to  accept  a  machine 
though  it  is  not  in  agreement  with  the  warranty,  and  later  he 
may  sue  for  the  damages.-"^    Hence,  the  mere  acceptance  of 
the  machme  is  not  a  waiver  of  the  breach.^i     But  a  retention 
of  the  property  without  complaint  for  an  unreasonable  time 
afteT  a  discovery  of  the  breach  of  a  warranty,  may  constitute 
a  waiver  of  the  breach.^^     Provision  is  made  for  this  situa- 
tion in  the  Uniform  Sales  Law  adopted  in  many  States  to  the 
effect  that,  if  after  the  acceptance  of  goods,  the  buyer  fails  to 
give  notice  to  the  seller  of  the  breach  of  any  promise  or  war- 
ranty within  a  reasonable  time  after  the  buyer  knows  or  ought 
to  know  of  such  breach,  the  seller  shall  not  be  liable  therefor. 
But,  where  the  machine  is  repeatedly  sent  to  the  place  of  busi- 
ness of  the  seller  for  repairs,  so  that  he  was  thus  apprised 
of  the  difficulties  in  its  use  and  operation,  the  provision  of  the 
Uniform  Sales  Law  does  not  bar  the  purchaser's  remedy.-' 
The  giving  or  renewal  of  a  note  for  the  purchase  price  of  a 
motor  vehicle,  with  knowledge  of  defects  th^i^pin,  will  consti- 
tute, as  a  general  rule,  a  waiver  of  any  breaqh  of  warranty 
arising  from  such  defects;  but  this  rule  is  not  applicable 
where  the  seller,  as  a  consideration  for  the  renewal  of  the 
note,  promised  to  make  the  warranty  good  and  guaranteed 
that  the  defects  would  be  remedied  and  it  was  upon  this 
promise  that  the  renewal  note  was  made.--*     The  making  of  a 
partial  payment  or  the  giving  of  notes  for  Die  j.urchase  price 

17.  Boulware  v.  Victor  Auto  Mfg.  v.  Sturges  &  Co..  107  Miss.  848.  66  So. 
Co.,  152  Mo.  App.  567,  134  S.  W.  7.  205;  Bedford  v.  Hol-Tau  Co.  143  K  Y 
Compare  Hebard  v.  Cutler,  91  Vt.  218.  App.  Div.  372.  128  N.  Y.  Suppl.  578; 
99  Atl.  879.     And  see  section  863.  Miller  v.  Zander,  85  Misc.   (N.  Y.)  499. 

18.  See  section   867.  147  N.  Y.  Suppl.  479. 

19.  Stavor  Carriage  Co.  v.  Ameri-  22.  Bonds  v.  Marsh.  202  Ala..  155. 
can    etc.,  Mfp.  Co.,  188  111.  App.  634.  79   So.   630;    Buick   :Motor  Co.  v.  Reid 

20.  Section    870.  Mfg.  Co.,  150  Mich.  118,  113  N.  W.  591. 

21.  Staver  Carriage  Co.  v.  American.  23.  Rittenhous<-Winterson    Auto   Ok 
etc.,  Mfg.  Co.,  188  111.  App.  634;  Grcis-  v.  Kissner,  129  ^^Id.  102,  98  Atl.  361. 
sing  V.  Oakland   Motor  Co.,   204  Mich.  24.  Lockett  v.   Fxawlins.   13  Ga.  Apj). 
116.   169  N.  W.   842:    Mobile   Auto  Co.  52,  78  S.  E.  780. 


1082  The  Law  of  Automobiles. 

of  a  vehicle,  is  not  a  waiver  of  a  breach  of  warranty,  unless  an 
intent  to  waive  such  breach  is  shown. -•'' 

Sec.  868.  Warranties  —  statements  of  agent. 

Statements  made  by  an  agent  in  selHng  a  motor  vehicle  may- 
be binding  upon  his  principal.'-^  But  the  declarations  of  the 
agent  are  not  admissible  for  the  purpose  of  showing  his 
authority  from  the  principal.  An  agent  having  the  power  to 
sell  a  motor  vehicle  will  generally  have  implied  power  to  make 
such  warranties  as  are  usually  made  in  the  sale  of  similar 
machines."  The  actual  authority  of  the  agent  in  respect 
to  making  warranties  may  be  shown  by  the  principal,  although 
the  latter  may  be  bound  by  unauthorized  statements  of  the 
agent  when  they  are  within  his  apparent  authority .^^ 

Sec.  869.  Remedies  of  seller. 

The  seller  of  a  motor  vehicle  or  of  accessories  and  equip- 
ment is  entitled  to  recover  from  the  purchaser  the  agreed 
price ;  or,  in  the  absence  of  a  specific  agreement  as  to  price,  he 
may  recover  the  reasonable  value  of  the  property.-^  The 
seller  cannot  recover  the  purchase  price,  unless  he  has  per- 
formed the  conditions  of  the  contract  to  be  performed  by  him. 
Thus,  if  the  mai^hine  offered  for  delivery  is  not  in  accord  with 
the  specifications  of  the  one  purchased  and  the  buyer  refuses 
to  accept  it,  the  seller  cannot  recover  the  purchase  price.^® 
Strict  compliance  with  the  contract  is  required  in  such  cases, 
for  the  rule  of  substantial  performance  which  is  applied  in 
cases  of  building  contracts,  does  not  aid  the  vendor  of  a 

25.  International  Harvester  Ck).  r.  Syphor  Co.,  38  Cal.  App.  146,  175  Pac. 
Lawyer,  56  Okla.  207,  155  Pac.  617.  648;  Hardy  v.  Sparks   (Ga.  App.),  IQl 

26.  Lewis  v.  Pope  Motor  Car  Co.,  S.  E.  399;  McNabb  v.  Juergens  (Iowa), 
202  N.  Y.  402,  95  N.  E.  815;  Checkley  180  N.  W.  758;  Overland  Sales  Co.  v. 
V.  Joseph  Lay  Co.,  171  111.  App.  252.  Kaufman,  76  Misc.  (N.  Y.)  230,  134 
And  see  section  848.  N.  Y.  Suppl.  599. 

27.  International  Harvester  Co.  v.  Variance  in  proof. — See  Duke  v. 
Lawyer,  56  Okla.  207,  155  Pac.  617.  Automobile    Supply    Co.,    21    Ga.    App. 

28.  Lewis    v.    Farmers    &    Mechanica  608,  94  S.  E,  915. 

Nat.  Bank  (Tex.  Civ.  App.),  204  S.  W.  30.  Cole  v.  Manville,  149  N.  Y.  App. 


Div.  43,  133  N.  Y.  Suppl.  574. 


29.  Lugiani     v.     Landan     Economic 


Sales  of  Motor  Vehicles.  1083 

inotor  vehicle.^^     Where  a  corporation  selling  a  motor  vehiole 
agreed  to  take  a  part  of  the  purchase  price  out  of  the  divi- 
dends paid  by  the  corporation  on  stock  held  by  the  purchaser, 
the  transaction  was  sustained,  and  the  trustee  in  bankruptcy 
of  the  corporation  could  not  recover  the  purchase  price  from 
the  purchaser."'^^     If  the  purchaser  wrongfully  refuses  to  ac- 
cept the  car  when  offered  for  delivery,  the  seller,  under  the 
common  law  rule,  has  three  courses,  any  one  of  which  he  may 
pursue.    First,  he  may  sell  the  car  and  hold  the  purchaser  for 
the  remainder  of  the  purchase  price,  if  any;  second,  he  may 
tender  the  car  and  sue  for  the  purchase  price  unpaid ;  third, 
he  may  retain  the  car  and  sue  for  the  difference  between  the 
market  price  and  the  contract  price.^^    In  an  action  by  an  auto- 
mobile company  to  recover  damages  resulting  from  fraud 
and  deceit  in  securing  a  release  or  cancellation  of  an  order 
for  an  automobile,  it  was  held  that  a  recovery  for  loss  of 
profits  was  erroneous;  that  the  measure  of  damages  was  th(; 
difference  between  the  market  price  and  the  contract  price; 
and  that  plaintiff  was  entitled  1o  nominal  damages  only,  it 
appearing  that  the  automobile  had  a  standard  price  and  was 
sold  at  that  price  to  a  third  party  soon  after  defendant  pro- 
cured a  cancellation  of  his  order.^"    If  the  contract  has  been 

31.  Cole  V.  ManvillR,  149  N.  Y  App.  ing  to  the  buyer,  hold  it  after  tender, 
Div.  43,  133  N.  Y.  Suppl.  574.  subject  to  the   latter's   order,  and   re- 

32.  Hathaway  v.  Vaughan,  162  cover  the  full  agreed  price;  second,  the 
Mich.  269,  127  N.  W.  337.  vendor  may  sell   the  property   for  the 

33.  Ridden  v.  Lynch,  133  N.  Y.  buyer's  account  as  his  agent,  taking 
Suppl.  468;  Schuenemann  v.  Wollaeger  the  requisite  steps  to  protect  the  lat- 
Co.  (Wis.),  176  N.  W.  59.  See  also  tor's  interest  and  obtain  the  best  price 
Bennett  v.  Potter,  16  Cal.  App.  183,  available,  and  then  recover  the  differ- 
116  Pac.  681;  Faulk  v.  Richardson,  63  ence  betvi'een  the  proceeds  of  the  sale 
Fla.  135,  57  So.  666.  "It  is  well  set-  and  the  agreed  price;  and,  third,  the 
tied  by  a  long  line  of  decisions  in  this  vendor  may  treat  the  sale  as  ended  by 
state  that,  upon  the  refusal  of  a  buyer  the  buyer's  default  or  refusal  to  ac- 
to  accept  personal  property  which  he  cept  the  goods  and  treat  the  property 
has  contracted  to  purchase  from  the  a.s  his  and  recover  the  actual  loss  sus- 
vendor.  the  vendor  has  the  choicf*  of  tained,  which  is  ordinarily  the  differ- 
three  remedies:  First,  the  vendor  may,  ence  between  the  agreed  price  and  the 
if  the  contract  has  been  so  far  per-  market  price."  Weber  Motor  Car  Co. 
formed  by  him  that  the  property  is  v.  Roberts  (Mo.  App.).  219  S.  W.  994. 
ready  for  delivery  before  he  has  notice  34.  Chalmer.'s  Motor  Ox).  v.  Maibaum, 
of  the  buyer's  intention   to  decline  ao-  t.*^6   111.  App.  147. 

ceptance,  treat  the  property  as  belong 


1084 


The  Law  of  Automobiles. 


rescinded  by  mutual  consent  of  the  parties,  the  rescission 
constitutes  a  defense  to  an  action  for  the  purchase  price.^'' 


Sec.  870.  Remedies  of  purchaser  —  in  general. 

Ill  case  of  a  breach  of  warranty  in  the  sale  of  a  motor 
vehicle,  the  purchaser  generally  has  two  remedies.  First,  he 
may  return  the  chattel  within  a  reasonable  time  after  discov- 
ery of  the  breach  and  recover  the  pajoneiit  made  therefor.^*^ 
Or,  secondly,  he  may  retain  the  property  and  sue  for  damages 
resulting  from  the  breach.^^  And,  in  an  action  by  the  seller 
for  the  purchase  price,  he  can  set  up  the  breach  and  the  re- 
scission of  the  contract  as  a  defense,  or  he  may  retain  the 
machine  and  counterclaim  for  damages  for  breach  of  the  war- 
ran  ty.^^    Similarly,  in  case  of  a  purchase  induced  by  fraudu- 


35.  Megea-th  v.  Ashworth  (Utah), 
196  Pac.  338. 

36.  Section  871. 

37.  White  Automobile  Co.  v.  Dorsey. 
119  Md.  251,  86  Atl.  617;  Mobile  Auto 
Co.  v.  Sturgess  &  Co.,  107  Miss.  848. 
66  So.  205;  Cox  v.  Imes  (Mo.  App.), 
219  S.  W.  399;  Bedford  v.  Hoi-Tan 
Co.,  143  N.  Y.  App.  Div.  372,  128  N.  Y. 
Suppl.  578.  "  The  remedies  of  a  pur- 
chaser of  chattels  for  a  breach  of  his^ 
contract  are  well  settled  in  this  State. 
In  the  case  of  an  executed  contract  for 
the  sale  of  a  chattel  with  a  warranty, 
there  being  no  contract  right  or  obliga- 
tion to  return  the  chattel  if  it  does  not 
prove  to  be  as  warranted,  the  pur- 
chaser, in  the  absence  of  fraud,  cannot 
rescind  the  sale  and  reject  the  chattel. 
His  sole  remedy  is  an  action  or  coun- 
terclaim for  damages  for  the  breach  of 
the  warranty.  Minneapolis  Harvester 
Works  V.  Bonnallie,  29  Minn.  373.  13 
N.  W.  149;  Lynch  v.  Curfman,  65 
Minn.  170,  68  N.  W.  5;  Muleahy  v. 
Dieudonne,  103  Minn.  352,  115  N".  W. 
536.  If,  however,  the  warranty  is 
fraudulent,  the  purchaser  may,  within 
a  reasonable  time,  rescind  the  contract, 
return  the  property,  and  recover  back 
the  purchase  price,   or   affirm  the   con- 


tract and  maintain  an  action  for  dam- 
ages. Marsh  v.  Webster,  16  Minn.  375 
(418).  Where,  however,  the  contract 
of  sale  of  a  chattel  is  executory  or 
conditional,  the  purchase,  although  it 
be  warranted,  has  the  right  to  make  a 
trial  of  it,  reasonable  as  respects  both 
time  and  manner,  and  to  reject  it,  if 
it  does  not  fulfill  the  warranty  or  con 
dition,  by  so  notifying  the  seller.  He 
need  not  return  it,  but  he  will  be 
deemed  to  have  accepted  it  if  he  does 
not  exercise  his  right  of  rejection 
within  a  reasonable  time,  or  if  he  doe.< 
any  act  in  relation  to  it  inconsistent 
with  its  ownership  by  the  seller.  Mc- 
Oormick  Harvesting  Machine  Co.  v. 
Chesrown,  33  Minn.  32,  21  N.  W.  846: 
Rosenfield  v.  Swenson,  45  Minn.  19U. 
47  N.  W.  718;  Benjamin.  Sales,  212. 
What  is  a  reasonable  time  is  ordi- 
narily a  question  of  fact;  but,  where 
one  conclusion  can  reasonably  be  drawn 
from  the  undisputed  evidence,  it  is  a 
question  of  law."  Wirth  v.  Fawkes, 
109  Minn.  254,  123  K  W.  661.  And 
se.e  section  865. 

38.  Bedford  v.  Hoi-Tan  Co.,  143  X. 
Y.  App.  Div.  372,  128  N.  Y.  Suppl. 
578;  Philadelphia  Motor  The  Co.  v. 
Horowitch,    190   N.    Y.    App.   Div.    771. 


Sales  of  Motor  Vehicles. 


1085 


lent  representations,  the  purchaser  may  rescind  the  sale  on 
discovery  of  the  fraud,  or  he  may  sue  for  the  damages  he 
has  sustained.^"  Where  the  seller  of  an  automobile  receives 
a  note  for  a  part  of  the  purchase  price  and  negotiates  such 
note  to  a  holder  in  due  course,  in  an  action  thereon  by  such 
holder  against  ])oth  the  seller  and  the  purchaser  of  the  ma- 
chine, the  latter  cannot  set  up  a  cross-petition  against  his  co- 
defendant  for  breach  of  warranty  in  the  sale.^«  If  the  seller 
fails  to  deliver  the  purchased  property,  the  purchaser  may 
have  a  remedy  for  damages.^^ 

Sec.  871.  Remedies  of  purchaser  —  rescission  of  contract. 

The  purchaser  of  a  motor  vehicle  is  entitled  to  rescind  the 
purchase,  where  it  was  induced  by  fraudulent  representation? 
on  the  part  of  the  seller.^^  And  in  some  States  he  can  rescind 
the  sale  after  discovery  of  the  breach  of  a  warranty  inducing 
the  sale  '^     But,  in  other  States,  it  has  been  held  that  tne  pur- 


180  N.  Y.  Suppl.  661;  Sotille  v.  Stokes, 
ill  N.  C.  481,  98  S.  E.  334;  Stude- 
baker  Bros,  of  Utah  v.  Anderson,  50 
Co.,  177  Fed.  863,  101  C.  C.  A.  77; 
Utah,  319,  167  Pac.  663. 

39.  Joslyn  v.  Cadillac  Automobile 
Co.,  177  Fed.  863,  101  C.  C.  A.  77: 
Munn  V.  Anthony  (Cal.  App.),  171 
Pac  1082;  Boyd  v.  Buick  Automobile 
Co,  182  Iowa  306,  165  N.  W.  908; 
.Jones  V.  Norman  (Mo.  App.),  228  S.  W. 

895. 

40.  Fulton  Bank  v.  Mathew,  161 
Iowa  634,  143  N.  W.  400. 

41  A  R.  O.  Bus  Co.  V.  White  Auto 
Co.  '(Cal.  App.),  198  Pac.  829;  Mc- 
Laren V.  Marmon-Oldsmobile  Co.  (N. 
.].),  113  Atl.  236;  Denby  Motor  Truck 
Co.'  V.  Mears  (Tex.  Civ.  App.),  229 
S.  W.  994. 

42.  Joslyn  v.  Cadillac  Automobile 
Co.,  177  Fed.  863,  101  C.  C.  A.  77; 
Brown  v.  McGehee,  136  Ark.  597,  20V 
S.  W.  37;  Knight  v.  Bentel  (Cal.  App.), 
179  Pac.  406;  Conroy  v.  Ooughlon 
Auto  Co.,  181  Iowa  916,  165  N.  W. 
200;   Conroy  v.  Coughlon  Auto  Co.,  186 


Iowa  671,  171  N.  W.  10;  Kanaman  v. 
Hubbard  (Tex.  Civ.  App.),  160  S.  W. 
,304;  Fuller  v  Cameron  (Tex.  Civ. 
App.),  209  S.  W.  711;  Smith  v.  Colum- 
bus Buggy  Co.,  40  Utah  580,  123  Pac. 
580;  Taylor  v.  First  Nat.  Bank,  25 
Wy'o.  204,  167  Pac.  707. 

Damage.— To  entitle  one  to  rescind 

a    sale    on    the    ground   of    fraud,   the 

misrepresentation    on    which    he    relies 

must    be    one    which    resulted    in    his 

damage.      Alama    Auto    Sales    Co.    v. 

Herm»  (Tex.  Civ.  App.)   184  S.  W.  740. 

43.  International,  etc.,   Co.   v.   Bean, 

159    Ky.    842,   169    S.    W.    549;    White 

Automobile  Co.  v.  Dorsey,  119  Md.  251. 

86  Atl.  617;  Miller  v.  Zander,  85  Misc. 

(N.    Y.)    499,    147    N.    Y.    Suppl.    479; 

Halff    Co.    V.    Jones    (Tex.    Civ.    App-), 

169    S.    W.    906;    Studebaker   Bros,    of 

Utah    v.    Anderson.   50  Utah    319,    167 

Pac.    663.      See    also    Isaacs    v.    Wana- 

maker,  71    ^lisc.   55,   127   N.   Y.   Suppl. 

346. 

Contract  for  repairs.— In  a  particu 
lar  case,  the  •■ontract  of  sale  by  allow 
ing  the  seller  an  opportunity  to  make 


1086 


The  Law  of  Automobiles. 


chaser  is  not  entitled  to  a  rescission  merely  because  the  ma- 
chine delivered  does  not  fulfill  the  warranty.^"*  The  right  to 
rescind  a  sale  does  not  depend  upon  a  trust  relation  between 
the  parties,  but  may  be  exercised  in  the  absence  of  such  a  rela- 
tion."^^  One  wishing  to  rescind  the  purchase  must  tender  the  ma- 
chine to  the  seller  within  a  reasonable  time  or  he  will  lose  liis 
right  of  rescission.'^^  What  is  a  reasonable  time  must  in  each 
case  depend  on  the  circumstances,  and  is  usually  regarded  as  a 
question  for  the  jury  ;^'^  though  if  it  clearly  appears  that  the 
offer  to  return  was  not  made  within  a  reasonable  time,  the 
question  becomes  one  of  law  for  the  court.^^  If  the  pur- 
chaser retains  and  uses  the  machine  after  discovery  of  the 
situation,  he  may  be  deemed  to  have  waived  his  right  to  a 
rescission  of  the  contract  and  thereafter  his  only  remedy  will 


repairs,  may  preclude  a  i;escissiou  on 
account  of  repairs  covered  by  the  con- 
tract. Berman  v.  Langley  (Me.),  109 
Atl.  393. 

44.  Rimmele  v.  Huebner,  190  Mioh. 
247,  157  N.  W.  10. 

45.  Kanaman  v.  Hubbard  (Tex.  Civ. 
App.),  160  S.  W.  304. 

46.  Keniiuky. — 'International.  etc., 
Co.  V.  Bean,  159  Ky.  842,  169  S.  W. 
549;  International  Harvester  Co.  v. 
Brown,  182  Ky.  435,  206  S.  W.  622. 

Maryland. — White  Automobile  Co. 
V.  Dorsey,   119  Md.  251,  86  Atl.  617. 

Massachusetts. — Collins  v.  Skillinga, 
224  Mass.  275,  112  N.  E.  938. 

New  York. — Millar  v.  Zander.  85 
Misc.  499,  147  N.  Y.  Suppl.  479. 

Texas. — Flint  v,  Newton  (Civ. 
App.),  136  S.  W.  820;  Houston  Motor 
Car  Co.  V.  Brashear  (Civ.  App.),  158 
S.  W.  233;  Simmons  v.  Ruggles  (Civ. 
App.),  176  S.  W.  152;  Avery  Co.  v. 
Staple  Mercantile  Co.  (Civ.  App.),  183 
S.  W.  43;  Alamo  Auto  Sales  Co.  v. 
Herms   (Civ.  App.),  184  S.  W.  740. 

Utah. — ^Smith  v.  Columbus  Buggy 
Co.,  40  Utah  580,  123  Pac.  580;  Sum- 
mers V.  Provo  Foundry  &■  Machine  Co. 
<Utah),  178  Pac.  916. 

47.  Joslyn  v.  Cadillac  Automobile 
Co..    177    Fed.    863,    101    C.   C.   A.    77; 


i^onroy  v.  Coughlon  Auto  Co.  (Iowa), 
165  N.  W.  200;  International,  etc.,  Co. 
V.  Bean,  159  Ky.  842,  169  S.  W.  549; 
International  Harvester  Co.  v.  Brown 
(Ky.),  206  S.  W.  622;  Smith  v.  Colum- 
bus Buggy  Co.,  40  Utah,  580,  123  Pac. 
580.  "  While  a  party  is  bound  to  act 
promptly,  if  he  Avould  rescind,  upon 
discovery  of  the  fraud,  how  soon  this 
must  be  depends  on  the  facts  of  each 
particular  case.  One  is  not  bound  to 
suspect  fraud,  in  the  absence  of  any- 
thing to  arouse  suspicion.  He  may 
rely  upon  having  been  dealt  with  fair- 
ly until  the  discovery  of  evidence  tend- 
ing to  show  the  contrary,  and  the  de- 
gree of  diligence  in  following  up  the 
clues  uncovered  by  such  evidence  de- 
pends so  much  upon  circumstances 
that  no  unvarying  rule  can  well  be 
laid  down.  Nor  can  it  be  said  with 
certainty  within  what  time  after  the 
perpetration  of  fraud  has  been  ascer- 
tained, or  in  the  exercise  of  ordinary 
diligence  should  have  been  ascertained, 
an  election  to  rescind  must  be  exer- 
cised, save  that  this  must  be  done  at 
once,  or  Avithin  a  reasonable  time 
thereafter."  Conroy  v.  Coughlon  Auto 
Co..  181  Iowa  916,  165  N.  W.  200. 

48.  International    Harvester    Co.    v. 
Brown,   182  Ky.  435,  206  S.  W.  622. 


Sales  of  Motob  Vehicles. 


108' 


be  for  damages.^*^  The  time  within  which  the  right  is  to  be 
exercised  must  be  computed  from  the  discovery  of  the  fraud 
or  the  defect  on  which  rescission  is  based,  and  not  from  the 
date  of  the  sale;  but  the  buyer  must  use  reasonable  diligence 
to  ascertain  the  facts,  especially  if  there  is  anything  to  put 
him  on  inquiry .^<^  If  the  purchaser  uses  the  machine  for  a 
considerable  period  and  depreciates  its  value,  he  cannot  go 
into  equity  and  ask  for  a  rescission  without  offering  to  reim- 
burse the  seller  for  tlie  use  of  the  machine  and  the  injuvy 
which  has  been  occasioned  thereto.^^  A  right  of  rescission 
may  be  lost  if  the  property  while  in  the  hands  of  the  purchaser 
has  heen  damaged  to  such  an  extent  that  the  parties  cannot 
be  placed  in  statu  quo,^^  though  in  some  cases  subsequent  re- 
pairs wiU  obviate  the  objeetion.^^  But  a  delay  occasioned  by 
an  attempt  to  put  the  machine  in  proper  working  order,  will 
not  prejudice  the  right  of  rescission.-^^    Diligence  in  rescission 


49.  Hogan  v.  Anthony  (Cal.  App.)- 
198  Pac.  47;  Houston  Motor  Car  Co. 
V.  Brashear  (Tex.  Civ.  App.),  158  S. 
W.  233.  "  The  purchaser  of  an  article 
who  wishes  to  rescind  the  contract  of 
sale  cannot  play  fast  and  loose  in  the 
matter.  He  is  not  allowed  to  go  on 
and  derive  all  possible  benefit  fnvni 
thf  transaction  and  then  claim  the 
right  to  be  relievcMi  from  his  own  ob- 
ligations by  a  recission  or  refusal  to 
perform  on  his  part.  If,  after  the  dis- 
covery of  the  misrepresentation,  he 
conducts  himself  with  reference  to  the 
transaction  as  though  it  still  vere 
subsisting  and  binding,  he  will  not 
thereafter  be  permitted  to  impeach  the 
validity  of  the  contract  by  seelcing  to 
rescind  it  or  to  escape  performance  of 
his  covenants.  Having  ratified  the 
contract  by  using  the  truck  in  his 
business  after  he  discovered  the  falsity 
of  defendant's  representation,  plaintiff 
could  stand  upon  his  contract  and  re- 
cover any  damages  that  he  may  have 
sustained  by  reason  of  the  fraud,  but 
he  may  not  repudiate  his  obligations 
by  seeking  to  rescind  the  contract  that 
he  thus   has   affirmed.     Hogan  v.    An- 


thony   (Cal.  App.),   198  Pac.  47. 

50.  Smith  v.  Columbus  Buggy  Co., 
40  Utah.  580,   123  Pac.  580. 

51.  Alamo  Auto  Sales  Co.  v.  Harms 
(Tex.  Civ.  App.),  184  S.  W.  740. 

52.  Summers  v.  Provo  Foundry  & 
Machine  Co.,  53  Utah  320,  178  Pac. 
916:  Burley  v.  Shinn,  80  Wash.  240, 
141  Pac.  326,  Ann.  Cas,  1916  B.  96; 
Noel  V.  Garford  Motor  Truck  Co. 
(Wash.),  191   Pac.  828. 

53.  Noel  V.  Garford  Motor  Truck 
Co.   (Wash.),  191  Pac.  828. 

54.  Noel  V.  Garford  Motor  Truck 
Co.  (Wash.),  191  Pac.  828.  And  see 
International,  etc.,  Co.  v.  Bean,  159 
Ky.  842,  169  S.  W.  549,  wherein  it  was 
said :  "  What  is  a  reasonable  time 
within  which  the  offer  to  rescind  may 
be  made  may  depend  upon  a  number 
of  circumstances,  and  in  each  particu- 
lar case  of  this  kind  the  circumstances 
may  be  different.  It  was  a  duty  which 
appellee  owed  to  appellant  company  to 
try  to  make  the  machine  do  the  work 
for  which  he  purchased  it;  and  unless 
he  held  it  such  a  length  of  time  as 
would    indicate   that   he    was   satisfied 


1088  The  Law  of  Automobiles. 

is  a  relative  question.  What  is  unreasonable  delay  in  a  given 
case  must  depend  upon  particular  circumstances.^^  The  pur- 
chaser of  a  second-hand  automobile  is  not  bound  to  rescind 
his  contract  upon  the  first  discovery  of  some  imperfection  or 
misrepresentation.  He  is  entitled  to  time  for  inquiries,  ex- 
periments and  tests.  He  can  waive  imperfections  or  mis- 
representations first  discovered,  and  yet  afterwards  be  en- 
titled to  rescind  upon  the  discovery  of  others.  Suggestions 
from  the  vendor  or  his  agent  to  make  further  inquiries  or 
trials,  would  also  extend  the  time  for  rescission.  Where  an 
auto  is  purchased  upon  the  representation  that  it  is  a  model 
of  a  certain  year  and  in  perfect  working  order,  and  upon  trial, 
the  machine  proves  to  be  unworkable  and  is  damaged  by  rea- 
son of  its  imperfections  through  no  fault  of  the  purchaser, 
the  purchaser  may  rescind  his  contract  and  is  not  liable  for 
the  purchase  price.  To  accomplish  a  rescission  of  the  con- 
tract there  must  be  a  return  of  the  machine  to  the  vendor. 
But  this  is  a  right  which  the  vendor  may  waive.  And  where 
the  vendor  gives  the  purchaser  to  understand  that  it  would  be 
useless  to  attempt  to  return  the  machine,  no  return  is  neces- 
sary. The  law  does  not  require  useless  acts  or  words,  and 
taking  the  vendor  at  his  word,  the  purchaser  may  place  the 
machine  where  he  pleases,  at  least  until  the  vendor  withdraws 
his  refusal  to  accept  it.^^  And,  in  an  action  to  rescind  the 
sale  of  an  automobile  for  breach  of  a  warranty,  the  facts  that 
the  purchaser  expended  some  money  for  repairs  to  the  car 
and  repeatedly  called  upon  the  seller  to  put  it  in  order  before 
he  elected  to  rescind  is  held  not  to  show  an  election  on  the  part 

with  it,  or  that  he  was  merely  detain-  the   profit  derived   from   its  use.     The 

ing  it  for  the  service  he  was  deriving  chancellor   was   therefore   right    in   de- 

from   it,  such  holding  was  not  unrea-  termining   that   appellee   made   his   of- 

sonable.     The   evidence   shows   that  he  fer    to    rescind    within     a     reasonable 

did  not   use  it  every  day  of  the  time  time."      See    also,    Jones    v.    Norman 

he  retained   it,  for  he  was  working  on  (Mo.   App.),  228  S.  W.  895. 

it  and  trying  to  get  it   into  shape  to  55.  Noel    v.    Garford    Motor    Truck 

serve    his   purposes;    that   he    was    in  Co.   (Wash.),  191  Pac.  828. 

good  faith  giving  it  a  fair  trial,  and  56.  Pitcher  v.  Webber,  103  Me.  101. 

not   merely   keeping   it   for   the  use  he  68   Atl.   593.     See  also  Boyd  v.   Buick 

was  making  of  it,  for  it  was  a  losing  Automobile  Co..   182   Iowa   306,  165  N. 

proposition    from    the    beginning,    the  W.  908. 
trouble,  repairs,  and  upkeep  exceeding 


Sales  of  Motor  Vehicles.  1089 

of  the  purchaser  to  keej)  the  ear,  it  appearing  that  such  re- 
pairs did  not  effect  a  material  cliange  in  the  car  or  substan 
tially  alter  its  condition.  Voluntary  acts  on  the  part  of  the 
purchaser  of  a  chattel  under  a  warranty  of  condition  which 
will  operate  as  an  estoppel  of  the  right  to  rescind  must  be 
such  as  to  affect  the  seller  and  cause  a  change  in  his  condition 
with  reference  to  property  making  it  inequitable  to  enforce 
the  remedy.  Offering  the  seller  an  opportunity  to  make  good 
his  warranty,  does  not  change  the  situation  of  the  seller  with 
reference  to  the  property  and  so  far  from  being  censurable 
and  the  waiver  of  rights  under  the  contract,  it  is  said  that  the 
practice  is  commendable.'*^  When  the  article  desired  to  be 
tendered  is  of  such  bulk  and  weight  that  it  cannot  be  taken  into 
the  bodily  presence  of  the  person  to  whom  it  is  desired  to 
tender  it,  it  is  said  that  it  may  be  deposited  in  some  public 
warehouse  or  with  some  concern  making  it  a  business  to  store 
and  keep  such  articles  and  give  the  person  to  whom  it  is  de- 
sired to  be  tendered  a  written  order  on  the  depository  for  its 
delivery.  So  where  the  purchaser  of  an  automobile  desired  to 
rescind  the  sale  for  breach  of  warranty,  the  delivery  of  the 
car  to  a  garage  and  the  giving  to  the  seller  of  a  written  order 
for  it  was  held'  sufficient.*''^'^ 

Sec.  872.  Remedies  of  purchaser  —  recovery  of  purchase  price. 

Where  the  purchaser  has  exercised  his  right  of  rescinding 
the  contract  for  fraud  or  for  breach  of  warranty,  he  is  gener- 
ally entitled  to  recover  any  payments  he  may  have  made  for 
the  machine.^^  The  fact  that  the  seller  of  the  machine  has 
not  received  the  purchase  price  of  the  machine,  or  that  part 
thereof  has  been  disbursed  to  agents  as  commissions,  does 
not  affect  the  right  of  the  purchaser  to  recover  the  entire  pur- 
chase price  which  he  has  paid.^^  And,  where  the  seller  fails 
to  deliver  the  machine  according  to  his  agreement,  the  pur- 

57.  Klock     V.     Newbury,     63     Wash.  Norman    (Mo.   App.),   22S    S.   W.    895: 
153,  114  Pac.   1032.  Beecroft    v.    Van    Schaiok,    104    N.    Y. 

58.  Klock     V.     Newbury,     63     Wash.  Suppl.  458;  Taylor  v.  First  Nat.  Bank, 
153,   114  Pac.   1032.  25  Wyo.  204,  167  Pac.  707. 

59.  White  Automdbilc  Co.  v.  Dorsey,  60.  Halff    Co.    v.    Jones     (Tex.    Civ. 
119    Md.    251,    86    Atl.    617:    Jones    v.  App.),   169  S.  W.   906. 

69 


1090  The  Law  of  Automobiles. 

chaser  may  recover  any  payment  he  has  made  to  the  seller.^* 
Or,  if  the  contract  for  the  sale  of  a  car  is  mntnally  abandoned, 
the  purchaser  is  entitled  to  recover  any  deposit  he  may  have 
made  with  the  seller,  so  long  as  there  is  no  agreement  making 
another  disposition  of  sncli  mone5^^^  Wliere  the  machine 
which  is  sold  is  absolutely  worthless,  the  purchaser  may  re- 
cover the  purchase  price  without  returning  it  to  the  vendor.^^ 

Sec.  873.  Tax  on  sales. 

A  State  may  levy  a  tax  against  sales  of  motor  vehicles 
made  by  a  dealer  in  the  State  to  a  resident  thereof,  although 
the  machines  are  manufactured  in  another  State  and  the  pur- 
chaser pays  the  freight  from  the  point  of  manufacture.  The 
tax  is  not  an  interference  ^vith  interstate  commerce.^* 

Sec.  874.  Tax  on  dealers. 

A  tax  on  dealers  of  automobiles  may  be  valid  f"^  and  it  may 
be  graduated  according  to  the  population  of  the  county  where 
they  solicit  orders  for  machines.  A  statute  imposing  a  tax 
of  this  nature  has  been  construed  in  Alabama  as  requiring  the 
dealer  to  pay  a  tax  only  in  the  county  of  his.  principal  busi- 
ness, although  he  solicits  orders  in  other  counties.*''®  A 
statute  of  similar  import,  in  Georgia,  however,  has  been  con- 
strued as  requiring  the  dealer  to  pay  one  tax  in  each  county 
in  which  he  operates  ;^^  but,  the  tax  having  been  paid  in  the 
county,  any  numl)er  of  employees  of  such  dealer  can  solicit 
sales  therein  without  paying  additional  taxes.*^'^  A  statute 
requiring  the  licensing  of  dealers  may  not  apply  to  dealers 

61.  John    Hemwall     Automobile    Co.       Pae.   857. 

V.  Michigan  Avenue  Trust  Co.,   195  111.  64.  Banker     Bros.     Co.     v.     Pennsyl- 

App.    407;     Sandruck    v.    Wilson,    117  vania,  222  U.  S.  210,  32  S.  Ct.  38. 

Md.    624,    84    Atl.    54;     Washburn    v.  65.  Bethlehem       :Motors       Corp.       v. 

Ranier   Co.,    130   N.    Y.    App.    Div.   42,  Flynt.  178  X.  C.  399,  100  S.  E.  693. 

114  N.  Y.  Suppl.  424.  66.  Patterson  v.  State,   16  Ala.  App. 

62.  Lane  v.  MoLay,  91  Conn.  185.  99  483.  79  So.  157. 

Atl.   498;    Ridder  v.   Lynch,   133   N.   Y.  67.  :*Ioore   v.   State,   148  Ga.   457,  97 

Suppl.  468.  S.   E.  76:   Moore  v.  State,  22  Ga.  App. 

63.  Avery    Co.    v.    Staple    Mercantile       7!»7.  97   S.  E.  458. 

Co.    (Tex.    Civ.    App.),    183    S.    W.    43.  68.  Moore  v.  State,  22  Ga.  App.  797, 

See  also  Wells  v.  Walker   (Wash.),  186       97   S.   E.   458. 


Sales  of  Motor  Vehicles.  1091 

in  second-hand  machines/'"  But  a  specific  statute  may  be 
aimed  at  such  dealers.''^  If  a  statute  imposes  a  privilege  tax 
on  automobile  dealers  and  another  such  tax  on  dealers  in 
automobile  accessories,  it  may  be  subject  to  a  construction  that 
permits  a  garage  to  pay  a  dealers'  tax  without  also  paying  a 
tax  as  a  dealer  in  accessories.'^ 

69.  state    v.    Barber    (N".    Car.),    104  70.   Kx  parte  Hijrgins   (Cal.  A])p.,  195 

S.  E.  760.     See  also  In  re  Licenses  to  Par.    740. 

Sell  Used  Motor  Vehicles    (Iowa),  179  71.  Stockell    v.    Hailey    (Tenn.),   22'J 

N.  W.  609;   Matter  of  Retail  Dealer's  S.  W.  382. 
License   (Iowa),  183  N.  W.  440. 


1092  The  Law  of  Automobiles. 

CHAPTER  XXXI. 

LIENS. 

Section  875.  Repairs — in  general. 

876.  Repairs — filing  notice  of  lien. 

877.  Repairs — priority   of   lien. 

878.  Repairs— loss  of  lien  by  surrender  of  possession. 

879.  Repairs— loss  of  lien  by  excessive  demand. 

880.  Repairs — assignment  of  lien. 

881.  Storage. 

882.  Chattel  mortgages — in  general. 

883.  Chattel  mortgages' — filing  or  recording. 

884.  Chattel    mortgages — recovery    by    mortgagor    for    injuries    to    ma- 

chine. 

885.  Conditional  sales-^in  general. 

886.  Conditional   sales — filing   of  instrument. 

887.  Conditional  sales — levy  on  interest  of  vendee. 

888.  Conditional  sales — right  of  vendee  to  maintain  action  for  injuries. 

889.  Conditional  sales- — retaking  the  machine   by  vendor. 

890.  Lien  for  injuries  caused  by  machine. 

Sec.  875.  Repairs  —  in  general. 

Under  the  common  law,  a  mechanic  has  a  lien  on  personal 
property  for  the  value  of  repairs  made  thereto.^  This  lien  is 
affirmed  by  statute  in  many  States,  and  permits  the  repair- 
man to  retain  a  motor  vehicle  which  he  has  repaired  until  his 

1.  J.  M.  Lowe  Auto  Co.  v.  Winkler,  W.   927. 

127  Ark.  433,  191  S.  W.  927;  Vaught  Partnership.— One      member      of      a 

V.  Knue,  64  Ind.  App.  467.   115   N.  E.  partnership   making   repairs   to  a  mo- 

108;    Winton   Co.   v.   Meister,   133   Md.  tor  vehicle   is  not  entitled  to   a  judg- 

318,    105    Atl.    301;    Broom    &,   Son    v.  ment  establishing  a  lien  on  the  vehicle, 

Dale  &  Sons.  109  Miss.  52,  67  So.  659;  in  the  absence  of  evidence  showing  an 

Butterworth    v.    Soltz,    199    Mo.    App.  assignment  of  the   lien   from   the  part- 

507,   204   S.   W.   50.     See   also   Connell  nership    to    the    member.      Stoecker    & 

V.    Hogg    (Cal),    186    Pac.    134;    Mil-  Price,  etc.   Cb.   v.   Erving    (Mo.   App.), 

grim  V.   Coon.  93  Misc.   78,   156  N.  Y.  204  S.  W.  29. 

Suppl.  54.     ''Automobiles  are  a  species  Infant. — A  contract   between  an   in- 

of    vehicles    which    were    unknown    at  fant  and  a  garage  keeper,  whereby  the 

common    law,   but   little   doubt   can   be  infant   agrees    to   pay    for   the   storage 

entertained    that    in    the   absence   of   a  of  his  automobile  and  for  supplies  and 

statute    on    the    subject    wheelwrights  repairs,    may    be    disaffirmed    by    him, 

and    mechanics    repairing    other    kinds  and   he  may   recover   possession   of  the 

of  vehicles  would  be  entitled  to  a  lien  m.achine,  despite  the  claim  of  the  lien 

on  an  automobile."     J.  M.  Lowe  Auto  by    the    garage    keeper.      La    Rose    v. 

Co.   v.   Winkler,    127   Ark.   433,   191    S.  Nichols,  91  N.  J.  L.  355,  103  Atl.  390. 


Liens. 


1093 


charges  are  satisfied.^  This  right  is  said  to  exist  on  prin- 
ciples of  natural  equity  and  commercial  necessity.^  The  owner 
of  a  machine  who  is  in  debt  for  repairs  may  also  make  a  valid 
pledge  of  the  machine  to  his  creditor.*  A  lien  may  attach 
for  a  tire  with  which  a  machine  is  equipped.^  And  when  an 
artisan  puts  a  body  on  a  chassis,  he  may  have  a  lien  on  the 
chassis.''  And  statutes  may  extend  the  lien  so  it  will  apply  for 
supplies  furnished  for  the  operation  of  the  machine,'  although 
at  the  time  the  supplies  are  furnished  the  claimant  does  not 
have  possession  of  the  machine.^  The  statutes  on  the  sub- 
ject, however,  may  have  the  effect  of  abrogating  the  common 


2.  Arkansas. — Weber  Implement  & 
Automobile  Co.  v.  Pearson.  200  S.  W. 
273. 

Georgia. — KnaufT  v.  Yarbray,  21  Ga. 
App.  94,  94  S.  E.  75. 

Indiana. — ^Shore  v.  Ogden,  55  Ind. 
App.  394.  103  N.  E.  852;  Vaught  v. 
Knue,  64  Ind.  App.  467,  115  N.  E.  108. 

Iowa. — Duffy  v.  Hardy,  Auto  Co.. 
180  Iowa,  745,  163  N.  W.   370. 

Massachusetts. — Doody  v.  Collins. 
223  Mass.  332,  111  N.  E.  897. 

Mississippi. — Broom  &  Son  v.  Dale 
&  Sons,   109  Miss.  52,   67  Mo.  659. 

Neic  YorA-.— Gilbert  v.  Bishop.  78 
Misc.   560,   138  N.  Y.  Suppl.   689. 

Tennessee. — Shaw  v.  Webb,  131 
Tenn.   173,   174  S.  W.  273. 

Texas. — McBride  v.  Beakley  (Civ. 
App.).  203  S.  W.  1137;  City  Nat.  Bank 
of  Wichita  Falls  v.  Laughlin  (Civ. 
App.),  210  S.  W.  67. 

Utah. — Westminster  Inv.  Co.  v.  Mc- 
Curtain,  39  Utah,  544.  118  Pac.  564. 

Justice  of  peace  has  jurisdiction  to 
enforce  lien  in  some  cases.  West  Point 
Motor  Car  Co.  v.  MeGhee  (Miss.),  84 
So.  690. 

3.  Broom  &  Son  v.  Dale  &  Sons.  109 
Miss.   52,  67   So.  659. 

4.  Umsted  Auto  Co.  v.  Henderson 
Auto  Co.,  137  Ark.  40,  207  S.  W.  437. 

5.  Gardner  v.  LeFevre.  180  Mich. 
219,  146  N.  W.  653.  But  see,  as  to 
new  casings,   Weber   Implement  &    Au- 


tomobile Co.  V.  Pearson    (Ark  ).  200  S 
.W.  273. 

6.  Kansas  City  .\uto  School  Co.  v 
Holcker,  etc.  Mfg.  Co.  (AIo.  App.),  182 
S.  W.  759,  wherein  it  was  said:  "It 
is  urged  that  the  body  of  an  automo- 
bile is  an  entirely  separate,  distinct 
and  independent  article  from  its 
chassis  and,  as  the  labor  or  expense 
must  be  bestowed  or  performed  on  the 
identical  or  specific  thing  left  in  the 
artisan's  possession,  there  could  be  no 
lien  in  this  case.  But.  while  we  do  not 
question  the  principle  of  law  involved, 
we  deny  its  application  to  the  facts 
of  this  case.  The  making  and  fixing  of 
the  body  on  the  chassis  necessarily  in 
volved  some  work  on  the  latter  in  or 
der  to  fasten  it  permanently  thereto. 
The  work,  if  well  done  and  according 
to  contract,  certainly  added  value  to 
the  chassis  and  made  it  a  completed 
and  entire  instrumentality.  The  cvi 
dence.  even  from  the  plaintiff's  side, 
was  to  the  effect  that  an  automobile 
body  is  no  more  a  separate  and  distinct 
part  of  an  automobile  than  a  bugg}' 
body  is  a  separate  and  distinct  part  ol" 
a  buggy.  Neither  is  coinplote  without 
a  body  of  some  sort." 

7.  Vaught  V.  Knue,  64  Ind.  .'\pp.  467. 
•115  N.  E.  108. 

8.  Frank  v.  Daily.  92  N.  J.  L.   11!^. 
105  Atl.  9. 


1094  The  Law  of  Automobiles. 

law  lien  and  thus  requiring  the  repairman  to  proceed  in  ac- 
cordance with  the  statute  in  order  to  protect  his  rights.^  The 
statutory  lien  may  apply  only  wiien  the  material  or  labor  is 
furnished  under  a  written  memorandum  signed  by  the  owner." 
Under  a  statute  authorizing  a  lien  for  repairs  on  personal 
property,  one  does  not  have  a  lien  for  services  in  going  after 
and  bringing  in  a  motor  vehicle  preparatory  to  repairs." 
Where  a  plaintiff's  automobile,  which  had  been  damaged  in 
a  collision,  was  delivered  to  the  defendant,  to  make  repairs 
upon  his  agreement  to  wait  for  payment  until  the  insurance 
money  was  collected,  such  agreement  is  a  material  part  of 
the  contract  under  which  he  obtained  possession  of  the  ma- 
chine, and  he  has  no  lien  thereon  for  repairs ;  and,  in  the  ab- 
sence of  proof  in  replevin  to  recover  possession  of  the  auto- 
mobile that  the  insurance  on  the  automobile  had  been  collected, 
or  that  plaintiff  had  neglected  or  refused  to  take  the  neces- 
sary steps  for  its  collection,  defendant's  counterclaim  for  re- 
pairs should  have  been  dismissed  as  premature,  but  without 
prejudice." 

Sec.  876.  Repairs  —  filing  notice  of  lien. 

Modern  statutes  relative  to  liens  on  chattels  sometimes  re- 
quire that  the  lienor  shall  file  a  notice  of  his  lien  within  a 
certain  time  after  the  completion  of  the  work.^^  This  time 
ordinarily  begins  to  run  from  the  completion  of  the  repairs, 
and  the  fact  that  the  owner  in  the  meantime  used  the  car  for 
testing  it  does  not  change  the  rule."  Where  upon  different 
dates  and  as  separate  transactions  labor  or  material  is  fur- 
nished for  the  repair  of  a  motor  vehicle,  a  single  lien  statement 
may  be  filed  therefor,  provided  the  item  first  furnished  was 
so  furnished  within  the  limited  period  of  the  date  of  filing 

9.  J.  "Nr   Lowe  Atito   Co.  v.  Winkler.       Rop.   192,  157  N.  Y.  Suppl.   1093. 

127  Ark.   433.   191   S.  W.  927.  13.  J.  M.  Tx)we  Auto  Co.  v.  Winkler, 

10.  Butterworth  v.  Soltz.  190  Mo.  127  Ark.  433,  191  S.  W.  927;  Pierce- 
App.  .-.07.  204  S.  W.  50.  Arrow  Sales  Co.  v.  Irwin.  8fi  Oreg.  683, 

11.  Orr   V.    Jackson    .Titney   Car  Co..       169  Pac.  129. 

115  :\ri?s.   140.  75  So.  945.  14.  Pierce-Arrow  Sales  Co.  v.  Irwin, 

12.  Pozenik   v,    Greenburg.    94   Misc.       86  Oreg.  683,  169  Pae.  129. 


Liens. 


1095 


the  statenient.^^  Under  some  statutes  the  failure  to  file  the 
lien  will  preclude  the  lienor  from  foreclosing  the  lien  as  a 
chattel  mortgage,  but  does  not  destroy  his  right  to  retain 
possession  of  the  machine  until  his  lien  is  satisfied.^^ 

Sec.  877.  Repairs  —  priority  of  lien. 

In  some  cases,  it  has  been  held  that  the  lien  of  a  repairman 
on  a  motor  vehicle,  while  in  his  possession,  is  superior  to  the 
title  of  a  mortgagee  or  conditional  vendor  of  such  property.^' 
But  in  other  jurisdictions,  a  contrary  view  has  been  taken.^^ 
The  theory  on  which  the  priority  of  the  lien  for  repairs  is  sus- 
tained, is  that  the  chattel  mortgagee  or  vendor,  by  pcniiitting 
the  property  to  remain  in  control  of  the  mortgagor  or  pur- 
chaser, gives  the  latter  implied  authority  to  have  necessary 
repairs  made  thereto  and  to  afford  the  repairman  a  superior 
lien  therefor. ^^     A  statute  permitting  such  divesting  of  tho 


15.  Keed  v.  Horton.  135  Minn.  17. 
159  N.  W.  1080. 

16.  Willys  Cherland  ( o.  v.  Evan? 
(Kans.)    180  Pac.  235. 

17.  Weber  Implement  &  Auti'in()l>ile 
Co.  V.  Pearson  (Ark.),  200  S.  W.  -172 : 
Davenport  v.  Grundy  Motor  Sales  Co.. 
28  Cal.  A.pp.  409.  152  Pac.  932;  Etclicn 
V.  Dennis  &  Son  Garage  (Kan.),  178 
Pac.  408:  Willys  Overland  Co.  v.  Evans 
(Kan.),  180  Pac.  235;  Broom  &  Son  v. 
Dale  &  Sons,  109  Miss.  52.  67  So.  6.-i9. 
Compare  Orr  v.  Jackson  Jitney  Car 
Co.,  115  Mi.s*.  140,  75  So.  945. 

18.  Baxigliman  Automobile  Co.  v. 
Emanuel.  137  Ga.  354,  73  S.  E.  511, 
38  L.  R.  A.  (X.  S.)  97;  Shaw  v.  Webb. 
131  Tenn.  173,  174  S.  W.  273:  Holt  v. 
Schwarz  (Tex.  Civ.  App.),  225  S.  W. 
856;  Dallas  County  State  Bank  v.  Cris- 
mon  (Tex.  Civ.  App.).  231  S.  W.  857: 
Scott  V.  Mercer  Garage,  et-c.  Co.  (W. 
Va.),  106  S.  E.  425.  Compare  City 
Nat.  Bank  of  Wichita  Falls  v.  Laugh- 
lin  (Tfx.  Civ.  App.),  210  S.  W.  67. 
"It  should  perhaps  be  noted,  by  \va>- 
of  parenthesis,  tliat  a  distinction  is 
taken  bv  tlie  authorities  between  sucli 


a  claim  of  a  mechanic  and  tlic  .i.ni 
nion-la\v  lien  of  an  innkeeiior  on  ;i 
cliattel  licld  in  possession  as  condi- 
tional \ciult'i'  by  a  guest.  To  such  a 
(;]iattel  brought  upon  his  jjremises,  the 
lien  .nttaches  in  favor  of  tlie  innkeeper. 
inoviilod  he  had  no  notice  of  the  na- 
tnri'  and  extent  of  the  guest's  title 
when  the  property  was  brought  into 
the  inn.  In  such  case  the  common-law 
impo-od  upon  the  innkeeper  tlie  obli- 
gation to  receive  the  guest  and  his  bag- 
gage, and  tliat  liability  is  deemed  suf- 
ficient to  give  rise  to  a  eoextensive  lien. 
So  to  speak,  by  way  of  recompense  for 
the  enforced  obligation,  the  lien  is  held 
to  attach  to  the  property  regardless  of 
the  true  ownership.""  Shaw  v.  Webb. 
131  Tenn.   173.  174   S.  W.  -^TS. 

Gasoline  furnished  by  garageman. — 
The  lien  of  .)  garageman  for  gasoline 
furnislied  by  him  for  a  truck  is  inferior 
to  the  claim  of  a  conditional  vendor. 
Part  low- Jenkins  Motor  Car  Co.  v. 
"^tratton   (Ind.  App.),  124  X.  E.  470. 

19.  Weber  Implement  &  .Automobile 
Co.  V.  Pearson  (Ark.),  200  S.  W.  273: 
Etclien      V.      Dennis     &      Son      Garage 


1096  The  Law  or  Automobiles. 

security  of  a  mortgagee  or  conditional  vendor,  is  not  nncon- 
stitutional.^'^  But  the  priority  of  the  lien  may  be  lost  where 
the  repairman  voluntarily  delivers  possession  of  the  machine 
to  the  owner,  although  there  is  an  agreement  between  the 
owner  and  the  garageman  that  the  delivery  shall  not  divest 
the  lien.2^  Under  a  statute  giving  a  garage  keeper  a  lien  upon 
an  automobile  for  repairs  made  "at  the  request  or  with  the 
consent  of  the  owner,  whether  such  owner  be  a  conditional 
vendee  or  a  mortgagor  remaining  in  possession  or  otherwise" 
the  words  "or  otherwise"  are  to  be  construed  as  embracing 
things  of  the  same  kind  or  class  with  which  they  are  con- 
nected and  are  held  not  to  extend  to  a  lessee  or  sublessee ;  and 
therefore,  it  is  held  that  the  consent  or  knowledge  of  either  a 
lessee  or  a  sublessee  of  an  automobile  that  repairs  are  being 
made  by  a  garage  owner  will  not  avail  the  latter  so  as  to  give 
him  a  lien  upon  the  automobile.^^  And  the  consent  of  the 
owner  is  not  to  be  inferred  merely  from  the  fact  that  the  head 
of  the  owner's  repair  department  had  on  several  occasions 
visited  claimant's  garage  while  the  machine  was  there,  seen 
the  work  done  on  it  and,  in  addition,  furnished  the  two  parts 
for  a  portion  of  the  machine.^^ 

Sec.  878.  Repairs  —  loss  of  lien  by  surrender  of  possession. 

A  common  law  lien  in  favor  of  one  making  repairs  to  a 
chattel  is  lost  when  he  voluntarily  surrenders  possession  of 
the  property.^*    And  it  is  held  that  the  lien  is  not  revived 

(Kan.).   178    Pac.   408;    Broom   &   Son  Y.)    19,  127  N.  Y.  Suppl.  1096. 

V.   Dale  &   Sons.   109   Miss.   52,   67   So.  24.  Alexander    v.    Mobile    Auto    Co.. 

659;   City  Nat.  Bank  of  Wichita  Falls  200  Ala.   586,   76   So.   944;    Weber  Im- 

V.   Laughlin    (Tex.   Civ.   App. ),   210   S.  plement  &   Automobile   Co.   v.   Pearson 

W.   67.  (Ark.),  200   S.  W.  273;   Crucible  Steel 

20.  Davenport  v.  Grundy  Motor  Sales  Co.  of  America  v.  Polack  Tyre  &  Rub- 
Co.,  28  Cal.  App.  409,  152  Pac.  932.  ber  Co.  (N.  J.),  104  Atl.  324;  Abeytia 

21.  Thourot  v.  Delahye  Import  Co.,  v.  Gibbionsi  Garage  (N.  Mex.),  195 
69  Misc.  (N.  Y.)  351,  125  N".  Y.  Suppl.  Pac.  515;  Sliaw  v.  Webb,  131  Tena. 
827.  See  also  Eehm  v.  Viall,  185  111.  173,  174  S.  W.  273;  Ford  Motor  Co.  v. 
App.  425.  Freeman    (Tex.  Civ.  App.),  168  S.  W. 

22.  Lloyd  v.  Kilpatrick,  71  Misc.  (N.  80;  White  v.  Texas  Motor  Car  &  Sup- 
Y.)  19.  127  N.  Y.  Suppl.  1096.  See  ply  Co.  (Tex.  Civ.  App.).  203  S.  W. 
also  Hamilton  Motor  Car  Co.  v.  Heine-  441;  McBride  v.  Bakley  (Tex.  Civ. 
man.  69  Pitts.  Leg.  Jour.   (Pa.)   205.  App.),  203  S.  W.  1137. 

23.  Lloyd  v.  Kilpatrick,  71  Misc.   (N. 


Liens.  1097 

when  the  machine  again  comes  into  the  possession  of  the  same 
repairman  to  make  repairs  which  are  paid  for.^^  And  the 
same  effect  may  result  from  statutory  liens.^*'  On  the  other 
hand,  statutory  provisions  may  continue  the  lien  although 
the  lienor  has  voluntarily  lost  the  possession  of  the  property," 
and  although  the  car  has  passed  into  the  hands  of  an  innocent 
purchaser  for  value  who  had  no  notice  of  the  repairman's 
lien.^^  Particular  statutes,  however,  may  be  so  construed  that 
such  a  lien  cannot  be  enforced  as.  against  a  bona  fide  pur- 
chaser.^^  Such  a  statute  is  constitutional  although  no  system 
is  provided  for  filing  or  recording  the  lien  when  the  property 
has  passed  from  the  possession  of  the  repairman.^"  One  who 
has  sold  and  set  a  tire  to  the  machine  of  another,  may  be  an 
*' automobile  repairer"  within  a  statute  giving  a  lien  to  such 
persons  although  they  have  parted  with  possession.^^ 

Sec.  879.  Repairs  —  loss  of  lien  by  excessive  demand. 

The  right  to  hold  a  just  lien  on  property  in  one's  posses- 
sion may  be  lost  by  insisting  on  a  payment  of  other  charges 
which  are  not  liens,  but  a  lienor's  right  based  on  services  giv- 
ing a  lawful  lien  may  not  fail  though  the  jury's  verdict  falls 

25.  Alexander  v.  Mobile  Auto  Co.,  Auto  Co.  v.  Rudd,  176  N.  C.  497.  97 
200  Ala    586,   76   So.  944;   Ford  Motor       S.  E.  477. 

Co.  V.  Freeman    (Tex.  Civ.  App. ).   168  27.  Crucible  Steel  Co.  of  America  v. 

S.   W.   80;    White  v.  Texas  Motor  Cftr  Polack  Tyre  &  Rubber  Co.,  92  N.  J.  L. 

&  Supply  Co.    (Tex.  Civ.  App.),  203  S.  221,  104  Atl.  324;   Courts  v.  Clark.  84 

W.  441.  Oreg.   179,  164  Pac.  714;   Fierce-Arrow 

26.  Morfa  v.  Rhodes,  213  111.  App.  Sales  Co.  v.  Irwin,  86  Orejr.  683,  169 
354;  Vaught  V.  Knue,  64  Ind.  App.  467.  Pac.  129;  McBride  v.  Beakley  (Tex. 
115    N.    E.    108;    Maxton   Auto    Co.    v.  Civ.  App.),  203   S.   W.   1137. 

Rudd   (N.  C),  97  S.  E.  477.  28.  Frank  v.  Daily,  92  N.  J.  L.  118. 

Loss    of    possession    through    fraud  105  Atl.  9. 

does  not  disturb  tlie  right  to  tlie  lien.  29.  Abeytia    v.    Gibbons    Garage    (X. 

Griffith    V.    Reddick     (C'al    App.),    182  Mex.),    195    Pac.    515:     Lanterman    v. 

Pac.  984.     Where  the  owner  of  the  ma-  Luby   (N.  J.),   114  Atl.  325. 

chine  gives  a  check  for  the  amount  of  30.  Crucible  Steel  Co.  of  America  v. 

repairs  thereon  and  thereby  induces  the  Polack  Tyre  1-  Rubber  Co..  92  N.  J.  L. 

repairman    to    surrender    possession    of  221,   104   Atl.   324;    Frank  v.   Daily,  92 

the   machine,    but    thereafter    he    stops  N.  J.  L.  118,  105  Atl.  9. 

payment   on   the  check,   the   repairman  31.  Courts    v.    Clark.    84    Oreg.    179, 

can  maintain  an  action  to  recover  pos-  164  Pac.  714.     See  also  Gardner  v.  Le 

session   of   the    machine   in  order   that  Fevre.   180  Mich.   219,   146  N.   W.   653. 
his    lien    will    again    attach.      Maxton 


1098  The  Law  of  Automobiles. 

short  of  tlie  aiiioiiut  claimed.^^  Thus,  where  a  motor  ear  com- 
pany reduces  its  claim  for  repairs  to  an  antomohile,  and  the 
owner  makes  no  tender  of  such  amount,  hut  offers  a  lesser 
amount,  the  insistence  by  the  company  on  receivin.a;  the 
amount  of  its  reduced  claim  of  lien  does  not  cause  the  com- 
pany to  lose  its  lien  because  subsequently  a  verdict  is  ren- 
dered against  the  owner  for  an  amount  less  than  the  reduced 
sum  claimed.^^ 

Sec.  880.  Repairs  —  assignment  of  lien. 

Where  a  lienor  has  possession  of  the  property  and  transfers 
his  debt  and  gives  the  possession  of  the  property  to  the  trans- 
feree, the  owner  is  not  prejudiced,  and  the  assignee  acquires 
the  right  to  enforce  the  lien.^*  , 

Sec.  881.  Storage. 

A  garage  keeper  who  stores  the  machine  of  one  of  his  cus- 
tomers under  an  arrangement  which  permits  the  customer  to 
take  the  machine  away  and  use  it  whenever  he  desires  so  to 
do,  is  not  entitled,  under  the  common  law,  to  claim  a  lien 
thereon  for  his  storage  charges  and  to  retain  the  machine 
until  such  claim  is  satisfied.^^  But  statutory  provisions  have 
lieen  enacted  in  many  jurisdictions  which  allow  the  garage 
keeper  a  lien  in  such  cases.^^  But  it  is  held  that  a  statutory 
lien  for  storage  is  inferior  to  a  prior  chattel  mortgage  on  the 
vehicle,  although  the  mortgagee  knew  that  the  mortgagor  was 
keeping  the  machine  in  a  public  garage.^^  A  statute  giving 
priorit}^  to  the  garage  man  over  a  prior  chattel  mortgage  has 

32.  Dully  V.  Hardy  Auto  Co.,  180  171,  156  N.  Y.  Suppl.  1064;  Goyena  v. 
Iowa,  745,  163  N.  W.  370.  Berdouiay,  154  N.  Y.  Suppl.  103. 

Delay. — An  unreasonable  delay  by  a  35.  Eehm  v.  Viall,  185  111.  App.  425; 

repairman  in  making  the  repairs,  may  Smith   v.    O'Brien,    46   Misc.    (N".    Y.) 

cause  him  to  lose  his  lien.     Huflaker  v.  .325,  94  N.  Y.  Suppl.  673,  affirmed  103 

Auert    (Colo.),   197  Pac.  897.  App.   Div.   596,   92   N.  Y.   Suppl.   1146. 

33.  Macumber  v.  Detroit  Cadillac  36.  Doody  v.  Collins,  223  Mass.  332, 
Motor  Car  Co.,  173  App.  Div.  724.  159  111  X.  E.  897;  Gage  v.  Callaiian,  113 
N.  Y.  Suppl.  890.  X.   Y.   Suppl.   227;    Ounoo   v.   Freeman, 

34.  Gardner   v.    LeFevre,    180    Mich.  137  X.  Y.  Suppl.  885. 

219,    146    X.    W.    653;    Triple    Action  37.  Adler  v.   Godfrey.   153   Wis.   186. 

Spring  Co.  v.  Goyena,  93  Misc.   fX.  Y.)        140  X.  W.   1115. 


Liens. 


10!  Ill 


been  thought  unconstitutional.^*  A  lien  tor  the  .storage  of  .•- 
motor  vehicle,  when  one  exists,  may  be  lost  by  a  voluntarx 
surrender  of  the  machine  to  the  owner.^^  A  lien  uii  a  motor 
vehicle  for  storage  can  arise  only  under  a  contract  betwe^'n 
the  garage  keeper  and  the  owner  for  the  storage  thereof.  If, 
Avhen  a  garage  is  sold,  the  new  owner  continues  in  possession 
of  the  stored  machines,  he  is  not  entitled  to  a  lien  thereon,  mi 
less  there  is  an  assignment  of  the  lien  of  the  former  owiiei-."' 

Sec.  882.  Chattel  mortgages  —  in  general. 

A  motor  vehicle  is  personal  property  which  may  be  the  sub- 
ject of  a  chattel  mortgage.  Mere  inaccuracies  in  the  descrip- 
tion of  property  covered  in  a  chattel  mortgage  are  not  fatal, 
if  the  subject  is  so  described  that  it  can  be  readily  identilied 
by  the  exercise  of  ordinary  care,  and  even  by  the  aid  of  ex- 
trinsic evidence,  in  case  there  is  sufficient  in  the  writing  to 
put  one,  acting  reasonably,  on  inquiry."  A  description  of 
the  vehicle  is  generally  sufficient  if  it  gives  the  name  and  year 


38.  Jensen  v.  Wilcox  Lumber  Co. 
fill.),  129  N.  E.  133,  followed  Tbur- 
bor  Art  Galleries  v.  Rieuzi  Garage 
(111.),  130  N.  E.  747. 

39.  Norfa  v.  Ehodes,  213  III.  App. 
354;  Greene  v.  Fankhauser,  137  App. 
Div.  (N.  Y.)  124,  121  N.  Y.  Suppl. 
1004.  holding  that  a  defendant  who 
caused  the  arrest  of  a  person  who 
seized  and  mthheld  his  automobile  to 
enforce  the  payment  of  a  debt  was 
justified  in  causing  his  arrest,  although 
section  548  of  the  Penal  Code  provides 
that  it  is  a  good  defense  to  an  indict- 
7ucnt  for  larceny  tliat  the  property  was 
appropriated  openly  under  a  claim  of 
title  preferred  in  good  faith  even 
tliougli  the  claim  be  untenable,  if  the 
})er.son  appropriating  the  machine  as- 
serted no  lien  thereon  and  that  more- 
over he  could  not  assert  a  lien  where 
possession  wa=i  unlawfully  obtained. 
The  court  sjiid:  "It  may  well  be  that 
if  the  plaintiff  had  the  lawful  jjosses- 
sion  of  the  automobile  and  erroneously, 
but   in   good   faith,   asserted    owuersliip 


or  a  lien  thereon,  the  provisions  of  this 
section  would  relieve  him  of  the  cliarge 
of  larceny  in  detaining  the  property; 
but  he  asserted  no  lien,  and  if  it  might 
be  inferred  that  this  was  the  theory 
upon  which  he  was  withholdin-;  the 
property,  still  the  section  would  not 
apply,  for  if  it  applies  to  the  assertion 
of  a  right  to  a  lien  at  all  it  must  re- 
late only  to  a  case  where  the  possession 
iias  been  obtained  lawfully.  If  tliis  be 
not  so,  then  a  creditor  is  at  liberty  to 
seize  the  personal  property  of  his  deb- 
tor anywhere  and  detain  it  until  the 
account  is  settled,  and  if  he  acts  in 
good  faith,  believing  that  he  had  a 
right  to.  he  would  not  be  subject  to  a 
criminal  prosecution." 

40.  White  v.  Texas  Motorcar  &  Sup- 
ply Co.  (Tex.  Civ.  App.),  203  3.  W. 
441. 

41.  .Vdlei-  v.  Godfrey.  153  Wis.  irg. 
140  X.  W.  111.->:  Iowa  Savings  Bank  v. 
Graham    (Iowa).   181  X.  W.  771. 

Equitable  lien.— An  instrument  in- 
sufficient to  constitute  a  chattel  niort- 


1100  The  Law  of  xIutomobiles. 

of  model.^^  A  mortgage  given  on  machines,  when  it  is  within 
the  contemplation  of  the  parties  that  the  mortgagor  shall  have 
the  right  to  expose  them  for  sale  in  the  ordinary  course  of 
business,  may  be  void.*^  Thus,  if  one  loans  a  dealer  money 
with  which  to  purchase  cars  for  sale  and  a  chattel  mortgage 
is  given  for  his  security,  a  purchaser  of  a  machine  from  the 
dealer  will  generally  acquire  a  good  title  as  against  the  mort- 
gagee.*^ The  attachment  of  a  "Form-a-Truck"  to  a  mort- 
gaged Ford  chassis  does  not  cause  the  "Form-a-Truck"  to 
lose  its  identity,  and  a  mortgage  placed  thereon  before  the 
attachment  is  good  as  against  a  prior  mortgage  on  the 
chassis,*^  The  rights  of  a  chattel  mortgagee  of  an  automobile 
are  not  divested  under  some  statutes  for  the  confiscation  of 
vehicles  used  in  the  illegal  transportation  of  liquors,  where 
the  statute  does  not  expressly  provide  for  the  confiscation  of 
such  rights  and  where  the  mortgagee  has  no  knowledge  of  the 
illegal  use  of  the  machine.*^  Where  there  is  no  *' danger"  or 
equivalent  clause  in  the  mortgage,  the  mortgagee  does  not 
have  the  right  to  retake  the  machine  immediately  after  he  sold 
it  to  the  mortgagor.*'^ 

gage,     may,     nevertheless     create     an  pare    as    to    additional    sales,    H.    A. 

equitable       lien      on      the       machines.  White    Auto    Co.    v.    Collins,    136    Ark. 

Fletcher  v.  American  Nat.   Bank    (Ind.  81,  206   S.   W.   748.     And   see  U.   S.  v. 

App.),  128  N.  E.  685.  One    Saxon    Automobile,    257   Fed.    251, 

42.  Clark  v.  Ford.  179  Ky.  797,  30]  allomng  the  confiscation  as  against 
S.  W.  344;  Wright  v.  Lindsay,  92  Vt.  the  mortgage  of  a  machine  used  to  de- 
:^35  Atl.  148.  fraud    the    federal    government   of   the 

43.  J.  I.  Case  Threshing  Machine  tax  on  liquors.  And  see  section  941 
Co.  V.  Lipper  (Tex.  Civ.  App.),  181  S.  for  a  complete  discussion  of  this  point. 
W.  236.  See  also  Border  Nat.  Bank  Rights  of  purchaser. — If  the  mort- 
V.   Coupland,   240  Fed.   355.  gage  is  properly  filed,  a  purchaser  has 

44.  Cudd  V.  Rogers.  Ill  S.  Car.  507,  generally  no  greater  rights  as  against 
98  S.  E.  796;  O'Neil  v.  Cheatwood  the  mortgagee  than  the  original  mort- 
(Va.),  102  S.  E.  596.  gagor   possessed.      First  Nat.   Bank   of 

45.  Hallerman  v.  Dothan  Foundry  Everett  v.  Northwest  Motor  Co.,  108 
&  Machine  Co.   (Ala.  App.),  82  So.  642.  Wash.   167.   183   Pac.   81. 

46.  Shrouder  v.  Sweat,  148  Ga.  378,  47.  Sansone  v.  Studebacker  Corp. 
96  S.  E.   881,  Seignious  v.   Limehouse,  (Kans.),   187  Pac.   673. 

107    S.   Car.    545.   93    S.   E.    193.      Com- 


Liens.  1101 

Sec.  883.  Chattel  mortgages  —  filing  or  recording. 

Under  the  statutes  in  force  in  most  States,  a  chattel  mort- 
gage is  invalid  against  creditors  or  subsequent  purchasers  or 
mortgagees  in  good  faith,  unless  it  is  properly  filed,  or  re- 
corded as  required  by  the  statutes/^  A  purchaser  having 
actual  knowledge  of  the  lien  is  not  generally  in  a  position  to 
object  to  the  failure  to  file  the  instrument.'*^  But  under  some 
statutes,  one  suing  for  personal  injuries  received  from  the 
operation  of  the  machine  and  levying  an  attachment  on  the 
machine,  cannot  take  advantage  of  the  omission  to  file  or 
record.^*^  Though  the  instrument  is  in  form  a  conditional  sale, 
if  it  is  in  fact  given  as  security,  the  laws  of  some  States  re- 
quire its  filing  in  accordance  with  the  regulations  concerning 
chattel  mortgages."  A  pledge  need  not  generally  be  filed,  and 
hence  it  may  be  material  to  determine  whether  a  particular 
transaction  is  a  pledge  or  a  chattel  mortgage.^^ 

Sec.  884.  Chattel  mortgages  —  recovery  by  mortgagor  for 
injuries  to  machine. 
The  fact  that  the  owner  of  a  motor  vehicle  has  incumbered 
the  machine  with  a  chattel  mortgage  does  not  destroy  his  right 
to  maintain  an  action  for  injuries  thereto  occasioned  by  the 
acts  of  a  third  person.  And  this  right  is  not  impaired  be- 
cause the  chattel  mortgage  is  subsequently  foreclosed  and  the 
property  sold  to  another.^^ 

48.  Colorado.— Flora      v.      Julesbuig  50.  Clark  v.   Ford,   179  Ky.  797,  201 
Motor  Co..  193  Pac.  545.                                  S.   W.   344.      Compare   Jewell   v.   Cecil. 

Kentucky.— JeweU   v.   Cecil,   177   Ky.  177  Ky.  822.   198  S.   W.   199. 

822,  198  S.  W.  199.  51.   Young  v.  Pliillips,  202  Mieh.  480, 

Massachusetts. —   Worcester      Morris*  168  N.  W.  549;  Willys-Ch'erland  Co.  of 

Plan  Co.  V.  Mader,  128  N.  E.  777.  Cal.  v.  Chapman    (Tex.  Civ.  App  ),  206 

Michigan. — Young    v.     Phillips,     202  S.  W.  987. 

Mich.   480,   168  N.  W.  549.  52.  Darragh     v.     Elliotte.     215     Fed. 

Neto  Jersey. — Rapoport  v.   Rapoport  340. 

E.xp.   Co..   90   N.   J.    Eq.   519,   107   All.  Delivery.— There  must  be  a  delivery 

822;    David    Straus   Co.  v.    Commercial  of  the  machine  to  constitute  a  pledge. 

Delivery  Co.,  113  Atl.  604.  Fletcher  Am.  Nat.   Bank   v.   McDormid 

Teccas.—SeU  .Motor  Co.  v.  First  State  (Ind.  App.),  128  N.   E.  685;   Hastings 

Bank  of  CroAvell   (Tex.  Civ.  App.),  226  v.    Lincoln    Trust    Co.     (Wash.),     197 

S.  W.  428.  Pac.  627. 

49.  Rossman    v.    Ward    (Mich.),    178  53.  Geron     v.     Hallenl>eck,    66    Oreg. 
N.  W.  41.  104.   132  Pac.   1164. 


]1()2 


The  Law  of  Automobiles. 


Sec.  885.  Conditional  sales  —  in  general. 

Where,  upon  the  sale  of  a  motor  vehicle,  the  vendor  reserves 
title  to  the  machine  until  the  payment  of  .the  purchase  price-, 
the  transaction  is  ordinarily  termed  a  conditional  sale.^'^  But, 
in  case  of  an  automobile  agency,  when  the  manufacturer  re- 
serves title  to  the  machines  until  they  are  sold  by  the  dealer, 
the  transaction  between  the  manufacturer  and  dealer  is  not 
a  conditional  sale,  but  is  merely  a  bailment.^^  In  some  States, 
conditional  contracts  of  sale  are  not  sustained  as  against 
third  persons  innocently  purchasing  the  property  from  the 
vendee.^''  The  validity  of  a  sale  to  a  third  person  is  generally 
determined  by  the  laAv  of  the  place  of  the  sale;  and  hence 
where  such  sale  is  in  a  State  which  refuses  to  recognize  the 
validity  of  conditional  sales,  the  title  of  the  third  person  will 
be  good,  though  the  original  conditional  contract  was  mad(^ 
in  a  State  where  it  was  valid."  But  the  validity  of  the  coii- 
tract  may  not  be  sustained  in  another  State  Avhere  it  contra 
venes  the  settled  policy  of  such  State.^^    A  machine  sold  undei- 


54.  McAi'thur  Bros.  Co.  v.  Hogihaia 
(Ariz.),  194  Pac.  336;  Winton  Co.  v. 
Meister,  133  Md.  318,  105  Atl.  301; 
Eussell  V.  Martin,  232  Mass.  379,  122 
N.  E.  447;  Worcester  Morris  Plan  Co. 
V.  Mader  (Mass.),  128  N.  E.  777: 
Studebaker  Bros.  Co.  v.  Watchei 
(Ngv.),  19.-,  Pac.  334. 

Time  of  payment.— If  the  contract 
does  not  sjiecify  the  time  for  payment 
its  filing  is  not  constructive  notice  to 
third  parties  and  a  bona  fide  purchaser 
acquires  a  title  superior  to  the  vendor. 
Ford  Motor  Co.  v.  Maeder  (Wis.),  177 
K  W.  39. 

Description  of  property. — A  condi- 
tional sale  of  an  automoljik'  may  be 
ineffective  if  it  does  not  describe  the 
property  so  that  it  can  be  identified. 
Kenner  Co.  v.  Peters.  141  Tonn.  5.5,  206 
S.  W.  188. 

Sufficiency  of  vendor's  signature  to 
instrument. — Kennery  v.  Northwestern 
Junk  Co.,  lOS  Wash.  565,  185  Pac.  636. 

Parol      transaction. — If     the     condi- 


tional sale  is  not  evidenced  by  writ- 
insr,  it  may  be  void  as  against  third 
persons.  Lyon  v.  Nourse  (Wash.).  176 
Pac.  359. 

Form  of  lease. — An  in.strument  in 
tlie  form  of  a  lease  of  a  truck  may  be 
construed  as  a  conditional  sale.  Rapo- 
pnrt  V.  Eapoport  Exp.  Co.,  90  X.  J.  Eq. 
->Hi.   JOT  Atl.  822. 

Attachment  in  action  by  vendor  on 
contract.  See  Standard  Auto  Sales  Co. 
V.  Tubman    (Cal.  App.),   186  Pac.   178. 

Conditional  contract  of  sale  dis- 
tinmiished.  Firestone  Tire  &  Rubber 
Co.  V.  Anderson  (loAva).  180  K  W. 
273. 

55.  Federal  Rubber  Co.  v.  King,  12 
Ca.  App.  261,  76  S.  E.  1083.  And  see 
section   785. 

56.  -lones  v.  Kunkle,  65  Pitts.  Leg. 
Jour.    (Pa.)    667. 

57.  Fuller  v.  Webster.  5  Boyce's  (28 
Del.)    538,  95   Atl.   335. 

58  Chambers  v.  Consolidated  Ga- 
rage Co.    (Tex.   Civ.  App.),  210   S.  W. 


Lii:xs.  1103 


a  conditional  sale  may  be  registered  in  the  name  of  the  pur- 
chaser as  an  '' owner.  "^^  The  right  of  the  conditional  vendoi 
under  the  contract,  as  the  owner  of  the  property,  is  incon 
sistent  with  any  claim  he  may  have  for  a  lien  on  the  machir. 
for  repairs. 


vyxt^^x^x  ^.^ -  --- --  *' 

CO 


Sec.  886.  Conditional  sales  —  filing-  of  instrument. 

Under  modern  statutes  regulating  contracts  of  conditional 
sale,  the  vendor  must  file  the  instrument  or  it  is  invalid  as 
against  subsequent  purchasers  in  good  faith  from  the  ven- 
dee,^i  and,  under  some  statutes,  as  against  the  creditors  of 
the  vendee.^2  If  not  filed,  the  sale  may  be  deemed  absolute 
against  one  taking  a  chattel  mortgage  on  the  property  with- 
out knowledge  of  the  conditional  nature  of  the  contract.*^'  But 
one  who  is  being  prosecuted  for  removing  and  secreting  per- 
sonal property  held  under  a  conditional  sale,  is  not  in  a  posi- 
tion to  attack  the  validity  of  the  sale  and  secure  his  release 
merely  because  the  instrument  was  not  liled.^^  And  a  pur- 
chaser from  a  third  party  Avho  had  no  interest  in  the  vehicle, 
cannot  complain  of  the  failure  to  record  the  mortgage.^' 

Sec.  887.  Conditional  sales  —  levy  on  interest  of  vendee. 

It  has  been  held  that  the  interest  of  a  conditional  vendee  in 
the  machine  is  not  one  which  is  subject  to  levy  and  sale  under 
an  execution.^^ 

565,  affirmed  231  S.  W.  1072.     See  also  90  N.  J.   Kq.  519.  107  Atl.  822. 

Jerome,     etc.     Co.     v.     Stepliens     (Mo.  63.  Yoiuifr    v.    Phillips    (Mich.).    168 

App.),  224  S.  W.  1036.  N".    W.    549;    Warley    v.    Metropolitan 

59.  Brown    v.    New    Haven    Ta.\ical>  Motor  Car  Co.,  72  Wash.  243,  130  Pac 
Co.,  92  Conn.  252,  102  Atl.  573;   Dow-  107. 

ney  v.  Bay  State  St.  Ey.  Co.,  225  Mass.  64.  State    v.    Brummett,    98    Wash. 

281,     114^  X.     E.     207:     Humanon    v.  182,  167  Pac.  120. 

Nicksa,  228  Mass.   346,   117  X.  F..  325.  65.  Jolinston     v.    Brown    Bros.     Co. 

And  sec  chapter  VITI.  as  to  the  re{ri<-  (Mo.   App.).   231   S.   W.    1011. 

tration  of  veliicles.  66.  Whitn.y  v.  Briggs.  92  Misc.    (X. 

60.  Alexander  v.  Mobile  Auto  Co,  Y.)  424.  156  X.  Y.  Suppl.  1107.  See 
200  Ala.  586,  76  So.  944.  also    King   v.    Clinc    (Cal.    App),    194 

61.  Becker  v.  La  Core  (Mich.),  179  Pae.  290;  Young  v.  Phillips.  202  Mich. 
X.  W.  344.  480.   168  X.  W.   549. 

62.  Rapoport  v.    Rapoport    E.xii.    Co.. 


1104 


The  Law  of  Automobiles. 


Sec.  888.  Conditional  sales  —  right  of  vendee   to   maintain 
action  for  injuries. 

In  case  of  an  injury  to  a  motor  vehicle  sold  under  a  condi- 
tional contract  of  sale,  the  vendee  has  the  right  to  maintain 
an  action  against  a  third  person  for  injuries  to  the  machine.^^ 

Sec.  889.  Conditional    sales  —  retaking    the     machine     by 
vendor. 

The  conditional  vendee  is  generally  entitled  to  possession 
of  the  machine  so  long  as  he  performs  the  contract.^^  Upon 
default  in  the  payment  of  the  purchase  price  of  a  vehicle  sold 
under  a  conditional  contract  of  sale,  the  vendor  is  entitled  to 
recover  possession  of  the  machine.^^  And  an  assignee  of  the 
contract  may. have  the  same  privilege."^"    The  vendee  will  not 


67.  Brown  v.  New  Haven  Taxicab 
Co.,  92  Conn.  252,  102  Atl.  573;  Carter 
V.  Black  &  White  Cab  Cb.,  102  Misc. 
(N.  Y.)  680,  169  N.  Y.  Suppl.  441: 
Downey  v.  Bay  State  St.  Ry.  Co.,  225 
Mass.  281,  114  N.  E.  207;  Stotts  v. 
Puget  Sound  Traction,  Light  &  Power 
Co.,  94  Wash.  339,  162  Pac.  519.  "The 
right  of  the  vendee,  as  against  third 
parties,  may  be  likened  to  that  of  a 
bailee,  and  we  see  no  reasons  wliy  the 
same  rules  should  not  apply,  especiall}- 
when  we  consider  the  several  statutes 
relied  on  by  defendant.  .  .  .  Tlie 
theory  of  the  law  being  that  the  bailee 
being  bound  to  restore  the  property  or 
answer  for  its  value,  the  action  is 
maintained  for  the  benefit  of  the  bailor- 
and  bars  a  subsequent  action  by  him 
We  think  the  analogy  is  complete. 
While  having  no  element  of  title,  the 
conditional  sales  vendee  is  bound  to 
keep  the  property  secure,  and  to  pay 
its  value  to  the  vendor.  The  quantum 
of  the  title  is  the  same  in  the  vendor 
as  in  the  bailor,  and  the  want  of  title 
is  the  same  in  the  vendee  as  in  the 
bailee.  The  liability  of  the  trespasser 
is  the  same,  his  only  concern  being  that 
he  shall  not  be  put  to  the  hazard  of 
two  recoveries.     He  is  amply  protected 


by  the  very  statutes  cited  by  appellant. 
Under  them  he  can  bring  in  the  vendor 
and  make  him  answer  to  the  complaint. 
Under  the  Code  system,  every  action 
may  be  said  to  be  an  action  on  the  case. 
Either  party  or  the  court,  upon  its  own 
motion,  has  ample  power  to  bring  in 
all  available  parties."  Stotts  v.  Puget 
Sound  Traction.  Light  &  P.  Co.,  94 
Wash.  339,  162  Pac.  519. 

Insurance. — The  conditional  vendee 
has  an  insurable  interest  in  the  prop- 
erty. Baker  v.  Northern  Asrur.  Co. 
(Mich.),  183  N.  W.  61. 

68.  Manor  v.  Dunfield,  33  Cal.  App. 
557,  165  Pac.  983;  Adams  v.  Anthony, 
178  Cal.  158,  172  Pac.  593. 

Replevin  is  a  proper  remedy  to  re- 
cover the  property.  Aarons  v.  Dough- 
erty  (Fla.),  84  So.  918. 

69.  McArthur  Bros.  Co.  v.  Hag'shara 
(Ariz.),     194     Pac.     336;     Haskett    v. 

Hartwick    (Cal.   App.).    191   Pac.    553; 

Studebaker  Bros.  Co.  v.  Witcher 
(Nev.),     195     Pac.     334:     Hawor'h     v. 

•Tackson    (Greg.),  178  Pac.  926. 

Waiver  of  security. — See  Whidden  v. 
Davidson    (Miss.),  83  So.   178. 

70.  Western  Lumber  Exch.  v.  John- 
son   (Wash.).   188   Pac.   388. 


Liens.  HO') 

be  in  default  until  after  a  complete  delivery  is  made  of  the 
property.''^     Such  improvements  and  repairs  as  the  vendee 
may  have  made  to  the  machine  during  his  possession  thereof 
will  inure  to  the  benefit  of  the  vendor^^  but  severable  and  dis- 
tinct equipment  attached  to  the  machine  by  the  vendee  may 
remain  his  property.'^^^     It  has  been  held  that  knowledge  on 
the  part  of  the  vendor  that  the  purchaser,  who  was  the  opera- 
tor of  a  newspaper,  intended  to  give  the  machine  away  in  a 
contest,  did  not  estop  him  from  retaking  the  machine  from 
the  wanner  of  the  contest."^'    Where,  under  a  contract  of  this 
nature,  the  seller  obtained  possession  of  the  car  because  of 
such  a  default  and  refused  to  surrender  it  until  the  amount 
of  payments  due  had  been  paid  and  brought  suit  for  the  bal- 
ance of  the  price  agreed  upon,  it  has  been  held  that  the  buyer 
will  be  allowed,  on  a  counterclaim  for  wrongful  detention,  a 
recovery  only  for  such  detention  from  the  time  of  the  com- 
mencement of  such  suit,  the  possession  of  the  seller  not  being 
wrongful  until  that  date.'^    The  statutes  in  some  States  re- 
quire the  vendor  upon  retaking  the  machine  to  follow  a  pre- 
scribed procedure  and  sell  the  property  to  foreclose  the  rights 
of  the  vendee ;  and  it  is  sometimes  provided  that,  in  case  the 
vendor  fails  to  follow  the  procedure,  the  vendee  can  recover 
the  payments  he  has  made  on  the  machine.''^    The  vendor  can- 
not retake  the  machine  and  then  recover  the  contract  price 
from  the  purchaser;  upon  the  retaking  of  the  property,  the 
consideration  therefor  fails.'^    Conditional  sale  contracts  are 
sometimes  drawm  so  as  to  permit  the  vendor  to  retake  the 
property  if  he  deems  himself  insecure.''* 

71.  Parker  v.  Funk   (Cal.),   197  Pac  75.  Chaae  &   Co.  v.  Kelly,  125  Minn. 
g3  317,  146  N.  W.  1113. 

72.  Clarke  v.   Johnson,  43  Nev.   359.  76.  Freeman     v.     Engel,     102     Miec. 
187  Pac    510;   Blackwood   Fire  &  Vul-  472.   168  N.  Y.  Suppl.   1014. 
canizing   Co.   v.   Auto  Storage  Co..   133  77.  Russell  v.  ^lartin.  232  Mass.  379, 
Tenn.  515,  182  S.  W.  576.  122    N     E.    447;    Alexander   v.    Mobile 

73.  Clarke  v.   Johnson,  43   Nev.   359,  Auto  Co.,  200  Ala.  .^)86.  76  So.  944. 
187  Pac.  510.  78.  Hines       v.       Pacific      Car       Co. 

74.  Watkins  v.  Curry.  103  Ark.  414,  (Wash.),   188  Pac.  29. 
147  S.  W.  43. 

70 


1106 


The  Law  or  Automobiles. 


Sec.  890.  Lien  for  injuries  caused  by  machine. 

A  statute  giving  one  injured  through  the  operation  of  a 
motor  vehicle  a  lien  on  the  machine,  next  in  priority  to  the 
lien  for  State  and  county  taxes,  has  been  sustained  as  consti- 
tutional,'^ although  the  machine  was  used  without  the  owner's 
consent  or  knowledge,^*^  and  even  though  the  machine  may 
have  been  stolen.^^  Such  statutory  lien  may  be  made  superior 
to  a  chattel  mortgage  not  given  imtil  after  the  passage  of  the 
statute.^-  It  may  pursue  the  machine,  although  it  has  passed 
into  the  hands  of  an  innocent  purchaser  without  notice  of  tlie 


injury.^' 

79.  Matter  of  IMcFadden,  112  S.  Car. 
258,  99  S.  E.  838:  Denny  v.  Doe  (S. 
Car.),  108  S.  E.  95.  And  see  Mer- 
chants' &  Planters'  Bank  v.  Brigman. 
106  S.  C.  362,  91  S.  E.  332,  wherein  it 
was  said:  "Motor  vehicles  are  a  new 
and  comparatively  a  modern  means  of 
locomotion.  They  are  unquestionably 
dangerous,  and  can  and  do  destroy 
property,  kill  and  maim  people  as  much 
as  locomotives  and  engines  and  cars 
on  railroad  tracks.  The  only  differ- 
ence being  that  railways  are  operated 
on  tracks  owned  by  them  w'here  no  one 
else  has  the  right  as  a  matter  of  right 
to  travel,  and  motor  vehicles  are  oper- 
ated on  highways  where  the  public 
generally  has  the  right  to  travel.  The 
railroads  are  generally  able  to  respond 
in  damages  for  any  damages  willfully 
and  negligently  inflicted  by  them.  As 
to  the  owners  of  motor  vehicles,  sucli 
as  automobiles,  it  is  a  different  propo- 
sition. There  is  a  distinction  in  law 
as  to  the  liability  and  measure  of  dam- 
ages as  to  a  common  carrier  for  hire 
and  a  private  carrier  for  hire.  If  tlie 
common  carriers  killed  and  maimed  as 
many  people  and  destroyed  as  mut'h 
property    under    similar   circumstances 


of  iiL'gli;;ciieo  and  vvillfuliiess  as  the  au- 
tomobile and  other  motor  vehicles  there 
would  be  great  indignation  and  large 
damages  awarded.  .  .  .  The  legis- 
lature had  the  right  in  the  exercise 
of  police  power  to  guard  its  citizens 
and  the  public  generally  by  passing 
a  law  in  a  measure  that  protects  them 
from  negligence,  carelessness,  and  reck- 
lessness of  persons  driving  dangerous 
machines,  and  the  proviso  making  the 
machine. tiiat  inflicted  the  injury  liable 
for  the  damages  and  providing  attach- 
ment of  the  same  is  not  taking  prop- 
erty without  due  process  of  law,  but 
is  passed  in  the  best  interest  of  the 
public.  The  act  of  the  legislature  only 
gives  the  right  to  make  the  machine 
liable,  and  not  the  owner  of  the  ma- 
chine, unless  the  owner  was  in  the  ma- 
ehino. ' ' 

80.  Denny  v.   Doe    (S.   Car.).   108  S. 
E.  95. 

81.  Ex    parte    Maryland    Motor    Car 
Ins.  Co.   (S.  Car.),  108  S.  E.  260. 

82.  Merchants'   &  Planters'   Bank   v. 
Brigman,  106   S.   C.  362,  91  S.  E.  332. 

83.  Tate  v.  Brazier.  115  S.  Car.  337, 
105  S.  E.  413. 


Evidence.  1107 

CHAPTER  XXXII. 

EVIDENCE. 

Section  891.  Judicial  notice — nature  of  autiunulnlc. 

892.  Judicial  notice — law  of  the  loiul. 

893.  Judicial  notice — municipal    ordiuanccs. 

894.  Presumptions. 

895.  Real  evidence — parts  of  vehicle. 

896.  Real  evidence — photographs. 

897.  Relevancy — in  general. 

898.  Relevancy — conduct  of  accused. 

899.  Relevancy — arrest  of  automohilist. 

900.  Relevancy- — prior   conviction. 

901.  Relevancy — injuries  as  evidence  of  force  of  collision. 

902.  Relevancy — discharge   of   chauffeur   after   accident. 

903.  Relevancy — proof  of  mental  state  of  party. 

904.  Relevancy — care  in  selection  of  motor  vehicle.  * 

905.  Relevancy — wheel  tracks  in  highway. 

906.  Admissions  and  declarations — admissions  by  owiut  of  liability. 
907.  Admissions  and  declarations — adnii.>sions  by  agent  of  defendant, 
908.,  Admissions  and  declarations — res    gestae. 

909.  Admissions  and  declarations — declarations  of   suffering. 

910.  Conclusions   of   witnesses. 

911.  Opinions — value. 

912.  Opinions— safety  of  highway. 

913.  Opinions — competency  of  driver. 

914.  Opinions — defects  in   machine. 

915.  Opinions — manner    of    collision.  < 

916.  Opinions— noise  of  machine. 

917.  Opinions — identification  of  machine   from  track. 

918.  Opinions — distance  in  which  object  can  be  seen. 

919.  Opinions — distance  in  which  machine  may  be  stopped. 

920.  Proof  of  speed  of  vehicle — opinion  of  driver. 

921.  Proof  of  speed  of  vehicle — opinion  of  observer. 

922.  Proof  of  speed  of  vehicle — opinion  of  passenger. 

923.  Proof  of  speed  of  vehicle — qualification  of  witnesses. 

924.  Proof  of  speed  of  vehicle — foundation  for  opinion. 

925.  Proof  of  speed  of  vehicle — characterization    of    speed. 

926.  Proof  of  speed  of  vehicle — estimate  of  speed  from  track. 

927.  Proof  of  speed  of  vehicle — noise  of  machine. 

928.  Proof  of  speed  of  vehicle — conflict  between   opinion  and  surround- 

ing  circumstances. 

929.  Proof  of  speed  of  vehicle — speed  at  one  place  as  evidence  of  speed 

at  another. 

930.  Proof  of  speed  of  vehicle — experiments. 

931.  Proof  of  speed  of  vehicle — photo — speed — recorder. 

932.  Proof  of  speed  of  vehicle — speedometer. 


1108  The  Law  of  Automobiles. 

Section  933.  Proof  of  speed  of  vehicle — evideuce  under  English  law. 

934.  Bes  inter  alios  acfa— negligence   on    other    occasions. 

935.  Ees  inter  alios  acta — care   after   accident. 

936.  Ees  inter  alios  acta — defects  in   other  machines. 

937.  -Res  inter  alios  acta — habits.. 

938.  Bes  inter  alios  acta — competency    of    driver. 

Sec.  891.  Judicial  notice  —  nature  of  automobile. 

The  courts  will  take  judicial  notice  that  an  automobile  may 
be  driven  at  a  high  rate  of  speed  ;^  and  that  it  is  a  large  and 
sometimes  noisy  machine  which,  frequently  when  in  operation, 
emits  an  offensive  odor.^  The  courts  also  take  notice  of  the 
increasing  number  of  trucks  in  populous  communities  and  of 
the  danger  to  pedestrians  therefrom.^  It  is  also  a  matter  of 
common  knowledge  that  they  can  be  stopped  within  a  few 
feet  if  they  are  driven  slowly,*  and  that  they  can  be  run  over 
smooth  ways  where  there  is  little  or  no  street  traffic  mucli 
more  easily,  safely  and  quickly  than  over  rough  roads  ov 
where  their  progress  is  delayed  by  the  presence  of  other  vehi 
cles  or  by  the  receiving  or  discharging  of  passengers  from 
street  cars."  The  courts  also  take  cognizance  of  the  fact  that 
motor  trucks  are  operated  or  propelled  by  gasoline  engines 
or  motors,  which  by  the  use  of  gasoline  produce  their  own 
energy  or  motive  power.''  Under  a  statutory  provision  re- 
quiring courts  to  take  judicial  notice  "of  the  significance  of 
all  English  words  and  phrases,"  a  court  will  assume  judicial 
knowledge  of  an  automobile,  its  characteristics,  and  the  con- 

1.  People    V.     Schneider.     139    Mich.  2.  People  ex  rel.   Busching  v.   Erics 

673,  12  Dot.  L.  N    32,  69  L.  R.  A.  345,  son,  263  111    368,  105  N.  E.  315. 

103  N.  W.  172.  5  Ann.  Cas.  790,  where-  3.  Consumers  Co.  v.  City  of  Chicago, 

in    the    court    says:       "We    may    take  208  III.  App.  203. 

judicial  no' ice  that  many  of  these  au-  Majority  of  vehicles. — The  courts 
tomobiles  may  be  driven  at  a  speed  of  may  take  judicial  notice  that  the  over- 
at  least  forty  miles  an  hour.  Driven  Avhelming  majority  of  vehicles  that 
by  ir.d'fferent,  careless,  or  incompetent  occupy  the  streets  of  our  cities  in  re- 
operators,  these  vehicles  may  be  a  cent  times  are  motor  vehicles.  Dice  v. 
menace  to  the  F,afety  of  the  public."  Johnson    (Iowa),  175  N.  W.  38. 

Foot    rails. — The    existence    of    foot  4.  Roberts    v.   Ring,    143   Minn.    151. 

rails  so  constructed  as  to  permit   pas-  173  N.  W.  437;  Clark  v.  .lones   (Oreg.). 

sengers  to  entangle  their  legs  therein.  179  Pac.  272. 

is  not  a  matter  of  common  knowledge.  5.  Mathewson  v.  Edison  Elec.  Ilium. 

Hedges   v.    Mitchell    (Colo),    194    Pac.  Co.,  232  Mass.   576,  122  N.  E.  743. 

620.  6.  Haddad      v.      Commercial     Motor 


Evidence.  1109 

sequences  of  its  use.  As  said  by  the  Supreme  Court  of  Cali- 
fornia: "We  may  assume  ...  to  have  what  is  common 
and  correct  knowledge  about  an  automobile.  Its  use  as  a 
vehicle  for  t^-aveling  is  comparatively  recent.  It  makes  an 
unusual  noise.  It  can  be,  and  usually  is,  made  to  go  on  com- 
mon roads  at  great  velocity— at  a  speed  many  times  greater 
than  that  of  ordinary  vehicles  hauled  by  animals ;  and  beyond 
doubt,  it  is  highly  dangerous  when  used  on  country  roads, 
putting  to  great  hazard  the  safety  and  lives  of  the  mass  of 
the  people  who  travel  on  such  roads  in  vehicles  drawn  by 
horses."^ 

Sec.  892.  Judicial  notice  —  law  of  the  road. 

One  of  the  matters  which  courts  are  required  to  know  with- 
out proof,  is  the  law  of  the  road.^ 

Sec.  893.  Judicial  notice  —  municipal  ordinances. 

Local  municipal  regulations  are  not  generally  within  the 
knowledge  of  the  courts,  and  they  must  be  proved  as  facts  by 
a  party  relying  thereon.^  Local  courts  are  sometimes  justi- 
fied, however,  in  taking  cognizance  of  regulations  applicable 
within  their  jurisdiction.^*^  And,  on  an  appeal  from  the  local 
court,  the  superior  court  may  likewise  assume  knowledge  of 
the  regulation."  But  even  local  courts  do  not  in  all  States 
take  notice  of  the  local  ordinances.^^ 

Truck  Co.,   146  La.   897.  84  So.   197,  9  Statutes  may  require  courts  to  take 

A.  L.  R.  1380.  judicial     cognizance     of     certain     ordi- 

7.  Ex  parte  Berry,  147  Cal.  523,  82  nances.  Hart  v.  Roth,  186  Ky.  35,  217 
Pac.  44.  S.  W.  893. 

Reduction   of  livery  business  by   in-  10.  City   of   Spokane   v.    Knight.    96 

crease  of  automobile  traffic,   is   a  mat-  Wash.  403,  165  Pac.  105. 

ter   of  common    knowledge.      Hogan   v.  11.  City    of    Spokane    v.    Knight.    96 

McCombs  Bros.   ( Iowa ) ,  180  N.  W.  770.  Wash.  403,  165  Pac.   105. 

8.  Section  243.  12.  People   v.    Treina.    92    Misc.    (N. 

9.  People  V.  Treina,  92  Misc.  (N.  Y.)  Y.)  82,  155  N.  Y.  Suppl.  1015.  And 
82,  155  N.  Y.  Suppl.  1015 ;  White  v.  see  section  83,  as  to  the  proof  of  ordi- 
State,  82  Tex.  Cr.  274,  198  S.  W.  964.  nances. 


1110  The  Law  of  At'tomoriles. 

Sec.  894.  Presumptions. 

In  case  of  a  collision  between  vehicles  on  the  public  high- 
way, there  is  a  presumption  of  negligence  against  the  part\- 
who  is  on  the  wrong  side  of  the  highway  at  t\^  time  of  the 
accident.^^  A  presumption  arises  that  the  road  law  of  another 
State  is  the  same  as  that  at  common  law.^^  And  under  the 
statutes  of  some  jurisdictions,  a  presumption  arises  that  one 
is  guilty  of  negligence  when  he  is  violating  the  speed  limit.^^ 
The  courts  frequently  indulge  the  presumption  that  until 
evidence  to  the  contrary  is  produced,  a  condition,  having  some 
degree  of  permanency,  when  once  shown  to  exist,  continues 
and  has  continued  for  some  period  of  time.  Thus,  when  it  is 
shown  that  an  automobile  when  received  was  in  a  certain  con- 
dition, the  courts  presume  that  it  was  in  the  same  condition 
when  shipped  from  another  State.^* 

Sec.  895.  Real  evidence  —  parts  of  vehicle. 

In  an  action  for  a  breach  of  a  warranty  in  the  salo  of 
motors  the  admission  in  evidence  of  the  sevoral  ])arts  of  the 
motors  is  largely  a  matter  of  discretion  with  the  trial  court, 
and  unless  such  discretion  is  abused  its  admission  Avill  not 
constitute  reversible  error.  Before  parts  are  received  in  evi- 
dence the  preliminary  proof  should  show  that  they  are  sub- 
stantially in  the  same  condition  that  they  were  when  such 
condition  was  material  to  the  issue,  or,  if  tliey  had  been  broken, 
worn,  altered  or  marred  since  such  time,  the  court  should  re- 
quire evidence  to  show  in  what  particular  they  have  been 
changed,  the  use  to  which  they  were  put,  and,  if  material,  the 
test  or  circumstances  under  which  they  were  broken  or  marred, 
and  this  whether  they  are  introduced  to  prove  a  fact  or  for 
the  purpose  of  illustration.^'  And,  in  an  action  for  damages 
resulting  to  an  automobile  from  a  collision  with  another  vehi- 
cle, it  is  proper  to  produce  the  radiator  of  the  machine,  where 

13.  Sections  267,  376.  16.  Kelly  v.  'I'iiues  Square  Auto  Co.. 

14.  O'Donnell    v.    .Tohn.«on.    36    R.    I.       170  Mo.  App.  64.   1.56  S.  W.  62. 

308,  90  Atl.  165.  17.  Staver  Caniaoe  Co.  v.  Ainciieaii, 

15.  Sections  321.  322.  etc,  Mfy.  Co..   ISS   111.  A|,|..  634. 


EVIDEXCE.  1111 

it  is  properly  identified  and  shown  to  l)e  in  the  same  condition 
immodiatoly  after  the  accident.'^ 

Sec.  896.  Real  evidence  —  photographs. 

In  an  action  for  injuries  to  an  automobile,  it  i?  proper  to 
receive  in  e^ndence  a  photo,j;raph  of  the  machine  in  its  dam- 
aged condition.^^  A  photograph  of  one  of  the  machines  which 
collided  is  admissible,  though,  owing  to  its  removal  from  the 
scene  of  the  accident,  its  condition  may  not  be  exactly  as  at 
the  time  of  the  accident.^"  And,  in  an  action  against  a  rail- 
road company  for  injuries  to  a  motor  vehicle,  althougli  a 
lihotograph  of  the  vehicle  is  introduced  in  evidence,  it  is  not 
necessarily  reversible  error  for  the  court  to  exclude  a  photo- 
graph of  the  engine,  for  such  a  photograph  could  l)e  of  but 
slight  help  to  the  jury.^^  But  it  is  held  to  be  error  to  refuse  to 
receive  a  photograph  of  the  scene  of  a  collision  between  a 
train  and  a  vehicle.-^  And  photographs  of  a  defective  high- 
way may  be  received.^^  But  it  is  not  error  to  exclude  a  photo- 
graph of  only  a  portion  of  the  crossing,  ^vhere  it  was  taken 
from  some  distance  to  the  side  of  the  main  line  track  and 
perhaps  gives  a  misleading  view  of  the  situation.^^  It  may 
be  proper  to  permit  the  jury  to  view  the  scene  of  an  automo- 
bile accident,  or  inspect  the  machine,  but  the  matter  is  largely 
witliin  the  discretion  of  the  court,  and  a  reversal  will  not  gen- 
erally be  had  because  the  view  was  denied.^" 

Sec.  897.  Relevancy  —  in  general. 

It  is  a  fundamental  rule  of  the  law  of  evidence  that  only 
such  matters  as  are  relevant  to  the  issue  shall  be  received.^*' 

18.  Xeel  V.  Smith  (Iowa),  147  X.  W.  v.  Connecticut  Valley  St.  Ky.  Co..  233 
183.  Mass.  554,  124  N.  E.  435. 

19.  Laiiiisch  v.  Minneapolis  St.  P.  R.  23.  McCreedy  v.  Fournier  (Wash.), 
&  D.  Electric  Traction   Co.,   132  Minn.  194  Pac.   398. 

114,  155  X.  W.   1074.  24.  Stone    v.    Xortliern    Pacific    Ry. 

20.  Young  V.  Dunlap,   195  Mo.  App.  Co.,  29  X.  D.  480.  1.51   X.  W.   .3fi. 
119,  190  S.  W.  1041.  25.  Oberliolzer      v.      Hulihell       (Cal. 

21.  Laurisch  V.  Minneapolis  St.  P.  K.  App.),  171  Pac.  43r):  Siiickelnieir  v. 
&  D.  Electric  Traction  Co.,  133  Minn.  Hartnian  (Ind  App.^,  1:.':;  X.  E.  232; 
114,  155  X.  W.  1074.  Shortino  v.  Salt  Ealv.'  .'^.   U.  R.  Co..  53 

22.  Boggg   V.   Iowa  Central   Ry.   Co..  T'fali,  47fi,  174  Pac.  Sfil. 

187  111.  App.  621.    See  also,  Morrissey  26.  "Relevancy    i.*    a    .^tate    of    rela- 


1112 


The  Law  of  Automobiles. 


Thus,  as  a  general  proposition,  the  fact  that  the  defendant  in 
an  automobile  accident  case  is  insured  against  liability  by  an 
indemnity  company,  cannot  be  shown  by  the  plaintiff."  In 
an  action  for  damages  arising  from  the  fright  of  a  horse  from 
an  automobile,  evidence  of  the  vicious  character  of  the  horse 
may  be  received  as  bearing  on  the  contributory  negligence  of 
the  driver,^^ 

Sec.  898.  Relevancy  —  conduct  of  accused. 

In  a  criminal  prosecution  based  on  the  wrongful  operation 
of  a  motor  vehicle,  the  conduct  of  tlie  accused  is  a  proper  sub- 


tion.  Unless  and  until  conditioned,  it 
may  well  be  regarded  as  a  link  con- 
necting any  given  fact  in  point  of  time, 
with  varying  degrees  of  remoteness, 
with  all  other  facts,  prior  or  subse- 
quent, and  in  all  directions  of  space. 
In  a  state  of  nature,  the  existence  of 
any  given  fact,  according  to  general 
experience,  renders  probable,  in  a 
greater  or  less  degree,  the  existence  of 
a  large  number  of  other  facts.  Under 
the  law  of  causation,  the  given  fact  is 
related,  running  backward,  from  effect 
to  cause,  to  a  large  number  of  antece- 
dent facta.  Tracing  forward  into  time, 
from  cause  to  effect,  it  is  relevant  to  a 
large  number  of  subsequent  ones.  All 
time,  prior  or  subsequent,  is  connected 
with  the  time  of  its  occurrence.  All 
space  stands  in  definite  relation  to  the 
location  of  its  occurrence.  Subjective 
relevancy,  unconditioned,  is  in  a  simi- 
lar position.  The  entire  realm  of  mind 
is  co-ordinated  and  related  in  much  the 
same  way  as  is  the  realm  of  matter. 
Any  given  act,  in  its  mental  or  moral 
aspect,  is  the  resultant  of  a  large  num 
ber  of  previous  states  of  unconscious 
ness,  the  ramifications  of  which  it  is 
impossible  to  trace.  In  turn,  its  gives 
vise  to  consequences  in  the  subjective 
mental  conditions  which  cannot  well  be 
counted.  To  all  of  these  psychological 
facts,  prior  or  subsequent  to  itself,  any 
iirtificially  segregated  act  of  conscious- 


ness stands  in  some  degree  of  relevance. 
Until  its  relations  are  conditioned  by 
something  which  can  direct  thought 
along  some  given  line  of  causation,  or 
establish  some  fixed  point  as  a  goal  to- 
ward which  proof  may  verge,  relevancy 
cannot  be  said  to  be  either  direct  or 
indirect. ' '  Chamberlayne  '*  Modern 
Law  of  Evidence,  §  57. 

Hospital  signs. — Where  in  an  action 
to  recover  for  wrongful  death  alleged 
to  have  been  caused  by  the  excessive 
speed  and  carelessness  with  which  the 
detfendant's  automobile  was  driven,  the 
case  was  a  close  one  on  the  facts,  it 
waa  reversible  error  to  admit  evidence 
of  the  contents  of  hospital  signs  which 
were  posted  along  the  street  at  the 
place  of  the  accident,  warning  travelers 
to  "Walk  Your  Horses"  and  "Make 
No  Unnecessary  Noise,"  accompanied 
by  statements  of  the  court  made  in  the 
presence  of  the  jury  that  they  might 
infer  from  the  existence  of  the  signs 
that  the  decedent,  having  seen  them, 
might  rely  upon  them  as  an  assurance 
of  safety,  and  also  that  the  jury  might 
infer  that  the  defendant's  chauffeur, 
having  seen  them,  neglected  to  obey 
their  mandate.  Falcone  v.  National 
Casket  Co.,  190  N.  Y.  App.  Div.  651, 
180  N.  Y.  Suppl.  435. 

27.  Section   836. 

28.  Section  544. 


Evidence.  1113 

ject  of  inquiry.  Thus,  his  flight  after  the  accident  may  be 
shown.  And  it  may  be  shown  that  after  the  accident  he  did 
not  go  to  see  the  person  injured. 


29 


Sec.  899.  Relevancy  —  arrest  of  automobilist. 

In  an  action  by  a  pedestrian  injured  by  a  collision  with  an 
automobile,  the  fact  of  the  arrest  of  the  defendant  and  that 
he  was  requested  to  take  the  plaintiff  home  in  his  machine, 
may  properly  be  shown  as  part  of  the  general  transaction 
or  for  purposes  of  contradicting  a  party.  And,  when  the 
arrest  and  acquittal  of  the  defendant  is  shown  on  his  own  be- 
half, the  plaintiff  may  ask  him  on  cross-examination  as  to  the 
offense  for  which  he  was  tried.^*^ 

Sec.  900.  Relevancy  —  prior  conviction. 

In  an  action  against  the  owner  of  an  automobile  for  caus- 
ing the  death  of  the  plaintiff's  decedent  by  frightening  a  horse 
that  was  being  driven  on  a  highway,  causing  it  to  run  away 
and  collide  with  a  wagon  in  which  the  decedent  was  riding, 
thereby  causing  his  death,  the  negligence  charged  was  the 
failure  to  stop  when  waj'ned  that  the  automobile  was  frighten- 
ing the  horse.  It  was  held,  that  evidence  that  the  defendant 
had  been  convicted  of  exceeding  the  speed  limits  fixed  by  local 
ordinances  in  different  places  was  not  competent,  as  it  had 
no  bearing  on  the  question  of  negligence  involved;  the  viola- 
tion of  local  ordinances  not  being  evidence  affecting  moral 
character.  While  evidence  of  the  commission  of  a  crime  may 
be  admissible  as  l)earing  on  moral  character,  the  violation  of 
local  ordinances  is  generally  not  a  crime,  but  only  a  lesser 
offense,  which  does  not  imply  any  moral  turpitude.^^ 

But  evidence  of  prior  convictions  of  a  witness  are  admis- 
sible in  some  instances  as  bearing  upon  his  credibility.^^ 

29.  state  v.  Schaeflfer.  96  Ohio.  215,       Div.  596,  113  N.  Y.  Suppl.  1093. 

117  N.  E.  220.  32.  Van   Goosen   v.   Barium    (Mich.), 

30.  Segerstrom  v.  Lawrence,  64  183  N.  W.  8;  Brown  v.  Howard  (R.  T.). 
Wash.  245,  116  Pac.  876.  114  Atl.  11. 

31.  See  V.  Wormser.  129  N.  Y.  App. 


1114  The  Law  of  Automobiles. 

Sec.  901.  Relevancy  —  injuries  as  evidence  of  force  of  colli- 
sion. 

In  an  action  for  injuries  sustained  from  a  collision  with  a 
motor  vehicle,  though  particular  injuries  may  be  inadmis- 
sible as  a  basis  for  damage  because  they  are  not  alleged  in 
the  complaint,  they  may  be  admissible  to  show  the  violence 
of  the  collision  or  the  speed  at  which  the  vehicle  was  moving.^' 
Similarly,  when  more  than  one  person  in  an  automobile  is 
injured  at  a  railroad  crossing,  in  an  action  by  one,  the  others 
may  be  permitted  to  state  the  injuries  they  received,  as  bear- 
ing upon  the  force  of  the  train.^^  The  distance  which  an  auto- 
mobile is  pushed  by  a  street  car  is  thought  to  be  some  evi- 
dence of  the  speed  of  the  car."^ 

Sec.  902.  Relevancy  —  discharge  of  chauffeur  after  accident. 

In  an  action  against  the  owner  of  a  motor  vehicle  for  in- 
juries received  through  its  operation  by  a  chauffeur,  the  fact 
that  the  owner  discharged  the  chauffeur  after  the  accident  is 
not  relevant.^*^ 

Sec.  903.  Relevancy  —  proof  of  mental  state  of  party. 

In  an  action  for  injuries  arising  from  an  automolnle  acci- 
dent, evidence  of  the  business  the  occupants  of  the  carriage 
were  discussing  just  prior  to  the  accident,  may  be  received 
to  show  that  the  plaintiff  was  disturbed  and  disappointed, 
and  hence  might  have  been  less  careful  about  the  manage- 
ment of  his  carriage  than  he  would  otherA^Hse  have  beeu-^"^ 
And  evidence  of  the  intoxication  of  the  driver  is  generally 
competent.^^ 

33.  Posner  v.  Harvey  (Tex.  Civ.  36.  Gillet  v.  Shaw,  217  Mass.  59,  104 
App.),  125  S.  W.  356.  See  also,  Du-  N.  E.  719;  Buchanan  v.  Flinn,  51  Pa. 
prat  V.  Chesmore   (Vt.),   110  Atl.   305.  Super  Ct.  145. 

34.  Boggs  V.  Iowa  Central  Ey.  Co.,  37.  Beckley  v.  Alexander,  77  N.  H. 
187  111.  App.   621.  255,  90  Atl.  878. 

35.  Northern  Texas  Tract  Co.  v.  38.  Wigginton's  Adm'r  v.  Rickert, 
Smith    (Tex.    Civ.    App.),    233    S.    W.  186  Ky.  650,  217  S.  W.  933. 

1013. 


Evidence.  IH-") 

Sec.  904.  Relevancy  —  care  in  selection  of  motor  vehicle. 

In  an  action  for  damages  to  a  plaintiff,  who,  while  upon 
the  sidewalk,  was  injured  through  a  collision  between  a  street 
car  and  defendant's  auto  truck,  which,  as  the  testimony 
showed,  was  driven  in  a  zigzag  manner  across  the  street  and 
hack  again  in  spite  of  the  chauffeur 's  efforts  to  control  it,  evi- 
de;ice  as  to  the  character  of  the  construction  of  the  auto 
truck,  that  it  had  recently  been  purchased  as  a  new  machine, 
and  that  defendant  had  exercised  the  utmost  care  in  its  selec- 
tion, was  relevant  and  material  on  the  question  of  defendant's 
negligence,  and  the  exclusion  of  such  testimony  was  i-ever- 
sible  error.^^ 

Sec.  905.  Relevancy  —  wheel  tracks  in  highway. 

In  an  action  for  injuries  from  the  frightening  of  a  horse 
by  an  automolnle,  where  one  of  the  issues  was  the  location  of 
the  automobile  at  the  time  of  the  accident,  evidence  may  be 
received  concerning  wheel  tracks  in  the  highway  after  the 
accident,  though  they  are  not  connected  with  the  automobile 
in  question,  when  the  circumstances  warrant  the  inferencp 
that  they  were  made  by  the  machine  in  question.^'' 

Sec.  906.  Admissions  and  declarations  —  admissions  by 
owner  of  liability. 
In  an  action  against  the  owner  of  a  motor  vehicle  for  in- 
juries occasioned  by  its  operation,  evidence  of  his  admissions 
is  received.*^  Thus,  his  subsequent  admission  as  to  the  speed 
with  which  the  machine  was  traveling  on  the  occasion  in  ques- 
tion, may  l)c  ])roper  on  the  issue  whether  the  vehicle  was 

39.  Dulboioei  v.  Gimbel  Bros.,  76  23:?  Mass.  183.  122  X.  E.  272:  .Jolman 
Miso.  (X.  Y.).  22.-).  13.i  X.  Y.  Suppl.  v.  Alberts.  192  Mich.  25.  158  N.  W. 
rul.  ITO:    Riuitli    V.    Barnard,    82    N.   J.    L. 

40.  Muynard  v.  Wcsllicld,  87  Vt.  ^?,2.  4fiS.  SI  Atl.  734.  See  also  Link  v. 
00  Atl.  504.  Fahey.  200  Mich.  308.  166  N.  W.  884. 

41.  SalmLueu  v.  Ross,  185  Fed.  997;  Opinion. — An  expression  of  an 
Rebbins  v.  Weed  (Iowa),  169  X.  W.  o])iiiioii  Ijy  a  party  may  be  rejected. 
773;  MeKeever  v.  RatoliiTfe,  218  Mass.  Melter  v.  Week.  186  Ky.  552,  217  S.  W. 
17,  105  X".  E.  552:  Eldridge  v.  Barton.  904. 


1116  The  Law  of  Automobiles. 

violating  a  speed  regulation.''^  In  an  action  for  injuries  from 
a  collision  between  a  buggy  and  the  defendant's  automobile, 
the  plaintiff  has  been  permitted  to  show  that  after  the  acci- 
dent the  defendant  said  in  substance  he  would  pay  for  having 
the  buggy  or  the  rig  repaired  or  fixed  up."^  But,  it  has  been 
held  proper  to  exclude  evidence  that  the  automobilist  called 
on  the  injured  person  after  the  accident  and  urged  her  to  go 
to  the  hospital,  and  stated  that  he  had  insurance  on  the  ma- 
chine and  would  pay  all  expenses.''*  But  admissions  of  lia- 
bility have  been  received,  though  they  tended  to  show  insur- 
ance.*^ 

Sec.  907.  Admissions  and  declarations  —  admissions  by  agent 
of  defendant. 

As  a  general  proposition,  in  an  action  against  the  owner 
of  a  motor  vehicle  for  injuries  occasioned  from  its  operation, 
the  owner  is  not  bound  by  admissions  of  liability  which  have 
been  made  by  the  driver  of  the  vehicle,  and  they  are  not  ordi- 
narily received  as  evidence  against  him.*^  Declarations  of  an 
alleged  agent  are  not  received  to  establish  the  agency ."^^  The 
evidence,  however,  may  be  received  in  some  cases  for  the  pur- 
pose of  contradicting  the  driver. 


48 


Sec.  908.  Admissions  and  declarations  —  res  gestae. 

Evidence  of  a  spontaneous  exclamation  made  at  the  time  of 
an  automobile  accident  may  be  received  in  evidence  as  part 
of  the  res  gestae.*^    Thus,  in  an  action  for  injuries  at  a  rail- 

42.  Scragg  v.  Sallee,  24  Cal.  App.  205  S.  W.  434.  See  also,  section  654,  as 
133    140  Pac.   706.  to   the   receipt  of   admissions   made  by 

43.  Jolman  v.  Alberts,  19S  Mich.  25,  the  driver  as  bearing  on  the  liability 
158  N.  W.  170.  of  the  owner  for  the  acts  of  the  driver. 

44.  Livingstone  v.  Dole,  167  Iowa,  48.  Ballard  &  Ballard  v.  Durr,  165 
639,  167  N.  W.  639.  Ky.  632,  177  S.  W.  445. 

45.  Ward  v.  De Young  (Mich.),  177  49.  Denver  Omnibus  &  Cab  Co.  v. 
N.  W.  213.  Krebs,  255  Fed.  543  ;   Hedland  v.  Min 

46.  Ballard  &  Ballard  v.  Durr,  165  neapolis  St.  Ry.  Co.,  120  Minn.  319,  139 
Ky.  632,  177  S.  W.  445;  Frank  v.  N.  W.  603;  Shore  v.  Dunham  (Mo. 
Wright,  140  Tenn.  535,  205  S.  W.  434.  App.),  178  S.  W.  900;  Reid  Auto  Co. 
And  see  section  654.  v.   Gorsczya    (Tex.  Civ.   App.),   144   S. 

47.  Frank  v.  Wright,  145  Tenn.  535,  W.   688;    Heg  v.  Mullen    (Wash.),   197 


Evidence.  1117 

road  crossing,  testimony  of  witness  that  he  exclaimed  just 
before  the  accident,  "Why  don't  they  blow  that  whistle"  was 
competent  upon  the  issue  whether  any  warning  of  the  ap- 
proach of  the  train  was  given.^*^  And  statements  of  the  driver 
of  an  automobile  made  at  the  time  of  the  collision,  are  gen- 
erally received.^^  But  statements  made  by  a  person  other 
than  the  one  sought  to  be  bound  thereby  are  not  received, 
when  they  are  made  some  time  after  the  accident,  and  the 
elements  of  retrospection  and  deliberation  may  be  thought  to 
influence  the  statement.^^ 

Sec.  909.  Admissions     and    declarations  —  declarations     of 
suffering. 

Declarations  of  an  injured  person  made  soon  after  an  acci- 
dent as  to  the  pain  with  which  he  is  suffering,  may  be  shown. 
And  a  physician  or  attendant  may  testify  to  the  injured 
party's  statement  as  to  his  symptoms,  ills,  and  the  locality 
and  character  of  his  pain,  when  made  for  the  purpose  of 
medical  advice  and  treatment,  as  such  statements  are  made 
with  a  view  to  being  acted  upon  in  a  matter  of  grave  personal 
concern,  in  relation  to  which  the  injured  party  has  a  strong 
and  direct  interest  to  adhere  to  the  truth.^^ 

Sec.  910.  Conclusions  of  witnesses. 

As  a  general  rule  a  witness  must  testify  to  facts  and  not  to 
conclusions  or  opinions  in  order  that  the  jury  may  draw  in- 
ferences from  the  evidence  and  conclusions  from  the  facts 
presented.  There  are  exceptions  to  this  rule  founded  upon 
necessity,  for  the  reason  that  the  facts  cannot  be  reproduced 

Pac.  51;  Samuels  v.  Hiawatha  Holstein  AVostern  Maryland  Rv.  Co.,  262  Pa.  ,"^3, 

Dairy  Co.   (Wash.),  197  Pae.  24;  John  104  Atl.  857;  McMillen  v.  Strathmann. 

V.  Pierce  (Wis.),  178  N.  W.  279.  264  Pa.  St.  131,  107  Atl.  332;  Thomas 

50.  Terwilliger  v.  Long  Island  R.  Co.,  v.  Lockwood  Oil  Co.  (W'is.),  182  N.  W. 
152  N.  Y.  App.  Div.  168,  136  N.  Y.  841;  Frank  v.  Wright,  140  Tenn.  535, 
Suppl.    733.  205  S.  W.  434. 

51.  Rhodes  v.  Firestone  Tire  &  Rub-  53.  Hayes  v.  Hogan,  273  Mo.  1,  200 
ber  Co.   (Cal.  App.),  197  Pac.  392.  S    W.  286,  L.  R.  A.  1918  C.  715,  Ann. 

52.  Loose     v.     Deerfield     Twp.,     187  Cas.   1918  E.   1127. 
Mich.    206,    153    N.    W.    91.1;    Eline   v. 


1118  The  Law  of  Automobiles. 

or  depicted  to  the  jury  precisely  as  they  appeared  to  the  wit- 
ness, and  from  the  nature  of  the  subject  it  is  impractical  for 
him  to  relate  what  he  may  have  seen  without  supplementing 
his  description  with  his  conclusion.  Under  such  circumstances 
a  common  observer,  although  not  an  expert,  may  testify  to 
his  opinion  or  conclusion  regarding  what  he  has  seen.^*  In 
an  action  for  injuries  arising  from  the  fright  of  horses  from 
a  motor  vehicle,  the  defendant  cannot  be  asked  whether  there 
was  anything  in  the  appearance  of  the  horse  or  the  position 
of  the  driver  to  indicate  that  the  latter  might  lose  control  or 
that  there  was  danger  of  trouble.^^  So,  too,  the  witness  can- 
not state  whether  he  could  have  gotten  farther  from  the  car- 
riage in  passing  it  without  getting  on  the  street  car  track,^*^  or 
whether  there  was  anything  present  which  ^^ould  prevent  a 
driver  in  seeing  an  obstruction  in  the  road."  And,  in  an  ac- 
tion for  injuries  to  one  struck  by  an  automobile  while  alight- 
ing from  a  street  car,  it  is  not  proper  to  ask  what  opportunity 
the  plaintiff  had  to  get  out  of  the  way  of  the  automobile,  or 
what  he  could  have  done  to  have  avoided  the  injury.^^  And  a 
statement  may  be  received  as  to  whether  there  was  sufficient 
room  for  an  automobile  to  pass  to  the  right  of  other  vehicles.^^ 
But  it  is  proper  to  ask  an  observer  of  an  accident  whether  an 
automobile  struck  a  horse,  for  such  a  question  calls  for  a  fact, 
not  a  conclusion  of  the  Avitness.^^  And  the  driver  of  an  auto- 
mobile may  state  that  at  a  certain  time  he  had  his  car  under 
control.^^ 

Sec.  911.    Opinions*^^  _  value. 

A  witness,   after  being  properly  qualified  may   give  his 
opinion  as  to  the  depreciation  or  value  of  a  certain  motor 

54.  White  V.  East  Side  Mill  &  Lum-  58.  Levyn  v.  Koppin.  183  Mich.  232, 
ber  Co..  84  Oreg.  224,  161  Pac.  969,  164       140  N.  W.  993. 

Pac.  736.  59-  Shelly  v.   Norman    (Wash.),    195 

55.  Delfs  V.  Dunshee,  143  Iowa,  381.       Pac.  243. 

122   N.  W.    236.      See   also,   Anders   v.  60.  Zellmer   v.   McTaigue,   170   Iowa. 

Wallace   (Ala.  App.),  82  So.  644.  .j34,  153  N.  W.  77. 

56.  Delfs  V.  Dun-shee,  143  Iowa,  381,  61.  Duprat    v.    Chesmore    (Vt.),    110 
122  N.  W.  236  Atl.  305. 

57.  Martin     v.     Kansas     City     (Mn.  62.  As   to    the    opinion    rule,    geuer- 
App.),  224  S.  W.   141.  ally,    Mr.    Chamberlayne   says:      "The 


Evidence. 


1119 


vehicle.^^  Or  the  valno  of  an  autoiiiohilo  hody  may  he  the 
proper  suhject  of  opinion  ovidenco.^^  So,  too,  the  value  of 
repairs  to  a  vehicle  may  be  shown  by  the  opinion  of  a  qualified 
witness.^^  And,  when  relevant,  evidence  of  a  cpalified  witness 
may  be  received  as  the  possibility  of  ropairinfj;  a  machine  so 


opinion  rule  has  developed  along  ra- 
tional and  fairly  scientific  lines.  It 
establishes  the  sense  perception  of  tlic 
original  observer  as  a  primary  grade  of 
evidence.  Where  the  original  pheno- 
mena cannot,  with  satisfactory  clear- 
iioss,  be  placed  before  the  jury  or  co- 
ordinated by  them  into  a  reasonaljle 
inference,  the  effect  of  these  pheno- 
mena upon  the  mind  of  the  witness  mav 
be  introduced,  under  suitable  conditions 
of  necessity  and  relevancy,  as  second- 
ary evidence.  This  is  sensible  and 
fairly  scientific."  ChamberlajTie '3 
Modern  Law  of  Evidence,  §  486.  See 
as  to  estimates  as  to  speed,  3  Chamber- 
layne's  Modern  Law  of  Evidence,  § 
2086. 

63.  Mobile  L.  &  R.  Co.  v.  Harris 
Grocery  Co.  (Ala.  App.),  88  So.  o5 ; 
Gay  V.  Shadle  (Iowa),  176  N.  W.  635: 
Barshfield  v.  Vucklich  (Kans.),  V.)7 
Pac.  205;  Patterson  v.  Chicago,  etc.  R. 
Co.,  95  Minn,  57,  103  N.  W.  621  ;  Hen- 
derson V.  Dimond  (R.  T.),  110  Atl.  P.88. 

"The  owner  of  personal  property  is 
deemed  competent  to  state  his  estimate 
as  to  its  worth.  He  may  give  the  value 
of  his  household  furniture,  including 
articles  of  clothing,  or  of  the  contents 
of  the  stable,  carriages  and  similar 
articles.  Such  an  owner  may  appraise 
his  horses,  cattle  or  other  animals.  If 
he  has  building  materials,  machinery,  or 
the  like,  he  may  estimate  as  to  what 
they  are  fairly  worth.  The  owner,  be- 
ing competent  to  state  the  value  of  his 
property,  naturally  may  estimate  a 
change  in  the  monetary  worth  of  it. 
He  thus  becomes  qualified  to  state  an 
inference  as  to  the  damages,  i.  e.,  the 
diminution  in  value,  caused  by  a  speci- 


fic inquiry."     Chamberlayne's  Modern 
Law  of  Evidence,  §  2143. 

"A  witness  especially  qualified  by 
skill  and  experience  may  state  the 
value  of  personal  property  not  fun- 
gible, i.  e.,  possesses  no  established 
market  price,  and  is  available  for  ex- 
ceptional uses.  This  may  occur  in  case 
of  animals,  as  where  a  valuable  trott- 
ing horse  is  to  be  appraised.  Machin- 
ery, new  or  second-hand,  stands  in  the 
same  position.  The  value  of  museum 
cnrinsities  i.^  equally  a  matter  for  the 
estimate  of  witnesses  having  special 
training  and  experience.  Literary 
property  can  be  satisfactorily  valued 
only  by  ouo  f.iiiiiliai-  with  that  form  of 
art."  Chamberlayne's  ^Modern  Law  of 
Evidence,  §  2155. 

64.  Overall  v.  Chicago  Motor  Car  Co., 
ISn  111.  App.  276. 

65.  Mobile  L.  &  R.  Co.  v.  Harris 
Grocery  Co.  (Ala.  App.).  88  So.  55; 
Ilolcomb  Co.  V.  Clark,  86  Conn.  319,  85 
Atl.  376.  "Prominent  among  matters 
in  relation  to  value  where  the  con- 
clusion or  judgment  of  the  skilled  wit- 
ness is  invoked  is  as  to  what  would  have 
bi'cii  Ili(^  prv)liab](>  value  of  property  in 
the  (ncnt  of  certain  contingencies. 
Thus,  in  case  of  personal  property,  the 
qualified  witness  may  testify  as  to  an 
estimate  of  what  would  have  been  the 
value  of  animal  or  other  chattel  had 
a  given  event  which  actually  occurred 
not  have  liappened.  In  the  same  way, 
ho  may  reverse  his  reasoning  and  give 
Ills  e.?timate  as  to  the  value  had  a  given 
fact  which  failed  to  occur  actually 
have  happened."  Chamberlayne's 
Modern  Law  of  Evidence.  §  2169. 


1120 


The  Law  of  Automobiles. 


that  it  would  operate  properly.*^*'  The  present  owner  or  a  past 
owner  will  generally  be  deemed  qualified  to  give  an  opinion 
as  to  the  value  of  a  motor  vehicle,*^  but  other  witnesses  must 
be  qualified  as  to  their  knowledge  of  value  before  they  will  be 
allowed  to  give  an  opinion  on  the  subject.^^ 


Sec.  912.  Opinions  —  safety  of  highway. 

In  an  action  against  a  municipality  for  injuries  to  an  occu- 
pant of  an  automobile  occurring  by  reason  of  an  excavation 
in  the  highway,  expert  evidence  cannot  be  received  as  to 
whether  the  highway  at  the  place  of  the  accident  was  reason- 
ably safe  for  automobiles.  The  question  of  the  construction 
and  condition  of  a  country  highway  is  a  subject  which  does 
not  require  expert  testimony  to  enable  a  jury  to  decide  as  to 
whether  it  is  reasonably  safe  for  the  passage  of  vehicles.*'^ 


66.  Wolff  V.  Hartford  F.  Ins.  Co. 
(Mo.  App.),  223  S.  W.  810. 

67.  Patterson  v.  Chicago,  etc.,  R.  Co., 
95  Minn.  57,  103  K  W.  621;  Egekvist 
V.  Minnetonka,  etc.  Co.  (Minn.),  178 
N.  W.  238;  Midland  Valley  R.  Co.  v. 
Lawhorn   (Okla.),  198  Pac.  586. 

68.  Patterson  v.  Chicago,  etc.,  R.  Co., 
95  Minn.   57,  103  N.  W.  621. 

Deterioration  in  value. — In  one  case, 
where  it  was  sought  to  admit  the  testi- 
mony of  an  attorney  as  to  whether  an 
automobile  had  deteriorated  in  value 
during  a  certain  period,  the  court  said: 
"One  may  own  an  automobile,  or  sev- 
eral of  them  in  fact,  and  yet  never  ac- 
quire any  knowledge  of  the  mechanism 
thereof,  nor  what  parts  thereof  are  sub- 
jected to  the  greatest  amount  of  wear 
and  tear;  nor  would  mere  ownership  of 
an  automobile  necessarily  give  one  any 
knowledge  of  the  relative  value  of  a 
particular  car  at  fixed  dates;  nor 
would  the  fact  that  one  who  had  been 
the  owner  of  several  automobiles  had 
ridden  in  a  particular  machine  a  num- 
ber of  times,  without,  more,  throw  any 


light  upon  the  question  as  to  whether 
or  not  he  possessed  sufficient  knowledge, 
skill,  or  information  to  qualify  him  as 
an  expert  upon  such  subject.  Nor  do 
we  see  how  the  added  fact  that  one  had 
been  an  attorney  for  different  automo- 
bile concerns,  and  so  "in  that  way  keep 
in  touch  with  the  business,"  helps  tne 
situation. 

We  are  of  the  opinion,  and  so  hold, 
that  the  witness  in  question  upon  this 
showing  should  not  have  been  permit- 
ted to  testify  as  an  expei't  on  the  ques- 
tion as  to  whether  or  not  there  was  any 
deterioration  in  the  value  of  the  car 
between  the  time  the  policy  was  issued 
and  the  time  of  the  loss."  Wolff'  v. 
Hartford  F.  Ins.  Co.  (Mo.  App.),  223 
S.  W.   810. 

A  dealer  in  a  particular  make  of  a 
truck  is  generally  qualified  to  express 
an  opinion  of  its  value.  Kansas  City, 
etc.  Ry.  Co.  v.  O'Cbnnell  (Tex.  Civ. 
App),  210  S.  W.  757. 

69.  Loose  v.  Deerfield  Twp.,  187 
Mich.  206,  153  N.  W.  913. 


Evidence.  1121 

Sec.  913.  Opinions  —  competency  of  driver. 

A  witness  should  not  be  permitted  to  give  his  opinion  as  to 
the  competency  of  a  person  to  drive  an  automobile,  as  the 
jury  is  capable  of  drawing  the  proper  inference  from  a  stjate- 
ment  of  the  facts.'^^  Thus,  one  cannot  be  permitted  to  testify 
that  one  could  drive  a  certain  machine  and  operate  the  brake 
as  effectively  with  his  hands  as  with  his  feet.''^ 

Sec.  914.  Opinions  —  defects  in  machine. 

A  witness  who  is  experienced  in  the  running  of  motor  vehi- 
cles, may  give  his  opinion  as  to  whether  a  machine  is  defec- 
tive." And  whether  it  is  safe  and  proper  to  operate  a  car 
under  the  conditions  it  was  run  is  a  question  of  fact  for  the 
jury  and  not  a  matter  of  expert  opinion.^^ 

Sec.  915.  Opinions  —  manner  of  collision. 

An  expert  witness,  who  has  examined  the  breakage  and  the 
marks  on  a  motor  vehicle,  may  give  his  opinion  as  to  the 
manner  of  the  collision.'* 

Sec.  916.  Opinions  —  noise  of  machine. 

In  an  action  for  damages  caused  by  the  alleged  frightening 
of  a  horse  by  an  automobile,  it  has  been  held  that  a  witness 
acquainted  with  the  defendant's  automobile  may  testify  that 
it  was  exceedingly  noisy  and  was  the  loudest  machine  that  he 
ever  heard.'^^ 

Sec.  917.  Opinions  —  identification  of  machine  from  track. 

A  witness  who  has  given  special  attention  to  the  tracking  of 
automobiles  by  the  marks  of  their  tires,  may  be  allowed  to 
give  his  opinion  as  to  the  identity  of  a  machine  which  he  has 
tracked.'^' 

70.  Pantageg  v.  Seattle  Electric  Co.,       231,  142  S.  W.  301. 

55  Wash.  4.')3,  104  Pac.  629  S  e  al-o  73.  Rood    v    Edison    Ele«.    Illuminat- 

Jackson  v.  A^'aughn    (Ala.).  86  So.  469;  ing  Co.,  225  Mass.  163,  114  N.  E.  289. 

Kelly  V.    City   of   Water  bury  (Conn.),  74.  Young  v.  Dunlap.   195   Mo.   App. 

114  Atl.  530.  119,   190  S.   W.    1041. 

71.  Blalack  v.  Elackshcr,  11  Ala.  75.  Fletcher  v.  Dixon,  113  Md.  101, 
App.  545,  66  So.  863.  77  Atl    326. 

72.  E.   M.   F.   Co.   V.   Davis.  146  Ky.  76.  Bcatty  v.  Palmer.  96  Ala.  67,  71 

71 


1122  The  Law  of  Automobiles. 

Sec.  918.  Opinions  —  distance  in  which  object  can  be  seen. 

It  may  be  proper  to  permit  a  witness,  who  is  acquainted 
witli  the  situation  where  an  accident  occurred,  to  testify  as  to 
the  distance  the  driver  of  a  vehicle  could  have  seen  the  object 
s  truck.'''' 

Sec.  919.  Opinions  —  distance    in   which   machine    may    be 
stopped. 

When  the  evidence  is  relevant  to  the  issue,  expert  witnesses 
may  be  allowed  to  give  their  opinions  as  to  the  distance  within 
which  a  particular  motor  vehicle  can  be  stopped  when  travel- 
ing at  a  given  speed.''^  To  justify  an  opinion  on  the  subject, 
it  must  appear  with  reasonable  clearness  that  the  witness  is 
referring  to  the  same  type  of  machine  as  is  involved  in  the 
occurrence  in  question.''^ 

"Where  a  person  was  an  eyewitness  of  an  accident  it  was 
held  that  he  was  competent  to  testify  as  to  about  the  distance 
in  which  an  automobile  such  as  defendant's,  and  going  at  the 
speed  it  was  on  the  occasion  in  question,  could  be  stopped,  it 
appearing  that  he  had  had  considerable  experience  in  observ- 
ing the  speed  of  machines,  had  attended  races,  ridden  in  au- 
tomobiles every  day  and  read  their  speedometers,  had  been 

So.    422.      See    also    Blalack   v.    Black  l)e    brought    to    a    stand."      Chamber- 

sher,    11    Ala.    App.    545,    66    So.    863;  layne's    Modern    Law    of    Evidence.     § 

White  V.  East  Side  Mill  &  Lumber  Co.,  2086.     "Evidence  as  to  the  distance  in 

84   Oreg.   224.   161   Pac.    969,   164   Pac  which    an   automobile   or   a   street   car 

736.  can  'be  stopped   is  often  very   mislead- 

77.  Arkansas  &  L.  Ry.  v.  Sanders,  ing;  that  presupposes  that  the  party 
81  Ark.  604,  99  S.  W.  1100.  knows  that  he  has  to  stop  the  car  and 

78.  Hughey  v.  Lennox  (Ark.),  219  is  prepared  with  liis  hands  ui>on  the 
S.  W.  323;  Crandall  v.  Krause.  165  brakes  for  that  purpose.  In  driving 
111.  App.  15;  Foley  v.  Lord,  232  Mass.  along  when  an  emergency  is  created, 
368,  122  N.  E.  393;  Johnson  v.  Quinn,  it  takes  a  moment  for  the  human  mind 
130  Minn.  134,  153  N.  W.  267;  Young  to  grasp  the  situation,  the  cause  and 
V.  Bacon  (Mb.  App.),  183  S.  W.  1079;  necessity  for  the  stopping  of  the  car, 
Tucker  v.  Carter  (Mo.  App.),  211  S  another  moment  to  reach  the  levers  to 
W.  138;  State  v.  Uray  (N.  Car),  104  apply  the  brakes."  lannone  v.  Web- 
S.  E.  647.  "A  witness  shown  to  be  ber-McLoughlin  Co..  186  N.  Y.  App. 
competent  to  do  so  may  estimate  Div.  594,  174  N.  Y.  Suppl.  580. 
■within  what  distance  an  automobile  79.  ]\Iiller  v.  Eversole,  184  111.  App. 
traveling  at  a  given  rate  of  speed  may  362. 


Evidence.  1123 

"W'ith  a  rubber  company  in  its  repair  (Icpaitiiiciit  for  several 
years,  and  Uial  said  company  liad  left  to  iiis  judgment  all 
matters  based  on  specd.^^  The  distance  within  which  a  ma- 
chine was  stopped  on  a  particular  occasion  after  an  accident 
may  be  taken  into  consideration  in  determining-  its  speed.^' 

Sec.  920.  Proof  of  speed  of  vehicle  —  opinion  of  driver. 

The  cIiaulTeur  or  driver  of  a  motor  vehicle  is,  perhaps, 
better  qualified  than  other  witnesses  to  give  evidence  as  to 
the  speed  of  the  machine  on  a  particular  occasion.^-  On  the 
other  hand,  it  is  to  be  noted  that,  in  an  action  involving  the 
speed  at  which  he  drove  the  machine,  he  is  generally  interested 
in  the  event  of  the  action,  and  his  personal  bias  may  require 
a  careful  scrutiny  of  his  testimony.  The  chauffeur  or  opera- 
tor of  an  automobile,  having  control  of  the  vehicle,  is  the  cus- 
todian, so  to  speak,  of  the  speed.  This  is  an  important  con- 
sideration. His  testimony  should  be  especially  valuable  if  it 
consists  not  merely  of  an  expression  of  his  judgment  or 
opinion,  but  of  Avhat  he  actually  did  in  the  way  of  regulating 
the  speed ;  since,  in  the  latter  case  it  might  be  necessary  for 
the  trier  of  facts  to  find  him  guilty  of  perjury  if  his  testimony 
is  not  to  1)e  credited,  and  very  strong  evidence  is  always  re- 
quired to  justify  that  seveiity.  AVhere,  for  example,  the 
chauffeur  or  o])erator  is  able  to  testify  as  to  what  he  did  in 
reference  to  shutting  off  the  power,  applying  the  brakes,  or 
any  other  matter  pertaining  to  the  regulation  of  the  speed, 
this  should  furnish,  at  least,  strong  corroborative  evidence. 
Because  the  chauffeur  is  so  closely  in  touch  with  the  automo- 
bile's movements,  courts  sliould  give  great  weight  to  his  evi- 
dence, if  it  is  truthful.  Tt  has  been  held  proper  to  ask  the 
chauffeur  as  to  the  highest  rate  of  speed  Avhich  could  lie  made 

80.  Sr-lioU  V.  Crayson,  14?  Mo.  App.  S.")  ( '.  ( '.  A.  :i85 ;  Book  v.  As«lieiibren- 
652.  127  S.  W.  41.5.  See  al'^o  Blado  v.  ner.  Ifi.'  TU.  App.  23:  Liviufrgtone  v. 
Drape)-.  SO  Neb.   787,    1.32  N.  W.  410.  Dole.   Ifi7   Town.   fi39.   167  X.   W.   6,30. 

81.  Tvoiali  V.  rjineliart.  24.3  Pa.  St.  The  driver  of  another  ear  leading  a 
231.  80  Atl.  067:  Fever  v.  Durhrow  procession  of  maeliines  may  state  the 
(Wis.),  178  N.  W.  306.  speed  of  his  macliine  as  evidence  of  a 

82.  See  Bowes  v.  Hopkins,  84  Fed.  followinjir  one.  Tucker  v.  Carter  (Mo. 
767,     28     r.     C     A.     524:     New     Vork  App.).  211   9.   W.    138. 

Transp.    Co.   v.   Garside.   157    Fed.   .)21, 


1124 


The  Law  of  Automobiles. 


with  the  car  where  excessive  speed  was  alleged  as  constitut- 
ing the  basis  of  the  negligence.^^  The  admissions  of  a  chauf- 
feur as  to  the  speed  of  his  vehicle  on  a  given  occasion,  made 
outside  of  judicial  proceedings,  are  not  generally  binding  on 
his  employer,  though  they  may  be  used  under  some  circum- 
stances to  contradict  or  impeach  the  evidence  of  such  chauf- 
feur.«^ 


Sec.  921.  Proof  of  speed  of  vehicle  —  opinion  of  observer. 

One  who  observes  a  vehicle  in  motion  is  generally  entitled 
to  give  his  estimate  of  its  speed.^^  The  general  rule  applies 
to  street  cars^^  and  railroad  engines,^^  as  well  as  motor  vehi- 


83.  Goldblatt  v.  Brocklebank,  166 
111.  App.  315. 

84.  Loose  v.  Deerfield  Twp.,  187 
Mich.   206,  153  N.  W.  913. 

85.  United  States. — Porter  v.  Buck- 
ley, 147  Fed.  140.  78  C.  C.  A.  138. 

Alabama. — Kansas  City,  e'c.  R.  Co. 
V.  Crocker,  95  Ala  412,  11  So.  262; 
Spearman  v.  McCrary,  4  Ala.  App. 
473,  58  So.   927. 

California. — Yohachi  v.  Bundy,  24 
Cal.  App.  675,  142  Pac.  109. 

Connecticut. —  Wolfe     v.      Ives,     83 

Conn.  174,  76  Atl.  256, 19  Ann.  Cas.  752. 

Georgia. — Fisher    Motor    Car    Co.    v. 

Seymour,  9  Ga.  App.  465,  71  S.  E.  764. 

Illinois. — People    v.    Lloyd,    178    111. 

App.  66. 

Indiana. — T^uisville,  etc.  R.  Co.  v. 
Jones,  108  Ind.  551,  9  N.  E.  475; 
American  Motor  Car  Co.  v.  Robbins. 
181  Ind.  417,  103  N.  E.  641. 

lorna. — Owens  v.  Iowa  County,  186 
Iowa,  408.  169  N.  W.  388. 

Kansas. — Himmelwright  v.  Baker, 
82  Kans    569,  109  Pac.  178. 

Massachusetts. — Creedon  v.  Galvin. 
226  Mass.  140,  115  N".  E.  307. 

Michigan. — Matla  v.  Rapid  Motor 
Vehicle  Co.,  160  Mich.  639,  125  N.  W. 
708;  Harnau  v.  Haight,  189  Mich.  600, 
155  N.  W.  563;  Faulkner  v.  Payne,  191 
Mich.  263,  157  N.  W.  565. 

Minnesota. — Daly  v.  Curry,  128  Minn. 


449,    151    N.    W.    274;    Dunkelbeck    v. 
Meyer,  140  Minn.  283,  167  N.  W.  1034. 
Missouri. — State  v.  Watson,  216  Mo. 
421,   115   S.  W.  1011. 

Nebraska. — Neidy  v.  Littlejohn,  146 
Iowa,  355,  125  N.  W.  198. 

Oregon. — Everart  v.  Fischer,  75  Oreg. 
316,  145  Pac.  33,  147  Pac.  189 ;  Kelley 
V.  Weaver,  77  Oreg.  267,  150  Pac.  166, 
151  Pac.  463. 

Pennsylvania. — Dugan  v.  Arthurs, 
230  Pa.  St.  299,  79  Atl.  626. 

Vermont. — Brown  v.  Swanton,  60  Vt. 
53,  37  Atl.  280. 

86.  United  States.  —  Robinson  v. 
Louisville  R.  Co.,  112  Fed.  484,  5  C.  C. 
A.  357. 

District  of  Colmnbia.  —  Eclaigton, 
etc.,  R.  Co.  V.  Hunter,  6  App.  Cas.  (D, 
C.)   287. 

Illinois.— Votter  v.  O'Donnell,  199 
111.  119,  64  N.  E.  1026. 

Michigan. — Mertz  v.  Detroit  Elec- 
tric R.  Co.,  125  Mich.  11,  83  N.  W. 
1036. 

Nebraska. — Mathieson  v.  Omaha  St. 
R.  Co.,  3  Neb.  (Unoff.)  743,  92  N.  W. 
639. 

New  York. — Fisher  v.  Union  R.  Co., 

86  App.  Div.  365,  83  N.  Y.  Suppl.  694. 

Ohio. — Toledo  Electric  St.  R.  Co.  v. 

Westenhuber,  22  Ohio  Cir.  Ct.  Rep.  67, 

12  Ohio  Cir.  Dec.  22. 


Evidence. 


112;') 


cles.  It  is  not  necessary  that  the  observer  be  skilled  or  have 
expert  knowledge  on  the  subject  of  speed  of  vehicles.^*  The 
comparative  value,  in  such  cases,  of  the  estimate  of  expert 
and  non-expert  witnesses  is  for  the  jury.^^  To  confine  opin- 
ions on  speed  to  experts,  would  be  to  deprive  a  litigant  of  the 
opportunity  to  prove  his  case,  for  it  is  but  seldom  that  an 
expert  witness  is  available  who  has  seen  the  speed  on  the 
particular  occasion.^"*    But  it  is  said  that  an  observer's  esti- 


Washington. — Sears  v.  Seattle  Con- 
sol.  St.  R.  Co.,  6  Wash.  227,  33  Pac. 
389. 

See  3  Chamberlayne 's  Modern  Law 
of  Evidence,  §§  2088,  2089. 

87.  Highland  Avenue  &  B.  R.  Co.  v. 
Sampson,  112  Ala.  425,  20  So.  566; 
Stone  V.  Northern  Pacific  Ry.  Co.,  29 
N.  D.  480,  151  N.  W.  36. 

88.  United  States. — Denver  Omnibus 
&  Cab  Co.  V.  Krebs,  255  Fed.  543. 

Alabama. — Spearman  v.  McCrary,  4 
Ala.  App.  473,  58  So.  927. 

Connecticut. — Wolfe  v.  Ives,  83  Conn. 
174,  76  Atl.   526,  19  Ann.  Cas.   752. 

Georgia. — Fisher  Motor  Car  Co.  v. 
Seymour,  9  Ga.  App.  465,  71  S.  E.  764. 

Illinois. — People  v.  Lloyd,  178  111. 
App.  66. 

Indiana. — American  Motor  Car  Co. 
V.  Bobbins,  181  Ind.  417,  103  N.  E. 
641. 

Kansas. — Miller  v.  Jenness,  84  Kans. 
608,  114  Pac.  1052. 

Missouri. — State  v.  Watson,  216  Mo. 
421,  115  S.  W.   1011. 

NebrasTca. — Neidy  v.  Littlejohn,  146 
Iowa,  355,   125  N.  W.  198. 

Oregon. — ;Kelely  v.  Weaver,  77  Oreg. 
267,  150  Pac.  166,  151  Pac.  463. 

Vennsylvania. — Dugan  v.  Arthurs, 
230  Pa.  St.  299,  79  Atl.  626. 

"Any  person  of  reasonable  intelli- 
gence and  ordinary  experience  in  life 
may,  without  proof  of  further  quali- 
fication, express  an  opinion  as  to  how 
fast  an  automobile  which  has  come  un- 
der his  observation  was  going  at  a  par- 


ticular  time."      Dunkelbock    v.   Meyer. 
140  Minn.  283,   167  N.  W.   1034. 

"An  adult  of  reasonable  intelligence 
and  ordinary  experience  who  observed 
the  passing  of  an  automobile  just  be- 
fore an  accident  occurred  is  presump 
tively  capable,  without  proof  of  fur- 
ther qualification,  to  give  his  opinion  as 
to  the  speed  of  the  automobile.  An 
ordinary  observer,  acquainted  with  au- 
tomobile.e.  but  with  neither  practical 
nor  technical  knowledge  of  their  con- 
struction or  management,  will  be  per- 
mitted to  give  his  estimate  as  to  the 
rate  of  speed  at  which  a  machine  was 
proceeding  at  a  given  time.  The  sense 
of  hearing  is  not  sufficiently  accurate 
in  case  of  the  ordinary  observer  to  en- 
able the  latter  to  form  a  reliable  opin- 
ion, by  the  use  of  that  faculty  alone, 
regarding  the  rate  of  speed  at  which 
an  automobile  is  traveling.  Similarity 
of  experience  makes  the  estimate  of  a 
motorman  regarding  the  speed  of  one 
of  these  machines  practically  that  of  ;( 
skilled  observer."  Chamberlayne 's 
Modern  Law  of  Evidence,  §  2086. 

89.  Fisher  Motor  Car  Co.  v.  Sey- 
mour, 9  Ga.  App.  465,  71  S.  E.  764; 
State  v.  Watson,  216  Mo.  421,  115  S. 
W.  1011. 

90.  Kelly  v.  W^eaver,  77  Oreg.  267, 
150  Pac.  166,  151  Pac.  463,  wherein 
it  was  said :  ' '  Persons  who  are  accus- 
tomed to  operate  automobiles  and  have 
observed  their  velocity  as  indicated  by 
speedometers  can  generally,  without 
looking  at  such  registering  instrument 


1126 


The  Law  of  Automobiles. 


mate  is  not  much  more  than  a  guess,  and  that  the  results  of  a 
collision  may  furnish  better  evidence  as  to  whether  a  vehicle 
was  going  too  fast.^^ 


Sec.  922.  Proof  of  speed  of  vehicle  —  opinion  of  passenger. 

The  fact  that  a  witness  was  a  passenger  in  an  automobile 
does  not  render  him  incompetent  to  testify  as  to  its  speed,''* 


very  accurately  determine  the  rate  of 
movement.  So,  too,  police  officers,  a 
part  of  whose  business  is  to  apprehend 
violators  of  speed  ordinances,  from  ob- 
serving the  movement  of  vehicles  within 
a  given  distance  when  compared  with 
the  time  required  in  passing  over  the 
intervening  space,  can  verj'  closely  esti- 
mate the  speed  of  an  automobile  by 
seeing  it  pass.  Persons  of  the  cla.sws 
indicated  are  not  always  present  at  or 
immediately  prior  to  a  collision  whereby 
an  injury  is  inflicted  that  results  in  an 
action  to  recover  damages  for  alleged 
negligence  in  operating  an  automobile, 
and  while  other  adults  may  not  have 
enjoyed  sxich  opportu7iities  for  observ- 
ing the  rate  of  speed  of  such  machines, 
they  are  nevertheless  competent  to  ex- 
press opinions  of  that  subject,  and 
though  their  estimates  may  be  conjec- 
tural, they  are  admissible,  the  weight 
and  value  of  their  testimony  being  for 
the  jury  to  determine.'' 

Non-experts. — ''Their  competency  to 
express  an  opinion  did  not  require 
them  to  possess  technical  or  scioutitic 
knowledge.  An  intelligent  person  hav- 
ing a  knowledge  of  time  and  distance 
is  capable  of  forming  an  opinion  as  to 
the  speed  of  a  passing  railroad  train, 
a  street  car  or  an  automobile.  His  con- 
eluaion  is  the  result  of  a  coni|i;n  isim 
with  the  speed  of  other  moving  objects 
of  which  he  has  knowledge  by  constant 
experience.  There  is  no  more  reason 
why  such  a  witness  should  not  be  per- 
mitted to  testify  to  the  speed  of  an 
automobile  than  to  the  speed  of  a  car 


riage  or  other  vehicle  which  travels  the 
public  highways.  His  everyday  experi- 
ence gives  him  sufficient  knowledge  to 
form  an  intelligent  judgment  upon  the 
subject.  He  simply  compares  the  speed 
of  one  moving  object  with  that  of  an- 
other with  which  he  is  made  familiar 
by  the  daily  affairs  of  life.  Aside  from 
any  other  sufficient  reason,  the  neces- 
sity of  the  case  requires  that  such  testi 
mony  be  admitted  in  trials  involving 
the  wanton  and  dangerous  speeding  of 
automobiles.  To  hold  otherwise  and  to 
compel  the  production  of  expert  te.sti- 
mony  in  such  cases  would  in  almost 
every  instance  defeat  the  ends  uf  jn.s- 
tice.  .\n  expert  witness  or  exact 
measurement  by  a  speedometer  is  sel- 
dom available  to  a  party  who  has  been 
injured  by  the  reckless  conduct  of  a 
])erson  operating  such  a  machine,  and 
to  jcquire  such  evidence  in  order  to 
siistaiji  an  action  would  be  unreason- 
able and  work  palpable  injustice.  Ab- 
solute accuracy  is  not  required  in  such 
cases  to  make  a  witness  competent  to 
testify  to  the  speed  of  the  machine." 
Dugau  v.  Arthurs,  330  Pa.  f?t.  299.  79 
Atl.  r.L'C. 

91.  Maritsky  v.  Shrovopovt  Rys.  Co., 
144  La.  f)92,  81  So.  253. 

92.  Denver  Omnibus  &  Call  Co.  v. 
Krebs,  2,55  Fed.  543;  Galloway  v.  Per- 
kins, 198  Ala.  658,  73  So.  956;  Goodes 
V.  Lansing  &  Suburban  Traction  Co., 
I.jO  Mich.  494,  1  14  X.  \\'.  ?.38 ;  Hays  v. 
Hogan.  273  Mo.  1.  200  S.  W.  286,  L.  R. 
A.  191S  A.  7ir..  ,\nn.  C;is.  1918  E.  1127. 


Evidence. 


1127 


or  as  to  the  speed  of  the  vehicle  with  which  it  collides.^^^  A 
witness  is  not  required  to  be  an  expert  to  be  competent  to 
testify  to  the  speed  of  a  train  or  other  vehicle  in  which  he  was 
riding/-'^  But  it  may  be  more  difficult  for  an  occupant  to  ft-ive 
an  accurate  estimate  than  for  an  outsider.^^  And  it  has  been 
held  to  be  improper  to  ask  an  occupant  whether  another  car 
was  going  faster  than  the  one  in  which  he  was  riding.^^  Thus 
it  has  been  held  tliat  passengers  riding  on  a  train  are  not 
competent  to  estimate  from  observation  the  rate  of  speed  at 
which  the  train  traveled.^'  But  such  evidence  has  lieen  ad- 
mitted.^^ 

Sec.  923.  Proof  of  speed  of  vehicle  —  qualification  of  wit- 
nesses. 

As  is  stated  above,  it  does  not  require  an  expert  witness  to 
give  an  opinion  as  to  the  speed  of  an  observed  motor  vehicle.^" 
One  who  has  timed  automobiles  is  clearly  a  competent  wit- 
ness.i    One  who  has  frequently  observed  the  passage  of  auto- 


93.  Bianchi  v.  Millar  (Vt.).  m  Atl. 
524. 

94.  Galloway  v.  Perkins,  198  Ala. 
658.  73  So.  956. 

95.  "An  estimate  of  the  speed  with 
which  an  animal,  vehicle  or  other  ob- 
ject is  proceeding  may  properly  be  re- 
ceived from  one  qualified  to  give  it. 
Often  it  is  practically  the  only  reliable 
evidence  available.  Its  use  is,  there- 
fore, in  a  measure,  forced  upon  judicial 
administration.  In  many  actions  for 
personal  injury  or  damage  to  property 
from  alleged  negligence,  in  which  the 
element  of  an  unreasonable  rate  of 
speed  is  said  to  have  entered,  the  evi- 
dence of  those  best  acquainted  with  the 
actual  rate  of  motion  is  often  subject 
to  rational  suspicion  by  reason  of  bias 
of  self-interest.  It  has  frequently  been 
observed  to  be  extremely  difficult  for  a 
person  upon  a  moving  vehicle  to  esti- 
mate correctly  the  rate  at  which  he  is 
proceeding  at  a  given  moment.  The 
engineer  of  the  train,  motorman  of  an 
electric  car  or  chauffeur  of  an  automo- 


bile is  seldom  able  to  reniemlx'r  his  ex- 
act rate  of  speed.  The  capability  of  a 
given  observer  to  estimate  accurately 
the  rate  at  which  a  train  of  cars  or 
other  object  is  moving,  may  itself  he 
the  subject  of  an  inference  or  conclu- 
sion. The  inherent  difficulties  of  prov- 
ing an  extremely  transitory  fact  of  so 
intangible  a  nature  has  warranted 
marked  adminJstrativo  concessions  in 
this  matter  of  making  proof  of  speed." 
Chamberlaync't?  Modern  Law  of  Evi- 
dence, §  2086. 

96.  Seager  v.  Foster,  185  Iowa.  32. 
169  N.  W.  681,  8  A.  L.  R.  690. 

97.  Grand  Rapids,  etc.,  R.  Co.  v. 
Huntley.  38  Mich.  537,  31  Am.  Rep. 
321. 

98.  Johnson  v.  Oakland.  8.  L.  &  H. 
Electric  R.  Co..  127  Cal.  608,  60  Pac. 
170;  Galveston,  etc.,  R.  Co.  v.  Wesch 
^Tex.  Civ.  App.),  21  S.  W.  6!3. 

99.  Section  921. 

1.  Thomas  v.  Chicago  &  0.  T.  R.  Co., 
86  Mich.  496.  49  X.  W.  .-.47. 


1128  The  Law  of  Automobiles. 

mobiles  and  other  vehicles,  and  ridden  in  them,  and  made 
observations  of  their  rate  of  speed,  may  give  his  opinion  of 
the  speed  of  the  car  at  the  time  of  the  collision.^    An  occupant 
of  a  vehicle  toward  which  an  automobile  is  approaching,  may 
ordinarily  testify  as  to  the  speed  of  the  machine.=^    And  one 
who  has  been  in  the  habit  of  meeting  automobiles  on  the  road 
for  years,  and  has  been  driving  horses  all  his  life,  and  had 
ridden  on  railroad  trains  and  observed  the  rate  at  which  ordi- 
nary vehicles  traveled,  may  give  his  opinion  on  the  subject/ 
And  one  who  has  had  an  experience  of  twelve  years  as  a 
motorman  upon  a  street  car  is  competent  to  state  his  opinion 
as  to  the  rate  of  speed  at  which  an  automobile  was  travel- 
ing.^    An  adult  of  ordinary  intelligence  and  experience  is 
presumably  capable,  without  proof  of  further  qualification,  of 
expressing  his  opinion  as  to  the  speed  of  a  passing  automo- 
bile which  he  observes.^    Even  the  plaintiff  who  is  struck  by 
the  machine  has  been  allowed  to  express  his  opinion.^    Addi- 
tional requirements  of  sound  mind  and  judgment  have  been 
suggested.^    He  should  have  some  knowledge  of  time  and  dis- 
tance in  order  to  give  a  correct  estimate  of  the  number  of 
miles  per  hour  a  vehicle  is  traveling.^    But  the  evidence  of  a 
witness  giving  an  estimate  of  speed  will  not  necessarily  be 
struck  out,  because  he  is  unable  to  state  the  number  of  feet 
or  rods  in  a  mile.^" 

2.  Himmelwright  v.   Baker,   82   Kan.  than  to  its  admissibility." 

569,    109    Pae.    178.      The    court    said:  3.  Shaffer  v.  Coleman,  35  Pa.  Super. 

"Error  is  assigned  upon  the  rejection  Ct.    386.      See    also    Bianchi    v.   Millar 

of  the  plaintiff's  testimony  concerning  (Vt.),  Ill  Atl.  524. 

the  speed  of  the  car  at  the  time  of  the  4.  Faulkner  v.  Payne,  191  Mich.  263. 

collision.     He  testified  that  the  car  was  157  N.  W.  565. 

ten  or  fifteen  feet  from  him  when   he  5.  Hough  v.  Kobusch  Automobile  Co.. 

first    saw    it;    that    It    was    running    so  146  Mo.  App.  58.  123  S.  W.  83. 

fast  he  had  no  time  to  do  anything,  but  6.  Wolfe   v.   Ives',   83   Conn.    174,   76 

that  he  tried  to  get  away  from  it.     He  Atl.    526,   19    Ann.   Cas.    752;    Daly   v. 

was  then  asked  at  what  rate  of  speed  Curry,  128  Minn.  449,  151  N.  W.  274. 

it  was   running,   and   answered  that  it  7.  Merchants'    Transfer   Co.  v.   Wil- 

was  fifteen  miles  an  hour,  but  the  an-  kinson  (Tex.  Civ.  App.),  219  S.  W.  891. 

swer   was  stricken   out   on   the   ground  8.  Chicago,  B.  &  Q.  R.  Co.  v.  Clark. 

that  it  appeared  that  he  did  not  have  26  Neb.  645,  42  N.  W.  703. 

sufficient  opportunity  to  form  an  opin  9.  Chicago,  B.  &  Q.  R.  Co.  v.  Gunder- 

ion  on  the  question  of  speed.     The  evi  son,  174  111.  495,  51  N.  E.  708. 

dence  was  competent.     An  objection  to  10.  Ward  v.  Chicago,  St.  P.,  M.  &  O. 

such  testimony  goes  to  its  weight  rather  R.  Co.,  85  Wis.  601,  55  N.  W.  771. 


Evidence.  1129 

Sec.  924.  Proof  of  speed  of  vehicle  —  foundation  for  opinion. 
Where  an  estimate  is  made  by  a  witness  as  to  the  speed  of 
a  passing  automobile,  the  facts  should  be  stated  upon  which 
the  estimate  is  made,  and  in  order  to  give  his  testimony  any 
value  it  should  be  shown  that  the  witness  had  adequate  facili- 
ties for  observing  the  automobile's  movement.^^  And  it  should 
also  be  shown  that  the  facilities  for  observing  the  speed  were 
improved  by  the  witness.^^  He  should  be  close  enough  so  that 
he  can  give  a  fair  estimation  of  the  speed.^^  It  is  not  required 
that  the  witness  has  seen  the  machine  travel  for  any  consider- 
able distance.  Thus,  one  who  first  saw  an  automobile  when 
it  was  from  ten  to  fifteen  feet  from  him  should  be  permitted 
to  give  an  estimate  of  its  speed,  the  objection  that  he  did  not 
have  sufficient  opportunity  to  judge  its  speed  going  to  the 
weight  rather  than  the  admissibility  of  the  evidence."  And 
an  observer  having  an  opportunity  to  see  a  machine  a  dis- 
tance of  twenty  feet,  has  been  allowed  to  give  an  opinion  on 
its  speed.^^  The  fact  that  the  witness  is  able  to  state  that  the 
machine  went  a  certain  distance  in  a  certain  time,  adds  to  the 
weight  of  his  estimate  of  its  speed.^^ 

Sec.  925.  Proof   of   speed   of   vehicle  —  characterization    of 
speed. 

When  relevant  to  the  issue,  testimony  that  a  vehicle  went 
''fast,"^^  ''very  fast,"^^  or  that  its  speed  was  "dangerous,"" 

11.  Muth  V.  St.  Louis,  etc.,  R.  Co.,  17.  Illinois  Cent.  E.  Co.  v.  Ashline, 
87  Mo.  App.  422;  Union  Pac.  R.  Co.  171  111.  313,  49  N.  E.  521.  Compare 
V.  Ruyicka,  65  Neb.  621,  91  N.  W.  543.  VHiitney  v.  Sioux  City,  172  Iowa,  336, 

12.  Mathieson  v.  Omaha  St.  R.  Co.,  154  N.  W.  497;  Seager  v.  Foster 
3  Neb.   (Unoff.)  743,  92  N.  W.  639.  (Iowa),    169   N.   W.   681;   Warruna   v. 

13.  Warruna   v.    Dick,   261    Pa.    602,  Dick,  261  Pa.  602,  104  Atl.  749. 

104  Atl.  749.  See,   as    to   weight   of   testimony   of 

14.  Dilger  v.  Whittier,  33  Cal.  App.  observer,  3  Chamberlayne 's  Modern 
15,     164     Pac.     49 ;     Himmelwright    v.       Law  of  Evidence,  §  2095. 

Baker,    82    Kan.    569,    109    Pac.    178;  18.  Johnson  v.  Oakland,  S.  L.  &  H. 

Ottoby  V.  Mississippi  Valley  Trust  Co.,  Electric  R.  Co.,   127  Cal.   608.   60   Pac. 

197  Mo.  App.  473,  196  S.  W.  428.    Com-  170. 

pare  Wright   v.  Crane,   142   Mich.   508,  19.  Lockhart  v.  Lltchtenthaler,  46  Pa. 

106  N.  W.  71.  St.     151.       But     see     Alabama    Great 

15.  Harnau  v.  Haight,  189  Mich.  Southern  R.  Co.  v.  Hall,  105  Ala.  599, 
600,  155  N.  W.  563.  17  So.   176. 

16.  People  V.  Lloyd,  178  111.  App.  66. 


1130 


The  Law  of  Automobiles. 


"high, "2*^  "reckless,'"^  or  "unusual,""  has  been  received.^^ 
In  an  action  for  personal  injuries  inflicted  by  an  automobile, 
testimony  that  the  automobile  "ran  fast,"  "ran  very  fast," 
"ran  mighty  fast"  is  not  wholly  incompetent  because  of  its 
vagueness,  particularly  where  appellant's  evidence  was  to  the 
effect  that  the  automobile  was  "running  slow/'^i  j^  ^^^^y  ^^^ 
testified  that  the  automobile  was  going  at  a  certain  estimate 
of  speed  as  compared  with  other  modes  of  motion;  and  a  wit- 
ness who  was  an  observer  may  be  permitted  to  testify  that 
the  machine  was  moving  at  a  snail's  pace,  or  no  faster  than 
a  man  walks,  or  faster  than  a  man  could  run.^^  But,  when  it 
is  sought  to  charge  one  for  violation  of  a  specific  speed  regu- 
lation, such  a  characterization  of  the  speed  is  too  indefinite  for 
judicial  action;  under  such  circumstances  the  court  must 
know  the  number  of  miles  per  hour  which  the  machine  was 
traveling^'*^  So  the  fact  that  an  automobile  was  exceeding  the 
speed  limit  or  was  running  at  an  excessive  rate  is  not  shown 
by  testimony  that  it  was  running  a  good  deal  faster  than  a 


20.  Black  V.  BurRugton,  etc.,  K.  Co., 
38  Iowa,  515. 

21.  Galveston,  etc.,  R.  Co.  v.  Wesch 
(Tex.  Civ.  App.  1893),  21  S.  W.  62. 

22.  Scragg  v.  Bailee,  24  Cal.  App. 
133,  140  Pac.  70tj ;  Johnson  v.  Oakland, 
S.  L.  &  H.  Electric  R.  Co.,  127  Oal. 
608,  60  Pac.  I'^O. 

In  a  prosecution  for  manslaughter 
evidence  that  the  automobile  was  going 
unusually  fast  has  been  held  admissi- 
ble. Bowen  v.  State,  100  Ark.  232,  140 
S.  W.  28. 

See  3  Chaml)crla\  lie's  Modern  Law 
of  Evidence,  8  2089. 

23.  "A  wiliicss  (|iinliiii'il  to  speak 
may  not  state  what  is  tlic  spociJic  speed 
of  a  railroad  train  or  trolley  car  in 
distance  traversed  during  a  particular 
period.  He  may  declare  himself  in 
some  more  general ^form  of  expression. 
Thus,  he  may  give  his  opinion  regard- 
ing a  train  or  single  car  that  it  was 
going  "fast,"  or  very  f  asi .  although 
he  cannot  say  how  rapidly.  Applying 
the  standard  of  .safety,   he   may   speak 


of  a  given  rale  ol'  motion  as  '  danger- 
(nis,  ■  '  high, '  or  even  '  reckless. '  Cer- 
tain characterizations  of  speed,  al- 
though general  in  form,  have  been  held 
to  involve  so  large  an  element  of 
special  knowledge  or  so  great  a  pro- 
portion of  reasoning  as  to  require  the 
technical  training  of  a  skilled  witnes.s. 
Thus,  only  such  an  observer  can  state 
that  a  moving  object  was  going  '  as 
fast  as  it  could.'  "  Chamberlayne 's 
Modern  Law  of  Evidence,  §   2088. 

24.  Trzetiatowski  v.  Evening  Ameri- 
can Pub.  Co.,  185  111.  App.  451. 

25.  Kansas  City,  M.  &  B.  R.  Co.  v. 
Crocker,  95  Ala.  412,  11  So.  262. 

26.  Diamond  v.  Weyerhaeuser,  178 
Cal.  540,  174  Pac.  38;  Livingstone  v. 
Dole,  167  Iowa,  639,  167  N.  W.  639; 
Priebe  v.  Crandall  (Mo.  App.),  187  S. 
W.  G05 ;  Yingst  v.  Lebanon  &  A.  St.  R. 
Co.,  167  Pa.  St.  438,  31  Atl.  687; 
Karaffa  v.  Fergu-son.  68  Pitts.  Leg. 
.Journ.  (Pa.)  109;  Starr  v.  Schenck, 
2.-.  Mont.  L.  Rep.  (Pa.j    IS. 


Evidence. 


li:Jl 


horse  trots  and  went  pretty  fast.^  And  witnesses  may  not 
be  permitted  to  state  that  the  speed  was  ''unreasonable," 
where  that  is  the  precise  question  to  be  determined  by  the 

jm-y    28 


Sec.  926.  Proof  of  speed  of  vehicle  —  estimate  of  speed  from 
track. 

It  has  been  held  that  a  witness  will  not  be  permitted  to  give 
his  opinion  of  the  speed  of  an  automobile  upon  a  particular 
occasion,  where  he  was  not  an  observer,  and  the  only  informa- 
tion he  has  on  which  to  base  his  estimate  is  the  track  of  the 
machine  on  the  pavement.^^    On  the  contrary,  such  evidence 


27.  Zoltovski  v.  Gzella,  159  Mich. 
620,  124  N.  W.  527,  24  L.  R.  A.  (N. 
S.)    435. 

28.  Colebank  v.  Standard  Garage  Co., 
75  W.  Va.  389,  84  S.  E.  1051,  wherein 
it  was  said:  "Witnesses  were  asked 
to  give  their  opinions  whether  the 
speed  of  the  automobile  was  unreason- 
able. Their  opinions  that  it  was,  were 
admitted  in  evidence  over  the  oljjection 
of  defendant.  A  bill  of  exceptions 
saves  the  point.  Clearly  it  was  error 
to  admit  such  testimony.  The  wit- 
nesses might  as  well  luive  been  per- 
mitted to  give  their  opinion  as  to 
whether  defendant  was  negligent. 
Whether  the  rate  of  speed  was  reason- 
able or  unreasonable  was  for  the  jurv 
to  say  upon  proof  of  facts  and  cireuni- 
stances  in  thai  relation — not  for  any 
witness  to  ."say.  11  was  an  issue  for  the 
jury  to  determine  upon  evidence  as  to 
the  surroundings  and  the  actual  rate 
of  speed  the  automobile  was  making. 
Instead  of  introducing  such  evidence, 
so  that  the  jury  could  express  their 
own  opinions  therefrom,  they  were 
asked  to  take  and  use  as  their  own  the 
opinions  of  witnesses  on  a  matter  so 
closely  related  to  the  issue  of  negli- 
gence which  they  were  trying  that  it 
was  virtually  tlie  same  thing.  Wit- 
nesses cannot  so  be  substituted  for  tlio 


jury.  ■  It  is  like  asking  a  witness  to 
give  his  opinion  from  what  he  observed 
of  an  assault,  as  to  which  one  of  the 
parties  was  the  aggressor.  The  wit- 
nesses might  have  given  thei^  opinions 
as  to  the  miles  per  hour  the  chauffeur 
was  driving  the  car.  That  was  a  mat- 
ter not  necessarily  calling  for  expert 
opinion.  They  could  enlighten  the  jury 
on  that  score,  and  thus  enable  the  lat- 
ter to  say  whether  the  rate  was  un- 
reasonably fast  and  therefore  negli- 
gent. But  In  reaching  a  conclusion  on 
the  question  the  jury  should  have  been 
left  free  to  exercise  their  own  opinions 
on  the  facts  and  circumstances,  regard- 
less of  the  opinions  of  others." 

29.  N^eLson  v.  Hedin,  184  Iowa,  657. 
1119  N.  W.  .S7.  And  see  Everart  v. 
Fischer,  75  Orcg.  316,  145  Pac.  33,  147 
Pac.  189.  wherein  it  was  said:  "An- 
other assignment  of  erior  re>ts  upon 
allowing  a  young  lady  witness  named 
I.,ottie  Hatfield  to  give  hei-  opinion 
al^ont  the  speed  of  the  automobile.  She 
did  not  see  the  vehicle  in  motion  nor 
a])pear  upon  the  scene  until  some  time 
after  the  accident  had  happened.  She 
testified,  in  substance,  that  behind  it 
and  in  the  direction  from  which  the 
automobile  came  she  observed  two  black 
streaks  upon  the  pavement:  and,  hav- 
ing said  in  answer  to  a  question,  'Well, 


1132 


The  Law  of  Automobiles. 


has  been  thought  to  be  proper.^**  The  distance  which  a  cer- 
tain car  has  skidded  in  the  attempt  to  stop  it,  should  furnish 
some  basis  for  the  opinion  of  an  expert.^^ 

Sec.  927.  Proof  of  speed  of  vehicle  —  noise  of  machine. 

The  noise  made  by  a  motor  vehicle  is  not  deemed  a  suffi- 
cient basis  upon  which  he  may  predicate  an  opinion  as  to  its 
speed.^2  Testimony  as  to  the  comparative  amount  of  noise 
made  by  different  makes  of  automobiles,  based  upon  compari- 
sons made  by  the  witness,  is  held  to  be  properly  excluded 
where  there  is  no  proof  of  the  condition  of  the  machines  with 
which  the  test  was  made.^' 

Sec.  928.  Proof  of  speed  of  vehicle  —  conflict  between  opinion 
and  surrounding  circumstances. 

Where  the  facts  show  a  conflict  with  an  observer's  esti- 
mate of  the  automobile's  speed,  the  facts  control.    Estimates 


I  know  pretty  well  about  the  speed,' 
she  was  asked  if  she  would  be  able  to 
approximate  the  speed  of  the  car  from 
the  marks  it  left  in  stopping.  She  an- 
swered affirmatively  and  proceeded  to 
say,  'I  should  ju'dge  from  that  about 
30  miles  an  hour,  by  the  depth  of  the 
burns.'  It  is  insisted  that  it  was  error 
to  allow  her  to  give  her  expert  opinion 
upon  the  speed  of  the  automobile  from 
the  data  presented.  Conceding  that  it 
was  a  matter  calling  for  opinion  evi- 
dence, the  conditions  were  not  adequate 
grounds  upon  which  any  expert  could 
form  an  estimate.  The  mere  marks 
upon  the  pavement  did  not  constitute 
a  sufficient  basis  for  that  kind  of  testi- 
mony. The  ultimate  object  of  the  in- 
quiry on  that  point  was  the  speed  of 
the  vehicle.  It  is  reasonable  that,  if 
a  very  heavily  loaded  car  with  wheels 
rough  locked  were  propelled  along  a 
pavement  at  a  very  alow  rate  of  speed, 
marks  would  be  left  behind.  Again, 
the  condition  of  the  tires  and  of  the 
street  as  to  being  rough  or  even  would 
influence    the    question.      Naturally    a 


very  smooth  tire  upon  a  very  smooth 
surface,  which,  in  turn,  might  be  af- 
fected by  a  condition  of  dampness  or 
frost,  would  result  in  but  a  faint  mark- 
ing. A  variance  in  smoothness  of 
either  the  tire  or  the  pavement  would 
produce  different  results.  There  was 
no  testimony  about  any  such  conditions, 
or  at  least  none  of  them  were  suggested 
to  or  mentioned  by  the  witness.  Con- 
sequently the  foundation  for  expert 
testimony  did  not  exist." 

30.  Heidner  v.  Germschied  (S.  Dak.), 
171  N.  W.  208;  Luethe  v.  Schmidt- 
Gaertner  Co.,  170  Wis.  590,  176  N.  W. 
63. 

31.  Jackson  v.  Vaughn  (Ala.),  86 
So.  469. 

32.  Wright  v.  Crane,  142  Mich.  508, 
106  N.  W.  71;  Harnau  v.  Haight,  189 
Mich.  600,  155  N.  W.  563.  See  also 
Campbell  v.  St.  Louis  &  S.  R.  Co.,  175 
Mo.  161,  75  S.  W.  86;  Robinson  v. 
Louisville  R.  Co.,  112  Fed.  484,  50  C.  C. 
A.  357. 

33.  Porter  v.  Buckley,  147  Fed.  140, 
78  C.  C.  A.  138. 


Evidence.  1133 

of  speed,  as  in  cases  of  all  other  kinds  of  "opinion"  evidence, 
must  give  way  to  testimony  of  cold  matters  of  fact  and  legiti- 
mate inferences  there from.^^  P'or  example,  where  testimony 
to  a  high  degree  of  speed  is  incompatible  with  the  proved 
facts  that  the  machine  was  stopped  within  a  few  feet,  or  a 
short  distance,  the  latter  evidence  must  prevail.^  And  an 
estimate  of  the  low  rate  of  speed  must  be  overruled  by  proof 
of  facts  reconcilable  only  with  high  speed,  such  as  the  force 
of  the  impact  of  a  machine,^^  or  the  considerable  distance 
traversed  by  the  machine  despite  efforts  to  bring  it  to  a  stand- 
still." 

Sec.  929.  Proof  of  speed  of  vehicle  —  speed  at  one  place  as 
evidence  of  speed  at  another. 

The  speed  of  a  motor  vehicle  immediately  before  or  after 
an  accident  may  be  received  as  evidence  of  its  speed  at  the 
time  of  the  occurrence.^^  While  the  fact  that  the  automobile 
that  injured  a  plaintiff  was  running  twenty-five  miles  an  hour 
a  block  and  a  half  from  the  crossing  does  not  generate  any 
presumption  of  law,  even  prima  facie,  that  it  entered  upon  or 
passed  over  the  crossing  at  a  similar  rate  of  speed,  neverthe- 
less it  is  clearl}^  a  fact  for  the  jury  to  consider,  as  affording 
an  inference  of  fact  with  respect  to  its  probable  speed  and 
control  when  it  very  shortly  thereafter  reached  and  passed 
over  the  crossing.^^  But  speed  at  a  considerable  distance  from 
the  point  at  issue,  is  no  criterion,  and  is  not  generally  re- 
ceived.   The  evidence  of  speed  at  another  place  may  be  aided 

34.  Muster  v.  Chicago,  M.  &  St.  P.  dencheeker,  33  Ind.  App.  138,  70  N.  E. 
R.  Co.,  61  Wis.  325,  21  N.  W.  223,  50  995;  Zolpher  v.  Camden  &  S.  R.  Co., 
Am.  Rep.  1414;  Stetterstrom  v.  Brain-  69  N.  J.  L.  417,  55  Atl.  249;  Hoppe  v. 
ard  &  N.  M.  R.  Co.,  89  Minn.  262,  94  Chicago,  M.  &  St.  P.  R.  Co.,  61  Wia. 
N.  W.  882.  357,  21  N.  W.  227. 

35.  Graham  v.  Consol.  T.  Co.,  54  N.  38.  Wigginton's  Adm'r  v.  Rickert, 
J.  Law,  10.  44  Atl.  964;  Vogler  v.  Cen-  186  Ky.  650,  217  S.  W.  933;  LaDuke 
tral  Crosstown  R.  Co.,  83  N.  Y.  App.  v.  Dexter  (Mo.  App.),  202  S.  W.  254; 
Div.  101.  82  N.  Y.  Suppl.  485.  State  v.  Welford,  29  R.  I.  450,  72  Atl. 

36.  Brennan   v.   Metropolitan    St.   R.  396. 

Co.,  60  N.  Y.  App.  Div.  264,  69  N.  Y.  39.  Davis  v.  Barnes,  201  Ala.  120,  77 

Suppl.  1025.  So.  612. 

37.  Tndiannpolis  St.  Ry.  Co.  v.  Bor- 


1134  The  Law  of  xIutomobiles. 

by  proof  that  the  rate  was  neither  accelerated  or  diminished 
in  the  interval.'*^  Even  if  the  evidence  of  speed  at  another 
place  is  not  admissible,  as  it  is  a  matter  of  common  knowledge 
that  the  speed  of  an  automobile  may  be  greatly  increased  or 
decreased  in  a  short  distance,  its  admission  or  exclusion  is 
not  always  reversible  error.^^ 

Sec.  930.  Proof  of  speed  of  vehicle  —  experiments. 

On  an  issue  of  the  speed  of  a  motor  vehicle  at  a  particular 
occasion,  evidence  msij  be  received  of  experiments  made  by 
experts  as  to  the  speed  at  which  the  vehicle  could  be  driven.^^ 
The  conditions  existing  at  the  time  of  the  principal  occur- 
rence and  at  the  time  of  the  experiment  should  be  substantially 
the  same,  but  it  is  recognized  that  the  identical  conditions  may 
not  generally  be  created  artificially."*^  But,  if  the  conditions 
are  so  varying  that  the  evidence  will  be  of  no  assistance,  the 
court  may  properly  exclude  testimony  of  the  experiment.*^ 

Sec.  931.  Proof  of  speed  of  vehicle  —  photo — speed — ^recorder. 
In  a  case  in  Massachusetts,  which  was  a  prosecution  for 
violation  of  the  speed  laws  in  the  city  of  Boston,  the  govern- 
ment, in  order  to  prove  the  speed  of  the  automobile  on  the 
occasion  in  question,  offered  in  evidence  an  instrument  called 
a  "Photo-Speed-Recorder,"  which  had  been  used  by  the  wit- 
ness producing  it  to  ascertain  the  speed  of  the  automobile  at 
the  time  of  the  alleged  violation  of  the  law.  The  instrument 
consisted  of  two  similar  photographic  cameras,  set  side  by 
side  in  the  same  box.  It  was  so  arranged  that  each  camera 
took  a  picture  with  an  exjDOSure  of  approximately  one  hun- 
dredth of  a  second  and  was  provided  with  a  mechanism  which 

40.  Louisville,  N.  A.  &  C.  R.  Co.  v.  530,  153  Pac.  243;  Miller  v.  .Tenness, 
Jones,  108  Ind.  551,  9  N.  E.  476;  Tyr-  84  Kans.  608,  114  Pae.  1052.  See  also 
rail  V.  Goslant  (Vt.),  106  Atl.  585.  See  Louisville  Lozier  Co.  v.  Salleo,  167  Ky. 
also  Raybaum  v.  rhillips,  160  Mo.  App.  499,  180  S.  W.  841. 

534,   140  S.   W.   97  7;   Armann   v.   Cas-  42.   Fippinger  v.  Glos,   190  111.  App. 

well,  30  N.  D.  406,  152  N.  W.  813.     As  238. 

to  average  speed  for  a  certain  distance,  43.   Fippinger  v.   Glos,   190   111.  App. 

see   People   v.   Barnes,    182   Mich.    179.  238. 

148  N.  W.  400.  44.  Beckley  v.  Alexander,   77   N.   H. 

41.  Grand  v.  Kasviner,  28  Cal.  App.  255,  90  Atl.  878. 


Evidence.  1135 

automatically  exposed  one  caniora  approximately  one  second 
after  the  other  one.  The  apparatus  was  also  provided  with 
a  chronometer  of  a  stop  watch  variety.  In  order  to  use  the 
apparatus  for  determining  speeds  the  following-  rule  was  em- 
ployed :  The  distance  of  any  external  object  from  the  lens  of 
a  camera  is  as  man^^  times  greater  than  the  distance  of  the 
image  on  the  photograph  plate  from  the  Ions  as  the  size  of 
the  object  is  greater  than  the  size  of  the  image.  In  order  to 
show  the  correctness  of  tliis  instrument  the  government 
offered  to  show  that  the  witness  had,  previous  to  making  such 
test,  taken  several  photographs  of  objects  at  various  dis- 
tances, and  had  computed  the  distances  in  accordance  with 
the  foregoing  rule,  and  that  the  distances  so  computed  agreed 
with  subsequent  measurements  made  by  him  with  a  tape.  The 
judge  admitted  the  evidence,  and  it  was  held  that  the  ques- 
tion whether  evidence  of  experiments  should  be  admitted  de- 
pended largely  upon  the  discretion  of  the  trial  judge,  whose 
action  in  the  exercise  of  this  discretion  would  not  be  reversed 
unless  plainly  wrong.  And  evidence  that  the  chronometer 
contained  in  the  instrument  had  been  compared  by  the  ^^^tness 
with  stop  watches  carried  by  two  othei-  witnesses  and,  also 
with  the  standard  chronometer  in  the  physical  laboratory  of 
the  Massachusetts  Institute  of  Technology,  and  had  been 
found  in  each  case  to  be  accurate,  was  also  held  to  be  admis- 
sible and  to  justify  the  trial  judge  in  submitting  the  question 
as  to  the  accuracy  of  the  chronometer  to  the  jury.*'^ 

Sec.  932.  Proof  of  speed  of  vehicle  —  speedometer. 

Evidence  of  the  result  indicated  by  a  speedometer  may  l)e 
received  on  the  issue  of  speed.  And  the  fact  that  one  giving 
an  estimate  of  speed  relies  upon  a  speedometer  which  he  ob- 
served, does  not  make  his  evidence  incompetent  as  hearsay.*^ 
Such  evidence  may  bo  preferred  to  opinion  evidence.''"  Upon 
the  question  of  the  proof  of  the  accuracy  of  a  certain  kind  of 
speedometer,  it  is  said  that  the  i'act  that  many  police  dopart- 

45.  Commonwealth     v.     Buxton,     205       198  S.  W.  964. 

Mass.  49,  91  N.  E.  128.  47.  Rex   v.    Barker,    47   Nova    Scotia 

46.  Whito  V.  State.  82   Tox.  Cr.  274.       (Canada)   24S,  12  D.  L.  R.  346. 


1136  The  Law  of  Automobiles. 

ments  in  the  different  States  make  use  of  that  particular 
speedometer  in  their  official  testing,  would  only  prove  the 
faith  of  the  several  departments  in  its  accuracy  or  the  effi- 
ciency of  the  salesmen  in  selling  the  speedometer,  and  is  not 
a  proper  way  to  prove  the  fact  of  its  accuracy.** 

Sec.  933.  Proof  of  speed  of  vehicle  —  evidence  under  English 
law. 

Under  the  provision  of  the  English  Motor  Car  Act  no  per- 
son shall  be  convicted  of  driving  an  automobile  over  the  rate 
of  twenty  miles  an  hour  on  the  opinion  of  one  witness  as  to 
the  rate  of  speed,  on  the  hearing  of  an  information  under  this 
act,  for  driving  an  automobile  on  a  public  highway  at  a  speed 
exceeding  twenty  miles  an  hour,  a  police  sergeant  proved  that 
he  placed  a  police  constable  at  a  certain  point  on  the  road  and 
stationed  himself  on  the  same  road  at  a  distance  of  a  quarter 
of  mile  from  the  constable ;  that  when  the  automobile  passed 
the  constable  the  constable  signaled  to  him,  and  he  imme- 
diately started  the  second  hand  of  his  stop  watch  and  stopped 
the  same  when  the  car  passed  him,  and  that  the  time  taken  by 
the  car  between  the  two  points,  as  shown  by  the  stop  watch, 
was  thirty-one  and  two-fifths  seconds,  or  at  the  rate  of  twenty- 
eight  miles  an  hour.  The  stop  watch  was  produced  in  court 
and  not  objected  to.  The  only  evidence  as  to  the  rate  of 
speed  was  that  of  the  police  sergeant,  who  gave  evidence  of 
the  time  as  shown  by  his  stop  watch.  The  defendant  was 
convicted.  On  appeal  it  was  held  that  the  evidence  of  the 
police  sergeant  was  not  evidence  of  his  "opinion"  merely, 
but  was  evidence  of  the  fact  recorded  by  his  stop  watch  as  to 
the  time  taken  in  traveling  over  the  distance,  and  that,  there^ 
fore,  the  defendant  was  not  convicted  "merely  on  the  opinion 
of  one  witness  as  to  the  rate  of  speed"  within  the  meaning 
of  the  section.*^ 

Sec.  934.  Res  inter  alios  acta  —  negligence  on  other  occasions. 

Where  the  issue  is  the  negligence  of  the  driver  of  a  motor 
vehicle  upon  a  particular  occasion,  evidence  is  not  generally 

48.  state  v.  Buchanan,  32  R.  I.  490,  49.  See  Plancq  v.  Marks  (K.  B.  D.), 

79  Atl.  1114.  94  L.  T.  B.  577. 


Evidence.  1137 

admissible  to  show  acts  of  negligence  of  the  driver  upon  other 
occasions.^°    Thus,  on  the  issue  of  the  speed  of  a  motor  vehicle 
on  a  particular  occasion,  it  is  improper  to  permit  evidence  of 
the  speed  with  which  it  had  been  driven  at  other  times." 
Where  the  plaintiff  in  an  action  to  recover  for  personal  in- 
juries caused  by  an  automobile  does  not  charge  the  defendant 
with  exceeding  the  legal  rate  of  speed,  it  is  error  to  permit 
him  to  show  that  the  defendant  had  been  convicted  of  exceed- 
ing the  speed  limit  on  other  occasions.^^    And,  in  a  particular 
case  involving  a  charge  of  negligence  in  the  operation  of  a 
machine,  it  may  not  be  shown  that  there  are  or  have  been 
other  suits  pending  against  the  defendant  for  the  negligent 
operation  of  his  machine  on  other  occasions.^^    But  where  one 
of  the  questions  involved  is  the  damage  to  an  automobile  in 
a  collision,  it  may  be  shown  that  the  plaintiff's  machine  has 
been  in  other  accidents."    Where  a  defendant  endeavored  to 
show  that  there  was  no  collision  between  his  automobile  and 
a  vehicle  and  gave  evidence  that  no  marks  were  found  upon 
his  automobile  after  the  accident,  it  was  held  that  the  plain- 
tiff was  entitled  to  show  that  the  defendant  earlier  in  the 
day  collided  with  another  vehicle,  as  it  tended  to  show  the 
possibility  of  a  collision  without  leaving  visible  evidence  of 
the  fact,  but  the  evidence  could  not  be  received  as  proof  of 
general  recklessness.^^    In  an  action  against  a  county  for  in- 
juries received  from  a  defective  bridge,  evidence  has  been  ad- 
mitted to  show  other  accidents  at  the  same  place,  but  limited 
in  application  to  show  the  danger  of  the  place.^" 

60.  Pugsley  v.   Tyler,   130   Ark.   491,  •    53.  Re  d  Auto  Co.  v.  Gorsczya  (Tex. 

197   S.   W.    1177;   Luiz  v.   Falvey,  228  Civ.  App.),  144  S.  W.  68S;  Mumme  v. 

Mass.   253,   117   N.   E.   308;    Polmatier  Sutherland    (Tex.    Civ.    App.),    198    S. 

V.  Newbury,  231  Mass.  307,  120  N.  E.  W.  395. 

850.     See  also  Steinberger  v.  California  54.  Weary  v.  Winton  Motor  Car  Co.. 

Elec.    Garage   Co.,    176    Cal.    386,    168  198  111.  App.  379 ;  Morrissey  v.  Connec- 

Pac.      570 ;      Barshfield      v.      Vucklich  ticut  Valley  St.  Ry.  Co.,  233  Mass.  554. 

(Kans.),   197  Pac.   205.  124  N.  E.  435. 

51.  Louisville    Lozier    Co.    v.    Sallee,  55.  Kle'n  v.  Burleson,  138  App.  IWv. 

167  Ky.  499.  180  S.  W.  481;  Chilberg  (N.  Y.)  405,  122  N.  Y.  Suppl.  752. 

V.  Parsons,  109  Wash.  90,  186  Pac.  272.  56.  Coates     v.     Marion     County,     9G 

62.  See  v.  Wormser.  129  N.  Y.  App.  Oreg.  334,  189  Pac.  903. 
Div.  596,   113  N.  Y.  Suppl.  1093. 
72 


1138  The  Law  of  Automobiles. 

In  a  prosecution  for  stealing  a  vehicle,  evidence  of  the  theft 
by  the  defendant  of  other  vehicles  is  not  generally  received," 
though  cases  may  arise  when  the  evidence  is  admissible.^^ 
Thus,  in  a  prosecution  for  receiving  a  stolen  vehicle,  as  bear- 
ing upon  the  guilty  knowledge  of  the  accused,  it  may  be  shown 
that  he  has  received  and  disposed  of  other  stolen  vehicles.^^ 

Sec.  935,  Res  inter  alios  acta  —  care  after  accident. 

Subsequent  repairs  or  precautions  are  not  generally  evi- 
dence of  previous  negligence,  and  hence  it  may  not  be  shown 
that  after  an  accident  the  driver  drove  the  machine  with 
greater  caution.^**  And  in  an  action  against  a  garageman  for 
the  loss  of  a  machine  stored  therein,  evidence  cannot  be  re- 
ceived to  show  precautions  taken  by  the  defendant  after  the 
theft  to  avoid  future  losses.^^ 

Sec.  936.  Res  inter  alios  acta  —  defects  in  other  machines. 

In  an  action  by  the  purchaser  of  an  automobile  for  breach 
of  warranty  in  the  sale  thereof,  the  plaintiff  cannot  introduce 
evidence  of  other  owners  of  the  same  model  of  machines  and 
of  the  trouble  the}^  encountered  in  the  operation  of  the  ma- 

57.  Kolb  V.  State.  (Tex.  Cr.),  228  S.  prove  a  motive  for  the  criminal  act  im- 
W.  210;  Hunt  v.  State  (Tex.  Cr.),  220  puted,  and  there  is  an  apparent  rela- 
S.  W.  869;  Hunt  v.  State  (Tex.  Cr.),  tion  or  connection  between  that  act  and 
230  S.  W.  406.  other   criminal   acts   committed   by   the 

58.  See  Dennison  v.  State  (Ala.  accused;  ('))  when  it  is  necessary  to 
App.),  88  So.  211,  wherein  it  was  said:  prove  the  identity  of  the  offender,  or 
"While  evidence  of  any  other  offense  of  an  instrument  used  in  committing 
than  that  specifically  charged  is  prima  the  offense;  (6)  there  are  also  cases 
facie  inadmissible,  such  evidence  will  in  which  the  accusation  itself  involves 
be  received,  when  necessary  to  prove  a  series  of  acts  which  must  be  proved 
the  scienter  or  guilty  knowledge,  when  to  make  out  the  offense;  (7)  and  cases 
an  element  of  the  offense  charged;  (2)  iu  which  the  several  offenses  are  all  a 
when  the  offense  charged  and  the  of-  part  of  the  res  gestae. ' ' 

fense  proposed  to  be  proved  are  so  con-  59.  Parsons  v.  State   (Ind.),  131  N. 

nected    that    they    form    part    of    one  E.    381;    People    v.    DiPietro    (Mich.), 

transaction;   (3)  when  it  is  material  to  183  N.  W.  22. 

show   the    intent   with   which   the   par-  60.  Desmarchier  v.  Frost.  91  Vt.  138, 

ticular  act  is  charged  as  criminal  was  99  Atl.  782. 

done,   evidence  of   another  similar  act,  61.  Farrell  v.   Universal  Garage  Co., 

though  in  itself  a  criminal  offense  may  179  N.  C.  389,  102  S.  E.  617. 

be  given;    (4)   when  it  is  necessary  to 


Evidence.  1139 

chines,  where  similarity  of  the  conditions  under  which  the 
cars  were  operated  was  not  shown.^^ 

Sec.  937.  Res  inter  alios  acta  —  habits. 

Where  there  are  witnesses  to  an  accident,  it  is  held  gen- 
erally that  evidence  of  the  habits  of  a  deceased  as  to  the  care 
usually  exercised  by  him,  is  not  admissible  as  bearing  on  the 
question  whether  he  used  proper  care  on  the  occasion  in  con- 
troversy.^^   Thus,  in  an  action  to  recover  for  personal  injuries 
sustained  while  riding  in  defendant's  taxicab  as  a  result  of 
a  collision  between  the  taxicab  aiid  a  street  car,  evidence  of 
the  practice  of  the  driver  of  the  taxicab  prior  to  the  accident 
as  to  observance  of  an  ordinance  is  properly  excluded,  and 
t}ie  only  proper  inquiry  in  such  case  being  what  the  driver 
did  at  the  time  and  place  of  the  accident,  and  it  being  imma- 
terial what  he  did  at  other  times.^*    But,  in  the  absence  of 
other  evidence,  as  is  the  case  when  there  are  no  living  wit- 
nesses to  the  occurrence,  evidence  of  the  careful  haliits  of  the 
deceased  is  sometimes  received.*'^     A  chauffeur  will  not  be 
allowed  to  state  the  habits  of  pedestrians  generally  when 
suddenly  confronted  with  an  automobile.^^    The  habits  of  a 
driver  as  to  intoxication  have  been  received,  though  isolated 
instances  were  excluded.^'' 

Sec.  938.  Res  inter  alios  acta  —  competency  of  driver. 

In  an  action  for  personal  injuries  sustained  by  plaintiff  as 
a  result  of  being  struck  by  defendant's  automobile,  where  one 
of  the  issues  was  the  failure  of  defendant  to  employ  a  careful 
and  skillful  driver,  and  whether  the  driver  employed  lacked 
such  qualities,  evidence  is  competent  as  to  the  competency, 

62.  VPhite  Automobile  Co.  v.  Dor-  65.  Noonan  v.  Mans,  197  111.  App. 
soy,  119  Md.  251,  86  Atl.  617.  103;    Bush    v.    Brewer,    136    Ark.    248, 

63.  Noonan  v.  Mans,  197  111.  App.  206  S.  W.  322;  Moore  v.  Bloomington, 
103;  Chilberg  v.  Parsons,  109  Wash.  etc.,  R.  Co.,  295  HI.  63,  128  N.  E.  721. 
90,  186  Pac.  272.  66.  Holroyd    v.    Gray    Taxi    Co.,    39 

64.  Todd    V.    Chicago    City   Ry.    Co.,  Cal.  App.  693,  179  Pac.  709. 

197  111.  App.  544.     See  also  Jordan  v.  67.  Southern  Traction  Co.  v.  Kirksey 

Boston  &  M.  R.  Co.   (N.  H.),  113  Atl.        (Tex.  Civ.  App.),  222  S.  W.  702. 
390. 


1140  The  Law  of  Automobiles. 

reliability  and  reputation  of  the  driver  employed  by  defendant 
to  drive  his  automobile  at  the  time  of  the  accident,  since  de- 
fendant cannot  be  heard  to  complain  of  evidence  pertinent 
to  the  issues  joined.^*  But,  in  an  action  by  one  injured  through 
the  operation  of  an  automobile,  the  owner  of  the  machine  is 
not  entitled  to  show  that  the  chauffeur  was  usually  careful.^^ 

68.  Vos  V.  Franke,  202  111.  App.  133.       N.  W.  310.     See  also  Adler  v.  Martin, 

69.  Slack  V.  Joyce",  163  Wis.  567,  158       179  Ala.  97,  59  So.  597. 


Forfeiture  of  Vehicles  Violating  Law.  1141 

CHAPTER  XXXIII. 

FORFEITURE   OF  VEHICLES  VIOLATING   LAW. 

Section  939.  Introductory. 

940.  Constitutionality   of   forfeitures. 

941.  Statutes   authorizing  forfeiture. 

942.  General  construction  of  statutes. 

943.  Illegality  of  use  of  vehicle. 

944.  Protection  of  liens. 

945.  Rights  of  "innocent"  OAvner. 

946.  Burden  of  proof  as  to  innocence  of  claimant. 

947.  Procedure. 

Sec.  939.  Introductory. 

Under  the  Volstead  Act  and  other  statutes  relating  to  the 
enforcement  of  liquor  laws,  vehicles  unlawfully  carrying 
liquor  are  subject  to  forfeiture.  Moreover,  vehicles  carrying 
o-ame  unlawfully  killed,^  or  otherwise  expediting  violations  ot 
the  law,  may  be  condemned  in  an  appropriate  proceeding. 
The  questions  arising  out  of  forfeitures  of  this  character  are 
considered  in  this  chapter. 

Sec.  940.  Constitutionality  of  forfeitures. 

The  power  of  legislative  bodies  to  authorize  the  forfeiture 
of  motor  vehicles  engaged  in  a  violation  of  the  law,  appears 
to  be  clear.^  At  common  law,  forfeitures  abounded  and  were 
enforced  for  trivial  offenses.  Under  modern  statutes,  with- 
out an  infringement  of  constitutional  rights,  the  interest  ot 
a  mortgagee  may  be  condemned  for  the  act  of  the  mortgagor ; 
the  rights  of  a  conditional  vendor  may  be  forfeited  for  the 

1    Gemert  v.   Pooler    (Wi..).   177  N.      bile  v.  State,   77   Okla.    ^30    187   Pac. 
*•  "^^"^  806;  Landers  v.  Commonwealth   (Va.). 

2.'Goldsmith-Grant     Co.     v.     United       101^    S.    E.     778;     Gemert    v.     Pooler 


States     41    Sup.    Ct.    189;    Maples    v.  (Wis.),  177  N.  W.  1. 

StateMH)      82    So.    183;    Mack    v.  3.  State  v.  Peterson,  107  Kans.  641. 

w^thrlifGa)    98  S    E.  339;  State  193     Pac.     342;     State     v.     Stephen* 

Westbrook    (Ga.),  ys  »•  ^           '  ,-,^„„„  x      iqr     Pac      1087;     Robinson 


r^Zs            C;.735;i0lS.E.011;  (Kans.),     198     Pac.     1087;     Robinson 
Ivwrv    Thomas    17     N.  Car.  98,  87  .  Cadillac    Motor    Car    Co.    v.    Ratekin 
fE     9^6;    rbinson    Cadillac    Motor  (Neb.),  177  N.  W.  337.     A.d  see  sec- 
Car  Co.  V.  Ratekin  (Neb.),  177  N.  W.  tion  944. 
337;    One    Hudson    Super-six    Automo- 


1142  The  Law  of  Automobiles. 

violation  by  the  vendee;*  or  the  title  of  the  owner  may  be 
divested,  if  one  having  possession  of  the  machine  through  his 
consent  uses  the  vehicle  for  the  unlawful  transportation  of 
liquors.^  A  party  may  have  a  constitutional  right  to  a  jury 
trial  in  such  cases,  so  that  the  statute,  so  far  as  it  abridges 
such  right  may  be  unconstitutional.^ 

Sec.  941.  Statutes  authorizing  forfeiture. 

As  there  is  no  serious  constitutional  question  involved,  it 
is  a  matter  of  statutory  construction  whether  a  motor  vehicle 
shall  be  condemned  for  a  violation  of  law.  Unless  there  is 
statutory  authority  for  the  forfeiture,  none  can  be  decreed,^ 
But,  within  the  last  few  years  a  considerable  number  of  such 
statutes  have  been  enacted.^  A  State  statute  providing  for 
the  forfeiture  of  the  liquors,  vessels  and  ''other  property  so 
unlawfully  used,"  has  been  held  to  authorize  the  condemna- 
tion of  an  automobile  in  which  liquors  have  been  unlawfully 
transported.^  A  statute  enacted  before  the  general  use  of 
motor  vehicles  and  providing  for  the  forfeiture  of  ''wagons" 
is  not  comprehensive  enough  to  justify  the  forfeiture  of  motor 
vehicles.^^  A  statute  authorizing  the  seizure  of  the  unlawful 
liquor  and  "bars,  furniture,  fixtures,  vessels,  and  appurten- 
ances thereunto  belonging  so  unlawfully  used,"  does  not  jus- 
tify the  seizure  of  an  automobile  unlawfully  conveying  liquors, 
as  an  automobile  is  not  an  "appurtenance"  within  the  mean- 
ing of  the  statute."    The  provisions  of  the  Revised  Statutes 

4.  Goldsmith-Grant     Co.     v.     United  N.   W.   259;    One   Moon   Automobile   v. 

States,  41  Sup.  Ct.  189;   II.   A.  White  State  (Okla.),  172  Pac.  66. 

Auto  Co.   v.   Collins,   136   Ark.   81,  206  9.  State   v.   Davis    (Utah),   184   Pac. 

S.  W.  748.     And  see  section  944.  161:  State  v.  Jensen   (Utah),  184  Pac. 

6.  Landers  v.   Commonwealth    (Va.),  179. 

101   S.   E.   778.     And   see   section   945.  10.  United    States    v.    One    Automo 

6.  Keeter  v.  State  (Okla.),  198  Pac.  bile,  237  Fed.  891. 

866.     See  also  Hoskins  v.  State  (Okla.),  11.  One  Cadillac  Automobile  v.  State, 

200  Pac.  168.  (Okla.),  172  Pac.  62;  Lebrecht  v.  State 

7.  United  States  v.  One  Cadillac  COkla.),  172  Pac.  65;  State  v.  One 
Eight  Automobile.  255  Fed.  173;  Packard  Automobile  (Okla.),  172  Pac. 
United  States  v.  One  Buick  Automo-  •  66 ;  State  v.  National  Bank  of  Ard- 
bile,  255  Fed.  793;  United  States  v.  more  (Okla.),  172  Pac.  1073;  Cox  t. 
One  Ford  Automobile,  259  Fed.  894.  State  (Okla.),  173  Pac.  445;  One  Hud- 

8.  State  V.  Raph,  184  Iowa,  28,  168  son  Automobile  v.   State    (Okla.),   173 


Forfeiture  of  Vehiclks  X'iolatixg  Tjaw.  1143 

of  United  States,  sections  30()],  'MV2,  relating-  to  the  for- 
feiture of  vehicles  used  in  the  importation  of  goods  in  viola- 
tion of  the  custom  laws,  did  not  apply  to  licpiors  imported 
from  another  country  in  violation  of  the  Wai-timc  Prohibition 

Sec.  942.  General  construction  of  statutes. 

In  construing  statutes  relating  to  the  forleilure  of  vehicles, 
the  courts  are  confronted  by  two  theories,  eitlier  of  which  may 
reasonably  be  adopted.  On  the  one  hand,  there  arises  the 
general  canon  of  construction  that  statutes  are  strictly  con- 
strued against  a  forfeiture.^-'  A  court  may,  therefore,  look 
upon  the  forfeiture  with  disfavor  and  refuse  to  extend  the 
statute  beyond  the  plain  meaning  of  the  language  used.  On 
the  other  hand  the  courts  may  be  guided  by  the  fact  that 
persistent  subterfuges  are  resorted  to  in  order  to  violate 
liquor  laws,  and  may  consider  the  statutes  as  remedial  of  an 
existing  evil  and  give  them  such  a  reasonable  construction  as 
Avill  discourage  illicit  traffic.  In  fact,  some  of  the  State  stat- 
utes require  that  they  be  liberally  eonstrued.^^  The  courts 
will  take  judicial  notice  of  the  fact  that  in  recent  years  there 
has  been  an  increased  use  of  automobiles  for  the  transporta- 
tion and  distribution  of  intoxicating  liquors.^^ 

Sec.  943.  Illegality  of  use  of  vehicle. 

The  foundation  of  the  proceeding  for  the  forfeiture  of  a 
motor  vehicle  carrying  intoxicating  liquors,  is  the  illegality 
of  the  transportation.^^    If  the  carriage  of  the  liquoi-s  is  not 

Pac.  1137;  Stato  v.  One  Ford  Auto  Eight  Automobile,  255  Fed.  173;  Arm- 
mobile  (Okhi.).  174  Pac.  4!?9 ;  Bussey  ington  v.  State  (Ga.  App.),  100  S.  E. 
V.  State  (Okla.),  175  Pac.  226;  Cooper  15;  Skimier  v.  Thomas,  171  N.  Car.  98, 
V.  State  (Okla.),  175  Pac.  551;  First  87  S.  E.  970;  State  v.  .Johnson  (N. 
Nat.  Bank  of  Roff  v.  State  (Okla.).  Car.),  107  S.  E.  433. 
178  Pac.  »>70;  Sharix-  v.  h^tate  (Okla.).  14.  State  v.  Davis  (Utah).  184  Pac. 
ISI  Pac.  293.  161;  Buchholz  v.  Commonwealtli   (  Va.). 

12.  United   States   v.   One   Ford   Au-  102  S.  E.  760. 

tomobile,     2"B2     Fed.     374.       See     also  15.  State  v.  Raph.  18)  lo\v:i.  28.  168 

United  States  v.  One  Certain   Autoni..  N.  W.  259. 

bilo,  243  Fed.  998.  16.   Kectn   v.  St;ilo  (Okla.),  198  Pac. 

13.  United    States    v.    One    Cndilluc  S6(;. 


1144  The  Law  of  Automobiles. 

in  violation  of  some  statutory  enactment,  the  proceeding  neces- 
sarily fails.^^  If  liquors  are  not  found  in  the  machine  at  the 
time  of  its  seizure,  and  there  is  no  proof  that  the  machine  had 
been  used  to  carry  liquors,  it  cannot  be  forfeited,  merely  be- 
cause it  belongs  to  a  violator  of  the  law  or  on  a  suspicion  that 
it  has  been  used  in  violation  of  the  law.^^  Moreover,  under 
some  laws,  the  fact  that  liquors  are  found  in  the  machine  is 
not  sufficient,  in  the  absence  of  evidence  to  show  that  the  ma- 
chine has  been  operated  witE  liquors  therein.^^  But,  if  it  is 
shown  that  the  machine  had  been  used  for  the  unlawful  con- 
veyance of  liquors,  it  is  not  always  necessary  that  they  be 
there  at  the  time  of  its  seizure.^  The  evidence  of  unlawful 
use  may  be  circumstantial.^^  The  statutory  provisions,  how- 
ever, are  generally  very  comprehensive.  They  may  prohibit 
the  transportation  of  intoxicating  liquors  whether  or  not  the 
act  is  committed  along  a  public  highway.^^  Even  an  isolated 
instance  of  a  violation  of  the  law,  may  be  sufficient  to  au- 
thorize a  condemnation.^^  It  is  not  necessary  that  the  primary 
purpose  of  the  use  of  the  machine  is  the  conveying  of  liquor ; 
a  forfeiture  may  be  adjudged  under  some  statutes,  although 
it  appears  that  the  liquor  was  carried  merely  incidentally  or 
was  for  the  personal  use  of  the  occupants.^*  Even  the  carry- 
ing of  a  bottle  of  liquor  in  the  pocket  of  an  occupant  of  the 
vehicle  may  be  sufficient  to  require  the  condemnation  of  the 
machine.^" 

Sec.  944.  Protection  of  liens. 

The  lack  of  uniformity  in  the  various  statutes  authorizing 
the  forfeiture  of  vehicles  used  in  unlawful  traffic,  causes  the 

17.  Frazier  v.   State    (Ala.),  82   So.  21.  See  Doster  v.  State   (Ga.  App.), 
526;    Baldridge   v.   State    (Okla.),    194       104  S.  E.  648. 

Pac.   217;   Crossland  v.   State    (Okla.),  22.  State   v.    Merrill    (Ala.),   85-  So. 

176  Pac.  944.  28. 

18.  Williams   v.   State,   23   Ga.  App.  23.  State   v.    JTtephens    (Kans.),    198 
567,  99  S.  E.  54.  Pac.   1087. 

19.  Armington  v.  State   (Ga.  App.),  24.  Crapp   v.    State    (Ga.    App.),    98 
100  S.  E.  15.  S.  E.  174. 

20.  Williams    v.    State     (Ga.    App.),  25.  State   v.    Merrill    (Ala.),    85   So. 
107   S.  E.  620.  28. 


Forfeiture  of  Vehicles  Violating  Law.  1145 

courts  to  reach  different  results  on  such  close  questions  as 
the  rights  of  those  holding  liens  on  the  vehicles. 

They  seem  to  agree  that,  if  the  holder  of  the  lien  has 
knowledge  of  the  unlawful  purpose  for  which  the  machine  is 
to  be  used  or  if  he  participates  in  the  wrongful  act,  his  rights 
may  be  condemned.^^  Moreover,  in  some  States  it  is  required 
that  the  lienor  show  that  he  could  not  by  the  exercise  of  rea- 
sonable diligence  have  obtained  knowledge  or  notice  of  the 
illegal  use.^' 

The  difficulty  arises  when  the  lienor  is  innocent  of  the 
wrong.  In  some  States  it  is  held  that  the  forfeiture  is  abso- 
lute, and  that  the  rights  of  a  mortgagee^^  or  conditional  ven- 
dor^^  may  be  lost,  although  he  does  not  participate  in  the  un- 
lawful act  or  has  no  knowledge  of  the  purpose  for  which  the 
machine  is  used  by  the  possessor.  In  other  States  the  rights 
of  such  a  mortgagee^*'  or  vendor^^  are  preserved,  and  the  for- 
feiture is  decreed  subject  to  his  claim.  In  such  States  the  fil- 
ing or  recording  of  the  mortgage  or  contract  of  sale,  as  re- 
quired by  the  local  statute,  is  not  a  prerequisite  to  the  validity 

26.  United  States  v.  Sylvester,  273  Bowling  v.  State  (Ala.),  85  So.  500: 
Fed.  253;  United  States  v.  Kane,  273  Hoover  v.  People  (Colo.),  rS7  Pac. 
Fed.  275;  One  Buick  Automobile  v.  531 ;  Shrouder  v.  Sweat  (Ga.),  96  S.  E. 
State  (Ala.),  85  So.  739.  881;    Skinner   v.   Thomas,  171   N.   Car. 

Evidence. — The    reputation     of     the  98,  87  S.  E.  976;  One  Hudson  Super 

mortgagor   as   a   "bootlegger    may    be  six  Automobile  v.   State,  77  Okla.  130. 

shown  by  the  state  as  evidence  bearing  187  Pac.  806;  Boles  v.  State,  77  Okla. 

on  the  knowledge  of  the  mortgagee  as  310,    188    Pac.    681;    Peavler   v.    State 

to  the  use  to  be  made  of  the  ear.    Stat*.'  (Okla.),  193  Pac.  623;   Rouse  v.  State 

V.  Crosswhite   (Ala.),  84  So.   813.  (Okla.),    195    Pac.    498;    Seignious    v. 

27.  State  v.  One  Five  Passenger  Limehou.se,  107  S.  Car.  545,  93  S.  E. 
Paige  Automobile  (Ala.),  85  So.  276;  193;  King  v.  Commonwealth  (Va.). 
Flint  Motor  Car  Co.  v.  State    (Ala.).  102  S.  E.  757. 

85  So.  741;  State  v.  Crosswhite  (.\la.).  Mortgage     not     bona     fide. — If     the 

84  So.  813.  mortgage    was    executed    as    an    after- 

28.  State  v.  Peterson,  107  Kaus.  641.  thought  in  an  effort  to  .save  the  car 
193  Pac.  342;  State  v.  Stephens  from  the  forfeiture  proceedings,  the 
(Kans.),  198  Pac.  1087;  Robinson  rights  of  the  mortgagee  will  not  be 
Cadillac  Motor  Car  Co.  v.  Bfetekin  saved.  Alaples  v.  State  (Ala.),  82  So. 
(Neb.),  177  N.  W.  337;  Pennington  v.  183. 

Commonwealth   (Va.),  102  S.  E.  758.  31.  State  v.  One  Lexington  Automo 

29.  H.  A.  White  Auto  Co.  v.  Collins",  bile  (Ala.),  84  So.  297;  One  Packard 
136  Ark.  81,  206  S.  W.  748.  Automobile  v.  State  (Ala.),  86  So.  21: 

30.  Maples  v.  State  (Ala.),  82  So.  State  v.  Killens,  149  Ga.  735,  101  S. 
183;  Wise  v.  State  (Ala.),  85  So.  266;  E.  911;  White  v.  State  (Ga.  App.),  9S 


1146  The  Law  of  Automobiles. 

of  the  elaim.^2  If  the  lien  is  sustained,  the  decree  should  not 
direct  the  delivery  of  the  machine  tp  such  successful  claim- 
ant ;^^  the  proper  procedure  is  to  sell  the  machine  subject  to 
the  lien  of  the  claimant,^*  or  to  direct  the  payment  of  the  lieu 
out  of  the  proceeds  of  the  sale.  But,  if  the  value  is  less  than 
the  amount  of  the  mortgage  on  the  vehicle,  only  the  equity  of 
redemption  should  be  sold.^^ 

Under  the  federal  statute,  Revised  Statutes,  section  3450, 
relating  to  forfeitures  of  vehicles  removing  liquor  on  which 
the  tax  had  not  been  paid,  the  forfeiture  was  absolute  and  the 
rights  of  the  lienors  were  not  considered.'^''  A  similar  con- 
struction has  been  placed  on  the  Indian  Appropriation  Act  of 
March  2,  1917,  providing  for  the  forfeiture  of  vehicles  intro- 
ducing intoxicants  into  Indian  country.'' 

But  under  the  National  Prohibition  Act,  a  limited  discre- 
tion is  allowed  to  the  courts,  and  they  are  permitted  to  pro- 
tect the  right  of  innocent  lienors.*''^  The  rights  of  the  parties 
under  the  National  Prohibition  Act  have  been  categorically 
stated  as  follow\s : 

"The  intent  of  the  Congress,  as  disclosed  in  section  26, 
here  under  discussion,  is  clearly  expressed.  The  conclusions 
respecting  its  inter])rotaii()n  are: 

S.    E.    171;    Armington    v.    State    (Ga.  33.  State    v.    Crosswhite    (Ala.),    84 

App.),    100   S.   E.    15:    Na.ylor    v.    Sim-  So.   SIT?. 

mons    (Idaho).    19-t   Pae.   94;    State   v.  34.   T'.owlinj;   v.   Stjitc    (Ala.),   S.'>   So. 

Davis    (Utah).   184   Pac.   161.  500. 

32.  Shrourlcr   v.    Sweat    (Ga.).   9f.    S.  35.  Wise  v.  State   (Ala.),  85  So.  266. 

E.     881;     Armingtoii     v.     State     (Ga.  36.  GolcLsmith-Giant    Co.     v.     United 

App.),     100    S.     E.     lo.       ""While    the  States,  41  Sup.  Ct.   189;   United  States 

registration  of   a   mortgage   for   record  v.  Mincey,  254  Fed.  287 ;  United  States 

is   appropriate   as   evidence  tending   to  v.    One    Saxon     Automobile,    357    Fed. 

show  the  bono  Jides  of  the  transtictiuji  251. 

of  which  the  mortgage  is  a  part,  yet  37.  United  States  v.  One  Seven  Pas- 
such  regi.stration  is  not  essential  to  the  senger  Paige  Car,  259  Fed.  641.  Com- 
establishment  of  a  bona  fide  "superior  parr  United  States  v.  One  Automobile, 
right"    in    tTie    premises;    but,    on    the  237  Fed.  891. 

other   hand,   the    failure   seasonably   to  38.  United    States    v.    Brockley,    266 

file    the    mortgage    for    record    is    e\i-  Fed.     1001  :     United     States     v.     One 

derice,   not   conclusive   of   course,  to  be  Haynes    Automobile.    268    Fed.     1003; 

considered    in    determining    the     bona  United    States    v.    Sylvester,    273    Fed. 

:^de5  of  the  claimant 's  asserted  " super-  253;   United  States  v.  Kain;,  273  Fed. 

ior      right."        State      v.      Crosswhite  275;      Hudson-Oliver      Motor     Co.      v. 

(Ala.),  84  So.  813.  Vivian.    116    Misc.    (N.    Y.)    104.      See 


KoKiKiTiKK  ()i-  \''i;iii(Li:s  Violating  Law.  1147 

''lH^i,-st— The  s('i'/iir<',  foi  Icit iiic,  and  sale  of  vehicles  is  not 
absohilc.  as  under  section  .'J+oO  of  the  Revised  Statutes,  but  is 
sulvject  to  tlie  oi'der  of  court  after  it  lias  heard  all  the  facts  of 
each  case. 

''Second — An  ownei-  who  tianspoi'ts  intoxicating  liquor 
illegally  forfeits  the  intoxicating  liquor  and  the  vehicle  and 
suffers  a  penalty. 

''Third — A  conditional  vendor  or  a  mortgagee,  who  allows 
the  vehicle  to  he  used  for  such  unlawful  purpose  with  his 
knowledge,  or  who  gives  his  consent  to  the  illicit  transporta- 
tion, shall  also  forfeit  all  intei-est  in  or  his  lien  upon  the 
veil  id  e. 

"Fourth— ^A  bona  fide  vendor  or  mortgagee,  without  having 
any  notice  that  the  vehicle  was  being  used  or  was  to  be  used 
for  the  illegal  transportation  of  intoxicating  liquor,  shall  be 
protected  to  the  amount  of  his  l)ona  fide  lien,  as  far  as  pos- 
sible. 

''Fifth — The  owner  of  a  vehicle,  who  loaned  it  to  another, 
who,  in  turn,  transported  intoxicating  liquor  therein,  is 
entitled  to  a  return  of  the  vehicle,  where  he  had  no  knowledge 
of  the  purpose  of  the  borrower,  and  no  facts  are  sho\\ai  which 
should  have  aroused  his  suspicion. 

''Sixth — Tn  the  second  and  third  instances,  the  vehicle  shall 
be  sold  by  the  United  States  marshal  at  public  auction,  and 
after  the  costs  are  paid,  as  provided  by  law,  then  the  balance 
of  the  proceeds  of  the  sale  shall  be  turned  into  the  treasury 
of  the  United  States. 

''Seventh--Tn  the  fourth  instance,  after  the  bona  tide  lien 
and  lack  of  notice  or  knowledge  have  been  established,  the 
vehicle  shall  be  sold  at  public  auction,  and  after  the  costs,  as 
provided  l)y  hn\ ,  have  been  paid,  the  United  States  marshal 
shall  tlieji  pa\ ,  if  possible,  the  amount  of  the  bona  fide  lien  in 
full  to  the  proper  person,  and  the  balance,  if  any,  shall  be 
turned  into  the  ti-easury  of  the  United  States."^' 

also  United  States  v.  Masters,  264  Fed.  39.  United    States    v.    Sylvester.   273 

250,  where  the  lien  was  not  sufficiently         Fed.  25.1. 

established. 


1148  The  Law  of  Automobiles. 

Sec.  945.  Rights  of  "innocent"  owner. 

As  is  shown  in  the  preceding  paragraph  relating  to  the 
protection  of  liens  on  vehicles  sought  to  be  condemned,  differ- 
ent results  are  reached  in  different  jurisdictions  as  to  the 
protection  to  be  accorded  bona  fide  liens.  Similarly,  different 
conclusions  are  drawn  as  to  the  condemnation  of  the  title  of 
an  owner  who  is  innocent  of  the  unlawful  use  of  the  machine. 
In  some  states,  if  the  owner  permits  another  to  use  his  ma- 
chine, the  machine  may  be  forfeited,  although  he  was  not  a 
party  to  the  violation  of  the  law  and  had  no  knowledge  that 
the  machine  was  thus  to  be  used.*''  In  other  jurisdictions,  an 
"innocent"  owner  is  protected,''^  as  is  the  case  under  the 
National  Prohibition  Act.''^  Thus,  in  some  states,  if  the  ma- 
chine is  used  by  a  member  of  the  owner's  family  without  his 
consent  for  the  unlawful  transportation  of  liquors,  it  may  be 
forfeited;*^  while  in  other  states  the  innocence  of  the  owner 
in  such  a  case  requires  the  return  of  the  machine  to  him.** 
Again,  in  those  states  strictly  enforcing  such  forfeitures,  it 
is  held  that,  if  a  chauffeur  having  possession  of  the  machine 
through  the  consent  of  the  owner  unlawfully  carries  liquor 
therein,  it  may  be  forfeited  although  the  use  of  the  machine 
for  that  purpose  is  not  within  the  knowledge  of  the  owner,  or 

40.  United  States  v.  Mincey,  254  taxi  business  does  necessarily  not  re- 
Fed.  287 ;  Landers  v.  Commonwealth  quire  the  condemnation  of  the  vehicle. 
(Va.).  101  S.  E.  778;  Pennington  v.  Eckl  v.  State  (Ala.),  88  So.  567. 
Commonwealth  (Va.),  102  S.  E.  758;  42.  United  States  v.  Brockley,  266 
Buchholz  V.  Commonwealth  (Va.),  102  Fed.  1001;  United  States  v.  One 
S.  E.  760.  Haynes    Automobile,    268    Fed.    1003; 

41.  State   V.   Merrill    (Ala.),   85   So.  United    States   v.    One   Shaw   Automo- 
28;    Briscoe    Motor    Car   Co.   v.    State  bile,  272  Fed.  491. 

(Ala.),    85    So.    475;    Spratt    v.    Gray  43.  Landers  v.  Commonwealth  (Va.), 

(Fla.),    87    So.    760;    Griffin   v.    Smith  101  S.  E.  778. 

(Ga.   App.),   99. S.   E.   386;    Naylor   v.  44.  7n  re  Gattina  (A!a.),  84  So.  760; 

Simmons    (Idaho),    194    Pac.    94;    Al-  Mays  v.   Curry    (Ga.),  103   S.  E.   458; 

dinger  v.  State,  115  Miss.  314,  75  So.  Gemert  v.  Pooler  (Wis.),  177  N.  W.  1. 

441;   State  v.  Johnson    (N.  Car.),  107  Question  of  ownership. — If  a  father 

S.   E.   433;    Peavler  v.   State    (Okla.),  buys  a  car  for  his  son  to  use  in  the 

193  Pac.  623;  Rouse  v.  State   (Okla.),  taxi  business  and  the  machine  is  regis 

195  Pac.  498;  Hoskins  v.  State  (Okla.),  tered  in  the  name  of  the  son,  it  may 

200  Pac.  168.  be  forfeited  although  the  father  claims 

Partner. — The    fact   that    the   owner  the  ownership  thereof.     Fearn  v.  State 

is   a  partner   with  the  violator   in   the  (Ala.),  88  So.  591. 


Forfeiture  of  Vehicles  Violating  Law.  1149 

is  even  against  his  directions/^  Under  other  statutes,  the 
unlawful  transportation  by  a  chauffeur  does  not  necessarily 
condemn  the  owner's  rights,  but  the  forfeiture  will  turn  upon 
the  knowledge  or  notice  of  the  owner  as  to  the  violation  of  the 
law.'*^  Similarly,  if  a  vehicle  is  loaned  or  hired  to  another  in 
good  faith,  without  knowledge  tjiat  the  bailee  intends  to  use 
it  for  the  unlawful  transportation  of  liquors,  the  owner  is 
protected  in  some  states;"  in  others,  the  vehicle  may  be  for- 
feited against  his  protest.*^  If  a  passenger  with  liquors  in 
his  possession  is  carried  in  a  taxicab,  neither  the  owner  nor 
driver  of  which  has  any  knowledge  of  the  liquors,  the  vehicle 
will  not  generally  be  forfeited,^^  though  possibly  the  laws  of 
some  states  may  be  broad  enough  to  justify  a  forfeiture  in 
such  a  case.  But,  under  every  statute  so  far  construed  by  the 
courts,  if  the  offender  originally  acquired  possession  of  the 
machine  through  trespass  or  theft,  the  rights  of  the  owner 
are  not  forfeited.^''  Where  the  machine  has  been  stolen,  even 
the  conclusion  of  the  condemnation  proceedings  and  the  sale 
of  the  machine  to  a  third  party,  do  not  divest  the  true  owner 
of  his  property .^^  If  the  owner  is  a  party  to  the  proceeding 
and  is  unsuccessful  in  his  claim,  he  is  concluded  by  the 
decree  f"^  but,  if  he  is  not  a  party,  he  is  not  bound  thereby.^^ 
If  the  owner  can  be  charged  with  knowledge  or  notice  of  the 
unlawful  use  of  the  vehicle,  there  is  sufficient  ground  to  justify 

45.  United  States  v.  Mincey,  254  49.  Aldinger  v.  State.  115  Miss.  314, 
Fed.   287;    Bucnholz  v.   Commonwealth       75   So.   4ft. 

(Va.),  102  S.  E.  760.  50.  Briscoe  Motor  Car  Co.  v.   State 

46.  Puckett  V.  State  (Ala.),  85  So.  (Ala.),  85  So.  475;  State  v.  Davis 
452;  Land  v.  Hitt  (Ga.),  102  S.  E.  (Utah),  184  Pae.  161;  Gemert  v. 
136,  confirming  101  S.  "tl.  795;  Aldinger  Pooler  (Wis.),  177  N.  W.  1. 

V.   State,    115   Miss.   314,   75    So.    441;  There    is    no    presumption    that    the 

Stpte  V.  Johnson   (N.  Car.),  107  S.  E.  person    in   charge    of   the   machine   ac- 

433;    Hoskins    v.    State     (Okla.),    200  quired  his  possession  by  theft  or  other 

Pac.    168.  trespass.        Pennington      v.      Common- 

47.  United    States   v.    Brockley,    266  w^-ilth  (Va.),  102  S.  E.  758. 

Fed.   1001;   Lang  v.   Hitt    (Ga.  App.),  51.  Smith      v.      Spencer-Dowler     Co. 

102    S.    E.    136,    confirming    101   S.    E.  (Ga.  App.),  100  S.  E.  651. 

795;    Mays  v.   Curry    (Ga.),   103   S.   E.  52.  State    v.    Merrill    (Ala.),    85   So. 

458;  One  Buick  Car  v.  State,  77  Okla.  28. 

233,   188  Pac.   108.  53.  Spratt    v.    Gray    (Fla.).    87    So. 

48.  Pennington      v.      Commonwealth  760. 
(Va.),  102  S.  E.  758. 


1150  The  Law  of  Automobiles. 

its  forfeiture.^*  And,  under  the  Volstead  Act,  the  Imrden  is 
upon  the  owner  to  remove  any  imputation  that  he  neo-ligently 
intrusted  the  vehicle  to  an  employee  or  other  person  under 
circumstances  from  which  a  careful  and  prudent  person  ought 
to  have  foreseen  that  it  was  likely  to  he  illegally  used.^^  If 
the  owner  is  warned  that  his  employee  had  been  unlawfully 
using  the  machine  and  he  negligently  fails  to  discharge  him, 
the  vehicle  may  be  condemned,  although  the  owner  has  no 
notice  of  the  violation  of  the  law.^*' 

Sec.  946.  Burden  of  proof  as  to  innocence  of  claimant. 

It  may  be  held  in  some  jurisdictions  that  the  l)urden  is 
upon  the  State  seeking  to  condemn  a  vehicle  against  the 
owner  to  show  that  such  owner  had  knowledge  or  notice  of  the 
unlawful  use  of  the  vehicle.'''  But  the  view  generally  taken  is 
that  the  finding  of  the  intoxicating  liquor  in  the  vehicle  makes 
a  prima  facie  case  against  the  owner  though  he  was  not 
present  at  the  time,  and  the  burden  is  then  placed  upon  the 
owner  to  show  his  innocence  of  the  transaction.^^  And,  under 
the  National  Prohibition  Act,  it  is  thought  that  the  burden 
is  upon  one  claiming  a  lien  on  the  vehicle  to  shoM'  that  his 
lien  was  created  without  notice  of  unlawful  use  of  the  vehicle.^^ 
In  Alabama,  the  burden  is  upon  the  owner  to  show,  not  only 
ignorance  of  the  use  of  the  car,  but  also  that  by  the  exercise 
of  reasonable  diligence  he  could  not  have  obtained  knowledge 
or  notice  of  the  illegal  use  and  prevented  the  sanie.^'° 

54.  Oakland  Automobile  v.  Stato  State,  115  Miss.  314,  75  So.  441;  Peav- 
(Ala.),  84  So.  839;  In  re  Igo  (Ala.).  lev  v.  State  (Okla.).  193  Pac.  623; 
84  So.  750.  State  v.  Bavis    (Utah).   184  Pac.   161.; 

55.  United  States  v.  One  Shaw  Au-  State  v.  Jenson  (Utah).  184  Pac.  179. 
tomobile,  272  Fed.  491.  59.  United  States  v.  Bums,  370  Ferl. 

56.  Davenport    v.    State     (Ala.),    88  681. 

So.   557.  60.  State  v.  One  Lexington  Automo- 

57.  Lang  v.  Hilt  (Ga.),  102  S.  R.  l.ilo  (Ala.),  84  So.  297;  State  v.  Cross- 
136,  confirming  101  S.  H  <95 ;  Parks  white  (Ala.),  84  So.  813;  State  v.  Mer- 
V.  State  (Ga.  App.),  104  S.  E.  911;  rill  (Abt.).  85  So.  28;  One  Buick  Au- 
Citizens'  Trust  Co.  V.  State  (Ga.  App.),  toniobile  v.  State  (Ala.),  85  So.  739; 
107  S.  E.  274.  Flint   Motor  Car  Co.   v.   State    (Ala.), 

58.  United  States  v.  Burns,  270  Fed.  8.-.  So.  741;  Glover  v.  State  (Ala.).  8S 
681 ;  United  States  v.  One  Shaw  Auto-  So.  437. 

mobile,     272     Fed.     491;     Aldinger    v. 


Forfeiture  of  Vehicles  Violatixg  Law.  II.jI 

Sec.  947.  Procedure. 

Proceedings  for  the  forfeiture  of  a  motor  vehicle  used  in 
violating  the  law  are  classed  as  proceedings  in  rem.^^  The 
procedure  is  generally  outlined  by  the  statute  and  is  juris- 
dictional, not  merely  directory,  and  nmst  he  followed  to 
divest  the  owner  of  his  property.^-  The  forfeiture  of  an  auto- 
mobile under  the  26th  section  of  the  Volstead  Law  must  be  in 
strict  pursuance  of  the  terms  thereof.*'^  The  proceedings  are 
usually  prosecuted  by  a  petition  in  the  name  of  the  State 
against  the  offending  vehicle,^*  though  possibly  in  some  states 
they  may  be  prosecuted  in  the  name  of  the  prosecuting 
official.^^  A  statute  requiring  further  action  on  the  part  of 
the  government  within  a  prescribed  time  after  the  seizure  of 
the  vehicle  may  be  construed  as  mandatory,  so  that  the  OA\ner 
will  be  entitled  to  the  return  of  the  vehicle  if  such  action  is 
not  timely  taken.*^  The  owner  or  one  claiming  an  interest  in 
the  vehicle  is  permitted  to  intervene,"  though  the  statute  may 
prescribe  a  time  within  which  his  appearance  must  be  made.^^ 
The  right  of  intervention  generally  furnishes  a  claimant  an 
adequate  remedy  at  law,  and  he  may  not  be  entitled  to  iiiain- 

61.  United  States  v.  Hydes,  267  Fed.  clay  of  trial  to  abide  the  judgment  of 
470;  Mack  v.  Westbrook  (Ga.),  98  S.  the  court.  (5)  Conviction  of  the  per- 
E.  339;  Keeter  v.  State  (Okla.),  19S  son  and  order  of  sale  of  the  vehicle. 
Pac.  866;  Hoskins  v.  State  (Okla.).  (6)  Distribution  of  the  proceeds." 
200  Pac.  168;  Landers  v.  Common-  64.  Amendment  of  petition. —  See 
wealth  (Va.),  101  S.  E.  778.  Burgan  v.  State   (Ga.  App.),  99  S.  E. 

62.  United  States  v.  Hydes,  367  Fed.  636. 

470;  Phillips  v.  Stapleton.  23  Ga.  App.  65.  Mack  v.  Westbrook   (Ga.),  98  S. 

303,   97   S.  E.   885.  V..   339. 

63.  United  States  v.  Slusscr.  270  66.  United  States  v.  Ouc  McLaugh- 
Fed.  818,  holding  that  the  following  lin  Automobile,  255  Fed.  217.  See 
elements  are  essential:  "(1)  That  an  also  Phillips  v.  Stapleton,  23  Ga.  App. 
oflScer  of  the  law  discover  some  person  30.'],  97  S.  E.  885. 

in    the    act    of    illegally    transporting  67.  Griflfin   v.   Smith    (Ga.   App.),   99 

liquor  in  a  vehicle.     (2)  TlTe  seizure  of  S.  E.  386. 

the  liquor  so  transported  or  possessed.  68.  One  Packard  Automobile  v.  State 
(3)  The  seizure  of  the  vehicle  and  ar  (Ala.),  86  So.  21. 
resf  of  the  person.  (4)  That  the  ofl&-  Answer  filed  after  statutory  period 
cer  proceed  against  the  person  and  re  but  before  judgment  by  default  is  en- 
tain  the  vehicle,  unless  redelivered  to  tored,  may  not  be  dismissed.  Fletcher 
the  owner,  upon  giving  bond  to  return,  v.  State  (Ga.  App.),  100  S.  E.  718. 
it  to  the  custody  of  the  officer  on  the 


1152  The  Law  of  Automobiles. 

tain  an  equitable  action  to  assert  his  rights.^^  But,  if  for 
technical  reasons  he  cannot  secure  adequate  relief  in  the  pro- 
ceeding, an  equitable  action  may  be  maintainedJ*^  Replevin 
is  not  generally  permitted  as  a  remedy  to  recover  possession 
of  property  in  the  custody  of  the  law.''^  The  claimant  is  not 
generally  required  to  furnish  a  claim  affidavit  and  claim 
bond;"^^  nor  is  the  officer  having  possession  of  the  machine 
required  to  deliver  possession  of  the  machine  to  a  claimant 
furnishing  such  papers.^^  But  under  the  National  Prohibition 
Act,  the  owner  is  entitled  to  the  possession  of  the  property 
upon  delivery  of  a  bond.  Generally  there  must  be  a  valid 
seizure  of  the  machine,  either  at  the  time  of  the  violation  of 
the  law  or  by  virtue  of  a  warrant  subsequently  issued.'^*  And, 
if  the  seizure  is  not  valid,  the  proceedings  may  fail.'^^  Under 
the  National  Prohibition  Act,  an  order  for  the  sale  of  the 
offending  vehicle  seems  to  follow  automatically  upon  the  con- 
viction of  the  owner;  but  the  conviction  does  not  preclude  a 
remedy  against  the  vehicle  by  way  of  libel.'^^ 

69.  Nesmith  v.  Martin  (Ga.),  98  S.  Seizure  of  veUde  about  to  enter 
E.  551.  Indian  country. — United  States  v.  One 

70.  Shrouder  v.  Sweat  (Ga.),  96  S.  Ford  Five  Passenger  Automobile,  259 
E.   881.  Fed.  645. 

71.  Allison  V.  Hern,  102  Kans.  48,  Warrant. — Under  some  statutes,  the 
169  Pac.  187.  See  also  Martin  v.  Eng-  seizure  may  be  without  a  warrant.  One 
lish  (Ga.  App.),  98  S.  E.  505.  Hudson  Super-six  Automobile  v.  State, 

72.  Griffin  v.   Smith    (Ga.   App.),   99  77  Okla.  130,  187  Pac.  806. 

S.  E.  386.  75.  United  States  v.  Slusser,  270  Fed. 

73.  Bernstein  v.  Higginbotham  818;  State  v.  Ford  Touring  Car,  117 
(Ga.),  96  S.  E.  866.  Me.  232,  103  Ail.  364. 

74.  United  States  v.  Hydes,  267  Fed.  76.  United  States  v.  One  Stephens 
470;    Hoover    v.    People    (Colo.),    187  Automobile,  272  Fed.  188. 

Pac.  531. 


TABLE  OF  GASES 


73  [1153] 


TABLE  OF  CASES 


[References  are  to  sections.] 


A  Section 

Aarons  v.  Dougherty  (Fla.),  84  So.  918 889 

Abbott  V.  Board  of  County  Com'rs,  94  Kans.  553,  146  Pac.  998 715 

Aberlo  Brewing  Co.  v.  Briscoe  Motor  Co.,  194  Mich.  140,  160  N.  W.  440 272 

Abytia  v.  Gibbons  Garage  (N.  Mex.),  195  Pac.  515 878 

Abrahamson  v.  Yuile,  7  R.  P.  Q.   (Canada)  61 412 

Achenbach  v.  Kincaid,  2'5  Idaho,  768,  140  Pac.  529 106 

Acker  v.  Union  Pac.  R.  Co.,  106  Kans.  401,  188  Pac.  419 567 

Ackerman  v.  Fifth  Ave.  Coach  Co.,  175  N.  Y.  App.  Div.  508,  162   N.  Y. 

Suppl.  49 263,  264,  277,  396 

Ackerman  v.  Stacey,  157  N.  Y.  App.  Div.  835,  143  X.  Y.  Suppl.  227.. 325,  452 

501 

Ackersville  v.  County  of  Perth,  32  O.  L.  R.  (Canada)  423,  33  O.  L.  R.  598.  .  701 

Adair  v.  McNeil,  95  Wash.  160,  163  Pac.  393.. 305,  311,  324,  332,  438,  443,  444 

458 

Adair  v.  U.  S.,  208  U.  S.  161,  28  Sup.  Ct.  277,  13  Ann.  Cas.  764 86 

Adams  v.  Anthony,  178  Cal.  158,  172  Pac.  593 889 

Adams  v.  Averill,  87  Vt.  230,  88  Atl.  738 423 

Adams  v.  Galveston  H.  &  S.  A.  R.  Co.  (Tex.  Civ.),  164  S.  W.  853 227,  550 

Adams  v.  Hardin  Motor  Co.,  Ill  S.  Car.  493,  98  S.  E.  381 722 

Adams  v.  Overland  Automobile  Co.  (Tex.  Civ.  App.),  202  S.  W.  207 856 

Adams  v.  Parrish,   (Ky.),  225  S.   W.  467 242,   285,  329,  373 

Adams  v.  Weisendanger,  27  Cal.  App.  590,  150  Pac.  1016 628,  677 

Adamson  v.  McEwan,  12  Ga.  App.  508,  77  S.  E.  591 679 

Adler  v.  Godfrey,  153  Wis.  186,  140  N.  W.  1115 881,  882 

Adler  v.  Martin,  179  Ala.  97,  59  So.  597 71,  230,  357,  359,  487,  938 

Adomaites  v.  Hopkins   (Conn.),  Ill   Atl.   178 631 

Advance  Transfer  Co.  v.  Chicago,  etc.  R.  Co.  (Mo.  App.),  195  S.  W.  566..  281 

551,  558,  565.  580 

Aeby  v.  State,  84  Tex.  Cr.  231,  206  S.  W.  685 76R 

Aerators  Limited  v.  Tollit,  86  L.  T.   (N.  S.)    (Eng.)   651,  50  W.  R.  584.  71 

L.  J.  Ch.  727,  (1902)  2  Ch.  319 12 

Affeld  V.  Murphy.  137  Minn.  331,  163  N.  W.  530 525 

Ahonen  v.  Hryszke,  90  Oreg.  451,  175  Pac.  616 350,  452,  478.  480 

Aiken  v.  Metcalf,  90  Vt.  196,  97  Atl.  669.  .49.  277,  278.  283.  414,  453,  454,  458 

459,  460,  471,  473 

Aiken  v.  Metcalf,  92  Vt.  57,  102  Atl.  330 27.  330.  448.  453,  484 

Ainslie  v.  Biggs,  211  HI.  App.  463 450 

Akers  v.  Fulkerson,  153  Ky.  22S.  154  S  W.  1101 478,  487 

[1155] 


1156  Table  of  Cases. 

Section 

Akin  V.  Brantley  (Ga.  App.),  106  S.  E.  214 397 

Akin  V.  Lee,  206  N.  Y.  20,  99  N.  E.  85,  Ann.  Gas.  1914a  947 836 

Alabama  Great  Southern  R.  Co.  v.  Hall,  105  Ala.  599,  17  So.  176 925 

Alabama  Power  Co.  v.  Brown  (Ala.),  87  So.  608 589.  617 

Alamo  Auto  Sales  Co.  v.  Herms  (Tex  Civ.  App.),  184  S.  W.  740 858,  871 

Alamo  Iron  Works  v.  Prado  (Tex.  Civ.  App.),  220  S.  W.  282 513,  516 

Albert  v.  Munch,  141  La.  686,  75  So.  513 418,  628,  629 

Albertson  v.  Ansbacher,  102  Misc.  (N.  Y.),  527,  169  N.  Y.  Suppl.  188.. 307,  339 

362,  395,  398 

Albright  v.  Joplin  Oil  Co.  (Mo.  App.),  229  S.  W.  829 513 

Albright  v.  Stegeman  Motor  Car  Co.,  168  Wis.  557,  170  N.  W.  951 851 

Aldrich  v.  Tyler  Grocery  Co.   (Ala.),  89  So.  289 645 

Alexander  v.  Amusement  Co.,  105  Wash.  346,  177  Pac.  786 719 

A'exander  v.  Mobile  Auto  Co.,  200  Ala.  586,  76  So.  944 878,  886,  889 

Alexander  v.  St.  Louis,  etc.,  Ry  Co.  (Mo.),  233  S.  W.  44 557 

Allen  v.  Brand  (Tex.  Civ.  App.),  168  S.  W.  35.. 36,  38,  222,  292,  295,  624,  656 

657,  662 

Allen  V.  City  of  Bellingham,  95  Wash.  12,  163  Pac.  18..  132,  135,  137,  138,  144 

147,  148,  164,  168 

Allen  V.  Coglzer   (Mo.  App.)   208  S.  W.  102 642 

Allen  V.  Fulton  Motor  Co.,  71  Misc.   (N.  Y.)   190,  128  N.  Y.  Supp.  419 202 

204,  212 

Allen  V.  Johnson,  144  Minn.  333,  175  N.  W.  545 452,  487 

Allen  V.  Mackey,  1  Sprague  (U.  S.)  219 275,  377 

Allen  V.  Pearson,  89  Conn.  401,  94  Ail.  277 294,  300,  506 

Allen  V.  Schultz,  107  Wash.  393,  181  Pac.  916,  6  A.  L.  R.  686n 285,  339 

Allen  V.  Smith,  84  Oh.  St.  283,  95  N.  5,  829  Ann.  Cas.  1912c  611 110 

Alien  V.  State,  74  Tex.  Cr.  623,  169  S.  W.  1151 9,  63 

Al  ison  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  83  Wash.  591,  145  Pac.  608 351 

AUogi  V.  Southern  Pac.  Co.,  37  Cal.  App.  72,  173  Pac.  1117 558,  568 

Alpert  V.  Eilis   (Mass.),  128   N.  E.  634 432 

Alshuler    v.    Milwaukee    Electric    Ry.    &    Light    Co.,    169    Wis.    477,    173 

N.  W.  304 616,  617 

Altenkirch  v.   National  Biscuit  Co.,  127  N.  Y.  App.  Div.  307,   111  N.  Y. 

Suppl.  284 286,  368,  380 

Alyea  v.  Junge  Baking  Co.  (Mo,  App.),  230  S.  W.  341 263,  390,  413 

American  Auto  Co.  v.  Perkins,  83  Conn.  520,  77  Atl.  954 854 

Ameiican  Automobile  Ins.  v.  Palmer,  174  Mich.  295,  140  N.  W.  557.. 823,  824 
American  Automobile  Ins.  Co.  v.  United  Rys.  Co.  of  St.  Louis,  200  Mo.  App. 

317,  206   S.  W.   257 599 

American   Express  Co.  v.   State  of   Use  of   Denowitch,    132    Md.    72,    103 

Atl.  96 452,  487 

American  Express  Co.  v.  Terry,  126  Md.  254,  94  Atl.  1026.. 277,  340,  395,  413 

486 

American  Fidelity  Co.  v.  Bleakley,  157  Iowa,  442,  138  N.  W.  508 824 

American  Motor  Car  Co.  v.  Robbins,  181  Ind.  417,  103  N.  E.  641 921 

American  Surety  Co.  v.  Vaun,  135  Ark.  291,  205  S.  W.  646 847 

Amley  v.  Saginaw  Milling  Co.,  195  Mich.  189,  161  N.  W.  832 415,  453 


Table  of  Cases.  1157 

Section 

Anders  v.  Wallace  (Ala.  App.),  82  So.  644 910 

Anderson  v.   Dickinson    (Iowa),   174   N.   W.   402 560 

Anderson  v.   Fidelity  &  Casualty  Co.,  183  N.  Y.  App.   Div.   170,  reversing 

100  Misc.  411,  166  N.  Y.   Suppl.  640 132,  845 

Anderson  v.  Fidelity  &  Casualty  Co.,  228  N.  Y.  475,  172  N.  E.  584,  9  A. 

L.  R.  1544,  atnrming  183  N.  Y.  App.  Div.  170 132,  845 

Anderson  v.  Great  Northern  Ry.  Co.    (Minn.),   179   N.  W.   687.. 552,  560,  569 

Anderson  v.  Kinnear,  80  Wash.  638,  141  Pac.  1151 311,  501 

AjQderson  v.  Missoula  St.  Ry.  Co.,  54  Mont.  83,  167  Pac.  841 517 

Anderson  v.  Puget  Sound,  etc.,  Co.,  89  Wash.  83,  154  Pac.  135 599 

Anderson  v.  Schorn,  189  N.  Y.  App.  Div.  495,  178  N.  Y.  Suppl.  603.. 258,  338 

431 

Anderson  v.  Southern  Cotton  Oil  Co.,  73  Fla.  432,  74  So.  975.. 36,  37,  631,  677 

Anderson  v.  Sparks,  142  Wis.  398,  125  N.  W.  923 102 

Anderson  v.  Sterrit,  95  Kans.  483,  148  Pac.  635 126,  362 

Anderson  v.  Van  Riper,  128  N.  Y.  Suppl.  66 228 

Anderson  v.  Voeltz  (Mo.  App.),  206  S.  W.  584 329,  448 

Anderson  v.  Wentworth,  75  Fla.  300,  78  So.  265 58,  72,  98 

Anderson  v.  White  Co.,  68  Wash.  568,  123  Pac.  1009 800 

Anderson  v.  Wood,  264  Pa.  St.  98,  107  Atl.  658 326,  441,  456 

Andrews  v.  Dougherty    (Conn.),  112  Atl.  700 491 

Andrews  v.  Mynier  (Tex.  Civ.  App.),  190  S.  W.  1164 554,  575,  578 

Andries  v.  Everet,  etc.,  Flanders  Co.,  177  Mich.  110,  142  N.  W.  1067 722 

Angell  V.  Chicago,  R.  I.  &  P.  Ry.  Co.,  97  Kans.  688,  156  Pac.  763 692 

Angel  V.  Lewis,  20  R.  L  391,  39  Atl.  521 267,  268,  280,  376,  377 

Anthony  v.  Kiefner,  96  Kans.  194,  150  Pae.  524 679 

Anthony  v.  Moore  &  Munger  Co.,  135  N.  Y.  App.  Div.  203,  120  N.  Y.  Suppl. 

402 210 

Anticieh  v.  Motor  Car  Inn  Garage  (Miss.),  87  So.  279 785,  848,  856 

Antrim  v.  Noonan,  186  111.  App.  360 359 

Apperson  v,  Lazro,  44  In'd.  App.  186,  88  N.  E.  99 244,  247,  417,  432 

Applewold,  Borough  of,  v.  Dosch,  239  Pa.  St.  479,  68  Atl.  1070,  Ann  Cas. 

1914   D.    481 49 

Applewold,  Borough  of,  v.  Dosch,  60  Pitts.  Leg.  J.  22 94 

Aqua  Contracting  Co.  v.  United  Rys.  of  St.  Louis   (Mo.  App.),  203  S.  W. 

483 613,  821 

Archer  v.  Sibley,  201  Ala.  495,  78  So.  849 630 

Archer   v.    Sahen,    137   Minn.    432,    163    N.    W.    784 452,    464,  487 

A.  R.  G.  Bus  Co.  V.  White  Auto  Co.  (Cal.  App.),  198  Pac.  829 870 

Arkansas  River  x^acket  Co.  v.  Sorrels,  50  Ark.  466,  8  S.  W.  683 23 

Arkansas  &  L.  Ry.  v.  Sanders,  81  Ark.  604,  99  S.  W.  1100 918 

Arkin  v.  Page,  212  111.  App.  282 332,  438,  480,  624,  642,  656,  660 

Annann  v.  Caswell,  30  N.  D.  406,  152  N.  W.  813 359,  929 

Armstead  v.  Lounsber'ry,  129  Minn.  34,  151  N.  W.  542,  544 126 

Armstrong  v.  Backus,  196  Mich.  735,  163  N.  W.  L 661 

Armstrong  v.  Chicago,  etc.,  Ry.  Co.,  35  S.  Dak.  398,  152  N.  W.  695 851 

Armstrong  v.  Sellers,  182  Ala.  582,  62  So,  28 21,  126 

Arnaz  v.  Forbes  (Cal.  App.),  197  Pac.  364 439,  476 


1158  Table  of  Cases. 

Section 

Arnold  v.  McKelvey,  253  Pa.  324,  98  Atl.  559 435.  453,  456 

Arnold  v.  State,  163  N.  Y.  App.  Div.  253,  148  N.  Y.  Suppl.  479.. 54,  429,  477 

664 

Aronson  v.  New  York  Taxicab  Co..  125  N.  Y.  Suppl.  756 .359 

Arrington  v.  Horner,  88  Kans.  817,  129  Pac.  1159.. 249,  276,  277,  281,  283,  289 

305,  317,  325,  380,  491,  518,  534,  542 

Arseneau  v.  Sweet,  106  Minn.  257,  117  N.  W.  46 476' 

Asbury  v.  Carrol,  54  Pa.  Super.  Ct.  97 ." 194 

Ashland  Auto  Garage  v.  Chicago  Rys.  Co.,  183  111.  App.  207 591 

Askey  v.  Chicago,  etc.,  Ry.  Co.,  101  Neb.  266,  162  N.  W.  647 557,  558,  572 

Athens  Ry.  &  Elec.  Co.  v.  McKinney,  16  Ga.  App.  741,  86  S.  E.  83.  .246,  249,  602 

Atherton  v.  Topeka  Ry.  Co.,  107  Kans.  6,  190  Pac.  430 613 

Atkins  V.  Points,  148  La.,  88  So.  231 176,  644 

Atkins  V.  State  Highway  Dept.  (Tex.  Civ.  App.),  201  S.  W.  226.  .94,  96,  97,  105 

108,  111 

Atlantic  City  v.  Fousler  (N.  J.) .  56  Atl.  119 150 

Atlantic  Coast  Line  R.  Co.  v.  Church,  120  Va.  725,  92  S.  E.  905 550,  554 

Atlantic  Coast  Line  Railroad  Co.  v.  Weir,  63  Fla.  69,  '58  So.  641,  Ann.  Cas. 

1914  A.  126,  41  L.  R.  A.   (N.  S.)  307 126 

Augerson  v.  Seattle  Elec.  Co.,  73  Wash.  529,  132  Pac.  222 611 

Austin  V.  Buffalo  Electric  Vehicle  Co.,  158  N.  Y.  Suppl.  148 342 

Austin  V.  Newton    (Cal.   App.),   189   Pac.   471 359,  498 

Automobile  Acts,  Matter  of,  15  Pa.  Dist.  Rep.  83.. 96,  104,  216,  2130,  231,  232 

Auto  Sales  Co.  v.  Bland  (Tex.),  194  S.  W.  1021 628,  677 

Auto  Transit  Co.  v.  City  of  Ft.  Worth   (Tex.  Civ.  App.),  182  S.  W.  685..  135 

137,   138,   146,    147,    155,    156,  157 

Avegno  v.  Hart,  35  La.  Ann.  235 252 

^.very  v.  Thompson,  111  Me.  120,  103  Atl.  4 678,  690,  692 

Avery  Co.  v.  Staple  Mercantile  Co.  (Tex.  Civ.  App.),  183  S.  W.  43.  .856,  871,  874 

Axtell  V.  State   (Tex.  Cr.),  216  S.  W.  394 124 

Ayers  v.  City  of  Chicago,  239  111.  237.  87  N.  E.  1073 72,  97,  99 

Ayers  v.  Kansas  City  Rys.  Co.   (Kans.),  193  Pac.  1069 594 

Azinger  v.  Pennsylvania  R.  Co.,  262  Pa.  242,  105  Atl.  87 688,  690 

B 

Bachelder  v.  Morgan,  179  Ala.  339,  60  So.  815 451,  458,  487 

Baer  v.  Lehigh,  etc.,  Ry.  Co.,  93  N.  J.  L.  85,  106  Atl.  421 557,  564,  577 

Bagdad  Land  &  Lumber  Co.  v.  Moneyway.  (Fla.),  86  So.  687 554,  574 

Bagwell  V.  Southern  Ry.  Co.,  167  N.  Car.  611,  83  S.  E.  814 578,  679 

Bailey  v.  Borchers,  66  Pitts.  Leg.  Journ.,  Pa.  530 452 

Bailey  v.  Freeman,  7  O.  W.  N.  (Canada)  24,  on  appeal,  7  0.  W.  N.  159 344 

Bailey  v.  Southern  Ry.  Co.,  196  Ala.  133,  72  So.  67 554,  557,  568 

Bailey  V.  Worcester  Consol.  St.  Ry.  Co.,  228  Mass.  477,  117  N.  E.  824 588 

599.  688 

Baillargeon  v.  Myer,  27  Cal.  App.  Div.  187,  149  Pac.   378 359 

Baillargon  v.  Neyers,  180  Cal.  504,  182  Pac.  37. 492,  516 

Bain  v.  Fuller,  29  D.  L.  R.  (Canada)  113 259,  272,  390,  403,  410 

Baker  v.  City  of  Fall  River,  187  Mass.  53.  72  N.  E.  336.  .33,  35,  37,  47,  696,  712 


Table  of  Cases.  1159 

Section 

Baker  v.  Close,  137  N.  Y.  App.  Div.  529,  121  N.  Y.  Suppl.  729 426,  452,  466 

Baker  v.  Collins   (Tex.  Civ.  App.),  199  S.  W.  519 556,  560,  569,  576 

Baker  v.  Fogg  &  Hires  Co.   (N.  J.),  112  Atl.  406 269,  510,  512 

Baker  v.  Homeopathic  Hospital,  190  N.  Y.  App.  Div.  .39.  179  N.  Y.  Suppl. 

675 641 ,  677 

Baker  v.  Maseeh,  20  Ariz.  201,  179  Pac.  53 629,  673,  674 

Baker  v.  Northern  Assur.  Co.   (Mich.),  183  N.  W.  61 808,  889 

Bayer  v.  Streater  (Tex  Civ.  App.),  221  S.  W.  1039 312,  579,  580,  679,  688 

Baker  v.  Western  Auto  Stage  Co.   (Cal.  App.),  192  Pac.  73 169,  262 

Baker  v.  Zimmerman  179  Iowa  272,  161  N.  W.  479 247,  250,  267,  372,  373 

376,  377,  378,  413 

Bakerfield  &  V.  R.  Co.  v.  Fairbanks  M.  &  Co.,  20  Cal.  App.  412, 129  Pac.  610.  865 

Bakuia  v.  Schwab,  167  Wis.  546,  168  N.  W.  378 678 

Baldarachi  v.  Leaeh   (Cal.  App.),  196  Pac.  1060 487,  836 

Baldie  v.  Taconia  Ry.  &  Power  Co..  52  Wash.   75.   100   Pac.  162 333.  344 

598,  600,  616 

Baldwin  v.  City  of  Norwalk  (Conn.),  112  Atl.  660 698,  714 

Baldwin  v.  Locomobile  Co.,  143  N.  Y.  App.  Div.  599,  128  N.  Y.  Suppl.  429. .  54 

Baldwin  v.  Smitherman,  171  N.  Car.  772,  88  S.  E.  854 283,  284,  489 

Baldwin's  Adm'r  v.  Maggard,  162  Ky.  424,  172  S.  W.  674.. 326,  391,  441,  454 

Ballard  v.  Collins,  63  Wash.  493,  115  Pac.  1050 297,  345.  352 

Ballard  v.  Globe,  etc.,  Ins.  Co.   (Mass.),  129  N.  E.  290 838 

Ballard  &  Ballard  v.  Durr,  165  Ky.  632,  177  S.  W.  445 907 

Ballman  v.  H.  A.  Luecking  Teaming  Co.,  (Mo.),  219  S.  W.  603 484 

Baltimore,  City  of  v.  State  of  Maryland,  166  Fed.  641 679,  696,  700 

Baltimore  &  O.  R.  Co.  v.  State,  to  use  of  McCabe,  133  Md.  219,  104  Atl. 

465 , 679,  688 

Bancroft  v.  Cote,  90  Vt.  358,  98  Atl.  915 173,  179,  679,  687 

Bancroft  v.  Tovni  of  E.  Montpelier,  Vt.,  109  Atl.  39 701 

Bangs  V.  Farr,  209  Mass.   339,  95  N.   E.   841 797 

Banhofer  v.  Crawford,  16  Cal.  App.  676,  117  Pac.  931 270,  362,  395 

Banker  Bros.  Co.  v.  Pennsylvania,  222  U.  8.  210,  32  S.  Ct.  38 785,  788,  873 

Banks  v.  Braman,  188  Mass.  367,  74  N.  E.  594 453 

Banks  v.  M.  L.  Shoemaker  &  Co.  260  Pa.  375,  103  Atl.  734 452,  487 

Banks  v.  Strong,  197  Mich.  544,  164  N.  W.  398 207 

Bannister  v.  H.  Jevne  Co.,  28  Cal.  App.  133,  151  Pac.  546 305,  310,  325,  327 

423,  425,  443 

Baraboo,  City  of,  v.  Dwyer,  166  Wis.  372,  165  N.  W.  297 23,  59,  77  314 

Baran  v.  Goodyear  Tire  &  Rubber  Co.,  256  Fed.  571 797 

Barber  v.  McAdoo,   (N.  J.),  110  Atl.  119 560 

Barbour  v.  Shebor,  177  Ala.  304,  58  So.  276 458 

Bardshar  v.  Seattle  Elec.  Co.,  72  Wash.  200,  130  Pac.  101 501.  593,  614 

Barfield  v.  Evans,  187  Ala.  579,  65  So.  928 628,  673 

Bargcr  v.  Bissell,  188  Mich.  366,  154  N,  W.  107 283,  285.  416.  478 

Barger  v.  Bi.ssell,  204  Mich.  416,  170  N.  W.  76 452 

Barker  v.  Dair^-men's  Milk  Products  Co.   (Ala.),  88  So.  588 638 

Barker  v.  Savage,  45  N.  Y.  191 459 

Barkoi-  v.  Savas,  52  Utah  262,  172  Pac.  672 332,  500 

Barnes  v.  Barnett.  184  Iowa  936,  160  N.  W.  365 262,  413 


1160  Table  of  Cases. 

Section 

Barnes  v.  Kirk  Bros.  Auto  Co.,  32  Ohio  Circuit  Rep.  233 215 

Barnett   v.   Anheuser-Busch   Agency,   80   Miss.    R.    151,   140    N.    Y.    Suppl. 

1029 351 

Barnett  V.  Anheuser-Busch  Agency,  134  N.  Y.  Suppl.  734 519 

Barnett  v.  Levy,  213  111.  App.  129 339,  678,  682 

Barrett  v.  Alamito  Dairy  Co.,  (Neb.),  181  N.  W.  550 261,  391,  393,  409 

Barrett  v.  Chicago,  etc.,  E.  Co.  (Iowa),  175  N.  W.  950 553,  565,  575,  577 

682,  688,  689 

Barrett  v.  City  of  New  York,  189  Fed.  268 77,  98,  221 

Barry  v.  American  Locomotive  Auto  Co.,  113  N.  Y.  Suppl.  826 801,  862 

Barry  V.  Metzer  Motor  Car  Co.,  175  Mich.  466,  141  N.  W.  529 626 

Barshlield  v.  Vucklich,  (Kans.),  197  Pac.  205.  .  .  .304,  321,  325,  717,  719,  911,  934 

Barth  V.  Harris,  95  Wash.  166,  163  Pac.  401 262,  311,  357,  509 

Bartlett  v.  Pannhier,  94  Wash.  354,  162  Pac.  533 159 

Bartley  v.  Marino   (Tex.  Civ.  App.),  158  S.  W.  1156 459 

Barton  v.  Craighill   (Pa),  112  Atl.  96 438 

Barton  V.  Faeth,  193  Mo.  App.  402,   186  S.  W.  52.... 297,  298,   321,  403,  407 

Barton  v.  Studebaker  Corp.    (Cal.  App.),  189  Pac.  810 645 

Barton  v.  VanGesen,  91  Wash.  94,  157  Pac.  215.  .304,  329,  502,  503,  506,'  508,  509 

Bastable  v.  Little,  L.  R.   (1907),  I.  K.  B.  59   (Eng.) 738 

Bastin  V.  Chicago  City  Ry.  Co.,  189  111.  App.  369 592,  629 

Bastin  v.  Ford  Motor  Co.,  189  111.  App.   367 213,  641 

Batkin  v.  State  (Okla.),  185  Pac.  835 768 

Batroot  v.  St.  Paul,  125  Minn.  308,  146  N.  W.  1107 351 

Battle  V.  Guthrey,  137  Ark.  228,  208  S.  W.  289 536 

Bauer  v.  Griess   (Neb.),  181  N.  W.  156 678 

Baugher  v.  Harman,  110  Va.  316,  66  S.  E.  86 531 

Baughman  Automobile  Co.  v.  Emanuel,  137  Ga.  354,  73  S.  E.  511,  38  L.  R.  A. 

(N.  S.)  97 877 

Baum  v.  American  Ry.  Express  Co.,  177  N.  Y.  Suppl.  156 395 

Baum  V.  Link,  110  Misc.   (N.  Y.)   297,  180  N.  Y.  Suppl.  468 666,  672 

Bayer  v.  St.  Louis,  etc.,  Rd.,  188  111.  App.  323 606 

Bayles  v.  Plumb,  141  N.  Y.  App.  Div.  786,  126  N.  Y.  Suppl.  425 391 

Beach  v.  City  of  Seattle,  85  Wash.  379,  148  Pac.  39 679 

Beacon  Motor  Car  Co.  v.  Shadman,  226  Mass.  570,  116  N.  E.  559 208 

Beall  V.  Kansas  City  Rys.  Co.,  (Mo.  App.)  228  S.  W.  8.34 689,  690 

Beams  V.  State  (Ga.  App.)  100  S.  E.  230 758 

Bean-Hogan  v.  Kloehr,  103  Kans.  731,  175  Pac.  976 169,  678 

Beard  v.  Klusmeir,  158  Ky.  153,  164  S.  W.  319,  50  L.  R.  A.  (N.  S.),  1100.  .  678 

Bears  v.  Central  Garage  Co.,  3  D.  L.  R.   (Canada),  387 297,  320 

Beatty  v.  Firestone  Tire  &  Rubber  Co.,  263  Pa.  St.  271,  106  Atl.  303.  .625,  631 

Beatty  v.  Palmer,  196  Ala.  67,  71  So.  422 836,  917 

Beaubian  v.  Detroit  United  Ry.  (Mich.),  179  N.  W.  478 614 

Beaucage  v.  Mercer,  206  Mass.  492,  92  N.  E.  774 214 

Beaumont,  etc.  R.  Co..  v.  Moy  (Tex.  Civ.  App.),  174  S.  W.  697 557 

Beamont,  S.  L.  &  W.  Ry.  Co.  v.  Myxich  (Tex.),  208  S.  W.  935 550,  557 

577,  719 

Beaver  Valley  Milling  Co.  v.  Interurban  Ry.  Co.  (Iowa),  166  N.  W.  565..  595 


Table  of  Cases.  1161 

Section 

Beck  V.  Cox,  77  W.  Va.  442,  87  S.  E.  492 57,  71,  72,  77,  234,  343 

Beck  V.  Wilkins-Ricks  Co.,  179  N.  C.  231,  102  S.  E.  313 202,  204 

Becker  v.  LaCoro    (Mich.),   179   N.   W.   .344 886 

Becker  v.  West  Side  Dye  Works  (Wis.),  177  N.  W.  907 472,  475 

Beckley  v.  Alexander,   77   N.   H.   255,  90  Atl.   878 903,  930 

Beckwith  v.  Firing,  134  N.  Y.  App.  Div.  608,  119  N.  Y.  Suppl.  444 194 

Bedford  v.  Hoi-Tan  Co.,  143  N.  Y.  App.  Div.  372,  128  N.  Y.  Suppl.  578..  861 

865,  867,  870 

Beecroft  v.  Schaik,  104  N.   Y.  Suppl.  458 862,  872 

Beeman  v.  Tacoma  Ry.  &  Pr.  Co.  (Wash.),  191  Pac.  813 599,  609 

Beemer  v.  Chicago,  R.  I.  &  P.  Co.,  162  N.  W.  43 559,  690 

Beggs    V.    Clayton,   40   Utah   389,    121    Pac.    7 297,    327,  534 

Behl  V.  Greenbaum,   183   N.   Y.  App.  Div.   238,   171   N.  Y.   Suppl.   129 676 

Bojach  V.  Colby,  141   Tenn.   686,  214  S.  W.   869 398 

Belk  V.  People,  125  111.  584,  17  N.  E.  744 351,  399 

Bell  V.  American  Ins.  Co.   (Wis.),  181  N.  W.  733 816 

Bell  V.  Jacobs,  261  Pa.  204,  104  Atl.  587 515,  689 

Belles  V.  Kellner,  67  N.  J.  L.  255,  51  Atl.  700,  57  L.  R.  A.  627 543 

Belleveau  v.  S.  C.  Lowe  Supply  Co.,  200  Mass.  237,  86  N.  E.  301 300,  347 

464,  470 

Bellinger  v.  Hughes,  31  Cal.  App.  464,  160  Pac.  838 277,  278,  414,  423 

462,  468 

Bellingham,  City  of  v.  Cissna,  44  Wash.  397,  87  Pac.  481 98 

Bendiz  v.  Staver  Carriage  Co.,  174  111.  App.  589 785,  786 

Benemy  v.  Reading  Transit  &  Light  Co.  (Pa.),  112  Atl.  437 592 

Benedict  v.  Hines  (Iowa),  180  N.  W.  690 572 

Benesch  v.  Pagel  (Wis.),  177  N.  W.  860 , 295,  300,  399 

Benjamin  v.  McGraw,  208  Mich.  75,  175  N.  W.  394 430 

Benn  v.  Forest,  213  Fed.  763,  130  C.  C.  A.  277 673,  677 

Bennett  v.  Busch,  75  N.  J.  L.  240,  67  Atl.  188 628,  630 

Bennett  v.  Potter,  16  Cal.  App.  183,  116  Pac.  681 869 

Bennett  v.  Snyder    (Ark.),   227   S.   W.  402 339,   380,  413 

Beno  V.  Kloka   (Mich.),  178  N.  W.  646 438,  480 

Benoit  v.  Miller  (R.  L),  67  Atl.  87 473 

Bensing  v.  Waterloo,  etc.,  R.  Co.  (Iowa),  179  N.  W.  835 592,  613 

Benson  v.  Larson,   133  Minn.  346,   158  N.  W.  426 297,  330 

359,  448,  452 

Benton  v.  Regeser,  20  Ariz.  273,  179  Pac.  966 516,  654,  657,  659 

Berg  V.  Fisher,  182  HI.  App.  449 456 

Berg  V.  Michell,  196  lU.  App.  509 297,  322,  444 

.Berg  V.  Rapid  Motor  Vehicle  Co.,  78  N.  J.  Law  724,  75  Atl.  933 863 

Berger  v.  Watjen   (R.  I.),  106  Atl.  740 671 

Berges  v.  Guthrie  (Cal.  App.),  197  Pac.  356 304,  322 

Bergstrom  v.  Mellin   (Utah),  192  Pac.  679 722 

Berlo  v.  Omaha,  etc.  Ry.  Co.  (Neb.),  178  N.  W.  912 775 

Berman  v.  Langley  (Me.),  109  Atl.  393 871 

Berman  v.  Schultz,  84  N.  Y.  Suppl.  292 340,  342,  446 

Benardo  v.  Legaapi,  29  Philippine  Rep.  12 283,  351,  391 


1162  Table  of  Cases. 

Section 

Bernheim    v.    Roth,    157    N.    Y.    Suppl.    902 723 

Bernina,  The,  L.  R.  12  Prob.  Div.   (Eng.),  58 680 

Bernstein  v.  Higginbotham,  148  Ga.  353,  96  S.  E.  866 59 

Bernstein  v.  Lj-nch,   13  Com.   L.   R.    (Canada),   134,  280  L.   R.   435,  4  O. 

W,    N/    1006,    49   C.    L.    J.    619 626 

Berry,  Ex  parte,  147  Cal.  523,  82  Pac.  44 43,  57,  71,  74,  231,  232,  891 

Berry  v.  State  (Tex.  Cr.),  223  S.  W.  212 768 

Berryman  v.  Maryland  Motorcar  Ins.  Co.  (Mo.  App.),  204  S.  W.  738 811 

Bertholf  v.   Fisk,   182  Iowa  1308,    166   N.   W.    713 790,  796 

Bertles  v.  The  Laurel  Run  Turnpike  Co.,  15  Pa.  Dist.  Rep.  94 52 

Berto  V.  Omaha,  etc.  Co.-  (Neb.),   178   N.  W.  912 ' 587 

Bertrand  v.  Hunt,  89  Wash.  475,   154  Pac.   804 648 

Bertrand  v.  Milwaukee  Electric  Ry.   &  L.  Co.,   156  Wis.  639,   146   N.  W. 

915 '.  591 

Bertschy  Motor  Co.  v.  Brady,  168  Iowa  609,  149  N.  W.  42. 209 

Berz  Co.  v.  Peoples  Gas,  Light  &  Coke  Co.,  209  111.  App.  304 351,  398 

Best  V.  Bander,  29  How.  Prac.   (N.  Y.)   489 150 

Best  V.  State,  114  Misc.   (N.  Y.),  272 696 

Bethel  v.  City  of  St.  Joseph,  184  Mo.  App.  388,  171  S.  W.  42 696 

Bethlehem  Motors  Corp.  v.  Flynt,  178  N.  C.  399,  100  S.  E.  693 1,  873 

Bettilyon  v.  Smith  &  Son,  Inc.    (Conn.),   112  Atl.   649 262,  394 

Beville  v.  Taylor,  202  Ala.  305,  80  So.  370 642,  654 

Bew  V.  John  Daley,  Inc.,  260  Pa.  418,  103  Atl.  832 330,  359,  391,  413 

Bianchi  v.  Miller  (Vt.),  Ill  Atl.  524 398,  413,  836,  922,  923 

Bibb  V.  Grady   (Mo.  App.),  231  S.  W.  1020 415,  485 

Bickley  v.  Southern  Pennsylvania  Ti'.  Co.,  56  Pa.  Super.  Ct.  113 359 

Bidwell  V.  Los  Angeles,  etc.,  Ry.  Co.,  169  Cal.  780,  148  Pac.  197 49,  26 J 

277,  391 

Bigelow  V.  Town  of  St.  Johnsbury,  92  Vt.  423,  105  Atl.   .34 294,  339 

691,  710 

Bilyew   v.   Beck,   178   N.  Car.   481,   100   S.   E.    891 660 

Bilz  v.  Powell,  50  Colo.  482,  117  Pac.  344 790,  796 

Birch  V.  Abercrombio,   74  Wash.  486,  133  Pac.   1020,  50  L.  R.  A.   (N.  S.) 

59 36,  660 

Birch  v.  Athol.  etc.  Ry.  Co.,  198  Mass.  257,  84  N.  E.  310 .332.  336 

596,  608 

Birmingham,  etc.,  Co.  v.  Carpenter,  194  Ala.  141,  69  So.  626 679,  681 

Birmingham  Ry.  L.  &  P.  Co.    v.  Aetna  Accident  &  Liability  Co..  151  Ala. 

136,    44    So.    44 351 

Birmingham  Railway  Light  and   Power  Co.   v.   Aetna  Accident  &  Liability 

Co.,   184  Ala.   601,  64   So.   44 125,  126 

Birmingham  Ry.  L.  &  P.  Co.  v.  B.Tiranco,  203  Ala.  639,  84  So.  839 679,  688 

689.    690,  692 

Birmingham  Ry.  L.  &  P.  Co.   v.  Bcal,  200  Ala.  409.  76  So.  1.  , 621 

Birmingham  Ry.  L.  &  P.  Co.  v.  Broyles,  194  Ala.  64,  69  So.  562 613 

Birmingham  Ry.  L.  &  P.  Co.  v.   Ely,  183  Ala.   382,  62  So.   816 590 

Birmingham  Ry.  L.  &  P.  Co..  v.  Smyor,  181  Ala.  121,  132,  61  So.  354 47 

Birmingham  Ry.  L.  &  P.  Co.  v.  Sprague.  196  Ala.  148,  72  So.  96 613,  719 


Table  of  Cases.  1163 

Section 

Binnrngham  So.  Ry.  Co.  v.  Harrison,  20.3  Ala.  ^4,  82  So.  534 564,  580 

679,  692 

Bishard  v.  Englebeck,  180  Iowa  11.32,  164  N.  W.  203 252,  278,  329,  419 

433,  448,  484 

Bishop   V.   Wright,   221    Fed.    391,   137   C.   C.   A.   200 414 

Black   V.    Blackster,    11    Ala.   App.    545,   66    So.    863 296,  402 

Black  V.   Burlington,  etc.,  R.   Co.,   38  Iowa  515 925 

Black  V.  Chicago  Great  Western  R.  Co.  (Iowa),  174  N.  W.  774 577,  579 

Black   V.    Moree,   135    Tonn.    73,    185   S.    W.    682 135,  521 

Black  V.  Parke,  Davis  &  Co.    (Mich.)   178  N.  W.  700 267,  503 

512,  516 

Blackburn  v.  Marple  (Cal.  App.),  184  Pac.  875 311,  312,  413 

Blackburn   v.   Marple    (Cal  App.)    184  Pac.   873 311,   313,  413 

Blackden  v.  Blaisdell,  113  Me.  567,  93   Atl.  540 517,  549 

Blackmer   v.    McCabe,    83   Vt.    303,    85   Atl.    113 290 

Blackwell  v.  American  Film  Co.   (Cal.  App.),  192  Pac.  189 397,  411,  413 

Blackwell  v.  McGrew    (Tex.  Civ.  App.),   141   S.  W.   1058 517,  518 

Blackwell  v.  Eenwick,  21  Cal.  App.  131.   131  Pac.  94 359,  448,  457,  462 

463,   486,  487 
Blackwood  Fire  &  Vulcanizing  Co.  v.  Auto  Storage  Co.,  133  Tenn.  515.  182 

8.    W.    576 889 

Blado  V.  Draper,  89  Neb.  787,  132  N.  W.  410 919 

Blair  v.  Broadwater,  121  Va.  301,  93  S.  E.  632,  L.  R.  A.  1918  A,  1011 624 

656,  657.  660 

Blaker  v.  Philadelphia  Elec.  Co.,  60  Pa.  Super.  Co.  56 632 

Blalack  v.  Blacksher,  11  Ala.  App.  545,  66  So.  863.  .294,  297,  403,  836,  913.  917 

Blanchard  v.  City  of  Portland,  Me.,  113  Atl.  18 125,  226,  712 

Blanchard  v.  Maine  Cent.  R.  Co.,  316  Me.  179,  100  Atl.  666 559,  56."..  688 

Blanchard  v.  Puget  Sound  Tract.,  L.  &  P.  Co.,  105  Wash.   205,  177  Pac. 

822 599,   609,  621 

Blaustein  v.  Pincus,  47  Mont.  202,  131  Pac.  1064 193 

BleiweisB  v.   State   (Ind.),   119  N.  E.  375 767 

Bleiweiss  v.  State  (Ind.),  122  N.  E.  577 767 

Blickley  v.  Luce's  Estate,  148  Mich.  233,  111  N.  W.  752 297 

Bliss  v.  Wolcott,  40  Mont.  491.   107  Pac.  423 544 

Blum  V.  Gerardi,  111  Misc.  (N.  Y.)  617,  182  N.  Y.  Suppl.  297 262,  394.  413 

Blynn  v.  Pontiac,  185  Mich.  35,  151  N.  W.  681 228 

Board  of  Com'rs  of  Logan  County  v.  Bicher,  98  Ohio,  432,  121  N.  E.  535.  .  688 

701.  718 

Bodek  v.  Connecticut  Co.    (Conn.),  Ill  Atl.  590 587 

Boedecher  v.  Frank,  48  Utah,  .36.3,  159  Pac.  634 310,  325,  332,  .336,  413 

Boeing  v.  Gottstein  Furniture  Co.  (Wash.),  196  Pac.  575 413 

Boes  v.  Hawell,  24  N.  Mex.  142,  173  Pac.  966,  L.  R.  A.  1918  P,  288. . .  .656,  660 

Bogart  V.  City  of  New  York,  200  N.  Y.  379,  93  N.  E.  937 54 

Bogdan  v.  Pappas,  95  Wash.  579,  164  Pac.  208 159,  169.  258.  297,  399,  .308 

Boggs  V.  Iowa  Central  Ry.  Co.,  187  Dl.  App.  621 577.  896.  901 

Boggs  V.  Jewell  Tea  Co.,  263  Pa.  St.  413,  106  Atl.  781 261,  361,  .391.  393 

Bogle,  Ex  parte,  78  Tex.  Cr.  1.  179  S.  W.  1193.  .130,  135,  137,  138,  144,  147,  1.55 


1164  Table  or  Cases. 

Section 

Bogorad  v.  Dix,  176  N.  Y.  App.  Div.  774,  162  N.  Y.  Suppl.  992.. 630,  631,  673 

674 
Bohan  v.  Metropolitan  Express  Co.,   122'  N.   Y.  App.  Div.   590,   107  N.  Y. 

Suppl.  530 666 

Bohn  V.  Dalton,  206  111.  App.  374 324,  444,  459,  464,  487 

Bohringer  v.  Campbell,  154  N.  Y.  App.  Div.  879,  137  N.  Y.  Suppl.  241.  .305,  315 

329,  330,  440,  441,  443,  478 

Boland  v.  Gay,  201  111.  App.  359 132,  169,  439 

Boland  v.  Smith  (Cal.  App.),  190  Pac.  825 851 

Boll  V.  Gruesner  (S.  Dak.),  176  N.  W.  517 259,  390,  394 

Bolman  v.  Bullene  (Mo.),  200  S.  W.  1068 657,  660 

Bolton  v.  Colder,  1  Watts,    (Pa.)    360 252' 

Bona  v.  S.  R.  Thomas  Auto  Co.,  137  Ark.   217,  208  S.  W.   306.. 276,  277,  278 

308,   324,  452 

Bond  V.  Inhabitants  of  Billerica  (Mass.),  126  N.  E.  281 696,  701 

Bonds  V.  Marsh,  202  Ala.  155,  79  So.  630 867 

Bonds  V.  State,  16  Ga.  App.  401,  85  S.  E.  629,  631 18 

Bondy  v.  New  York  City  R.  Co.,  56  Misc.  (N.  Y.)  602,  107  N.  Y.  Suppl.  31.  723 
Bonert  V.  Long  Island  R.  Co.,  145  N.  Y.  App.  Div.  552,  130  N.  Y.  Suppl. 

271 557,    567,    718,  720 

Bongner  v.  Ziegenheim,  165  Mo.  App.  328,  147  S.  W.  182.. 277,  281,  332,  359 

423,  458,  475 

Book  V.  Aschenbrenner,  165  111.  App.  23 410,  920 

Boos  V.  Field,  192  N.  Y.  App.  Div.  696,  183  N.  Y.  Suppl.  482 486 

Booth  V.  Dallas  (Tex.  Civ.  App.),  179  S.  W.  301..  135,  137,  138,  147,  152,  164 

168 

Booth  V.  Meagher,  224  Mass.  472.  113  N.  E.  367 332,  438,  457,  466,  467 

Borack  v.  Mosler  Safe  Co.  (Mo.),  231  S.  W.  623 267 

Border  Nat.  Bank  v.  Coupland,  240  Fed.  355 882 

Borders  v.  Metropolitan  St.  Car  Co.,  168  Mo.  App.  172,  153  S.  W.  72 613 

Borg  V.  Des  Moines  City  By.  Co.  (Iowa),  181  N.  W.  10 615,  679 

Borg  v.  Larson,  60  Ind.  App.  514,  111  N.  E.  201 252,  270,  495,  510 

Borglum  v.  New  York  etc.,  R.  Co.,  90  Conn.  52,  96  Atl.  174 550,  562,  575 

Borys  v.  Christowsky,  27  D.  L.  R.   (Canada)   792,  9  S.  L.  R.  181,  34  W. 

L.   R.   346 326,  678 

Bosco  V.  Boston  Store  of  Chicago,  195  111.  App.  133 646,  672,  673 

Boston  Ins.  Co.  v.  Brooklyn  Heights  R.  Co.,  182  N.  Y.  App.  Div.  1,  169 

N.    Y.    Suppl.    251 262,  585 

Bouchet  V.  Oregon  Motor  Car   Co.,  78  Oreg.  230,  152  Pac.  888 863,  866 

Boulton  V.  City  of  Seattle   (Wash.),  195  Pac.  11 269,  610 

Boulware  v.  Victor  Auto  Mfg.  Co.,  152  Mo.  App.  567,  134  S.  W.  7.  .863,  864,  866 

Bouma  v.  Duboi.^,  169  Mich.  422,  135  N.  W.  322 414,  452,  487 

Bourland  v.  Baker   (Ark.),  216  S.  W.  707 661 

Bourne  v.  Whitman,  209  Mass.  155,  95  N.  E.  404,  35  L.  R.  A.  (N.  S.)  701.  95 

125,  225,  226,  2'67 

Bowden  v.  Walla  Walla  Valley  Ry.  Co.,  79  Wash.  184,  140  Pac.  549 351,  592 

Bowen  v.  State,  100  Ark.  232,  140  S.  W,  28 765,  925 

Bowers  v.  Columbia  Garage  Co.,  93  Misc.  (N.  Y.)  49,  156  N.  Y.  Suppl.  286. .  215 


Table  of  Cases.  1165 

Section 

Bow«s  V.  Hopkins,  84  Fed.  767,  28  C.  C.  A.  524 920 

Bowles  V.  Lowery,  5  Ala.  App.  555,  59  So.  696 357,  54S 

Boyd  V,  Boston  Elevated  Ry.  Co.,  224  Mass.  199,  112  N.  E.  607 587,  588,  614 

Boyd  V.  Buick  Automobile  Co.,  182  Iowa,  306,  165  N.  W.  908 870,  871 

Boyer  v.  Oldham  (Mo.  App.),  209  S.  W.  617 503 

Bozeman,  Matter  of,  7  Ala.  App.  151,  61  So.  604,  63  So.  201.  .96,  106,  111,  122 

Bozinch  v.  Chicago  Rys.  Co.,  187  111.  App.  8 613 

Bradley  v.  Interburban  Ry.  Co.   (Iowa),  183  N.  W.  493 688,  690 

Bradley  v.  Jacckel,  65  Misc.  (N.  Y.)  509,  119  N.  Y.  Suppl.  1071.  .326,  329,  332 

448,  460 

Bradshaw  v.  Conlon,  40  O.  L.  R.  496 283 

Bragdon   v.   Kellogg.   118   Me.   42,   105   Atl.   433.. 249,   250,  251,   267,   272,  278 

352,  374,  376,  377,  410 
Brand  v.  Northern  Pac.  Ry.  Co.,  105  Wash.  138,  177  Pac.  806,  6  A.  L.  R. 

667n 577 

Brand  v.  Taxi  Cab  Co.,  129  La.  781,  56  So.  885 469,  486 

Brandenberg  v.   Klehr,   197  111.   App.   459 249,   493,  510 

Branegan  v.  Town  of  Winona,  170  Wis.  137,  174  N.  W.  468 701 

Brandt  v.  New  York  Rys.  Co.,  85  Misc.  (N.  Y.)  40,  147  N.  Y.  Suppl.  17.  .  593 

599,  609,  614 
Brannen  v.  Kokomo,  etc.,  Co.,  115  Ind.  115,  17  N.  E.  202,  7  Am.  St.  Rep. 

411 691 

Braverman  v.  Hart,  105  N.  Y.  Suppl.  107 176,  645 

Brautigan  v.  Union  Overall  Laundry  &  Supply  Co.,  211  111.  App.  354.. 277,  322 

433,  443,  487 

Braxton  v.  Mendelson,  190  N.  Y.  App.  Div.  278,  179  N.  Y.  Suppl.  845 644 

Brazier  v.  Philadelphia,  15  Pa.  Dist.  Rep.  14 98,  124 

B.  &  R.  Co.  V.  McLeod,  18  Dom.  L.  R.  (Canada)  245,  7  A.  L.  R.  349,  28  W. 

L.  R.  778,  6  W.  W.  R.  1299 626 

B.  &  R.  Co.  V.  McLeod,  5  A.  L.  R.   (Canada)   176 305 

Breashears  v.  Arnett  (Ark.),  222  S.  W.  28 452,  487 

Breekhemer  v.  Empire  Carrying  Corp.,  172'  N.  Y.  App.  Div.  866,  158  N.  Y. 

Suppl.  856 259,  297,  498,   501,  514 

Breener  v.  Goldstein,  184  App.  Div.  268 623 

Bremer  v.  City  of  Milwaukee,  106  Wis.  164,  164  N.  W.  840. . ., 704 

Brenan  v.  Metropolitan  St.  R.  Co.,  60  N.  Y.  App.  Div.  264,  69  N.  Y.  Suppl. 

1025 928 

Brendon  v.  Warley,  8  Misc.  (N.  Y.)  253,  28  N.  Y.  Suppl.  557 48 

Brcngman  v.  K'ligs  County,  107  Wash.  306,  181  Pac.  S61 698 

Brennan  v.  Connally,  207  Mich.  35,  173  N.  W.  511 71,  77 

Brennon  v.  Commonwealth,  169  Ky.  815,  185  S.  W.  489 768 

Bretzfelder  v.  Dcmaroe   (Ohio),  130  N.  E.  505 661 

Brewster  v.  Barker,  129  N.  Y.  App.  Div.  724,  113  N.  Y.  Suppl.  1026.. 325,  414 

423,  452,  453,  475,  501 
Bresee  v.   Los   Angeles   Traction,    140   Cal.    131,    85   Pac.   152,   5   L.   R.   A. 

(N.  S.),  1059  .  . 679 

Brezee  v.  Nassau  Elec.  Co.,  162  App.  Div.  455,  147  N.  Y.  Suppl.  416 359 

Brianzi  v.  Crane  Co.,  196  N.  Y.  App.  Div.  58 330,  416,  419 


1166  Table  of  Casks. 

Section 

Brichta  V.  Simon,  152  App.  Div.  832,  137  N.  Y.  Suppl.  751 676 

BrickeU  v.  Williams,  180  Mo.  App.  572,  167  S.  W.  607 298,  302,  390,    413 

Bricker  v.  Dahmus,  211  111.  App.  103 635 

Briekner  v.  Kopmeier,  133  Wis.  582,  113  N.  W.  414 354 

Bride  V.  State  (Tex.  Cr.),  218  S.  W.  762 768 

Briedwell  v.  Henderson  (Oreg.),  195  Pac.  575 96,     120 

Brien  v.  Ehode  Island  Co.  (E.  I.),  99  Atl.  1026 592,     593 

Bright  V.  Thacker,  202  Mo.  App.  301,  215  S.  W.  789 660 

Brillinger  v.  Ozias,  186  N.  Y.  App.  Div.  221,  174  N.  Y.  Suppl.  282.  .262,  394,     403 

Brimberry  v.  Dudfield  Lumber  Co.  (Cal.),  191  Pae.  894 516,     631 

Brink  V.  Erie  R.  Co.,  190  N.  Y.  App.  Div.  527,  JSO  N.  Y.  Suppl.  931 562,     567 

Brinkley  v.  Southern  Ry.  Co.,  113  Miss.  367,  74  So.  280 579 

Brinkman  v.  Paeholke,  41  Ind.  App.  662,  84  N.  E.  762.. 48,  49,  277,  278,     305 

316,  317,  324,  517,  518,  528,  530,  532,     542 

Brinkman  v.  Zuckerman,  192  Mich.  624,  159  N.  W.  316 38,  624,  630,     633 

Briscoe  v.  Washington-Oregon  Corp.,  84  Wash.  29,  145  Pac.  995 591,     633 

British,  etc.,  Ins.  Co.  of  Liverpool  v.  Cummings,  113  Md.  350,  76  Atl.  571 . .     806 

Britt  V.  Concrete  Stone  Co.,  99  Neb.  300,  156  N.  W.  497 698,     708 

Brock  V.  Travelers'  Co.,  88  Conn.  308,  91  Atl.  279 829 

Brogini  v.  Steyner,  124  Md.  369,  92  Atl.   806 429 

Brokhauser  v.  Ford  Motor  Co.,  210  111.  App.  418 789 

Brommer  v.  Pennsylvania  R.  Co.,  179  Fed.  577,  103  C.  C.  A.   135,  29  L. 

R.  A.   (N.  S.)   924 552,  562,  468,  688,  689,  690,     692 

Brooklyn  City  R.  Co.  v.  Whalen,  111  Misc.   (N.  Y.)   348,  181  N.  Y.  Suppl. 

208,  affirmed,  191  App.  Div.  737,  182  N.  Y.  Suppl.  283 138,     143 

Brooks  V.  B.  C.  Elec.  Ry.,  48  D.  L.  R.  (Canada)  90 685 

Brooks  V.  Central  Sainte  Jeanne,  228  U.  S.  688,  33  S.  Ct.  700 652 

Brooks  V.  Erie  R.  Co.,  177  N.  Y.  App.  Div.  290,  164  N.  Y.  Suppl.  104 567 

Brooks  V.  Harris  (Mo.  App.),  207  S.  W.  293 329,  448,  452,     487 

Brooks  V.  Hart  14  N.  H.  307 267,  351,  375,  376,  377,     402 

Broom  &  Son  v.  Dale  &  Sons,  109  Miss.  52,  67  So.  659 875,     877 

Broussard  v.  Louisiana  Western  R.  Co.,  140  La.  517,  73  So.  606.. 172,  177,     179 

579,  679,  687,  688,     689 

Brow-n  V.  Brashear,  22  Cal.  App.  135,  133  Pac.  505 284,  424,     475 

Brown  v.  Chambers.  65  Pa.  Super.  Ct.  373.  .48,  49,  260,  261,  352,  361,  391,     393 

409 
Brown  v.  Chevrolet  Motor  Co.,  39  Cal.  App.   738,  179  Pac.  697.. 118,   126,     642 

671 

Brown  v.  City  of  Wilmington,  4  Boyce  (Del.).  492,  90  Atl.  44.  .48,  49,  277,     278 

279,  283,  298,  305,  318,  327,  414,  417,  432,  435,  453,  454,  457,     481 

Brown  v.  Crossley,  80  L.  J.  K.  B.   (Eng.)  478 344,     780 

Brown  v.  DesMoines  Steam  Bottling  Works,  174  Iowa,  715,  156  N.  W.  829,  1 

A.  L.  R.  835 266,  326,  414,  430,  441,  450,  476,     487 

Brown  v.  Detroit  United  Ry.,  179  Mich.  404,  146  N.  W.  278 617 

Brown  v.  Greeman,  84  N.  J.  L.  .360,  8G  Atl.  384 180 

Brown  v.  Green  and  Flinn,  Inc.,  6  Del.  (Boyce)  449,  100  Atl.  475 226,     292 

Brown  v.   Howard    (R.  I.),  114  Atl.   11 900 

Brown  v.  McQehee,  136  Ark.  597,  207  S.  W.  37 859,     871 


Tablk  of  Cases.  1167 

Section 

Brown  v.  Mitts,  187  Mich.  469,  153  N.  W.  714 359,  362 

Brown  v.  New  Haven  Taxicab  Co.,  92  Conn.  252,  102  Atl.  573.  .119,  125,  886,  888 

Brown  v.  New  Haven  Taxicab  Co.,  105  Atl.    706 277,   278,   335,  413 

Brown  v.  Puget  Sound  El.  R.  Co.,  76  Wash.  214,  135  Pac.  999 602 

Brown  v.  R.  R.,  171  N.  C.  269,  88  S.  E.  329 l 567 

Brown  v.   Swanton,   60  Vt.  53,  37  Atl.  280 921 

Brown  v.  Thayer,  212  Mass.  392,  99  N.  E.  237 54,  244,  252,  321,  382,  432 

Brown  v.  Thorne,  61  Wash.  18,  111  Pac.  1047 327,  337,  524,  530,  538 

Brown  &  Co.  v.  Atlantic  Coast  Line  R.  Co.,  171  N.  C.  266,  88  S.  E.  329.  .557,  565 

576 

Brown  Shoe  Co.  v.  Hardin,  77  W.  Va.  611,  87  S.  E.  1014 132 

Brubacher  v.  Iowa  County  (Wis.),  183  N.  W.  690 685,  689 

Bruce  v.  Ryan,  138  Minn.  264,  164  N.  W.  982 72,  77,  236,  262,  394,  685 

Bruce 's  Adm'r  v.  Callahan,  185  Ky.  1,  213  S.  W.  557 330,  414,  448,  469 

Bruening  v.  Metropolitan  St.  Ry  Co.,  181  Mo.  App.  264,  168  S.  W.  247 ; .  598 

Bruening  v.  Metropolitan  St.  Ry.  Co.,  180  Mo.  App.  434,  168  S.  W.  248.  .614,  615 

Bruhl  v.  Anderson,  189  111.  App.  461 297,  322,  444,  459,  466 

Bruner  v.  Little,  97  Wash.  319,  166  Pac.  1166.  .158,  325,  339,  359,  444,  452,  464 

478,  480 

Brunhoelzl  v.  Brandes,  90  N.  J.  L.  31,  100  Atl.  163 36,  38 

Bryant  v.  Pacific  Elec.  Ry.  Co.,  174  Cal.  737,  164  Pac.  385 679,  682,  683,  686 

Bryant  v.  Panter  (Oreg.),  178  Pac.  989 886 

Buchanan  v.  Flinn,  51  Pa.  Super.  Ct.  145 902 

Buchanan's  Sons  v.  Cranford  Co.,  112  N.  Y.  App.  Div.  278,  98  N.  Y.  Suppl. 

378 360 

Buck  v.  Eaton,  17  O.  W.  N.  (Canada)  191 125 

Buckalew  v.  Middlesex  County,  91  N.  J.  Law,  517,  104  Atl.  308 696 

Buckingham  v.  Commary-Peterson  Co.    (Cal.  App.),  178  Pac.  318 713 

Buckingham  v.  Eagle  Warehouse  and  Storage  Co.,  189  N.  Y.  App.  Div.  760, 

179    N.    Y.    Suppl.    218 179 

Buckey  v.  White  (Md.),  Ill  Atl.  777 27,  242,  262,  413,  656 

Buckley  v.  Harkens   (Wash.),  195  Pac.  250 627 

Buckley  v.  Sutton,  231  Mass.  504,  121  N.  E.  527 448,  460,  628,  672 

Buffalo  V.  Carolina  Power  &  L.  Co.  (N.  Car.),  104  S.  E.  161 613 

Buffalo  V.  Lewis,  192  N.  Y.  193,  121  N.  E.  809 99 

Buffalo  V.  Lewis,  123  App.  Div.  163,  108  N.  Y.  Suppl.  450 96 

Buford  V.  Hopewell,  140  Ky.  666,  131  S.  W.  502 357,  443,  447,  451 

Buhrens  Dry  Dock,  E.  B.  &  B.  R.  R.,  53  Hun,  571,  125  N.  Y.  702 459 

Buick  Automobile  Co.  v.  Weaver   (Tex.  Civ.  App.),  163  S.  W.  594.... 628,  650 

Buick  Motor  Co.  v.  Reid  Mfg.  Co.,  150  Mich.  118,  113  N  W.  591 863,  867 

Bulger  V.  Olataka  Yamoaka  (Wash.),  191  Pac.  786 439,  452 

BulUs  V.  Ball,  98  Wash.  342,  167  Pac.  942 248,  497,  509,  513 

Bunton  v.  Atchison,  etc.,  Ry.  Co.,  100  Kans.  165,  163  Pac.  801.. 550,  557.  560 

567,  569 

Buoniconti  v.  Lee,  234  Mass.  73,  124  N.  E.   791 443,  471 

Burcham  v.  Robinson,  113  Misc.  527,  74  So.  417 518,  529,  530,  549 

Burdick  v.  Valerius,  172  111.  App.  267 718 

Burdick  v.  Worrall,  4  Barb.  596 267.  376 


1168  Table  of  Cases. 

Section 

Bulge  V.  Englewood,  etc.  Co.,  213  111.  App.  357 205 

Burger  v.  Taxicab  Motor  Co.,  66  Wash.  676,  120  Pac.  519.. 414,  421,  422,     482 

637,  673,     674 

Burgess  v.  City  of  Brockton  (Mass.),  126  N.  E.  456 138,  144,     146 

Burham  v.  Williams,  198  Mo.  App.  18,  194  S.  W.  751 834 

Burke  V.  District  of  Columbia,  42  App.  D.  C.  438 696,  698,  700,     711 

Burley  v.  Shinn,  80  Wash.  240,  141  Pac.  326,  Ann.  Cas.  1916  B,  96 865,     871 

Burlie  V.   Stephens    (Wash.),   193   Pac.    684.. 270,   304,   415,  419,  433,  478,     484 

Burnett  v.  Anderson   (Tex.  Civ,  App.),  207  S.  W.  540 487 

Burnett  v.  City  of  Greenville,  106  S.  Car.  255,  91  S.  E.  203 54 

Burnham  v.  Central  Automobile  Exchange  (R.  I.)',  <37  Atl.  429 650 

Burnham  v.  Butler,  31  N.  Y.  480 380 

Burns,  Matter  of,  68  Misc.  R.  (N.  Y.)  229,  125  N.  Y.  Suppl.  86 739 

Burns  v.  Bay  State  Ry.  Co.,  77  N.  H.  112,  88  Atl.  710 114 

Burns  v.  City  of  Nashville,  142  Tenn.  541,  221  S.  W.  828 849 

Burns  v.  Jackson    (Cal.  App.),  200  Pac.   80 643 

Burns  v.  Kendall,  96  S.  C.  385,  80  S.  E.  621 26 

Burns  v.  Oliver  Whyte  Co.,  231  Mass.  519,  121  N.  E.  401 453,     471 

Burns  v.  Southern  Pac.  Co.   (Cal.  App.),  185  Pac.  875 177,  644,     667 

Burr  V.  United  Railroads  of  San  Francisco,  173  Cal.  211,  159  Pac.  584.  .. .     611 

Bursaw  v.  Plenge,  144  Minn.  459,  175  N.  W.  1004 452 

Bursch  V.  Greenough  Bros.  Co.,  79  Wash.  109,  139  Pac.  870 663 

Burton  v.  Monticello  and  Burnside  Turnpike  Co.,  162  Ky.  787,  173  S.  W.  144         7 

Burton  v.  Nicholson   (K.  B.  Div.),  100  Law  T.  R.   (N.  S.)   344 252 

Burton  Auto  Transfer  Co.  v.  Industrial  Accident  Commission,  37  Cal.  App. 

657,  174  Pac.  72 ^28 

Burvant  v.  Wolfe,  126  La.  787,  52  So.  1025.  29  L.  R.  A.   (N.  S.)   677 479 

Burzio  v.  Joplin,  etc.,  Ry.  Co.,  102  Kans.  287,  562,  171  Pac.  351.  .  .581,  679,     686 
Busacca  v,  McLaughlin   Supply  Co.,   189  N.  Y.   App.  Div.   584,   178  N.   Y. 

Suppl.   849    441 

Busch  V.  Los  Angeles  Ry.  Corp.,  178  Cal.  536,  174  Pac.  665,  2  A.  L.  R. 

1607 586,  587,  600,  614,  615 

Buscher  v.   New  York  Transp.   Co.,   106  N.  Y.   App.  Div.   493,   94  N.  Y. 

Suppl.   796    258,  352,  445,     471 

Bush  V.  Brewer,  136  Ark.  248,  206  S.  W.  322.. 550,  557,  558,  564,  572,  577,     937 

Bush  V.  Fourcher,  3  Ga.  App.  43,  59  S.  E.  459 189 

Bush  V.  People    (Colo.),   187  Pac.   528 768 

Bush  V.  Philadelphia,  etc.,  Ry.  Co.,  232  Pa.  St.  327,  81  Atl.  409. 568 

Buskie  v.  Janichowsky   (Mo.  App.),  218  S.  W.   696 656,     660 

Buseey  v.   State    (Okla.),   175   Pac.   226 12,       56 

Butler  V.  Cabe,  116  Ark.  26,  171  S.  W.  1190 50,     517 

Butterly  v.  Alexander  Dallas,  Inc.,  93  Conn.  95,  105  Atl.  340 452 

Butterworth  v.  Soltz,  199  Mo.  App.  507,  204  S.  W.  50 875 

Buxton   V.   Ainsworth,   138   Mich.   532,    101   W.   817.    11   Det.   Leg.   N.   684.. 

5  Ann.  Cas.    146 251,  267,  268,  269,  374,  376,     433 

Buzich   V.   Todraan,    179   Iowa   1019,    163   N.   W.    259.. 247,  248,  249,  250,     258 

260,  327,     367 


Table  of  Cases.  1169 

Section  • 

Byerly  v.  Metropolitan  St.,  Ry.  Co.,  172  Mo.  App.  470,  158  S.  W.  413.  .591,  594 

599,  609,  612,  679,  685 

Byrd  v.  Smith   (Ark.),  215  S.  W.  640 549 

Byrd  V.  State,  59  Tex.  Cr.  513,  129  S.  W.  620 66,  732,  744 

c 

Cadillac  Motor  Co.  v.  Johnson,  221  Fed.  801 800 

Caesar   v.   Fifth   Ave.   Stage  Co.,   45   Misc.    (N.   Y.)    331,   90  N.   Y.   Suppl. 

359 277,  423,  471,  475 

Cae  V  Mayberry,  11  Sask.  (Canada)   425 330 

Cahill  V.  District  of  Columbia,  23  Wash.  L.  Rep.  759 199 

Cain  V.  Wintersteen,  144  Mo.  App.  1,  128  S.  W.  274 544,  547 

Cairns  v.  Pittsburgh,  etc.,  Ry.  Co.,  66  Pitts.  Leg.  Journ.  (Pa.)  817.  .169,  171,  172 

Calahan  v.  Moll,  160  Wis.  523,  152  N.  W.   179 308,  388 

Calhoun   v.  Mining  Co.,  202  Mo.   App.   564,  209   S.   W.   318.. 413,  623,  627,  628 

631,  637,  663 
Callahan  v.  London  &  Lancashire  Fire  Ins.  Co.,  98  Misc.   (N.  Y.)    589,  163 

N.   Y.   Suppl.   322 840,  843 

Callery  v.  Morgan's  Louisiana,  etc.,  S.   S.  Co.,   139   La.   763,  72  So.   222..  552 

567,  575 

Calley  v.  Lewis,  7  Ala.  App.  593,  61  So.  37 628,  630,  635 

Calvert  v.  Detroit  United  Ry.,  202  Mich.  311,  168  N.  W.  508 589,  613 

Calvitt  V.  City  of  Savannah   (Ga.  App.),  101  S.  E.   129 ,158 

Cameron  v.  Miller   (S.  Dak.),  180  N.  W.  71 325,  501,  512,  516 

Camp  V.  Alleghany  County,  263  Pa.  St.  276,  106  Atl.  314 697,  701,  705,  716 

Campbell  v.  Arnold,  219  Mass.  160,  106  N.  E.  599 634,  643,  677 

Campbell  v.  Pugsley,  7  D.  L.  R.   (Canada)    177 297,  320,  530 

Campbell   v.   Richard  L.   &  Rd.  Co.,   181   N.   Y.   App.   Div.   320,   168   N.   Y. 

Suppl.   813    246 

Campbell  v.  St.  Louis  &  S.  R.  Co.,  175  Mo.  161,  75  S.  W.  86 927 

Campbell  v.  Walker,  1  Boyce  (Del.)   580,  76  Atl.  475 412 

Canales  v  Earl,  N.  Y.  Law  Journal,  Jan.  21,  1918 848 

Canavan  v.  Giblin,  232  Mass.  297,  122  N.  E.  171 623,  673 

Canfield  v.  New  York  Transp.  Co..   128  N.  Y.  App.  Div.  450,   112  N.  Y. 

Suppl.    854    349.  449 

Canody  v.  Norfolk,  etc.,  Ry.  Co.   (Va.),  105  S.  E.  585 558.  559 

Cantanno  v.  James  A.  Stevenson  Co.,  172  N.  Y.  App.  Div.  252,  158  N.  Y. 

Suppl.    335    283,  333,  415,  416,  419 

Cantwell  v.  General  Accident,  etc.,  Assur.  Corp.,  205  111.  App.   335 816 

Capell   V.    New   York   Transp.   Co.,    150   N.   Y.   App.   Div.    723,    135   N.    Y. 

Suppl.   691    416.  450.  453.  459 

Capital  Tr.  Co.  v.  Crump.  35  App.  D.  C.  169 586.  598.  600,  618 

Caplan  v.  Reynolds  (Iowa) ,  182  N.  W.  641 263,  440 

Capp  V.  Southwestern  Tract.  &  Power  Co.,  142  La.   529,  77  So.   141 598 

Carbaugh  v.  Philadelphia,  etc.,  Ry.  Co.,  262  Pa.  25,  104  Atl.  860 690 

Carbaugh  v.  White  Bus  Line   (Cal.   App.),   195  Pac.   1066 262.  409,  411 

Card  V.  Turner  Center  Dairying  Assoc,  224  Mass.  525,  113  N.  E.   187 228 

74 


1170  Table  of  Cases. 

Section 

Oardinal,  ex  parte,  170  Oal.  519,  150  Pac.  348 137,  138,  140,  144,  147 

Garden  v.  Chicago  Rys.  Co.,  210  111.  App.   155 593,  599,  604 

Cardozo  v.  Bloomingdale,  79  Misc.   (N.  Y.)   605,  104  N.  Y.  Supp.  377 722 

Carlcton  v.  City  of  Regina,  1   (Canada)  D.  L.  R.  778 585,  592 

Carli  V.  Stillwater  St.  Ry.  &  Transfer  Co.,  28  Minn.   373,   10  N.  W.   205, 

41   Am.   Rep.   290 32,  48 

Carlin  v.  Clark,  172  111.  App.  239 478 

Carlisle  v.  Hargreaves,  192  Pac.   894 330,  396 

Carlson  v.  City  of  New  York,  150  N.  Y.  App.  Div.  264,  134  N.  Y.  Suppl. 

661 ; 698,  700 

Carlson  v.  Leonard  (Cal.  App.),  200  Pac.  40 421 

Carlton  v.  Boudar,  118  Va.  521,  88  S.  E.  174,  4  A.  L.  R.  1480.  .132,  169,  397,  398 

Carlton  v.  Pac.  Elec.  Ry.  Co.,  39  Cal.  App.  321,  178  Pac.  869 614 

Carneghi  v.  Gerlach,  208  111.  App.  340 422,  482 

Carnegie  v.  Great  Northern  R.  Co.,  128  Minn.   14,   150  N.  W,   164 679,  688 

689,  692 

Carpenter  v.  Atchison,  etc.,  Ry.  Co.   (Cal.  App.),  195  Pac.   1073.. 679,  688,  689 

690 

Carpenter  v.  Campbell  Automobile  Co..  159  Iowa,  52,  140  N.  W.  225.. 267,  270 

285,  433,  629 

Carr  v.  Burke,  183  N.  Y.  App.  Div.  361,  169  N.  Y.  Suppl.  981.  .  .  .177,  643,  644 

Carradine  v.  Ford,  195  Mo.  App.  684,  187  S.  W.  285.  .49,  50,  297,  306,  309,  321 

Carrier  v.  Donovan,  88  Conn.  37,  89  Atl.  894 634,  677 

Carroll   v.  City  of   Yonkers,   193   N.   Y.   App.   Div.    655,   184   N.   Y.   Suppl. 

,847 638,  664 

Carroll  v.  Missouri  Pac.  Ry.  Co.   (Mo.),  229  S.  W.  234 551 

Carsey  v.  Hawkins   (Tex.),  163  S.  W.  586,  165  S.  W.  64 517,  524,  542 

Carson  v.  Raifmann,  27  Que.  S.  C.   (Canada)   374 425 

Carson    v.    Turrish,    140    Minn.    445,    168    N.    W.    349.  .49,  260,  261,  361,  391 

392,  393 

Carson  v.  State,  22  Ga.  App.  551,  96  S.  E.  500 768 

Carter  v.  Black  &  White  Cab  Co.,  102  Misc.   (N.  Y.)   680,  169  N.  Y.  Suppl. 

441 888 

Carter  v.  Brown,  136  Ark.  23,  206  S.  W.  71.. 277,  308,  361,  397,  413,  678,  679 

682,  688 

Carter  v.  Caldwell,  183  Ind.  434,  109  N.  E.  355 297,  300,  304,  316,  321,  528 

Carter  v.  Potter,  110  Me.  545,  86  Atl.  671 519 

Carter  v.  Redmond,  142  Tenn.  258,  218  S.  W.  217 298,  299,  312,  422 

Carter  v.  State,  12  Ga.  App.  430,  78  S.  E.  205 230 

Carter  v.  Walker   (Tex.  Civ.) ,  165  S.  W.  483 351,  410 

Carterville,  City  of  v.  Blyatone,  160  Mo.  App.  191,  141  S.  W.  701 80,  100 

Carvel  v.  Kusel   (Tex.  Civ.  App.),  205  S.  W.  941 .297,  321,  491 

Case  V.  Atlanta,  etc.,  Ry.,  107  S.  C.  216,  92  S.  E.  472 557,  572 

Case  v.   Clark,   83  Conn.   183,   76  Atl.   526 483 

Case  Threshing  Machine  Co.  v.  Webb   (Tex.  'Civ.  App.),  181  S.  W.  853.  ..  .  856 

Casey  v.  Boyer    (Pa.),   113  Atl.   364 270,  492 

Caspell   V.   New   York   Transp.   Co..    150  N.   Y.   App.   Div.   723,    135   N.   Y. 

Suppl.   691    283 


Table  of  Cases.  1171 

Section 

Cassutt  V.  George  W.  Miller  Co.,  103  Wash.  222,  174  Pac.  433 668 

Castle  V.  Wilson   (Mo.  App.) ,  183  S.  W.   1106 484 

Cater  v.  Northwestern  Teleplione  p.xchange  Co.,   60  Minn.   539,   63   N.   W. 

Ill,  28  L.  R.  A.  310,  51  Am.  Rep.  543 -.32,  47 

Cates  V.  Hall,  171  N.  Car.  360,  88  S.  E.  5,  24 177,  179,  278,  678 

Cathcart  v.  Oregon -Washington  Rd.  &  Navigation  Co.,  86  Oreg.   250,  168 

Pac.   308    550,  552,  557,  558,  559,  567 

Ceechi    v.   Lindsay,    1    Boyce    (Del.)    185.    75    Atl.    376.. 277,  278,  279,  305,  327 

361,  392,  435,  451 

Oecola  V.  44  Cigar  Co.,  253  Pa.  623,  98  Atl.  775 422,  448,  482 

Cedar  Creek  Store  Co.  v.  Steadham,  187  Ala.  622,  65  So.  984 479 

Cedar  Rapids  Auto  &  Supply  Co.  v.  Jeffrey  &  Co.,  139  Iowa,  7,  116  N.  W. 

1054 792 

Central   Coal   &   Coke  Co.   v.   Kansas  City   So.   Ry.   Co.    (Mo.  App.),   215 

S.  W.   914 557,  565 

Central  Garage  of  LaSalle  v.  Industrial  Com.,  286  111.  291,  121  N.  E.  587.  .  228 

Central  Indiana   Ry.  Co.   v.   Wishard    (Ind.   App.),   104   N.   E.   593 277,  550 

Central   Indiana   Ry.  Co.   v.   Wishard,   186   Ind.   262,   114  N.   E.   970.. 550,  552 

557,  558,  567,  572,  577,  581 

Central  of  Ga.  Ry.  Co.  v.  Faust   (Ala.  App.),  82  So.  36 568,  576 

Central  of  Ga.  Ry.  Co.  v.  Howell,  23  Ga.  App.  269,  98  S.  E.  105 562 

Central  of  Ga.  Ry.  Co.  v.  Larsen,  19  Ga.  App.  413,  91  S.  E.  517.. 49,  297,  298 

305,  308,  313,  321,  325,  554,  572 

Central  of  Ga.  Ry.  Co.  v.  McKey,  13  Ga.  App.  477,  79  S.  E.  378.  .554,  580,  583 

Central  of  Ga.  Ry.  Go.  v.  Moore,  149  Ga.  581,  101  S.  E.  668 126,  573 

Central  of  Ga.  Ry.  Co.  v.  Moore  (Ga.  App.),  102  S.  E.  168 124,  573 

Ceylona  Co.  v.  Selden  Truck  Sales  Co.,  23  Ga.  App.  275,  97  S.  E.  882 865 

Chadbourne  v.  Springfield  Ry.  Co.,  199  Mass.  574,  85  N.  E.  737.  .679,  682.  688 

690 

Chalmers  Motor  Co.  v.  Maibaum,  186  111.  App.  147 869 

Chamberlain  v.  Southern  Cal.  Edison  Co.,  167  Cal.  500,  140  Pac.  25 663,  673 

'Chambers  v.  Consolidated  Garage  Co.  (Tex.  Civ.  App.),  210  S.  W.  565 886 

Chambers  v.  Minneapolis,  etc.,  Ry.  Co.,  37  N.  Dak.  377,  163  N.  W.  824 126 

679,  688,  695,  701,  710,  712,  716 

Chandler  v.  Matheson  Co.,  208  Mass.  569,  95  N.  E.  103 369 

Chapin   v.   Ocean   Accident   &   G.  Corp.,   96   Neb.   213,   147   N.   W.    465,   52 

L.  R.  A.    (N.  S.)   227 831 

Chaplin  v.  Brookline  Taxi  Co.,  230  Mass.  155,  119  N.  E.  650 453,  487 

Chaplin  v.  Hawes,  3  Car.  &  P.    (Eng.)    555 351,  398 

Chapman  v.  Selover,  225  N.  Y.  417,  122  N.  E.  417 81,  742 

Chapman  v.  Selover,  172  N.  Y.  App.  Div.  858,  159  N.  Y.  Suppl.  632.  .81,  730,  742 

Chapman  v.  Strong,  162  Mich.  623,  127  N.  W.  741 549 

Chapman  v.  United  Rys.  Co.,  174  Mo.  App.  126,  156  S.  W.  819.. 587.  592.  617 

Charles  v.  City  of  Baltimore   (Md.) ,  114  Atl.  565 696 

■Charleston,  etc.,  R.  Co.  v.  Alwang,  258  Red.   297 580.  679 

Chase   v.   New   York   Central   &   Hudson   River   Railroad,    208   Mass.    137, 

94  N.   E.   377 125.  552,  568 


1172  Table  of  Cases. 

Section 

Ohase  v.  Seattle  Taxicab  &  Transfer  Co.,  78  Wash.  537,  139  Pac.  499.  .277,  278 

352,  359,  487 

Chase  v.  Tingdale  Bros.,  127  Minn.  401,  149  N,.  W.  654 274,  362,  373,  377 

Chase  &  Co.  v.  Kelly,  125  Minn.  317,  146  N.  W.  1113.  .  .' 889 

Chatelle  v.  Illinois  Cent.  R.  Co.,  210  111.  App.   475 554 

Checkley  v.  Joseph  Lay  Co.,   171   111.  App.   252 856,  868 

Chellis  Realty  Co.  v.  Boston  &  M.  R.  Co.   (N.  H.),  106  Atl.  742 575 

Cheney   v.   Buck    (Utah),   189   Pac.   81 501,  514,  516 

Chepakoff  v.  National  Ben  Franklin  Fire  Ins.  Co.   of  Pittsburgh,  97   Misc. 

(N.  Y.)   330,  161  N.  Y.  Suppl.  283 842 

Chero-Cola  Bottling  Co.  v.   South   Carolina  Light,   Power  &  Rys.  Co.,   104 

S.  Car.   214,  88  S.   E.   534 311,  603 

Chesley  v.  Woods  Motor  Vehicle  Co.,  147  111.  App.   588 205 

Ohesrown  v.  Bevier   (Ohio),  128  N.  E.  94 297,  345,  348,  398,  406 

Chiappone  v,  Greenbaun,  189  N.  Y.  App.  Div.  579,  178  N.  Y.  Suppl.  854.. 

285,  329,  419,  448,  459 

Chicago,  B.  &  Q.  R.  Co.  v.  Clark,  26  Neb.  645,  42  N.  W.  703 923 

Chicago,  B.  &  Q.  R.  Co.  v.  Gunderson,  174  111.  495,  51  N.  E.  708 923 

Chicago,  City  of  v.  Banker,  112  111.  App.  64 33,  47,  221,  231 

Chicago,  City  of  v.  Francis,  262  111.  331,  104  N.  E.  662 77,  98,  124,  233 

Chicago,  City  of  v.  Gall,  195  111.  App.  41 138,  145,  146 

Chicago,  City  of  v.  Keogh,  291  111.  188,  125  N.  E.  881 245,  252 

Chicago,  City  of  v.  Kluever,  257  111.  317,  100  N.  E.  917 70,  71,  77,  138.  730 

Chicago,  City  of  v.  Logan  Square  Motor  Club,  189  111.  App.  142 196 

Chicago,  City  of  v.  Shaw  Livery  Co.,  258  111.  409,  101  N.  W.  588 71,  77 

78,  230,  237,  730 

Chicago,  etc.,  R.  R.  Co.  v.  Fuller,  84  U.  S.  (17  Wall)  560,  21  L.  Ed.  710 86 

Chicago,  etc.,  R.  Co.  v.  Johnson  (Tex.  Civ.  App.),  224  S.  W.  277 .312,  553 

572,  580,  679,  682 

Chicago,  etc.,  R.  Co.  v.  Neizgodski,  66  Ind.  App.  557,  118  N.  E.  559 554 

Chicago,  etc.,  R.  Co.  v.  Shockley  (Tex.  Civ.  App.),  214  S.  W.  716 580 

Chicago,  etc.,  R.  Co.  v.  Wentzel  (Tex.  Civ.  App.),  214  S.  W.  710..  .172,  679,  688 

Chicago,  etc.,  R.  Co.  v.  Van  Stone  (Ind.  App.),  119  N.  E.  874 553 

Chicago,  etc.,  R.  Co.  v.  Zumwalt  (Tex.  Civ.  App.),  226  S.  W.  1080 567,  580 

Chicago,  Great  Western  R.  Co.  v.  Biwer,  266  Fed.  965 559 

Chicago,  I.  &  L.  Ry.  Co.  v.  Lake  County  Savings  &  Trust  Co.,  186  Ind.  358, 

114  N.  E.  454 679 

Chicago  Motor  Bus  Co.  v.  Chicago  Stage  Co.,  287  111.  320,  122  N.  E.  477.  .  .  .  143 

Chilberg  v.  Parsons,  109  Wash.  90,  186  Pac.  272 262,  934 

Chiswell  V.  Nichols   (Md.),  112  Atl.  363 262,  679,  688 

Chittenden  v.  Columbus,  26  Ohio  Cir.  Ct.  531 38,  75,  230,  729 

Choten  v.  Porteous,  51  D.  L.  R.  (Canada)  507 720 

Chrestenson  v.  Harms,  38  S.  D.  360,  161  N.  W.  343 324 

Christen?en  v.  Christiansen  (Tex.  Civ.  App.),  155  S.  W.  995.. 627,  628,  630,  638 

Christensen  v.  Tate,  87  Neb.  848,  128  N.  W.  632 71,  77,  230 

Christey  v.  Elliott,  216  111.  31,  1  L.  R.  A.    (N.  S.)    215,  74  N.   E.   1035,  3 

Ann.  Cas.  487,  108  Am.  St.  Rep.  196 38,  48,  49,  62,  96,  109,  220,  230 

327,  530,  731 


Table  of  Cases.  1173 

Section 

CTiristi  V.  Hawert,  164  Wis.  624,  160  N.  W.  1061 290,  310 

Christianson  v.  Devine,  210  111.  App.  253 311,  394 

Christianson  v.  Johnson,  207  111;  App.  209 661,  667 

Christie  v.  McCall  (Cal.  App.) ,  177  Pac.  507 502,  516 

Christison  v.  St.   Paul  Fire  &  Marine  Ins.   Co.,   138   Minn.   51,   163  N.  W. 

980 692,  835 

Christman  v.  Southern  Pac.  Co.,  38  Cal.  App.  196,  175  Pac.  808 572 

Cliurch  V.  Larned,  206  Mich.  77,  172  111.  App.  551 474 

Cillis  V.  Oakley,  31  O.  L.  R.  (Canada)  603 626 

Cincinnati,  etc.,  Ry.  Co.  v.  Sweeney,  166  Ky.  360,  179  S.  W.  214 718,  719 

Citizens  Co.  v.  Lee,  182  Ala.  561,  62  So.  199 836 

Citizens  Motor  Car  Co.  v.  Hamilton,  32  Ohio  Cir.  Ct.  Rep.  407 421 

Citizens'  Trust  Co.  v.  State  (Ga.  App.),  107  S.  E.  274 946 

City  Nat.  Bank  of  Wichita  Falls  v.  Laughlin   (Tex.  Civ.  App.),  210  S.  W. 

67 875,  877 

City  Service  Co.  v.  Brown  (Tex.  Civ.  App.),  231  S.  W.  140 673,  674 

Claar  Transfer  Co.  v.  Omaha,  etc.,  Ry.  Co.  (Iowa),  181  N.  W.  755.. 600,  602,  613 

Cladwell  v.  Hague,  84  L.  J.  K.  B.  (Eng.)  543 770 

Clark  v.  Blair,  217  Mass.  179,  104  N.  E.  435 305 

Clark  V.  Buckmobile  Co.,  107  N.  Y.  App.  Div.  120,  94  N.  Y,  Suppl.  771 623 

643,  663 

Clark  V.  Columbia,  etc.,  Co.   (S.  C),  108  S.  E.  178 679,  683 

Clark  v.  Commonwealth,  4  Pick.  '(Mass.)  125 250,  373 

Clark  v.  Ford,  179  Ky.  797,  201  S.  W.  344 882,  883 

C'ark  v.  Fotheringham,  100  Wash.  12,  170  Pac.  323 394 

Clark  v.  General  Motor  Car  Co.,  177  Mo.  App.  160,  —  S.  W.  576 261 

Clarlc  v.  Gerlinger  Motor  Car  Co.,  100  Wash.  1,  170  Pac.  142 790,  797 

Clark  v.  Johnson,  43  Nev.  359,  187  Pac.  510 889 

Clark  v.  Jones  (Oreg.) ,  179  Pac.  272 442,  484,  673,  891 

Clark  V.  New  York  Rys.  Co.,  78  Misc.  (N.  Y.)  646,  138  N.  Y.  Suppl.  824. .  .  591 

Clark  V.  Public  Service  R.  Co.,  83  N.  J.  Law  319,  85  Atl.  189 615 

Clark  v.  Sweaney,  175  N.  Car.  280,  95  S.  E.  568. 659,  673 

Clark  V.  Sweaney,  176  N.  C.  529,  97  S.  E.  474 657 

Clark  V.  Van  Vleck,  135  Iowa,  194,  113  N.  W.  648 247,  271,  433 

Clark  V.  Weathers,  178  Iowa.  97,  159  N.  W.  585 264,  386,  399,  404 

Clark  V.  Wilson,  108  Wash.  127,  183  Pac.  103 262,  318,  503,  509,  516 

Clarke  v.  Connecticut  St.  Ry.  Co.,  83  Conn.  219,  76  Atl.  523 588,  590,  679 

688,  689,  690 

Clarke  v.  Woop,  159  N.  Y.  App.  Div.  437,  144  N.  Y.  Suppl.  595 49,  245 

249,  267,  270,  272.  275,  337,  352,  376,  377,  492,  493,  501,  510 

Clausen  v.  DeMedina,  82  N.  J.  L.  491,  81  Atl.  924 76,  77,  232 

Olawson  v.  Pierce-Arrow  Motor  Car  Co.,  182  N.  Y.  App.  Div.  17,  170  N.  Y. 

Suppl.  310 663 

Clawson  v.  Pierce-Arrow  Motor  Car  Co.,  231  N.  Y.  273 628 

Clay  V.  Wood,  5  Esp.  (Eng.)   44 351,  399 

Clayton  v.  Holyoke  St.  Ry.  Co.  (Mass.),  128  N.  E.  460 614 

Clayton  v.  Kan.sas  City  Rys.  Co.  (Mo.  App.),  231  S.  W.  68 598 

Cleary  v.  Johnston,  79  N.  J.  L.  49,  74  Atl.  538 Ill,  223,  240 


1174  Table  of  Cases. 

^,  Section 

Clements  v.  Texas,  etc.,  Ry.  Co.,  148  La.  —,  88  So.  394 580 

Cleveland,  etc.,  R.  Co.  v.  Baker  (Ind.),  128  N.  E.  836 567,  575,  580 

Clifford  V.  Philadelphia  Rapid  Transit  Co.  (Pa.),  112  Atl.  468.  .  .  .592',  599'  609 

Cline  V.  McAdoo  (W.  Va.),  102  S.  E.  218 .'  557 

dinger  v.  Payne  (Pa.) ,  113  Atl.  830 558 

Clohan  v.  Kelso  (Cal.  App.) ,  183  Pac.  349 443 

Cloherty  v.  Griffiths,  82  Wash.  634,  144  Pac.  912 380  412 

Clute  V.  Morey,  234  Mass.  387,  125  N.  E.  574 '  647 

Clyde  V.  Southern  Pac.  Utilities  Co.,  109  S.  Car.  290,  96  S.  E.  116 590 

Coates  V.  Marion  County,  96  Greg.  334,  189  Pac.  903 811,  934 

Cobb  V.  Cumberland  County  Power  &  Light  Co.,  117  Me.  455,  104  Atl.  844.  .  118 

125,  585 

Coby  V.  Quincy,  etc.,  R.  Co.,   174  Mo.  App.  648,   161   S.   W.   290 557,  560 

569,   570,  575 

Ooceora  v.  Vicksburg  L.  &  T.  Co.  (Miss.) ,  89  So.  257 678 

Coco  Cola  Bottling  Works  v.  Brown,  139  Tenn.  640,  202  S.  W.  926 49,  278 

332,  517,  518,  524,  525,  542,  549 

Coffey  V.  State,  82  Tex.  Cr.  481,  200  S.  W.  384 767 

Coffman  v.  Singh  (Cal.  App.) ,  193  Pac.  259 439,  453,  47,5 

Coggin  V.   Shreveport   Rys.   Co.,    147   Pa.   — ,   84   So.    902 586,  617,  720 

Coffin  V.  Laskau,  89  Conn.  325,  94  Atl.  370 '  300 

Cofield  V.  Jenkins  Motor  Co.,  89  S.  Car.  419,  71  S.  E.  969 792.  794 

Cohen  v.  Bargenecht,  83  Misc.   (N.  Y.)   28,  144  N.  Y.  Supp  399 634 

Cohen  v.  Chicago  Bonding  &  Ins.  Co.  (Minn.),  178  N.  W.  485 815 

Cohen  v.  Goodman  &  Sons.  Inc.,  189  N.  Y.  App.  Div.  209,  178  N.  Y.  Suppl. 

.82,  247,  289,  415 


528. 


Cohen  V.  Header,  119  Va.  429,  89  S.  E.  876.  .  .327,  536,  537,  544,  656,  657.  660 

Colborne  v.  Detroit  United  Ry.,  177  Mich.  139,  143  N.  W.  32 591 

Cole  V.  Manville,  149  N.  Y.  App.  Div.  43,  133  N.  Y.  Suppl.  574 869 

Colebank  v.  iStandard  Garage  Co.,  75  W.  Va.  389,  84  S.  E.  1051 925 

Coleman  v.  Minneapolis  St.  R.  Co.,  113  Minn.  364,  129  N.  W.  762 615,  679 

Coleman  v.  Pittsburgh,  etc.,  St.  Ry.  Co.,  251  Pa.  498,  96  Atl.  1051 574,  611 

Cole  Motor  Car  Co.  v.  Hurst,  228  Fed.  280 785,  788,  797 

Cole  Motor  Co.  v.  Ludorff,  61  Ind.  App.  119,  111  N.  E.  447 453,  471,  472.  486 

Collard  v.  Beaoh,  81  N.  Y.  App.  Div.  582,  81  N.  Y.  Suppl.  619 640 

Collett  v.  Standard  Oil  Co..  186  Ky.  142,  216  S.  W.  356 38,  278,  297,  329 

330,  414,  448,  478 

Collette  V.  Page  (R.  L),  114  Atl.  136 179 

Collins  V.  Hustis    (N.   H.),    Ill   Atl.   286 560,  .569,  572,  580.  679,  688 

Collins  V.  Marsh,  176  Cal.  639,  169  Pac.  389 248.  395.  410.  411 

Collins  V.  Nelson   ( Wash.) ,  191  Pac.  819 456 

Collins  V.  Skillings,  224  Mass.  275,  112  N.  E.  938 871 

Collins  V.  State,  82  Tex.  Cr.  24,  198  S.  W.  143 768 

Collins  Exr's  v.  Standard  Accident  Ins.  Co.,  170  Ky.  27,  185  S.  W.  112.. 679,  832 
Collins  V.  Oakley,  20  Dom.  L.  R.  (Canada),  550,  31  Ont.  L.  R.  603,  6  O.  W. 

-^-  ^"^^ 628 

Collison  V.  Cutter,  186  Iowa,  276,  170  N.  W.   420 657,  659 

Colorado  Springs,  etc.,  R.  Co.  v.  Cohen.  16  Colo.  149,  180  Pac.  307.  .  .  .679.  688 


Table  or  Cases.  1175 

Section 

Colt  V.  Demarest  &  Co.,  159  App.  Div.  394,  144  N.  Y.  Suppl.  557 866 

Columbia  Taxicab  Co.  v.Roemmich    (Mo.  App.),  208  S.  W.  859 249,  267 

268,  374,  376,  377,  409 

Columbia  Taxicab  Co.  v.  Stroh,  --  Mo.  App.  746,  215  S.  W.  748 348,  369 

Columbus  R.  Co.  v.  Waller,  12  Ga.  App.  674.  78  S.  E.  52 71,  78,  230,  297 

298,  304,  306,  321,  589,  603 

Colwell  V.  Aetna  Bottle  &  Stopper  Co.,  33  R.  I.  531,  82  Atl.  388.  .624,  628,  633 

Colwell  V.  Saperston,  149  App.  Div.  373,  134  N.  Y.  Suppl.  284 624,  643 

Commerce,  The,  3  W.  Rob.   (Eng.)   295 275,  377 

Commercial  Union  Assur.  Co.  v.  Hill  (Tex.  Civ.  App.),  167  S.  W.  1095.  .809,  811 

Commercial  Union  Assur.  Co.  v.  Lyon,  17  Ga.  App.  441,  87  S.  E.  761 807 

Commissioners  v.  State,  107  Md.  210,  68  Atl.  602,  14  L.  R.  A.   (N.  S.)   452.  714 

Commonwealth  v.  Bacon,  24  Montg.  L.  Rep.  (Pa.)   197 725 

Commonwealth  v.  BiegdoU,  55  Pa.  Super.  Ct.  186 767 

Commonwealth  v.  Boyd,  188  Ma.ss.   79,  74  N.  E.  255 38,  94.  96.  100.  124 

Commonwealth  v.  Butler,  204  Mass.  11,  90  N.  E.  360 23 

Commonwealth  v.  Buxton,  205  Mass.  49,  91  N.  E.  138 931 

Commonwealth  v.  Crowinshield,  187  Mass.  221,  72  N.  E.  963,  68  L.  R.  A. 

245 71,  73,  77.  230 

Commonwealth  v.  David,  33  Pa.  Co.  Ct.  12 216 

Commonwealth  v.  Densmore,  13  Pa.  Dist.  Rep.  639,  29  Pa.  Cr.  Ct.  217.. 93,  101 

111.  113 

Commonwealth  v.  Druschell.  68  Pitts.  Leg.  Jour.   (Pa.)   520 T25 

Commonwealth  v.  Goldman.  205  Mass.  400,  91  N.  E.  392 9,  47 

Commonwealth  v.  Harris,  232  Mass.  588,  122  N.  E.  749 768 

Commonwealth  v.  Hawkins,   14  Pa.   Dist.  Rep.   592 9,  96,  .97,  99,  123 

Commonwealth  v.  Horsfall,  213  Mass.  232.  100  N.  E.  362 277,  278,  744 

775,  776 

Commonwealth  v.  Inhabitants  of  Newbury,  2  Pick.  51 23 

Commonwealth  v.  Kingsbury,  199  Mass.  542.   85  N.   E.   848,   127  Am.   St. 

Rep.  513 57,  232,  776 

Commonwealth  v.  Kozlowsky  (Mass.) ,  131  N.  E.  207 768 

Commonwealth  v.  Newhall,  205  Mass.  344,  91  N.  E.  206 72.  77 

Commonwealth  v.  Nolan,  189  Ky.  134,  224  S.  W.  506,  1  A.  L.  R.  202 71 

Commonwealth  v.  O'Neil.  233  Mass.  535,  124  N.  E.  482 103.  142 

Commonwealth  v.  Rider,  29  Pa.  Super.  Ct.  621 52 

Commonwealth  v.  Sherman,  191  Mass.  439,  78  N.  E.  98.. 79,  171,  725.  730,  742 

Commonwealth  v.  Slocum.  230  Mass.  180,  119  N.  E.  687 57,  71,  135,  138 

144,  147,  154,  155,  157,  164.  167,  168 

Commonwealth  v.  Templeton,  22  Montg.  Co.  L.  Rep.   (Pa.)   203 216 

Commonwealth  v.  Theberge,  231  Mass.  386,  121  N.  E.  30....  138.   142,  155.  156 

Commonwealth  v.  Tyler,  199  Mass.  490,  85  N.  E.  569 73.  230,  730 

Commonwealth  v.  Walton,  31  Ky.  L.  Rep.  916,  104  S.  W.  323 6 

Commonwealth  Bonding,  etc.,  Ins.  Co.  v.  Pacific  Elec.  Ry.  Co.  (Cal.  App.). 

184  Pac.  29 591,  599,  609,  613 

Commonwealth  ex  rel.  Bell  v.  Powell,  249  Pa.  St.  144.  94  Atl.  746 59.  60 

102,  122 

Conant  v.  Grand  Trunk  Ry.  Co.,  114  Me.  92,  95  Atl.  444 557,  580 


1176  Table  of  Cases. 

Section 

Conder  v.  Griffith,  61  Ind.  App.  218,  111  N.  E.  816.  .247,  267,  270,  271,  297,  433 

Cone  V.  City  of  Detroit,  191  Mich.  198,  157  N.  W.  417 664,  696,  700 

Cone  V.  State   (Tex.  Cr.),  216  S.  W.   190 ■ 768 

Congdon  v.  Michigan  United  Traction  Co.,  199  Mich.  564,  165  N.  W.  744..  592 

593 

Conley  v.  Lafayette  Motor  Car  Co.   (Mo.  App.),  221  S.  W.  165 396,  412 

Conlon  V.  Trenkhorst,   195   111.   App.    335 287,  445,  308,  364,  388 

Connell  v.  Hogg  (Cal.) ,  186  Pac.  134 875 

Connor  v.  Schall  &  Weaver  (Tex.  Civ.  App.),  210  iS.  W.  753 865 

Connor  v.  Tp.  of  Brant,  31  O.  L.  R.    (Canada)   274 696 

Conover  v.  Bloom  (Pa.),  112  Atl.  752 836 

Conrad  v.  Boogher,  201  Mo.  App.  644,  214  S.  W.  211 194 

Conrad  v.  Green  (N.  J.) ,  94  Atl.  390 453 

Conrad  v.  Shuford  (N.  C),  94  S.  E.  424 329,  525,  549 

Conroy  v.  Coughlon  Auto  Co.,  181  Iowa,  916,  165  N.  W.  200 .856,  871 

Conroy  v.  Coughlin  Auto  Co.,  186  Iowa,  671,  171  N,  W.  10 871 

Conroy  v.  Mather,  217  Mass.  91,  104  N.  E.  487 127,  226 

Conroy  v.  Murphy  Transfer  Co.  (Minn.),  180  N.  W.  704 644 

Consolidated  Garage  Co.  v.  Chambers  (Tex.),  231  S.  W.  1072 885 

Constant  v.  Pigott,   15  D.  L.  E.    (Canada)    358 125 

Consumers  Co.  v.  City  of  Chicago,  208  HI.  App.  203 71,  891 

Consumers  Co.  v.  City  of  Chicago  (111.) ,  131  N.  E.  628 76 

Cook  V.  Johnston,  58  Mich.  437,  25  N.  W.  388,  55  Am.  St.  Rep.  703 297 

Cook  v.  Miller,  175  Cal.  497,  166  Pac.  316.... 259,  267,  305,  311,  324,  498,  509 

Cook  V.  Packard  Motor  Co.,  88  Conn.  590,  92  Atl.  413,  L.  R.  A.  1915  C,  319  722 

723,  724 

Cook  V.  Standard  Oil  Co.,  15  Ala.  App.  448,  73  So.  763 369,  409 

Cook  V.  United  Rys.  &  Elec.  Co.  of  Baltimore,  132  Md.  553,  104  Atl.  37 . .  .  262 

263,  585 

Cooke  V.  Jerome,   172  N.  C.   626,  90   S.   E.   767 252,  272,  492,  494,  516 

Cool  V.  Peterson,  189  Mo.  App.  717,  175  S.  W.  244 375,  471 

Coonan  v.  Straka,  204  111.  App.   17 247,  264,  433 

Coons  V.  Olympia  L.  &  Pr.  Co.   (Wash.),  191  Pac.  769 592,  609,  614 

Coonse  v.  Bechold   (Ind.  App.) ,  125  N.  E.  416 665 

Coope  v.  Scannell  (Mass.),  130  N.  E.  494 488 

Cooper  V.  Knight  (Tex.  Civ.  App.),  147  S.  W.  349 628,  720 

Cooper  v.  State,  ex  rel.  Hardy  (Okla.),  175  Pac.  551 57 

Coppock  V.  Schlatter,*193  111.  App.  255 329,  331,  332,  369,  448 

Corbett  v.  Hines    (Iowa) ,  180  N.  W.   690.  . 550,  557,  559,  569.  572 

Corbett  v.  Smeraldo,  91  N.  J.  L.  29,  102  Atl.  889 206 

Corcoran  v.  City  of  New  York,  188  N.  Y.  131,  80  N.  E.  660 696,  7O0 

Core  v.  Resha    (Tenn.),  204  S.  W.    1149 36,  38,  430,  624,  626,  628,  642 

Core  v.  Wilhelm,  124  Va.  150,  98  S.  E,  27 49,  326,  332,  414,  438,  441,  453 

454,  458,  462,  487 

Corey  v.  Havener,  182  Mass.  250,  65  N.  E.  69 546 

Oorley  v.  Atchison,  etc.,  Ry.  Co.,  90  Kans.  70,   133  Pac.  555 557,  567.  569 

581,  679 

Corn  v.  Kansas  City,  etc.,  Ry.  Co.   (Mo.),  228  S.  W.  78 685,  688,  690 


Table  of  Cases.  1177 

Section 

Corning  v.  Maynard,  179  Iowa,  1065,  162  N.  W.  564 330,  339,  511,     514 

Ck)ryell  v.  State,  92  Neb.  482,  138  N.  W.  572 518 

Costin  V.  Tidewater  Power  Co.  (N.  C),  106  S.  E.  568.  .  .557,  565,  574,  575,     580 

Cote  V.  Pennock,  51  Que.  S.  C.  (Canada)  537 626 

Cottam  V.  Oregon  Short  Line  R.  Co.  (Utah),  187  Pac.  827 554,     582 

Coughlin  V.  Layter    (Kans.) ,  180  Pac.  805 307 

Coughlin  V.  Mark,   173  Ky.  728,   191   S.  W.   503 289,  521,  525,  549,     679 

Coughlin  V.  Weeks,  75  Wash.  568,  135  Pac.  649 421,  452,  476,     486 

Counts,  ex  parte,  39  Nev.  61,  153  Pac.  93 138,  144,  145,  147,  148,     155 

Counts  V.  Clark,  84  Oreg.   179,  164  Pac.   714 878,     879 

County  Com'rs  v.  Wright    (Md.) ,  114  Atl.  573 684,  688,     704 

Covel  V.  Price,  39  Cal.  App.  646,  179  Pac.  540 394 

Coverdale  v.  Sioux  City  Service  Co.,  268  Fed.  963 602,     613 

Cowan  V.  Salt  Lake,  etc.,  R.  Co.   (Utah),  189  Pac.   599 616,  617,    €88 

Cowell  V.  Saperston,  149  N.  Y.  App.  Div.  373,  134  N.  Y.  Suppl.  284. . .  .359,    423 

448,  475,     487 
Cowles  V.  Springfield  Gaslight  Co.,  234  Mass.  421,  125  N.  E.  589.  .452,  453,     478 

Coyne  v.  Cleveland,  etc.,  R.  Co.,  208  111.  App.  425 720 

Coyne  v.  Kennedy,  229  N.  Y.  550,  129  N.  E.  911 632 

Craddock  v.  City  of  San  Antonio  (Tex.  Civ.  App.),  198  S.  W.  634.  ..  .     60,      71 

74,  77,  78,  138,  139,  144,     155 

Crady  v.  Greer,  183  Ky.  675,  210  S.  W.  167 633 

Craft  V.  Stone   (Ind.  App.),  124  N.  E.  469 453,  456,     458 

Craig  V.  Chicago  Coach  &  Carriage  Co.,  172  111.  App.  564 866 

Craig  V.  Pennsylvania  R.  Co.,  243  Pa.  St.  455,  90  Atl.  135 568,     572 

Crandall  v.  Krause,   165   111.   App.   15.... 326.  359,  414,  435,  441.  452,  487,     919 

Crandall  v.  Nevada,  6  Wall.   (U.  S.)  35,  18  L.  Ed.  745 33,  36,       91 

Cranston  v.  California  Ins.  Co.,  94  Oreg.  369,  185  Pac.  292 807 

Craton  v.  Huntzinger,  163  Mo.  App.  718,  147  S.  W.  512 518 

Crawford  v.  McElihinney,  171  Iowa,  606,  164  N.  W.  310 327,  328,     376 

657,     661 

Crawley  v.  Jermain,  218  111.  App.  51 430,  474,     481 

Creedon  v.  Galvin,  226  Mass.  140,  115  N.  E.  307 330,  363,  374,  386,     399 

487,     921 

Creedon  v.  Town  of  Kittery,  117  Me.  541,  105  Atl.  124 707 

Creitz  v.  Wolverine  Engineering  Co.   (Mich.),  181  N.  W.  966 704,     711 

Cresswell  v.  Wainwright,  154  olwa,  167,  134  N.  W.  594 519,     549 

Crichton  v.  State,  115  Md.  423,  81  Atl.  36 744 

Crider  v.  Yolande  Coal  &  Coke  Co.  (Ala.),  89  So.  285 678,     688 

Crittenden  v.  Murphy,  36  Cal.  App.  803,  859 626,  656,     660 

Crombie  v.  O'Brien,  178  N.  Y.  App.  Div.  807,  165  N.  Y.  Suppl.  858.  .  .  .297,     327 

352,  425,  431,  454,     474 

Crompton  v.  Williams.  216  Mass.   184,  103  N.  E.  298 117,     125 

Cronecker  v.  Hall.  450  N.  J.  L.  450,  105  Atl.  213 627.  630,     632 

Cross  v.  Rosencranz   (Kans.) ,  195  Pac.  857 259,  304,  498,     505 

Crossen  v.  Chicago,  etc.,  Co.,  158  111.  App.  42 126,  226.  610,  720,     722 

Crossland  v.  State   (Okla.),  176  Pac.  944 57 

Crouse  v.  Lubin.  260  Pa.  329,  103  Atl.  725 634,  641,     661 


1178  Table  of  Cases. 

Sectiok 

Crowell  V.  Maryland  Motor  Car  Ins.  Co.,  169  N.  Car.  35,  85  S.  E.  37.  .804,  811 

Growl  V.  West  Coast  Steel  Co.,  109  Wash.  426,  186  Pac.  866 453,  456,  462 

Crown  Laundry  &  Cleaning  Co.  v.  Cameron,  39  Cal.  App.  617,  179  Pac.  525. .  8 

36,  46 
Crucible  Steel  Co.  of  America  v.  Polack  Tire  and  Rubber  Co.,  92  N.  J.  L. 

221,  104  Atl.  324 878,  879 

Oudd  V.  Rogers.  Ill  S.  Car.  507,  &8  S.  E.  796 882 

Cuilo  V.  New  York  Edison  Co.,  85  Misc.  6,  147  N.  Y.  Suppl.  14 708 

Cullen  V.  Thomas,  150  N.  Y.  App.  Div.  475,  135  N.  Y.  Suppl.  22.  .627,  628,  653 

Culver  V.  Harris,  211  111.  App.  474 267,  347,  406 

Cumberland  Telep.  &  Teleg.  Co.  v.  Yeiser,  141  Ky.  15,  131  S.  W.  1049,  31 

L.  R.  A.   (N.  S.)    1137n 48,  49,  545 

Cummins  v.  Jones,  79  Greg.  276,  155  Pac.  171 135,  136,  138,  153 

Cuneo  V.  Freeman,  137  K  Y.  Suppl.  885 881 

Cunningham  v.  Castle,  127  N.  Y.  App.  Div.  580,  111  N.  Y.  Suppl.  1057.. 36,  37 

624,  628,  630,  631,  643,  674 

Cuperman  v.  Ashdown   (Manitoba),  16  West  L.  R.  687 412 

Cupples  Mercantile  Co.  v.  Bow  (Idaho).  189  Pac.  48 251,  267,  270,  375 

Curley  v.  Baldwin  (R.  L) ,  90  Atl.  1 478 

Curran   v.   Lorch,   243   Pa.   St.    247,   90   Atl.    62 627,  630,  635,  673,  677 

Curran  v.  Lorch.  247  Pa.  St.  429,  93  Atl.  492 307 

Currie  v.  Consolidated  Ry.  Co.,  81  Conn.  383,  71  Atl.  356 307,  346,  615 

Curro  V.  Barrett,  156  N.  Y.  Suppl.  289 459,  468,  469 

Curry  v.  Fleer,  157  N.  C.  16,  72  S.  E.  626 .  518,  534 

Curry  v.  Osborne,  76  Fla.  39,  79  So.  293,  6  A.  L.  R.  108 78,  140,  154,  232 

Curtis  V.  Joyce,  90  N.  J.  L.  47,  99  Atl.  932 772 

Cusick  V.  Kinney,  164  Mich.  25,  128  N.  W.  1089 542,  549 

Ousick  V.  Miller,   102  Kans.   663,  171  Pac.  599 453,  458,  463 

Czamiski  v.  Security  Storage  &  Transfer  Co.,  204  Mich.  276,  170  N.  W.  52  416 

452,  487 

D 

I>aggy  V.  Miller,  180  Iowa,  1146,  162  N.  W.  854 346,  396,  633 

Dahinden  v.  Milwaukee  Elec.  Ry.  &  L.  Co..  171  N.  W.  669..  .592.  594,  599,  614 

Dahlman  v.  White  Co.,  132  N.  Y.  Suppl.  771 793 

Daily  v.  Maxwell,  152  Mo.  App.   415.  133  S.  W.  351 36,  222,  292,  656,  657 

658,  660,  662 

Dale  v.  Armstrong,  107  Kans.  101.  190  Pac.  598 632 

Dale  v.  Denver  City  Tramway  Co.,  173  Fed.  787,  97  C.  C.  A.  511 587,  592 

615,  679 

Dallas,  City  of  v.  Gill  (Tex.  Civ.  App.),  199  S.  W.  1144 71,  79,  135,  138 

144,  146,  151,  155,  168 

Dallas  County  State  Bank  v.  Crismoii  (Tex.  Civ.  App.),  231  S.  W.  857 877 

Dallas  Ry.  Co.  v.  Eaton  (Tex.  Civ.  App.) .  222  S.  W.  318 7 521 

Dalryumple  v.  Covey,   etc.,   Co.,    66   Oreg.    533,    135   Pac.   91,   48   L.    R.   A. 

(K  S.)   424 213,  641.  665,  677 

Daly  V.  Case.  88  N.  J.  L.  295,  95  Atl.  973 257,  264,  387,  409 

Daly  V.  Curry,  128  Minn.  449,  151  N.  W.  274 921,  923 


Tablk  of  Cases.  1179 

Section 
Danforth  v.  Fisher,  75  N.  H.  Ill,  71  Atl.  535,  21  L.  R.  A.   (N.  S.)   93,  139 

Am.  St.  Rep.  670 37,  292,  295,  623,  624,  628,  633 

Dangel  v.  Williams,  11  Del.  Cli.  213,  99  Atl.  84 195,  197 

Daniel  v.  Pryor  (Mo.),  227  S.  W.  102 281,  551,  554 

Daniels,  ex  parte  (Cal.),  192  Pac.  442 62,  77,  730 

Daniels  v.  Clegg,  38  Mioh.  32 267,  373,  376,  377 

Darby  v.  Weber  Implement  Co.  (Mo.  App.) ,  208  S.  W.  116 856 

Daragh  v.  Elliotte,  215  Fed.  340 883 

Darish  v.  Scott   (Mich.) ,  180  N.  W.  435 330,  448,  487 

Daso  V.  Jefferson  CSty  Bridge  &  Terminal  Co.  (Mo.  App.),  189  S.  W.  400.  .  613 

Daugherty  v.  Metropolitan  Motor  Car  Co.,  85  Wash.  105,  147  Pac.  655 478 

Daugherty  v.  Thomas,  174  Mich.  371,  140  N.  W.  615,  45  L.  R.  A.  (N.  S.) 

699,  Ann.  Cas.   1915a  1163 21,61,  238,  626 

Daull  V.  New  Orleans  Ry.  &  L.  Co.,  147  La.  1012,  86  So.  477. .  .  .593,  616,  679 

Davenport  v.  Grundy  Motor  Sales  Co.,  28  Cal.  App.  409,  152  Pac.  932 877 

Davenport  v.  State  (Ala.) ,  88  So.  557 945 

David  Straus  Co.  v.  Commercial  Delivery  Co.  (N.  J.),  113  Atl.  604 883 

Davies  v.  Anglo -American,  etc.,  Co.,  145  N.  Y.  Suppl.  341 631,  663 

Davies  v.  Barnes,  201  Ala.  120,  77  So.  612 422,  453,  929 

Davis  V.  Boggs   (Arix.),  199  Pac.   116 567,  578,  580 

Davis  V.  Breuner  Co.,   167  Cal.   683,  140  Pac.   586 301,  459,  460,  473 

Davis  V.  City  L.  &  T.  Co.   (Mo.  App.),  222  S.  W.  884 679,  688 

Davis  v.  Littlefleld,  97  S.  Car.  171,  81  S.  E.  487 656,  657,  660 

Davis  v.  Mellen   (Utah),  182  Pac.  920 705,  708 

Davis  V.  Newsum  Auto  Tire  and  Vulcanizing  Co.,  141  Tenn.  527,  213  S.  W. 

.914 623,  673 

Davis  V.  Petrinovich,  112  Ala.  654,  21  So.  344,  36  L.  R.  A.  615 484 

Davis  V.  Township  of  Usbome,  28  D.  L.  R.  (Canada)   397,  36  O.  L.  R.  148, 

9  0.  W.  N.  484 521,  623,  696,  701 

Davis  V.  United  Rep.  Co.  (Mo.  App.),  218  S.  W.  357 281,  591 

Davis  V.  Worcester  Consol.  St.  Ry.  Co.,  234  Mass.  297,  125  N.  E.  554 617 

Davis  &  Son  v.  Thornburg,  149  N.  Car.  233,  62  S.  E.  1088 340,  523 

Day  v.  Duluth  St.  R.  Co.,  121  Minn.  445.  141  N.  W.  795 259,  267,  297,  298 

588,  599,  609,  610 

Day  v.  Kelly,  50  Mont.  306,  146  Pac.  930 337,  524 

Deal  V.  Snyder,  203  Mich.  273,  168  N.  W.  973 453.  459 

Dean  v.  Boston  Elevated  Railway  Co..  217  Mass.  495.  105  X.  E.  filfi.  .12-).  127 

Dean  v.  Sharon,  72  Conn.  667,  45  Atl.  963 707 

Dearborn  v.  Fuller  (N.  H.) ,  107  Atl.  607 628.  638 

Dearholt  Motor  Sales  Co.  v.  Merritt.  133  Md.  323,  105  Atl.  316 623.  630 

643.  673 

DeCarvalho  v.  Brunner,  223  N.  Y.  284,  119  N.  E.  563 54.  305 

Decatur,  Town  of  v.  Gould,  185  Iowa,  203,  170  N.  W.  449 70.  731 

Decker  v.  Hall  (Ind.  App.) ,  125  N.  E.  786 623 

Decou  V.  Dexheimer   (N.  J.).  73  Atl.  49 252.  348.  380.  383.  406 

Defoe  V.  Stratton    (N.  H.) ,   114  Atl.  29 628.  677 

Degens  v.  Langi-idge   (Mich.),   183  N.  W.  28 452,  487 

DeHardt  v.  Atchison  R.  &  S.  F.  Rv.  Co.,  100  Kans.  24,  163  Pac.  650 569 


1180  Table  of  Cases. 

Skction 

Deheavo  v.  Hines,  217  111.  App.  427 562,  679 

Deitchler  v.  Ball,  99  Wash.  483,  170  Pac.   123 362,  366,  476 

Delafield  v.  London  &  Lancashire  F.  Ins.  Co.,  177  App.  Div.  477,  164  N.  Y. 

Suppl.  221 839 

Deland  v.  Michigan  Ry.  Ck).  (Mieh.),  180  N.  W.  889 567 

Delano  v.  LaBounty,  62  Wash.  595,  114  Pac.  434 128 

Delaware,  L.  &  W.  R.  Co.  v.  Welshman,  229  Fed.  82.  143  C.  C.  A.  358.. 557,  558 

563,  568 

Delfs  V.  Dunshee,  143  Iowa,  381,  122  N.  W.  236..  ..49,  253,  254,  277,  278,  305 

309,  316,  324,  328,  518,  528,  529,  532,  535,  542,  544,  910 

Delohery  v.  Quinlan,   210  111.  App.   321 287,  475 

Deltmar  v.  Burns  Bros.,  Ill  Misc.  (N.  Y.)   189,  181  N.  Y.  Suppl.  146.. 722,  723 

DeLys  v.  Powell-Sanders  Co.,  90  Wash.  31,  155  Pac.  407 399 

Dempsey  v.  Frazier,  119  Miss.  1,  80  So.  341 656 

Denby  Motor  Truck  Co.  v.  Hears  (Tex.  Civ.  App.),  229  S.  W.  994 848,  870 

Denison  v.  McNorton,  288  Fed.  401,   142  C.  C.  A.   631 309,  320,  332,  438 

444,  623,  656,  657,  659 

Denker  Transfer  Co.  v.  Pugh,  162  Ky.  818,  173  S.  W.  139 169,  628 

Denkers  v.  Southern  Pac.  Co.,  52  Utah,  18,  171  Pac.  999 574,  579 

Dennard  v.  State,  14  Ga.  App.  485,  81  S.  E.  378 767 

Dennison  v.  State  (Ala.  App.),  88  So.  211 768,  934 

Denny  v.  Doe  (S.  Car.),  108  S.  E.  95 626,  890 

Denny  v.  Randall  (Mo.  App.),  202  S.  W.  602 24,  281,  324 

Denny  v.  Straus  &  Co.,  109  N.  Y.  Suppl.  26 369,  395 

DeNorma  v.  Sioux  Falls  Traction  System,  39  S.  Dak.  10,  162  N.  W.  746. .  . .  .  613 

Denson  v.  McDonald  Bros.,  144  Minn.  252,  175  N.  W.  108 299,  300,  395 

Denton  v.  Missouri  K.  &  T.  Ry.  Co.,  97  Kans.  498,  155  Pac.  812 679,  685 

688,  690 

Denver,  City  of  v.  Utzler,  38  Colo.  300,  88  Pac.  143,  8  L.  R.  A.  (N.  S.)  77. .  543 

Denver  Omnibus  &  Cab  Co.  v.  Knebs,  255  Fed.  543 297,  321 

Denver  Omnibus  &  Cab  Co.  v.  Mills,  21  Colo.  App.  582,  122  T&c.  798 . .  654,  908 

921,  922 

Denver  Suburban  Homes  &  Water  v.  Frigate,  163  Colo.  423,  168  Pac.  33..  857 

Denver  Tramway  Co.  v.  Orbach,  64  Colo.  511,  172  Pac.  1163 679,  682,  684 

DePerri  v.  Motor  Haulage  Co.,  185  N.  Y.  App.  Div.  384,  173  N.  Y.  Suppl.  189  644 

Pepue  V.  George  D.  Salmon  Co.,  92  N.  J.  Law  550,  106  Atl.  379 631 

Deptuy  V.  Kimmell,  73  W.  Va.  595,  80  S.  W.  919.. 277,  279,  361,  391,  418,  437 

487 

Derr  v.  Chicago  M.  &  St.  P.  Ry.  Co.,  163  Wis.  234,  157  N.  W.  753.  .126,  562,  573 

Derrick  v.  Salt  Lake,  etc.,  R.  Co.,  50  Utah,  573,  168  Pac.  335 682 

Dervin  v.  Frenier,  91  Vt.  398,  100  Atl.  760... 126,  226,  329,  415,  439,  471.  478 

Deslanders  v.  Rhode  Island  Co.  (R.  L) ,  100  Atl.  393 615 

Desraarchier  v.  Frost,  91  Vt.  138,  99  Atl.  782 169,  935 

DeSmet  v.  Niles,  175  N.  Y.  App.  Div.  822,  161  N.  Y.  Suppl.  566 659,  660 

DesMoines,  aty  of  v.  Keller,  116  Iowa,  648,  88  N.  W.  827 62 

Desmond  v.  Basch  &  Greenfield   (N.  J.),  108  Atl.  362 516 

DeSota  v.  Pacific  Elec.  Ry.  Co.   (Cal.  App.),  193  Pac.  270 679 


Table  of  Cases.  1181 

Section 

Desser  v.  City  of  Wichita,  96  Kans,  820,   153  Pac.  1194.. 71,  78,  135,  138,  140 

144,  147,  154 

Dessureault  v.  Maselly,  92  Conn.  690,  104  Atl.  347 487 

Devereaux  v.  State   (Ga.  App.) ,   106  S.  E.  739 729 

Devin  v.  Chicago,  172  111.  App.  246 74,  76,  737 

Devine  v.  Brunswick-Balke  Collender  Co.,  270  111.  504,  110  N.  E.  780.. 293,  414 

442 

Devine  v.  Ward  Baking  Co.,  188  111.  App.  588 247,  415,  433,  473,  633 

Devitt  V.  Puget  Sound  Traction,  Light  &  Power  Co.,  106  Wash.  449,  180 

Pac.  483,  aff'd  185  Pac.  583 591,  599 

DeVriendt  v.  Chicago,  etc.,  R.  Co.,  144  Minn.  467,  175  N.  W.  99 560,  577 

Dewhirst  v.  Connecticut  Co.    (Conn.),   114  Atl.   100 125 

Diamond  v.  Cowles,  174  Fed.  571,  98  C.  C.  A.  417 412,  413,  484 

Diamond  v.  Sternburg,  etc.,  Co.,  87  Misc.  305,  149  N.  Y.  Supp.  1000..  177,  644 

666 

Diamond  v.  Weyerhaeuser,  178  Cal.  540,  174  Pac.  38 283,  362,  413,  925 

Dice  V.  Johnson   (Iowa),  175  N.  W.  38 18,  246,  322,  509,  510,  516,  891 

Dickey,  ex  parte,  76  W.  Va.  576,  85  S.  E.  781,  L.  R.  A.  1915f  840.  .57,  135,  136 

137,  138,  153,  164,  167,  231,  232 

Dickinson  v.  Erie  R.  Co.,  81  N.  J.  L.  464,  81  Atl.  104 567,  576 

Dickler  v.  Pullman  Taxi  Service  Co.,  66  Pitts.  Leg.  Jour.  (Pa.)  93.  .262,  394,  413 

Diehl  V.  Roberts,  134  Cal.  164,  66  Pac.  202 250,  373 

Dier  v.  Voorhees,  200  Mich.  510,  167  N.  W.  26 506,  516 

Dierks  v.  Newson  (Cal.  App.),  194  Pac.  519 673,  674 

Dignum  v.  Weaver  (Mo.  App.),  204  S.  W.  566 281,  330,  414,  432,  448 

Dildine  v.  Ford  Motor  Co.,  159  Mo.  App.  410,  140  S.  W.  627 789 

Dilger  v.  Whittier,  33  Cal.  App.  15,  164  Pac.  49 429,  924 

Dillabough  v.  Okanogan  County,   105   Wash.   609,   178   Pac.   802.. 679,  689,  693 

704,  716 

Dillon  V.  Mundet,  145  N.  Y.  Suppl.  975 628,  639 

Dillon  V.  Patterson,  22  Ga.  App.  209,  95  S.  E.  733 848 

Dillon  V.  Stewart   (Tex.  Civ.  App.),  180  S.  W.  648 491 

Diocese  of  Trenton  v.  Toman,  74  N.  J.  Eq.  702,  70  Atl.  606.  .1,  9,  41,  193,  194 

Director  General  v.  Lucas   (Va.),  107  S.  E.  675 563,  564,  688 

Dirks  v.  Tonne,  183  Iowa,  403,  167  N.  W.  103 372,  398,  409.  410,  656,  659 

Discepelo  v.  City  of  Ft.  William,  110  W.  N.  (Canada)   73 295 

Di  Stephano  v.  Smith   (R.  L) ,  103  Atl.  817 475 

District  of  Columbia  v.  Fickling,  33  App.  D.  C.  371 147 

District  of  Columbia  v.  Weston,  23  App.  D.  C.  363 199 

Dixon  v.  Boeving    (Mo.  App.) ,   208   S.   W.   279 126,  399,  410 

Dixon  v.  Grand  Trunk  Ry.,  470  0.  L.  R.   (Canada)   115 682 

Dobbins  v.  City  of  Arcadia  (Cal.  App.),  186  Pac.  190 706 

Dobbins  v.  Seaboard  Air  Line  R.  Co.,  108  S.  Car.  254,  93  S.  E.  932.  .572,  576,  582 
Dochtermann,  etc.,  Co.  v.  Fiss,  Coerr  &  Carroll  Horse  Co.,  155  App.  Div. 

162,  140  N.  Y.  Suppl.  72 861 

Dodge  v.  Toth  (Conn.),  110  Atl.  454 432 

Doherty   v.   Town   of   Ayer,    197   Mass.    241,    83    N.    E.    677,    14   L.    R.    A. 

(N.   S.)    816n 0,  37,  46,  127,  096 


1182  Table  of  Cases. 

Section 

Doherty  v.  Hazelwood  Co.,  90  Oreg.  475,  175  Pac.  849 673 

Dombrenos  v.  Chicago,  etc.,  Ry.  Co.  (Iowa),  174  N.  W.  596.  .  .  .550,  556,  576,  577 

Domke  v.  Gunning,  62  Wash.  629,  114  Pac.  436 • 258,  278,  389,  434 

Donahue   v.   Vorenberg,    227   Mass.    1,    116   N,    E.    246 632,  633,  638,  677 

Donaldson  v.  Ludlow  &  Squier   (N.  J.),  110  Atl.  690 182 

Donlin  v.  Detroit  United  Ry.,  198  Mich.  327,  164  N.  W.  447 .  .  590,  592,  593,  603 

617,  680,  682 

Connelly  v.   Harris,   219  Mass.   466,   107  N.   E.   435 628,  654 

Donnelly  v.  Philadelphia  &  Reading  Co.,  53  Pa.  Super.  Ct.  78. .  .  .130,  132,  171 

Donnelly  v.  PoliakoflF,  79  Misc.   (N.  Y.)   250,  139  N.  Y.  Suppl.  999 720,  722 

Donnelly  v.  Yuille,  197  App.  Div.  59 630 

Donovan  v.  Lambert,  139  111.  App.  532 542 

Donovan  v.  Syndicate,  L.  R.    (1893),   1  Q.  B.    (Eng.)    629 171,  177 

Doody  V.  DoUins,  223   Mass.  332,   111  N,   E.   897 875,  881 

Doran  v.  Thompson,  74  N.  J.  L.  445,  66  Atl.  897 628,  642 

Doran  v.  Thompson,  76  N.  J.  L.  754,  71  Atl.  296,  19  L.  E.  A.   (N.  S.),  335, 

131  Am.  St  Rep.  677 656,  657,  660 

Dorrance  v.  Omaha,  etc.,  Ry.  Co.   (Neb.),  180  N.  W.  90 297,  320,  615,  616 

Dorrer  v.  Town  of  Callicoon,  183  N.  Y.  App.  Div.  186,  170  N.  Y.  Suppl.  676  701 

Dougherty  v.  Davis,  51  Pa.  Super.  Ct.  229 421 

Dougherty  v.  Woodward,  21  Ga.  App.  427,  94  S.  E.  636.  .656,  657,  658,  659,  660 

670 

Douglas  V.  Hewson,  142  N.  Y.  App.  Div.  166,  127  N.  Y.  Suppl.  220.  .628,  631,  636 

Dowdell  V.   Beasley    (Ala.  App.),   82   So.   40 311,  509,  599,  604 

Dowdell  V.  Beasley  (Ala),  87  So.  18 630,  632 

Downey  v.  Bay  State  Street  Ry.,  225  Mass.  281,  114  N.  E.  207..  119,  125,  610 

'886,  888 

Downs  V.  Fisher,  23  D.  L.  R.  (Canada)  726,  33  0.  L.  R.  504,  8  0.  W.  K  257  626 

Downs  V.  Georgia  Casualty  Co.,  271  Fed.  310 158 

Doyle   V.   Holland    (R.   L),   100   Atl.   466 434,  452 

Doyle  V.  Peerless  Motor  Car  Co.,  226  Mass.  561,  116  N.  E.  257 208 

Doyle  V.  Wragg,  1  F.  &  R.  7;  The  European,  10  L.  R.  Prob.  Div.  99 339 

Dozier  v.  Woods,  190  Ala.  279,  67  So.  283 59,  277,  412,  414,  432,  457,  463 

Drake  v.  National  Motor  Car  Corp.,  195  App.  Div.  113 800 

Drake  v.  White  S.  M.  Co.,  133  N.  Y.  App.  Div.  446,  118  N.  Y.  Suppl.  178. .  790 
Dreger  v.  International  Ry.  Co.,  190  N.  Y.  App.  Div.  570,  180  N.  Y.  Suppl. 

436 588,  614 

Drennan  v.  State,  109  Misc.  (N.  Y.)  107,  178  N.  Y.  Suppl.  278 700 

Drew  V.  King,  76  N.  H.  184,  80  Atl.  642 202 

Drier  v.  McDermott,  157  Iowa,  726,  141  N.  W.  315 542 

Driscoll  v.  Towle.  181  Mass.  416,  63  N.  E.  922 171,  177 

Drobrucki  v.  Packard  Motor  Car  Co.  (Micli.),  180  N.  W.  459 632 

Drouillard  v.  Southern  Pac.  Co.   (Cal.  App.),  172  Pac.  405 688,  692 

Dubourdieu  v.  Delaware  Tp.,   106  Kans.   650,   189  Pac.   386 696,  704,  706 

DuCros  V.  Lamborune   (1907) ,  L.  J.  (K.  B.)   50 725,  727 

Dudley  v.  Kingsbury,  199  Mass.  258,  85  N.  E.  76 327,  359,  452,  487 

Dudley  v.  Northampton  St.  Ry.  Co.,  2(»  Mass.  443,  89  N.  E.  25,  23  L.  R.  A. 

(N.    S.)    561n 114^  125 


Table  of  Cases.  1183 

Section 

Dudley  v.  Raymond,  148  App.  Div.  886.  133  N.  Y.  Suppl.  17 283 

Duff  V.  Husted   (Conn.),  Ill  Atl.   186 478,  480 

DuflFy  V.  Ascher,  191  N.  Y.  App.  Div.  918,  181  N.  Y.  Suppl.  934 661,  673 

Duffy  V.  Hardy  Auto  Co.,  180  Iowa,  745.  163  N.  W.  370 875,  879 

Dugan  V.  Arthurs,  230  Pa.  St.  299,  79  Atl.  026 921,  922 

Dugan  V.  Lyon,  41  Pa.  Super.  Ct.  52 361,  423,  458,  475 

Duggan  V.  Chicago  M.  &  St.  P.  Ry.  Co.   (Iowa),  159  N.  W.  228 557 

Duhme   v.  Hamburg-American  Packet  Co.,   184  N.  Y.   404,   77  N.  E.   386, 

112  Am.  St.  Rep.  615 678 

Duke  V.  Automobile  Supply  Co.,  21  Ga.  App.  608,  94  S.  E.  915 869 

Dulberger  v.  Gimbel  Bros.,  76  Misc.  (N.  Y.)   225,  135  N.  Y.  Suppl.  574.  ..  .  904 

Dutlz  V.  Fischowitz,  104  N.  Y.  Suppl.  357 305,  329,  443,  448 

Duluth,  City  of  v.  Easterly,  115  Minn.  64,  131  N.  W.  791 71,  234 

Dunbar  v.  Jones.  87  Conn.  253,  87  Atl.  787 359 

Duke  V.  Keogh  Storage  Co.  (Mass.),  128  N.  E.  782 422,  482 

Dunkel  v.  Smith,  168  Wis.  257,  169  N.  W.  567 512,  516 

Dunkelbarger  v.  McFerren,  149  HI.  App.  630 19 

Dunkelbeck  v.  Meyer,   140  Minn.   283,   167  N.  W.   1034..  18,  253,  256,  264,  329 

382,  383,  405,  413,  921 

Dunlap  V.  Philadelphia  Rapid  Transit  Co.,  248  Pa.  St.  130,  93  Atl.  873 . .  679,  688 

Dunmore  v.  Padden,  262  Pa.  436,  105  Atl.  559 642,  643 

Dunn  V.  Moratz,  92  111.  App.  277 250,  373 

Dunne  v.  Roland,  199  111.  App.  308 169,  177,  644 

Duprat  V.  Chesmore   (Vt.),  110  Atl.  305 322,  491,  901,  910 

Durham  v.  Strauss,  38  Pa.  Super,  a.  620 628,  630 

Dussault  V.  Ohartrand,  Que  S.  C.    (Canada)    488 339 

Duter  V.  Sharen,  81  Mo.  App.  612 484 

Dyer  v.  Cumberland  County  Power  &  L.  Co.,  117  Me.  576,  104  Atl.  848 607 

Dyer  v.  Cumberland  County  Power  &  L.  Co,   (Me.),  110  Atl.  357 607,  611 

Dyer  v.  Maine  Cent.  R.  Co.   (Me.) ,  113  Atl.  26 579 

E 

Eakin  v.  Anderson,  169  Ky.  1,  183  S.  W.  217 632,  633 

Eames   v.  Clark    (Kans.),    177   Pac.    540 414,  432 

Earle  v.  Pardington,  116  N.  Y.  Suppl.  675 526 

Earle  v.  Philadelphia  &  R.  R.  Co.,  248  Pa.  St.  193,  93  Atl.  1001 563,  568 

Easring  v.  Lansingh,  7  Wend.    (N.  Y.)    185 249,  568 

East   V.  Amburn,   47   Ind.   App.   530,   94  N.   E.   895.. 49,  50,  277,  305,  517,  518 

528,  529 

Eastern  Mfg.  Co.  v.  Thomas,  82  S.  Car,  509,  64  S.  E.  401 13,  43 

Eastern  Motor  Sales  Corp  v.  Apperson-Lee  Motor  Co.,  117  Va.  495,  85  S.  E. 

479 792,  796 

Ea«ton  V.  United  Trades  School  Contracting  Co.,  173  Cal.    199,   159  Pac. 

597 649,  650 

East  Tenn.  Telep.  Co.  v.  Cook,  155  Ky.  649,  160  S.  W.  166 528 

Eberle  Brewing  Co.  v.  Briscoe  Motor  Co.,  194  Mich.  140,  160  N.  W.  440..  642 


1184  Table  of  Cases. 

Section 

Ebling  Brewing  Co.  v.  Linch,  80  Misc.   (N.  Y.)   517,  141  N.  Y.  Suppl.  480..  49 

260,  262,  585 

Ebling  V.   Nielson    (Wash.),   186  Pac.   887 297,  301,  344,  398 

Eckells  V.  Muttschall,  230  111.  462,  82  N.  E.  872 172,  679 

Eckl  V.  State  (Ala.),  88  So.  567 945 

Eclaigton,  etc.,  R.  Co.  v.  Hunter,  6  App.  Cas.  (D.  C.)  287 787 

Edberg  v.  Johnson   (Minn.),  184  N.  W.  12 318 

Edelman  v.  Connell,  257  Pa,  317,  101  Atl.  653 452,  478 

Edgecorab  v.  His  Creditors,  19  Nev.  149,  154,  7  Pac.  533 132 

Edmonston  v.  Barrock  (Mo.  App.),  230  S.  W.  650.  .  .  .  .  .277,  281,  414,  551,  591 

Edwards   v.    Yarbrough    (Mo.    App.),    201    S.    W.    972..  171,  251,  272,  327,  510 

635,  653 

Egan  V.  Township  of  Saltfleet,  29  O.  L.  R.  (Canada)  116 707 

Egekvist  v.  Minnetonka  &  White  Bear  Nav.  Co.  (Minn,),  178  N.  W.  238.  .719,  911 

Ehlers  v.  Goed,  169  Wis.  494,  173  N.  W.   325 158 

Eichman  v.  Buchheit,  128  Wis,  385,  107  N.  W.  325,  8  Ann.  Cas.  435.. 71,  78 

79,  230,  731 

Einhorn  v.  West  67th  St.  Garage,  191  N.  Y.  App.  Div.  1,  177  N.  Y.  Suppl,  887  202 

Eisenman   v,   Griffith,   181   Mo.   App.    183,   167   S.   W.    1142 332,  438,  452 

Eisenmenger  v.  St.  Paul  City  Ry.  Co.,  125  Minn.  399,  147  N.  W.  430. .. .  362 

Elder  v.  Federal  Ins,  Co,,  213  Mass,  389,  100  N.  E,  655 811 

Elder  v.  Pittsburgh,  etc.,  R.  Co.,  186  111.  App.  199 557 

Eldridge  v.  Barton,  232  Mass.  183,  122  N.  E.  272 906 

Eldridge  v.  Calhoun   (N.  J.),  112  Atl.  340 630 

Elgin  Dairy  Co.  v,  Shepard,  183  Ind.  466,  108  N.  E.  234 352,  409 

Elgin  Dairy  Co.  v.  Sheppard  (Ind.  App,),  103  N,  E,  433, ,  ,49,  260,  277,  391,  393 

Eline   v.  Western  Maryland  Ry  Co.,   262   Pa.   33,   104   Atl.   857.. 568,  580,  683 

692,  908 

Elliott  V.  Fabra,  10  O.  W.  N.  (Canada)  41 , 285 

Elliott  V,  O'Rourke,  40  R,  I,  187,  100  Atl,  314 466,  628,  631 

Ellis  V.  Central  California  Tract.  Co.,  37  Cal.  App.  390,  174  Pac,  407.. 553,  580 

679,  683,  690,  693 

Ellis  V.  Hamilton  St.  Ry.,  18  0.  W.  N.   (Canada)   226 428 

Ellison  V.  Atlantic  Refining  Co.,  62  Pa,  Super.  Ct,   370 275,  403 

Ellsworth  V.  Jarvis,  92  Kans.  895,  141  Pac.  1135 518,  524 

Elmberg  v.  Pielow   (Wash.),   194  Pac.   549 436,  452,  487 

Elmendorf  v.  Clark,  143  La.  971,  79  So.  557 295,  329,  454 

Elms  V.  Flick   (R.  L),  126  N.  E.  66 624,  656,  660 

El  Paso  Elec.  Ry.  Co.  v.  Benjamin   (Tex.  Civ.  App,),  202  S.  W.  996.. 262,  585 

616,  679 

El  Paso  Elec.  R.  Co.  v.  Davidson  (Tex.  Civ.  App.),  162  S.  W.  937 613 

El  Paso  Elec.  Ry.  Co.  v.  Terrazas  (Tex.  Civ,  App.),  208  S.  W.  387.. 297.  333 

591,  610 

Elsbery  v.  State,  12  Ga,  App.  86,  76  S,  E,  779 59,  313,  317,  732,  744 

Elvidge  V.  Stronge  &  Warner  Co.   (Minn.),  181  N.  W.  346.. 259,  267,  498,  505 

Elwes  V.  Hopkins  (1906),  2  K,  B.  Im  (Eng.)  94  Law.  T,  R.  (N.  S.)  547.  .305,  309 

Emanuelson  v.  Johnson   (Minn.) ,  182  N.  W.  521 677 

Emens  v.  Lehigh  R.   Co.,   223   Fed.   810 553,  557 


Table  of  Cases.  1185 

Section 

Emery  v.  McCombs,  180  N.  Y.  App.  Div.  225,  167  N.  Y.  Suppl.  474 646,  648 

Emerson  Troy  Granite  Ck).  v.  Pearson,  74  N.  H.  22,  €4  Atl.  582.  .1,  16,  116,  123 

Emery  v.  Miller,  231  Mass.  243,  120  N.  E.  654 414,  469,  487 

E.  M.  F.  Co.  V,  Davis,  146  Ky.  231,  142  S.  W.  391 339,  914 

Empire  L.  Ins.  Co.  v.  Allen,  141  Ga.  413,  81  S.  E.  120 317,  744 

Employers'  Liability  Assur.  Corp.  v.  Industrial  Accident  Com.  (Cal.  App.), 

177  Pac.  171 , 228 

Employers'  Liability,  etc.,  Corp.  v.  Industrial  Ace.  Com.  (Cal.),  187  Pac.  42  632 

Engel  V.  City  of  Milwaukee,  158  Wis.  480,  149  N.  W.  141 664 

England  v.  Southwest  Missouri  R.  Co.  (Mo.  App.),  180  S.  W.  32 592,  593 

597,  613 

Ensler  Motor  Co.  v.  O'Rear,  196  Ala.  481,  71  So.  704 849 

Enstrom  v.  Neumoegen,  126  N.  Y.  Suppl.  660..." 263,  352,  441,  467 

Entwistle  v.  Rhode  Island  Co.  (R.  L),  103  Atl.  625 592,  593 

Epperson,  ex  parte,  61  Tex.  Cr.  237,  134  S.  W.  685 221 

Epps  V.  Parrish   (Ga.  App.) ,  106  S.  E.  297 678 

Erickson  v.  St.  Paul  City  Ry.  Co.,  141  Minn.  166,  169  N.  W.  532 617 

Erjanschek  v.  Kramer,  141  N.  Y.  App.  Div.  545,  126  N.  Y.  Suppl.  289 652 

Erlick  V.  Heis,  193  Ala.  669,  69  So.  530 656,  657,  659,  660 

Erwin  v.  Traud,  90  N.  J.  Law  289,  100  Atl.  184 262,  277,  332,  391,  394 

Escobedo  v.  State    (Tex.  Cr.),  225  S.   W.   377 768 

Esposito  V.  American  Rys.  Co.,  194  N.  Y.  App.  Div.  347,  185  N.  Y.  Suppl. 

353 639 

Essig  y.  Lumber  Operating  &  Mfg.  Co.,  183  N.  Y.  App.  Div.  198,  170  N.  Y. 

Suppl.  192 262 

Estrom  v.  Neumoegen,  126  N.  Y.  Suppl.  660 440,  467 

Etchen  v.  Dennis  &  Son  Garage  (Kans.),  178  Pac.  408 877 

Etter  v.  City  of  Saskatoon,  15  D.  L.  R.  (Canada)  1 125 

European,  The,  10  L.  R.  Prob.  Div.  99 339 

Evans  v.  Dyke  Automobile  Supply  Co.,  121  Mo.  App.  266,  101  S.  W.  1132. .  648 
Evans  v.  Foss,  194  Mass.  513,  80  N.  E.  587,  9  L.  R.  A.  (N.  S.)  11  Ann.  Cas. 


17L 


194 


Evans  v.  Illinois  Cent.  R.  Co.   (Mo.),  233  S.  W.  397 554,  557,  572 

Evans  v.  Rice  (Mass.) ,  130  N.  E.  672 . . .  .^ 125 

Everart  v.  Fischer,  75  Oreg.  316,   145  Pac.  33,  147  Pac.   189 71,  230,  730 

921,  926 

Everett  v.  Sturges,  46  Pa.  Super.  Ct.  612 49I 

Everhard  v.  Dodge  Bros.,  202  Mich.  48,  167  N.  W.  953 259,  390,  822 

Ewing  v.  Artie  Ice  Cream  Co.,  166  Iowa,  146,  147  N.  W.  294 663 

Ewwig  v.  Lumber  Operating  &  Mfg.  Co.,  183  N.  Y.  App.  Div.  198,  170  N.  Y. 

Suppl.  193 497  510 

P 

F.  &  B.  Livery  Co.  v.  Indianapolis  Tract.  &  Terminal  Co.  (Ind.  App.),  124 

N.  E.  493 717 

Faber  v.  City  of  New  York,  161  N.  Y.  App.  Div.  203,  146  N.  Y.  Suppl.  295.  700 

Fahrney  v.  O'Donnell,  107  111.  App.  608 268,  280    377  378 

75 


1186  Table  of  Cases. 

Section 

Fahy  v.  Director  General  (Mass.),  126  N.  E.  784 693,  690 

Fair  v.  Union  Tract.  Co.,  102  Kans.  611,  171  Pa.c.  649 304,  323,  603,  694 

Fairbanks  v.  Kemp,  226  Mass.  75.  115  N.  E.  240 121,  125 

Fairchild  v.  Fleming,  125  Minn.  431,  147  N.  W.  434 412 

Falcone  v.  National  Casket  Co.,  190  N.  Y.  App.  Div.  651,  180  N.  Y.  Suppl. 

455 897 

Fame  Laundry  Co.  v.  Henry  (Ind.  App.),  131  N.  E.  411 516,  677 

Farber  v.  American  Automobile  Ins.  Co.,  191  Mo.  App.  307,  177  S.  W.  675.  814 

Farley  v.  New  York,  152  N.  Y.  222,  46  N.  E.  506,  57  Am.  St.  Rep.  511 317 

Farmer  v.  New  York,  etc.,  R.  Co.,  217  Mass.  158,  104  N.  E.  492 572 

Farnham  v.  Akron  Tire  Co..  98  Wash.  484,  167  Pac.  1081 848 

Farnham  v.  Clifford,  106  Me.  299,  101  Atl.  468 657,  660 

Farnham  v.  Clifford,  118  Me.  145,  106  Atl.  344 660 

Farmsworth  v.  Tampa  Electric  Co.,  62  Fla.  166,  57  So.  223 49 

Farrell  v.  Fire   Ins.  Salvage  Corps,    189   N.  Y.   App.  Div.    795,   179  N.   J. 

Suppl.  477 318,  401,  663 

Farrell  v.  Universal  Garage  Co.,  179  N.  0.  389,  102  S.  E.  617 205,  719,  935 

Farrior  v.  State   (Ga.  App.) 758 

Farris  v.  Alfred,  171  111.  App.  172 859 

Faulk  v.  Richardson,  63  Fla.  135,  57  So.  666 869 

Faulkner  v.  Payne,  191  Mich.  263,  157  N.  W.  565 .  .  .921,  923 

Fayet  v.  St.  Louis  &  S.  F.  R.  Co.,  203  Ala.  3,  81  So.  571 .568,  580 

Fearn  v.  State    (Ala.),  88  So.   591 945 

Federal  Ins.  Co.  v.  Hiter,  164  Ky.  743,  176  S.  W.  210 838 

Federal  Rubber  Co.  v.  King,  12  Ga.  App.  261,  76  S.  E.  1083 885 

Federal  Truck  &  Motors  Co.  v.  Tompkins  (Ark.),  231  S.  W.  553 866 

Feehan  v.  Slater,  89  Conn.  697,  96  Atl.   159 252,  269,  30O,  415,  432 

Feeley  v.  City  of  Melrose,  205  Mass.  329,  91  N.  E.  306,  27  L.  R.  A.  (N.  S.) 

1156,  137  Am.  St.  Rep.  445 125,  127,  716 

Fehrenbach  v.  Stults  (Mo.  App.) ,  206  S.  W.  578 785 

Felton  V,  Midland  Continental  R.  R.,  32  N.  Dak.  223,  155  N.  W.  23 582 

Fenn  v.  Clark,  11  Cal.  App.  79,  104  Pac.  632 300,  301,  345 

Fenton  v.  Poston  (Wash.) ,  195  Pac.  31 158 

Ferdon  v.  Cunningham,  20  How.  Prac.  (N.  Y.)  154 150 

Ferguson  v.  Reynolds  (Utah),  176  Pac.  267 471,  623,  627,  628,  671 

Ferraes  v.  Cooper,   176  N.  Y.   Suppl.   67 506 

Ferris  v.  McAidle,  92  N.  J.  I^w  580,  106  Atl.  460 441,  456,  637 

Ferris  v.  Sterling,  214  N.  Y.  249,  108  N.  E.  406 599,  600,  606 

Ferry  v.  City    of   Waukegan,    196    111.    App.    81 325,  347,  359,  688,  696 

698,  712,  715 

Ferry  v.  City  of  Waukegan,  205  111.  App.  109 679,  698,  712,  715 

Feyrer  v.  Durbrow    (Wis.) ,  178  N.  W.  306 329,  448,  785 

Fidelity  &  Casualty  Co.  v.  Joiner  (Tex.  dv.  App.),  178  S.  W.  806 845 

Fidelity  &  Deposit  Co.  v.  Industrial  Ace.  Com.,  171  Cal.  728,  154  Pac.  834.  228 

Fielder  v.  Davidson,  139  Ga.  509,  77  S.  E.  618 37,  624,  627,  628,630,  631 

673,  674 

Fields  v.  Sevier,  184  Mo.  App.  685,  171  S.  W.  610 519,  530,  549 

Fifth  Ave.  Coach  Co.  v.  City  of  New  York,  194  N.  Y.  19,  86  N.  E.  824,  21 

L.  R.  A.  (N.  S.)  744,  16  Ann.  Cas.  695 153 


Table  of  Cases.  1187 

Section 

Fiftt  Ave.  Coach  Co.  v.  New  York  City,  221  U.  S.  467,  31  S.  Ct.  709.. 71,  75,  235 

Figueroa  v.  Madero  (Tex.  Civ.  App.),  201  S.  W.  271 305,  324,  493 

Filgar  v.  Home  Ins.  Co.,  207  111.  App.  492 838 

Fillingham  v.  Detroit,  etc.,  R.  Co.,  207  Mich.  644,  175  N.  W.  227 577 

Fillmore  v.  Rhode  Island  Co.  (R.  I.),  105  Atl.  564 569,  599,  613 

Fimple  v.  Southern  Pac.  Co.,  38  Cal.  App.  727,  177  Pac.  871 581 

Finegan  v.  Piercy   Contracting  Co..   189   N.   Y.   App.   Div.    699,    178   N.    Y. 

Suppl.  785 644 

Fippinger  v.  Glos,  190  111.  App.  238 297,  322,  930 

Firemen's  Fund  Ins.  Co.  v.  Schreiber,  150  Wis.  42,  135  N.  W.  507,  45  L.  R.  A. 

(N.  S.)  314,  Ann.  Cas.  1913  E.  823 207 

Firestone  Tire  &  Rubber  Co.  v.  Anderson  (lovpa),  180  N.  W.  273 885 

Firestone  Tire  &  Rubber  Co.  v.  Seiberling,  257  Fed.  74 803 

First  Nat.  Bank  of  Everett  v.  Northwest  Motor  Co.,  108  Wash.   167,  183 

Pac.  81 882 

First  Nat.  Bank  of  Roff  v.  State  (Okla.),  178  Pac.  670 12,  58 

Firth  v.  Southern  Pac.  Co.   (Cal.  App.) ,  186  Pac.  815 568 

Fischer  v.  International  Ry.  Co.,  112  Misc.   (N.  Y.)    212,  182  N.  Y.  Suppl. 

313 184,  713 

Fischer  v.  McGrath,  112  Minn.  456,  128  N.  W.  579 540 

Fischer  v.  Michigan  Ry.  Co.,  203  Mich.  668,  169  N.  W.  819 611,  617 

Fischer  v.  Pollitt  (N.  J.),  112  Atl.  305 159 

Fish  v.  Pennsylvania  Co.,  259  Fed.  201 577,  688 

Fishblate  v.  Fidelity  Co.,  140  N.  C.  589,  53  S.  E.  354 808 

Fisher  v.  City  Dairy  Co.  (Md.),  113  Atl.  95 719 

Fisher  v.  City  of  New  Bern,  140  N.  C.  506,  53  S.  E.  342,  5  L.  R.  A.  (N.  S.) 

543,  111  Am.  St.  Rep.  857 664 

Fisher  v.  Ellston,  174  Iowa,  364,  156  N.  W.  422 297,  330,  391,  685 

Fisher  v.  Murphy,  20  Ont.  W.  R.   (Canada)   201,  3  Ont.  W.  N.  150 39 

Fisher  v.  O'Brien,  99  Kans.  621,  162  Pac.  317 297,  301,  304,  307,  321 

Fisber  v.  Union  R.  Co.,  86  App.  Div.  365,  83  N.  Y.  Suppl.  694 921 

Fisher  Motor  Car  Co.  v.  Seymour,  9  Ga.  App.  465,  71  S.  E.  764 921 

Fishwick  v.  State,  33  Ohio  Cir.  Ct.  R.  63 767 

Fisick  v.  Lorber,  95  Misc.   (N.  Y.)  574,  159  N.  Y.  Suppl.  722 632,  637 

FisH  v.  Poplin  (Cal.  App.) ,  189  Pac.  722 453 

Fitch  V.  Bay  St.  Ry.  (Mass.) ,  129  N.  E.  423 607 

Fittin  V.  Sumner,  176  App.  Div.  617,  163  N.  Y.  Suppl.  443 305,  344,  443 

463.  464 

Fitzgerald  v.  Cardwell    (Mo.   App.) ,  226  S.  W.  971 171,  644,  645 

Fitzgerald  v.  Russell,  155  N.  Y.  App.  Div.  854,  140  N.  Y.  Suppl.  519.  .452.  487 

Fitzjarrel  v.  Boyd,  123  Md.  497,  91  Atl.  547 678 

Fitzsimons  v.  Isman,  166  N.  Y.  App.  Div.  262,  151  N.  Y.  Suppl.  552 ..  .  422.  433 

483,  628 

Fitzsimmons  v.  Snyder,   181    111.   App.    70 46,  517.  518 

F.  J.  Gooledge  &  Sons  v,  Johnson-Gewinner  Co.,  17  Ga.  App.  733,  88  S.  E. 

409 516 

Flack  V.  Metropolitan  St.  Ry.  Co.,  162  Mo.  App.  650,  145  S.  W,  110 613 

Flaherty  v.  Maine  Motor  Carriage  Co.,  117  Me.  376,  104  Atl.  627 863 


1188  Table  of  Cases. 


Flannery  v.  Interurban  Ry.  Co.,  171  Iowa,  238,  153  N.  W.  1027 550, 


Section 


556 


592,  599,  609,  617 
416 
362 


Flannigan  v.  McLean   (Pa.),  110  Atl.  370 324,  329,  415, 

Flannigan  v.  Nash,  190  Mo.  App.  578,  176  S.  W.  248 

Flater  v.  Fey,  70  Mich.  644,  38  N.  W.  656 297 

Fleischner  v.  Durgin,  207  Mass.  435,  93  N.  E.  801,  33  L.  R.  A.   (N.  S.)   79, 

20  Ann.  Gas.  1291 628,  632,     633 

Fleming  v.  Gerlinger  Motor  Car  Co.,  86  Oreg.  195,  168  Pac.  289 856 

Fleming  v.  Gates,  122  Ark.  28,  182  S.  W.  509 531,     534 

Fletcher  v.  Dixon,  113  Md.  101,  77  Atl.  326 525,     91p 

Fletcher  v.  Dixon,   107  Md.  420,  68  Atl.  875 48,  277,  278,     525 

Fletcher  American  Nat.  Band  v.  McDermid  (Ind.  App.),  128  N.  E.  685.. 882,    883 

Flint  V.  Newton   (Tex.  Civ.  App.),  136  S.  W.  820 871 

Flora  V.  Julesburg  Motor  Co.  (Colo.) ,  193  Pac.  545 683 

Flores  v.  Gracia   (Tex.  Civ.  App.),  226  S.  W.  743 297,  321,  501,  628,     634 

Floweree  v.  Thornberry   (Mo.  App.) ,  183  S.  E.  359 322,    491 

Fluckey  v.  Southern  Ry.  Co.,  242  Fed.  469 554,  559,    689 

Flynn  v.  Lewis,  231  Mass.  550,  121  N.  E.  493,  2  A.  L.  R.  896 660,     678 

Flynn  v.  Siezega  (R.  I.),  113  Atl.  1 •     430 

Flynt  V.  Fondern    (Miss.),   84  So.   188 247,  249,  251,  267,  332,     374 

Fogg  V.  New  York,  etc.,  R.  Co.,  223  Mass.  444,  111  N.  E.  960 550,  553,     557 

558,  560,  565,  568,  569,  576,     688 
Foley  V.  Forty-second  St.  R.  Co.,  49  Misc.    (N.  Y.)    649,  97  N.  Y.  Suppl. 

958 598,     600 

Foley  V.  Forty-second  St.,  etc.,  R.  Co.,  52  Misc.    (N.  Y.)    183,   101  N.  Y. 

Suppl.  780 722 

Foley  V.  Lord,  232  Mass.  368,  122  N.  E.  393 395,     919 

Follmer  v.  Pennsylvania  R.  Co.,  246  Pa.  St.  367,  92  Atl.  340 277,     550 

Folwell  V.  Demach  Motor  Car  Co.,  144  La.  783,  81  So.  313 467 

Fong  Lin  v.  Probert  (Cal.  App.),  195  Pac.  437 452,     476 

Fonsler  v.  Atlantic  City,  70  N.  J.  L.  125,  56  Atl.  119 71,  138,  167,     168 

Foos  v.  United  Rys.  Co.  (Md.) ,  110  Atl.  849 593 

Foot  v.  American  Produce  Co.,  195  Pa.  St.  190,  45  Atl.  934,  49  L.  R.  A. 

764 267,     376 

Forbes  v.  Reinman,  112  Ark.  417,  166  S.  W.  563 177,     644 

Ford  V.  Ford  Motor  Co.,  179  N.  Y.  App.  Div.  472 791,"  800 

Ford  V.  Ford  Motor  Co.,  181  N.  Y.  App.  Div.  28,  168  N.  Y.  Suppl.  176 802 

Ford  V.  Whiteman,  2  Penn.  (Del.)  355,  45  Atl.  543 710 

Ford  Motor  Co.  v.  Crawford  Auto  Co.  (Tex.  Civ.  App.),  206  S.  W.  108 796 

Ford  Motor  Co.  v.  Freeman  (Tex.  Civ.  App.) ,  168  S.  W.  80 878 

Ford  Motor  Co.  v.  International  Automobile  League,  209  Fed.  235 798 

Ford  Motor  Co.  v.  Livesay  (Okla.),  160  Pac.  901 785,     800 

Ford  Motor  Co.  v,  Maeder  (Wis.) ,  177  N.  W.  39 885 

Ford  Motor  Co.  v.  Osburn,  140  111.  App.  633 202 

Ford  Motor  Co,  v.  Wilson,  223  Fed.  808 803 

Forgy  V.  Rutledge,   167   Ky.   182,    180   S.   W.   90 26,  322,  324,  330,    414 

443,  444,     445 

Fomoff  V.  Columbia  Taxicab  Co.,  179  Mo.  App.  620,  162  S.  W.  699 170 

Forsythe  v.  Killam.  193  111.  App.  534 413 


Table  of  Cases.  1189 

Section 
Fort  Smitli  v.   Scruggs,   70  Ark.   549,  69  S.   VV.   679.  91   Am.  St.  Rep.   100, 

58  L.  R.  A.  921 1^* 

Fort  Smith,  etc.,  R.  Co.  v.  Pence,  122  Ark.  611,  182  S.  W.  568 560,  68r, 

Fort  Smith  &  W.  R.  Co.  v.  Seran,  44  Okla.  169,  143  Pao.  1141 570 

Fort  Wayne  Cooperage  Co.  v.  Page  (Ind.  App.),  82  N.  E.  83  affirmed,  170 

Ind.  585,  84  N.  E.  145,  23  L.  R.  A.  (N.  S.)   946 46 

Fort  Wayne  &  N.  L  Tr.  Co.  v.  Schoefif,  56  Ind.  App.  540,  105  N.  E.  924.. 277,  550 

Fort  Worth,  etc.,  R.  Co.  v.  Hart  (Tex.  Civ.  App.),  178  S.  W.  795 557,  566 

Foshee  v.  State,  15  Ala.  App.  113,  72  So.  685 93,  94,  96,  119 

Foster  v.  Bauer   (Wis.).  180  N.  W.  817 259,  267.  297,  298,  304.  321,  498 

503,  509 

Foster  v.  Curtis,  63  Pa.  Super.  Ct.  47:! 416 

Foster  v.  Curtis,  213  Mass.  79,  99  N.  E.  961,  Ann.  Cas.  1913  E  1116..  ..8,  18 

267,  270,  377,  383 

Foster  v.  Rinz,  202  Mich.   601,  168  N.   W.   420 628,  656 

Foundation  Co.  v.  Henderson,  264  Fed.  483 673 

Powkes  V.  J.  I.  Case  Threshing  Mach.  Co.,  46  Utah,  502,  151  Pa<;.  53 324 

519,  628 

Fowler  v.  State,  81  Tex.  Cr.  574,  196  S.  W.  951 200 

Fox  V.  Barekman,  178  Ind.  572,  99  N.  E.  989 297,  321,  339 

Fox  V.  Great  Atlantic  &  P.  T.  Co.,  84  N.  J.  Law  726 456 

Foxley  v.  Gallagher  (Utah),  185  Pac.  775 667 

Foy  V.  United  Rys.  Co.  of  St.  Louis  (Mo.  App.),  226  S.  W.  325. .  .281,  591,  594 

Francis  v.  Gaffey,  211  N.  Y.  47,  105  N.  E.  96 708 

Franey  v.  Seattle  Taxicab  Co.,  80  Wash.  396,  141  Pac.  890 306,  329,  330 

444,  454,  471,  472 

Frank  v.  Daily,  92  N.  J.  Law  118,  105  Atl.  9 . .  875,  879 

Frank  v.  Wright,  140  Tenn.  535,  205  S.  W.  434 654,  673,  907 

Frank  Bird  Transfer  Co.  v.  Shaw  (Ind.  App.),  124  N.  E.  776 277 

Frank  C.  Weber  Co.  v.  Stevenson  Grocery  Co.,  194  111.  App.  432 257,  264 

267,  297,  376,  389,  409 

Frankel  v.  Hudson,  271  Mo.  495,  196  S.  W.  1121.. 281,  327,  414,  421,  485,  487 

Frankel  v.  Norris,  252  Pa.  14,  97  Atl.  104 352,  415,  423,  425,  475 

Fransen  v.  Talk  Paper  Co.,  135  Minn.  284,  160  N.  W.  789 410 

Frashella  v.  Taylor,  157  N.  Y.  Suppl.  881 342,  415, 

Fredericks  v.  Chicago  Rys.  Co.,  208  111.  App.  172 679, 

Fredickson  v.  Locomobile  Co.  of  America,  78  Neb.  775,  111  N.  W.  845 784 

Freedman  v.  City  of  Winnipeg.  143  D.  L.  R.  (Canada)  126 698,  710 

Freel  v.  Wanamaker,  208  Pa.  St.  279,  57  Atl.  563 305,  443 

Freeman  v.  Engel,  102  Misc.  (N.  Y.)  472,  168  N.  Y.  Suppl.  1014 885 

Freeman  v.  Green    (Mo.   App.),    186    S.   W.    1166.... 72,  77,  236,  262,  352,  394 

409,  634 

Freeze  v.  Harris,  162  HI.  App.  118 517 

Freibaum  v.  Bradv.  143  N.  Y.  App.  Div.  220,  128  N.  Y.  Suppl.  121.  .    .623,  627 

628,  643 

Fremont,  City  of  v.  Keating,  96  Oh.  St.  468,  118  N.  E.  114.... 57,  58.  72,  730 

French  v.  Holt,  53  Vt.  364 25 

French  v.  Manning  (Mass.),  130  N.  E.  97 677 

French  v.  Mooar,  226  Mass.  173,  115  N.  E.  235 443,  452,    487 


446 
688 


1190  Table  of  Cases. 

Section 

French  v.  Pullman  Motor  Car  Co.,  242  Pa.  St.  136,  88  Atl.  876 789 

Frery  v.  Rhode  Island  Co.,  37  R.  I.  96,  91  Atl.  1 351,  591 

Frieker  v.  Philadelphia  Rapid  Transit  Co.,  63  Pa.  Super.  Ct.   381 ...  .  292,  305 

488,  501 

Friedrich  v.  Boulton,  164  Wis.  526,  159  N.  W.  803. 359,  516 

Frint  Motorcar  Co.  v.  Industrial  Com.  of  Wis.,  168  Wis.  436,  170  N.  W.  285.  228 

Frisbie  v.  City  of  Columbus,  80  Oli.  St.  686,  89  N.  E.  92 77,  99 

Fritz  V.  F.  W.  Hoohspeier  Co.,  287  111.  574,  123  N.  E.  51 77 

Frush  V.  Waterloo^  etc.,  Ry.  Co.,  185  Iowa,  156,  169  N.  W.  360 580 

Fuller  V.  Cameron  (Tex.  Civ.  App.),  209  S.  W.  711 871 

Fuller  V.  Illinois  Central  R.  Co.,  186  Iowa,  686,  173  N.  W.  137 577 

Fuller  V.  Inman,  10  Ga.  App.  680,  74  S.  E.  287 412 

Fuller  V.  Webster,  5  Boyce's   (28  Del.)    538,  95  Atl.  335 886 

Fullerton  v.  U.  S.  Casualty  Co.,  184  Iowa,  219,  167  N.  W.  700 660,  826 

Fulton  V.  Mohr,  200  Mich.  538,  166  N.  W.  851 459 

Fulton  Bank  v.  Matthew,  161  Iowa,  634,  143  N.  W.  400 870 

Fulton  Motor  Truck  Co.  v.  Gordon,  etc.,  Co.  (Neb.),  181  N.  W.  162 851 

Furtado  v.  Bird,   26   Colo.   App.   153,   146  Pac.   58 256.  327,  362,  380,  381 

418,  481,  489 
F.  W.  Hoehspeier,  Inc.  v.  Industrial  Board  of  Illinois,  278  111.  523,  116  N.  E. 

121 228 

G 

Gaflfey  v.  St.  Paul,  etc.,  Ins.  Co.,  221  N.  Y.  113,  116  N.  E.  778 813 

Gaffey  v.  St.  Paul  Fire  &  M.  I.  Co.,  164  N.  Y.  App.  Div.  381,  149  N.  Y. 

Suppl.  859 813 

Gaffney  v.  Dixon,    157   111.   App.    589 679,  685,  690,  696,  698,  706,  716 

Gage  V.  Atchison,  etc.,  R.  Co.,  91  Kans.  253,  137  Pac.  938 572 

Gage  V.  Callanan,  113  N.  Y.  Suppl.  227 881 

Gage  V.  Callanan,  57  Misc.  (N.  Y.)  479,  109  N.  Y.  Suppl.  844 201,  640 

Gagnier  v.  City  of  Fargo,  11  N.  D.  73,  88  N.  W.  1030,  1031,  95  Am^  St. 

Rep.  705 18 

Gagnon  v.  Robitaille,  16  R.  L.  N.  S.    (Canada)    235 49,  243,  442 

Gagnon  v.  Worcester  Consol.  St.  Ry.  Co.,  231  Mass.  160,  120  N.  E.  381. ...  588 

591,  609,  616 
Gaines  v.  City  of  New  York,  156  N.  Y.  App.  Div.  789,  142  N.  Y.  Suppl. 

401 698,  705 

Galenter  v.  Peti  (N.  J.) ,  114  Atl.  408 475,  487 

Gall  V.  Detroit  Journal  Co.,  191  Mich.  405,  158  N.  W.  36 644 

Gallagher  v.  Gunn,  16  Ga.  App.  600,  85  S.  E.  930 673 

Gallagher  v.  Toronto  Ry.  Co.,  41  O.  L.  R.  (Canada)  143 617 

Galloway  v.  Perkins,  198  Ala.  658,  73  So.  956 678,  679,  922 

Galveston,  etc..  El.  R.  Co.  v.  English  (Tex.  Gv.  App.),  178  S.  W.  666 720 

Galveston,  etc.,  R.  Co.  v.  Sloman  (Tex.  Civ.  App.),  195  S.  W.  321 570,  575 

Galveston,  etc.,  R.  Co.  v.  Wesch,  —  Tex.  Civ.  App.  1893,  21  S.  W.  62.  .922,  925 

Galveston,  H.  &  S.  A.  R.  Co.  v.  Marti  (Tex.  Civ.  App.),  183  S.  W.  846.  .577,  581 
Galveston-Houston  Elec.  Ry.  Co.   v.   Patella    (Tex.  Civ.  App.),  222   S.  W. 

615 , 556,  577 


Tabi.e  or  Cases.  1191 

Section 

Gamble  v.  Uncle  Sam  Oil  Co.  of  Kans.,  100  Kans.  74,  163  Pac.  627 420 

Garcia  v.  Borino,  77  Fla.  211,  81  So.  155 673 

Gardiner  v.  Solomon,   300   Ala.    115,   75   So.   621... 36,  292,  295,  624,  656,  657 

658,  660 

Gardiner  v.  Studebaker  Corp.,  204  Mich.  313,  169  N.  W.  828 283 

Gardiner  v.  Famum,  230  Mass.  193,  119  N.  E.  666 623,  673 

Gardner  v.  LeFevre,  180  Mich.  219,  146  N.  W.  653 875,  879,  880 

Gardner  v.  Wasco  County,  37  Orcg.  392,  61  Pac.  834 713 

Gardner  v.  St.  Louis  Screw  Co.,  201  Mo.  App.  340.  210  S.  W.  930 677 

Gardner  v.  Wilmington,  etc..  Tract.  Co..  7  Boyce's  (30  Del.)   521.  108  Atl. 


740. 


615 


Gardner  v.  Vance,  63  Ind.  App.  27.  113  N.  E.  1006 414,  457,  471 

Garfield  v.  Hartford,  etc.,  Ry.,  80  Conn.  260,  67  Atl.  890 617 

Garfield  v.  Peerless  Motor  Car  Co.,  189  Mass.  39.-,.  75  N.  E.  695.  .789,  792,  794 

Garrett  v.  Peoples  R.  Co.,  6  Penn.  (Del.)   29,  64  Atl.  254.... 339,  585,  587,  591 

592,  599,  603,  605,  613,  615,  617,  618,  619 

Garrett  v.  Turner,  235  Pa.  St.  383.  84  Atl.  354 62,  318 

Garrett  v.  Turner,  47  Pa.  Super.  Ct.  128 59,  62 

Garske  v.  Ridgeville,  123  Wis.  503,  102  N.  W.  22,  3  Am.  Gas.  747 707 

Gasconade  County  v.  Gordon,  341  Mo.  569,  145  S.  W.  1160 122 

Gaskins  v.  Hancock,  156  N.  C.  56.  72  S.  E.  80 36,  520 

Gassheimer  v.  District  of  Columbia.  25  App.  D.  C.  179 162 

Gassenheimer  v.  District  of  Columbia,  26  App.  Cas.   (D.  C.)   557 8,  34,  132 

Gastataro  v.  Brodie,  189  App.  Div.  779,  179  N.  Y.  Suppl.  324 — 

Gates  V.  Pendleton   (Cal.) ,  195  Pac.  664 642 

Gautier  v.  Lange,  89  Misc.   (N.  Y.)   372,  151  N.  Y.  Suppl.  902 351 

Gay  V.  Shadle  (Iowa) ,  176  N.  W.  635 911 

Gearhart  v.  Stouder,  161  Iowa.  644.  143  N.  W.  499 519 

GedToice  v.  Citv  of  New  York,   109  N.  Y.   App.  Div.   176,  95  N.  Y.  Suppl. 

645 ' 698,  706 

Geeck  V.  Luckenbill  (Mich.),  183  N.  W.  729 394,  398 

Geiger  v.  Garrett  (Pa.),  113  Atl.  195 498 

Geiger  v.  Sanitary  Farm  Dairies  (Minn.),  178  N.  W.  501 438,  441 

Geise  v.  Mercer  Bottling  Co.,  87  N.  J.  Law  224,  94  Atl.  24 677 

Geiselman  v.  Schmidt,  106  Md.  580,  68  Atl.  202 277 

Geiss  V.  Twin  City  Taxicab  Co.,  120  Minn.  368,  139  N.  W.  611. .  .  .213,  639,  666 

Gembel  v.  Minneapolis,  etc.,  Ry.  Co.,  129  Minn.  262,  152  N.  W.  408 574 

General  Fire  Repair  Co.  v.  Price,  115  N.  Y.  Suppl.  171 201 

Geoffroy  v.  New  York,  etc.,  R.  Co.  (R.  I.),  104  Atl.  883 557,  563 

George  v.  Carstens  Packing  Co.,  91  Wash.  637,  158  Pac.  529 628,  632,  633 

George  v.  McManus,  27  Cal.  App.  414,  150  Pac.  73 300 

George  v.  Northern  Pac.  Ry.  Co.  (Mont.),  196  Pac.  869 553,  557,  560 

George  A.  Hornel  Co.  v.  Minneapolis  St.  Ry.  Co..  130  Minn.  469,  153  N.  W. 

867 359 

George  Eastman  Co.  v.  Industrial  Ace.  Com.   (Cal.),  200  Pac.  17 228 

George  Weidman  Brewing  Co.  v.  Parmlec.  167  Ky.  303,  ISO  S.  W.  350 456 

Geren  v.  Hallenbeck,  66  Greg.   104.   132  Pac.   1164 208,  884 

Gerhard  v.  Ford  Motor  Co.,   155   Mich.   618.   119  N.   W.   904,   20  L.   R.   A. 

(N.  S.)    232 439.  462.  469 


1192  Table  of  Cases. 

Section 
Gerretson  v.  Rambler,  149  Wis.  528,  136  N.  W.  186,  40  L.  R.  A.    (N.  S.) 

457 177,  644 

Gershel  v.  White's  Express  Co.,  113  N.  Y.  Suppl.  919 672 

Gersman  v.  Atchison,  etc..  R.  Ck).    (Mo.),  229  S.   W.   167 353,  559,  56.5 

567,  682 

Gewanske  v.  Ellsworth,  166  Wis.  250,  164  N.  W.  996 628,  631 

Gibbons  v.  Ogden,  22  U.  S.  (9  Wheat)  1,  6  L.  Ed.  23 86 

Gibba  v.  Dayton,  166  Mich.  263,  131  N.  W.  544 503,  506 

Gibson  v.  Atlantic  Coast  Line  R.  Co.,  170  S,  Car.  331,  96  S.  E.  619 569 

Gibson  v.  Dupree,  26  Colo.  App.  324,  144  Pac.  1133 207,  212 

Gibson  v.  Georgia  L.  Ins.  Co.,  17  Ga.  App.  43,  86  N.  E.  335 817 

Gibson  v.  Gray  Motor  Co.  (Minn.),  179  N.  W.  729 452,  487 

Giese  v.  Kimball,  184  Iowa,  1283,  169  N.  W.  639 270,  363,  403 

GifFord  v.  Jennings,  190  Mass.  54,  76  N.  E.  233 329,  330,  518,  521,  526 

Gilbert  v.  Bishop,  78  Misc.  (N.  Y.)   560,  138  N.  Y.  Suppl.  689 875 

Gilbert  v.  Burque,  72  N.  H.  521,  57  Atl.  97 49,  260,  277,  391 

Gilbert  v.  Hardimon,  40  S.  Dak.  482,  168  K  W.  25 212 

Gilbert  v.  Kansas  City  Rys.  Co.  (Kans.),  197  Pac.  872 689 

Gilbert  v.  Southern  Bell  Tel.  &  Tel.  Co.,  200  Ala.  3,  75  So.  315. .  .322,  338,  715 

Gilbert  v.  Vanderwall,  181  Iowa,  685,  165  N.  W.  165... 310,  326,  441,  443,  487 

Gile  V.  Interstate  Motor  Car  Co.,  27  N.  Dak.  108,  145  N.  W.  732 786,  79(t 

Giles  V.  Ternes,  93  Kans.  140,  143  Pac.  491,  144  Pac.  1014.. 267,  344,  375,  41J> 

Giles  V.  Voiles,  144  Ga.  853,  88  S.  E.  207 277,  281,  283,  518,  519 

Gill  V.  City  of  Dallas  (Tex.  Civ.  App.),  209  S.  W.  209. .  .135,  136,  138,  153,  154 
Gilland  v.  Manufacturer's  Casualty  Ins.  Co.,  92  N.  J.  Law  146,  104  Atl. 

709 15^ 

Gillard  v.  Manufacturer's  Casualty  Ins.  Co.,  93  N.  J.  L.  215,  107  Atl.  446. .  135 

158,  168 

Gillet  V.  Shaw,  217  Mass.  59,  104  N.  E.  719 902 

Gillett  V.  Michigan  United  Tract.  Co.,  205  Mich.  410,  171  N.  W.  536 55:: 

592,  614 
Gillingham  v.  Ohio  River  R.  Co.,  35  W.  Va.  588,  14  S.  E.  243,  14  L.  R.  A. 

798,  29  Am.  St.  Rep.  827 44 

Gillipie  v.  Pryor  (Mo.  App.),  204  S.  W.  835. .  .576,  577 

Gilman  v.  Central  Vermont  Ry.  Co.,  207  Atl.  122 126,  573,  578 

Gilwee  v.  Pabst  Brewing  Co.,  195  Mo.  App.  487,  193  S.  W.  886 717,  710 

720,  721,  722 

Gindberg  v.  Ehret,  79  Misc.  R.  627,  140  N.  Y.  Suppl.  379 452 

Ginter  v.  O'Donoghue  (Mo.  App.),  179  S.  W.  732 278,  305,  324,  414,  44:; 

444,  448,  455,  456,  462,  484,  487 

Gipe  v.  Lynch,  155  Iowa,  627,  136  N.  W.  714 337,  519,  524,  542,  540 

Gittings  v.  Schenuit,  122  Md.  282,  90  Atl.  51 ; 362 

Glanville  v.  Chicago,  etc.,  R.  Co.   (Iowa),   180  N.  W.   152 580,  688,  689 

Glasgow  V.  Dorn   (Mo.  App.),  220  S.  W.  509 349 

Glassman   v.  Harry,  182  Mo.  App.  304,  170  N.  W.  403 628,  630,  673,  674 

Glatz  V.  Kroeger  Bros.  Co.,  168  Wis.  635,  170  N.  W.  934 262,  497,  503 

Glende  v.  Spraner,   198  HI.  App.   584 203,  205,  212 

Glinco  V.  Wimer  (W.  Va.),  107  S.  E.  198 418,  440 

Glink  V.  Cumberland  &  W,  Elec.  Ry.  Co.,  124  Md.  308,  92  Atl.  778 591 


Table  of  Cases.  1193 

Section 

Glover  v.  State   (Ala.),  88  So.  437 946 

Gnecco  v.  Pederson,  154  N.  Y.  Suppl.  12 351,  359,  414 

Goan  V.  Ogden,  etc.,  Ry.  Co.,  51  Utah,  285,  169  Pac.  949 591,  599 

Godfrey  v.  Cooper,  46  O.  L.  R.   (Canada)    565 126,  127 

Godley  v.  Gowen,  89  Wash.  124,  154  Pac.  141 228 

Goff  V.  Atlantic  Coast  Line  R.  Co.,  179  N.  Car.  216,  103  S.  E.  320.  .  .  .553,  557 

565,  575,  580 

Goff  V.  Clarksburg  Dairy  Co.  (W.  Va.),  103  S.  E.  58 326,  420,  633,  677 

Goge  V.  Boston  &  M.  R.  R.,  77  N.  H.  289,  90  Atl.  855 277 

Golay  V.  Northern  Pac.  Ry.  Co.   (Wash.),  177  Pac.  804 557,  560 

Goldblatt  V.  Blockebank,   166  HI.   App.   315 414,  920 

Golden  Eagle  Dry  Goods  Co.  v.  Mockbee  (Colo.),  189  Pac.  850 262,  394 

Goldman  v.  Lanigan  Bros.  Co.,  185  App.  Div.  742,  173  N.  Y.  Suppl.  777.. 453,  484 

Goldring  v.  White,  63  Fla.  162,  58  So.  367 456 

Goldsby  v.  City  of  Seattle  (Wash.) ,  197  Pac.  787 609,  614 

Goldsmith  v.  State,  38  Tenn.   (1  Head.)    154 728 

Goldsmith  Grant  Co.  v.  United  States,  41  Sup.  Ct.  189 940,  944 

Goldstein  v.  Hirsh,  108  Misc.   (N.  Y.)   294,  178  N.  Y.  Suppl.  325,  affirmed 

191  App.  Div.  492,  181  N.  Y.  Suppl.  559 194 

Gones  v.  Illinois  Printing  Co.,  205  111.  App.  5 705 

Goodby  v.  State  (Tex.  Cr.),  225  S.  W.  516 768 

Gooderham  v.  Toronto  R.  Co.,  22  D.  L.  R.  (Canada)  898,  8  O.  W.  N.  3 613 

Goodes  v.  Lansing  &  Suburban  Traction  Co.,  150  Mich.  494,  114  N.  W.  338.  92'.> 

Goodman  v.  Bauer,  60  Ind.  App.  671,  111  N.  E.  315 513 

Goodman  v.  Georgia,  etc.,  Co.,  189  Ala.  130,  66  So.  649 837 

Goodman  v.  Wilson,  129  Tenn.  464,  166  S.  W.  752,  51  L.  R.  A.    (N.  S.) 

1116 628,  668 

Goodrich  v.  Matthews,  177  N.  Oar.  198,  98  N.  E.  529 267,  491 

Good  Roads  Co.  v.  Kansas  City  Rys.  Co.    (Mo.  App.),  217  S.  W.  858 587 

616,  619 

Goodwin  v.  City  of  Concord  (N.  H.) ,  111  Atl.  304 704,  710,  714 

Goodwin  v.  State,  63  Tex.  Cr.  140,  138  S.  W.  399 735 

Goodyear  v.  Koehler,  S.  G.  Co..  159  App.  Div.  116,  143  N.  Y.  Suppl.  1046.  786 

Goosen  v.  Packard  Motor  Co.,  174  Mich.  654,  140  N.  W.  947 350 

Gordon  v.  Bleek  Auto  Co.  (Mo.  App.) ,  233  S.  W.  265 673 

Gordon  v.  Director-General    (Pa.) ,  112  Atl.  68 568 

Gordon  v.  Illinois  Cent.  R.  Co.,  168  Wis.  244,  169  N.  W.  570 550,  557.  577 

Gordon  v.  Stadelman,  202  111.  App.  255 414,  451,  484 

Gordon  v.  Texas  &  Pacific  Mercantile  &  Mfg.  Go.    (Tex.  Civ.  App.),   190 

S.    W.    748 623,  625.  627.  628.  631,  673.  674 

Gouin  V.  Ryder  (R.  L),  87  Atl.  185 452 

Gouin  V.  Ryder,  38  R.  L  31,  94  Atl.  670 414 

Gould  V.  Brock,  221  Pa.  St.  38,  69  Atl.  1122 824.  826 

Gould  V.  Elder,  219  Mass.  396,  107  N.  E.  59 118,  125 

Gousse  V.  Lowe  (Gal.  App.) ,  183  Pac.  295 633.  677 

Gowdek  v.  Cudahy  Packing  Co.,  233  Mass.  105,  123  N.  E.  398 125 

Goyena  v.  Berdoulay,  154  N.  Y.  Suppl.  103 880 

Grabau  v.  Pudwill  (N.  Dak.) ,  178  N.  W.  124 772 

Graham  v.  Consol.  T.  Co.,  54  N.  J.  Law  10,  44  Atl.  964 928 


1194  Table  or  Cases. 

Section 

Graham  v.  Hagman,  270  111.  252,  110  xN.  E.  337 49,  50,  51,  278,  300,     332 

348,  361,  399,     401 

Graham  v.  Henderson,  254  Pa.  137,  98  Atl.  870 r 631,     633 

Graham  v.  Sly,  177  Mo.  App.  348,  164  S.  W.   136 277,  518,  527,     679 

Graham's  Adm'r  v.  Illinois  Cent.  R.  Co.,  185  Ky.  370,  215  S.  W.  60 688 

Granader  v.  Detroit  United  Ry.,  206  Mich.  367,  171  N.  W.  362.  .    .302.  585,     614 

Grand  v.  Kasviner,  28  Cal.  App.  530,  153  Pac.  243 929 

Grand  Rapids,  etc.,  R.  Co.  v.  Huntley,  38  Mich.  537,  31  Am.  Rep.  321 ...  .     922 
Granger  v.  Farrant,    179   Mich.    19,    146   N.   W.   218.... 242,  297,  311,  320.     326 

359,  381,  383,  400,     680 

Granini  v.  Cerini,  100  Wash.  687,  171  Pac.  1007 228,     836 

Grant  v.  Armstrong,  55  Wash.  365,  104  Pae.  632 525,     547 

Grastataro  v.  Brodie,  189  N.  Y.  App.  Div.  779,  179  N.  Y.  Suppl.  324 644 

Graves  v.  Northern  Pac.  Ry.  Co.,  30  Idaho,  542,  166  Pac.  571.. 550,  553.  567,     580 

Gray  v.  Batchelder,  208  Mass.  441,  94  N.  E.  702 438 

Gray  v.  Chicago,  etc.,  R.  Co.,  155  111.  App.  428 592,     593 

Gray  v.  Peterborough  Ry.  Co.,  180  W.  N.  (Canada)  260 626 

Greater  Motors  Corp.  v.  Metropolitan  Taxi  Co.   (Wash.),  197  Pac.  327....     262 

394,     396 

Great  Western  Motors  Inc.  v.  Hibbard  (Wash.),  192  Pac.  958 856 

Great  Western  Ry.  Co.  v.  Lee  (Colo.) ,  198  Pac.  270 572 

Green  v.  Great  Northern  R.  Co.,  123  Minn.  279,  143  N.  W.  722 577 

Green  v.  City  of  San  Antonio  (Tex.  Civ.  App.),  178  S.  W.  6 135,  137,     138 

144,  147,   153,   155,     156 

Green  v.  Streitmatter,  183  111.  App.  25 351 

Greenbaum  v.  Costa  (Pa.),  113  Atl.  79 268,    487 

Greene  v.  Atchison,  etc.,  R.  Co.  (Kans.),  198  Pac.  956 575 

Greene  v.  Fankhaiiser,  137  N.  Y.  App.  Div.  124,  121  N.  Y.  Suppl.  10O4 881 

Greengerb  &  Bond  Co.  v.  Yarborough  (Ga.  App.),  106  S.  E.  624 177,    644 

Greenhalch  v.  Barber  (R.  L) ,  104  Atl.  769 277,  414,    415 

Greenhill  v.  Connecticut  Co.,  92  Conn.  560,  103  Atl.  646 592.  597,     599 

Greenwood  v.  State,  76  Tex.  Cr.  364,  174  S.  W.  1049 768 

Gregory  v.  Slaughter,  124  Ky.  345,  99  S.  W,  247,  30  Ky.  Law  Rep.  500,  8 

L.  R.  A.  (N.  S.)  1228 414 

Greig  v.  City  of  Merritt,  11  Dom.  Law  Rep.  852 .  .95,  96,     125 

Greiner  v.  Pennsylvania  Co.,  198  111.  App.  260 578 

Grier  v.  Samuel,  4  Boyce  (27  Del.)   106,  86  Atl.  209 49,  277,  279,  300,     305 

327,  392,  416,  435,  453,     628 

Grier  v.  Samuel,  4  Boyce's  (27  Del.)    74,  85  Atl.  759 .247,  267,     433 

Griessel  v.  Adeler,  183  N.  Y.  App.  Div.  816,  171  N.  Y.  Suppl.  183 836 

Greissing  v.  Oakland  Motor  Co.,  204  Mich.  116,  169  N.  W.  842 867 

Gresh  v.  Wanamaker,  237  Pa.  St.  13,  84  Atl.  1108 638 

Gretna  Holme,  The  (1897),  A.  C.  (Eng.)  597 722 

Griffin  v.  Hustis,  234  Mass.  95,  125  N.  E.  387 679,  688.  689,     690 

GriflFen  v.  Wood,  93  Conn.  99,   105  Atl.  354 325,  330,  432.     481 

Griffin  v.  Russell,  144  Ga.  275,  87  S.  E.  10,  L.  R.  A.  1916  F  216,  Ann.  Cas. 

1917  D  994 656,  657.     660 

Griffin  v.  San  Pedro,   etc.,   R.   Co..    170   Cal.    772,    151   Pac.    282.   L.   R.    A. 

1916  A  842 568 


Table  of  Cases.  1195 

Section 

Griffin  v.  Taxi  Service  Co.,  317  Mass.  293,  104  N.  E.  838 359 

Griffith  V.  Reddick   (Cal.  App.) ,  182  Pac.  984 878 

Griggs  V.  Renaiilt  Selling  Branch,  Inc.,  179  N.  Y.  App.  Div.  845,  167  N.  Y. 

Suppl.  355 851 

Grimes  v.  Cathoart,  69  Wash.  519,  125  Pac.  764 289 

Grogitski  v.  Detroit  Ambulance  Ck).,  186  Mich.  374,  152  N.  W.  923.. 351,  401,  402 

Gross  V.  Burnside   (Oal.),  199  Pac.  780 324,  338,  339,  487 

Gross  V.  Foster,   134  N.   Y.   App.  Div.   243,    118   N.   Y.   Suppl.    889 305,  311 

329,  478 

Grouoh  V.  Heflfner,  184  Mo.  App.  365,  171  S.  W.  23 425 

Groves  v.  Grand  Trunk  Western  Ry,  (Mich.),  178  N.  W.  232 557,  558 

Grudberg  v.  Ehret,  79  Misc.  627,  140  N.  Y.  Suppl.  379 263,  423 

Guderitz  v.  Boadway  Bros.,  39  Cal.  App.  48,  177  Pac.  859 516 

Gue  v.  Wilson,  87  S.  0.  144,  69  S.  E.  99 531 

Gugliemetti  v.  Graham  (Cal.  App.) ,  195  Pac.  64 158 

Guignon  v.  Campbell,  80  Wash.  543,  141  Pac.  1031 657,  658,  659 

Gulessarian  v.  Madison  Rys.  Co.    (Wis.),  179  N.  W.  579 616,  619,  680.  686 

Gulf  Refining  Co.  v.  McKernan,  170  N.  Oar.  314,  102  S.  E.  505 199 

Gunn  V.  Globe  &  Rutgers  F.  Ins.  Co.  (Ga.  App.),  101  S.  E.  691 838 

Gunsburger  v.  Kristeller,  189  N.  Y.  App.  Div.  82,  179  N,  Y.  Suppl.  506 480 

Gurney  v.  Piel,  105  Me.  501,  74  Atl.  1131 303,  361,  529 

Gustavson  v.  Hester,  211  HI.  App.  439 398,  686 

Guthrie  v.  Holmes,  272  Mo.  215,  198  S.  W.  854 633,  673,  674 

Guy  v.  Des  Moines  City  R.  Co.  (Iowa),  180  N,  W.  294 278.  590 

H 

Haacke  v.  Davis,   166  Mo.  App.   249,  148  S.  W.  450 315,  359,  414,  418,  443 

Haag  v.  Cohen   (Mo.  App.),  229  S.  W:  296 369 

Haas  V,  Newberg,  190  N.  Y.  App.  Div.  275,  179  N.  Y.  Suppl.  816 452,  487 

Haas  Tobacco  Co.  v.  American  Fidelity  Co.,  178  N.  Y.  App.  Div,  367,  165 

N.  Y.  Suppl.  230 831 

Hack  V,  Chicago  &  Interurban  Traction  Co.,  201  111.  App,  572 592,  593 

Hackett  v.  Lewis   (Cal.  App.),  173  Pac.   Ill 857 

Hackworth  v.  Ashby,  165  Ky.  796,  178  S.  W.  1074 397.  679 

Haddad  v.  Commercial  Motor  Truck  Co.,  146  La.  897,  9  A.  L.  R.  1380 891 

Hadfield  v.  Lundin,  98  Wash.  657,  168  Pac.  516 135,  136,  153,  155,  156 

Hagenah  v.  Bidwell  (Oal,  App.),  189  Pac.  799 267,  515 

Hagrestown,  City  of  v.  Raltz  (Md.) ,  104  Atl.  267 415 

Hahn  v.  P.  Graham  &  Co.,  148  La.  — ,  86  So.  651 263,  416 

Hftle  V.  Resinkoff   (Conn.).   Ill  Atl.  907 348,  406 

Hale  V.  State,  21  Ga.  App.  658,  94  S.  E.  823 773 

Haleen  v.  St.  Paul  City  Ry.  Co.,  141  Minn.  289,  170  N.  W.  207 599,  609 

Halff  V.  Jones  (Tex.  Civ.  App.),  169  S.  W.  906 851,  856,  861,  871,  872 

Hall  V.  Commonwealth  (Va.),  105  S.  E.  551 319 

Hall  V.  Oompton,   130   Mo.   App.    675,   108   S.   W.    1122 38,  43,  48,  49,  57 

278,  517,  518,  519,  520,  597 

Hall  V.  Dilworth,  94  Misc.    (N.  Y.)   240,  157  N.  Y.  Suppl.  1091 453,  460 

473,  475 


1196  Table  of  Cases. 

Section 

Hall  V.  West  Jersey  &  Seasbore  R.  Oo.,  244  Fed.  104 563,  689 

Hall  V.  Young  (Iowa) ,  177  N.  W.  694 669,  673,  674 

Hallett  V.  Orowell,  232  Mass.  344,  122  N.  E.  264 348,  516 

Hallissey  v.  Rothsoliild  &  Co.,  203  111.  App.  283 ; 389,  4i;i 

Hallman  v.  Dotham  Fooindry  &  Machine  Co.  {Ala.  App.),  82  So.  642 882 

Halparin  v.  Bulling,  50  Can.  Sup.  471,  20  Dom.  L.  R.  598 628,  630 

Halt,  ex  parte  (Okla.) ,  178  Pac.  360 138,  144 

Halverson  v.  Blosser,  101  Kans.  683,  168  Pac.  863 623,  625,  628,  642,  674 

Ham  V.  Los  Angeles  County   (Cal.  App.),  189  Pac.  462 71,  77,  307,  314 

321,  704,  710,  715 

Hambly  v.  Bay  State  St.  Ry.  Co.  (R.  I.),  100  Atl.  497 592,  618 

Hamel  v.  Peabody,   78  N.   H.   585,  97  Atl.   220 329,  332,  359,  438,  448,  452 

Hamilton  v.  Fireman's  Fund  Ins.  Co.  (Tex.  Civ.  App.),  177  S.  W.  173 807 

Hamilton  v.  Philadelphia  B.  &  W.  R.  Co.,  252  Pa.  615,  97  Atl.  850 568 

Hamilton  v.  State,  82  Tex.  Cr.  554,  20O  S.  W.  155 768 

Hamilton  v.  Vioue,  90  Wash.  618,  156  Pac.  853 668 

Hamilton  v.  Young   (Iowa),  175  N.  W.  694 259,  390 

Hamilton,  Harris  &  Co.  v.  Larrimer,  183  Ind.  429,  105  N.  E.  43 252,  382 

Hamilton  Motor  Car  Co.  v.  Heineman,  69  Pitts.  Leg.  Jour.  (Pa.)  205 877 

Hammer  v.  Connecticut  Co.   (Conn.) ,  108  Atl.  534 272 

Hammond  v.  Morrison,  90  N.  J.  Law  15,  100  Atl.  154 327,  442 

Hammond  v.  Pickett  (Tex.  Civ.  App.),  158  S,  W.  174 9,  39,  43 

Hammons  v.  Setzer,   72  Wash.   550,   130  Pac.   1141 628,  648,  677 

Hancock  v.  Anchors  (Ga.  App.) ,  105  S.  E.  631 202 

Hanen  v.  Lenander,  168  Iowa,  569,  160  N.  W.  18 305,  678 

Hanes  v.  Caroline  Cadillac  Co.,  176  N.  Car.  350,  97  S.  E.  162 193 

Hannan  v.  St.  Clair,  44  Colo.  134,  96  Pac.  822 332,  529 

Hannigan  v.  Wright,  5  Penn.  537,  63  Atl.  234 453 

Hannon  v.  Van  Dyke  Co.,  154  Wis.  454,  143  N.  W.  150 169,  171,  666 

Hansafus  v.  St.  Louis,  etc.,  Rd.,  199  111.  App.  4 604 

Hanser  v.  Youngs   (Mich.),  180  N.  W.  409 344,  348,  433,  439,  476,  682 

Hanson  v.  Hulet  (N.  Dak.) ,  175  N.  W.  205 491 

Hanson  v.  Springfield  Tract.  Co.   (Mo.) ,  226  S.  W.  1 599 

Harden  v.  Bradley   (Ala.) ,  88  So.  432 613 

Hardenbergh  v.  Employers'  Liability  Assor.  Corp.,  80  Misc.    (N.  Y.)    522, 

141  N.  Y.  SuppL  502 815,  816 

Harder  v.  Chicago,  235  111.  294,  85  N.  E.  255 123 

Harder  v.  Matthews,  67  Wa&h.  487,  121  Pac  983 459 

Harder's  Storage  &  Van  Co.  v.  Chicago,  235  III.  58,  85  N.  E.  245 71,  94,  96 

97,  106,  122,  ^39 

Hardie  v.  Barrett,  257  Pa.  St.  42,  101  Atl.  75 347,  349,  399,  406,  679,  687 

688,  694 

Harding  v.  'Cavanaugh,  91  Misc.   (N.  Y.)   511,  155  N.  Y.  Suppl.  374 79,  297 

348,  406,  413 
Harding  v.  City  of  New  York,  181  N.  Y.  App.  Div.  251,  168  N.  Y,  Suppl. 

265 644,  679.  687 

Hardy  v.  Pere  Marquette  Ry.  Co.,  208  Mich.  622,  175  N".  W.  462 557 

Hardy  v.  Sparks    (Ga.  App.) ,   101   S.  E.   399 860 


Table  of  Cases.  1197 

Section 

Hardy  v.  West  Coast  Constr.  Ck).,  174  N.  Car.  320,  93  S.  E.  841 696,  698 

700,  715 

Hargrave  v.  Hart,  9  Dom.  Law  Rep.  (Canada)  521,  22  Man.  R.  467 470 

Hargreaves  v.  Baldwin,  93  L.  R.  N.  S.  (Eng.)  311 757 

Hari  v.  Ohio  Tp.,  62  Kans.  315,  62  Pac.  1010 706 

Haring  v.  Connell,  244  Pa.  439,  90  Atl.  910 128,  359 

Harker  v.  Gruhl,  63  Ind.  App.  177,  111  N.  E.  457 48,  49,  309,  414  443 

453,  455,  462,  467,  468 

Harlan  v.  Joline,  77  Misc.  (N.  Y.)  184,  136  N.  Y.  Suppl.  72.  .585,  604,  609,  614 

Harlan,  City  of  v.  Kraschel,  164  Iowa,  667,  146  N.  W.  463 344 

Harnau  v.  Haight,  189  Mich.  600,  155  N.  W.  563 255,  283,  307,  326,  344 

500,  508,  510,  921,  924,  927 

Harnden  v.  Miler,  145  Minn.  483,  175  N.  W.  891 398 

Harnett  v.  Tripp,  231  Mass.  382,  121  N.  E.  17 423,  425,  475 

Harrell  v.  St.  Louis,  etc.,  R.  Co.  (Tex.),  222  S.  W.  221 577 

Harrigan  v.  Connecticut  River  Lumber  Company,  129  Mass.  500 86 

Harrington  v.  Stillman,  120  N.  Y.  App.  Div.  659,  105  N.  Y.  Suppl.  7.") 547 

Harris  v.  American  Casualty  Co.,  83  N.  J.  Law  641,  85  Atl.  194,  44  L.  R.  A. 

(N.  S.)    70,  Ann.  Cas.  1914  B  846 816,  818 

Harris  v.  Bernstein,  204  Mich.  685,  171  N.  W.  521 413 

Harris  v.  Burns,  133  N.  Y.  Suppl,  418 340,  359,  395 

Harris  v.  Fiat  Motors,  Ltd.,  22  Times  Law  Rep.   (Eng.)   556 666 

Harris  v.  Hicks   (Ark.) ,  221  S.  W.  472 518,  528,  531 

Harris  v.  Johnson,  174  Cal.  55,  161  Pac.  1155 247,  252,  267,  427,  473 

Harris  v.  Mobbs,  L.  R.,  3  Exch.  Div.  (Eng.)  268 523 

Harris  v.  Perry  Co.  (1903),  2  K.  B.  219 678 

Harris  v.  Parks   (Utah) ,  196  Pac.  1002 493,  514 

Harris  v.  Pew,  185  Mo.  App.  275,  170  S.  W.  344 249,  359,  445 

Harris  v.  St.  Paul  Fire  &  Marine  Ins.  Co.,  126  N.  Y.  Suppl.  118 806 

Harrogate  Corporation  v.  McKay,  2  L.  Rep.,  K.  B.  Div.  (Eng.)  1907 1 

Harroun  v.  Benton,  197  111.  App.  138 522 

Harshman  v.  Smith  (N.  Dak.) ,  176  N.  W.  3 851 

Hart  V.  McClennan   (Iowa) ,  174  N.  W.  691 1,  8,  13 

Hart  V.  Roth,  186  Ky.  535,  217  S.  W.  893 82,  427,  893 

Hart  V.  Springfield,  etc.,  Cto.,  136  La.  114,  66  So.  558 812 

Hart  V.  State  (Ga.  App.),  105  S.  E.  383 772 

Hartford  Ins.  Co.  v.  Wimbush,  12  Ga.  App,  712,  78  S.  E.  265 838 

Hartigan  v.  Casualty  Co.   of   America,  97  Misc.    (N.   Y.)    464,    161   N.   Y. 

Suppl.  145,  reversed  on  other  grounds,  227  N.  Y.  175,  124  N,  E.  789. .826,  827 

Harting  v.  Knapwurst,  178  111.  App.  409 279,  436 

Hartje  v.  Moxley,  235  111,  164,  84  N.  E.  216 60,  62,  304,  305,  322,  S62,  396 

Hart-Kraft  Motor  Co.   v.  Indianapolis  Motor  Car  Co.,   183   Ind.   311.    109 

N.  E.   39 g63,  864 

Hartley  v.  Lasater,  95  Wash.   407,   165  Pac.   106 257,  267,  270.  304,  305 

492,  494.  513,  514,  518 

Hartley  v.  Miller,  165  Mich.  115,  130  N.  W.  336,  33  L.  R.  A.  (N.  S.)  81..,37,  620 

Hartnett  v.  Gryzmish,  218  Mass.  258,  105  N.  E.  988 628,  630,  637,  673 

Hartwig  v.  Knapwurst,  178  111.  App.  409 325 

Hartze  v.  Moxley,  235  111.  164,  85  N.  E.  216 230 


1198  Table  of  Cases. 

Section 

Harvey  v.  Buick  Motor  Oo.  (Mo.  App.),  177  S.  W.  774 86::; 

Harvey  v.  Philadelphia  Rapid  Transit  Co.,  255  Pa.  220,  99  Atl.  796 606 

Haskell  v.  Hartwick  (Cal.  App.) ,  191  Pac.  553 889 

Haskins  v.  State    (Okla.) ,  200  Pac.  168 940,  945,  947 

Hastings  v,  Lincoln  Co.  (Wash.) ,  197  Pac.  627 883 

Haswell  v.  Reuter  ( Wis.) ,  177  N.  W.  8 305,  317,  628 

Hathaway  v.  Coleman,  35  Cal.  App.  107,  169  Pac.  414 169 

H^J;haway  v.  Vaughan,  162  Mich.  269,  127  N.  W.  337 869 

Hatter  v.  Dodge  Bros.,  202  Mich.   97,   167  N.  W.  935 626,  656,  671,  672 

673,  674 

Hauff  v.  S.  D.  Cent.  Ry.  Co.,  34  S.  Dak.  183,  147  N.  W.  986 550,  558 

Hause  v.  Lehigh  Valley  Trans.  Co.,  38  Pa.  Super.  Ct.  614 607 

Havermale  v.  Hoaick,   122  Md.  82,  89  Atl.  314 283 

H.  A.  White  Auto  Co.  v.  Collins,  136  Ark.  81,  206  S.  W.  748 882 

Hawkins  v.  Ermatinger    (Mich.),   179   N.   W.   249 324,  325,  626,  656 

Hawkins  v.  Garford  Trucking  Co,  (Conn.),  114  Atl.  94.. 398,  719,  720,  722,  723 

Hawkins  v.  Interurban  Ry.  Co.,   184  Iowa,  232,   168  N.  W.   234 557,  567 

577,  583 

Haworth  v.  Jackson  (Oreg.) ,  178  Pac.  926 ' 889 

Hayden  v.  MoColly,   166  Mo.   App.   675,   150  S.   W.   1132 242,  249,  251,  372 

373,  377,  403 

Hayes  v.  Hyde  Park,  153  Mass.  514,  27  N.  E.  522 800 

Hayes  v.  New  York,  etc.,  R.  Co.,  91  Conn.  301,  99  Atl.  694 572 

Hayes  v.  State,  11  Ga.  App.  371,  75  S.  E.  523 238,  311,  317,  744 

Haynes  v.  Doxie   (Cal.  App.) ,  198  Pac.  39 307,  328 

Haynes  v.  Kay,  111  S.  Car.  107,  96  S.  E.  623 491 

Haynes  v.  Maykel  Automobile  Co.,  234  Mass.  198,  125  N.  E.  165 202 

Haynes  v.  New  York,  etc.,  R.  Co.,  91  Conn.  301,  99  Atl.  694 562 

Haynes  v.  Sosa  (Tex.  Cr.) ,  198  S.  W.  976 396 

Haynes  Automobile  Co.  v.  Sinnett,  46  Ind.  App.  110,  91  N.  E.  171 361 

Haynes  Automobile  Co.  v.  Woodill  Automobile  Co.,  163  Oal.  102,  124  Pac. 

717,  4  L.  R.  A.   (N.  S.)   971 '792 

Hays,  City  of  v.  Schneler,  107  Kans.  635,  193  Pac.  311,  11  A.  L.  R.  1433. .  .  344 
Hays  V.  Hogan,  273  Mo.  1,  200  S.  W.  286,  L.  R.  A.  1918  C  715,  Ann.  Cas. 

1918  E.    1127 518,  536,  656,  658,  660,  673,  908,  909,  922 

Hays  v.  Hogan,  180  Mo.  App.  237,  165  S.  W.  1125 657,  660 

Hays  V.  House,  69  Pitts.  Leg.  Journ.   (Pa.)   186 678 

Haywood  v.  Hamm,  77  Conn.  158,  58  Atl.  695 543 

Hazelton  v.  City  of  Atlanta.  147  Ga.  207,  93  S.  E.  202 135,  144,  155 

Hazelton  v.  City  of  Atlanta,  144  Ga.  775,  87  S.  E.   1043 ....  135,  137,  147,  155 

Hazzard  v.  Carstairs,  244  Pa.   St.   122,  90  Atl.   556 634,  673 

Healey  v.  Cockrill.  132  Ark.  327,  202  S.  W.  229 628,  630,  632 

Healey  v.  Shedaker,  264  Pa.  St.  512,  107  Atl.  842 326,  441,  462 

Healey  v.  Warwick,  174  N.  Y.  Suppl.  632 622 

Heartsell  v.  Billows,  184  Mo.  App.  420,  171  S.  W.  7 308,  421,  444,  445,  453 

476,  486 
Heartt  v.  Village  of  Downer's  Grove,  278  111.   92,  115  N.  E.  869.  .    .70,  72,     73 

76,  96,  97,  99,  112,  114 

Heath  v.  Cook   (R.  I.),  68  Atl.  427 336,  488,  500 


Table  of  Cases.  1199 

Section 

Heath  v.  Seattle  Taxicab  Co.,  73  Wash.  177,  131  Pac.  843 422,  443,  483 

Heath  v.  Wylie,  109  Wash.  86,  186  Pac.  313 592,  613 

Heath's  Garage  v.  Hodges  (1916),  2  K.  B.  (Eng.)  370 491 

Hebard  v.  Cutler,  91  Vt.  218,  99  Atl.  879 866 

Hebard  v.  Mabie,  98  111.  App.  542 333,  420,  438 

Heckman  v.  Cohen,  50  N.  J.  Law  322,  100  Atl.  695 329,  359,  443,  448,  471 

Hedges  v.  Mitchell    (Colo.),  194  Pac.  620 73,  247,  267,  297,  .891 

Hedlund  v.  Minneapolis  St.  Ry.  Co.,  120  Minn.  319,  139  N.  W.  603 613,  908 

Hedraark  v.  Chicago  Rys.  Co.,  192  111.  App.  584 585,  593,  599 

Heelan  v.  Guggenheim,  210  111.  App.  1 487,  628,  633 

Heflferon  v.  New  York  Taxicab  Co.,   146  N.  Y.  App.  Div.  311,  130  N.   Y. 

Suppl.  710 160,  340 

Hefferon  v.  Heeves,  140  Minn.  505,  167  N.  W.  423 423,  452,  475,  481,  487 

Heg  V.  Mullen   (Wash.),  197  Pac.  51 908 

Heidner  v.  Germscied,  41  S.  Dak.  430,  171  N.  W.  208 418,  443,  487,  926 

Heigbee  Co.  v.  Jackson  (Ohio) ,  128  N.  E.  61 420 

Heissenbuttel  v.  Meagher,  162  N.  Y.  App.  Div.  752,  147  N.  Y.  Suppl.  1087. .  660 

Helber  v.  Harkness   (Mich.) ,  174  N.  W.  46 708,  710 

Helbcr  v.  Schaible,  183  Mich.  379,  150  N.  W.  145 201 

Held  V.  Commonwealth,  183  Ky.  209,  208  S.  W.  772 758,  765 

Helena  v.  Dunlap,  102  Ark.  131,  143  S.  W.  138 99,  109 

Hellan  v.  Supply  Laundry  Co.,   94  Wash.   683,   163   Pac.   9 259,  287,  290 

390,  396 

Helm  V.  Phelps,  157  Ky.   795,  164  S.  W.  92 363 

Helmer  v.  Superior  Ct.   (Cal.  App.),  191  Pac.  1001 77 

Helvey  v.  Princeton  Power  Co".   (W.  Va.),  99  S.  E.  180 278,  557,  592,  599 

Hemming  v.  City  of  New  Haven,  82  Conn.  661,  74  Atl.  892,  18  Ann.  Cas. 

240,  25  L.  R.  A.  (N.  S.)  734n 125 

Hemphill  v.  Romano   (Tex.  Civ.  App.),  233  S.  W.  125 158,  630 

Henderson,  City  of  v.  Lockett,  157  Ky.  366,  163  S.  W.  199.. 8,  96,  97,  105,  111 

Henderson  v.  Diamond    (R.  I.) ,   110  Atl.   388 410,  911 

Henderson  v.  Northam,  176  Cal.  493,  168  Pac.  1044 289,  300,  521,  525,  549 

Hendrick  v.  State  of  Maryland,  235  U.  S.  610,  35  S.  Ct.   140 57,  96,  103 

111,  115 

Hendricks  v.  Hughes,  37  N.  Dak.  180,  163  N.  W.  268 240,  372 

Hennekes  v.  Bietz   (Mo.  App.),  217   S.   W.   533 338,  678 

Henry  v.  Klopfer,  147  Pa.  St.  178,  23  Atl.  337 .543 

Hensley  v.  Kansas  City  Rys.  Co.  (Mo.  App.),  214  S.  W.  287 611,  693 

Herald  v.  Smith   (Utah),  190  Pac.  932 416,  118.  448,  478 

Herbig  v.  Walton  Auto  Co.  (Iowa),  182  Pac.  204.  . 228 

Herdman  v.  Zwart,  167  Iowa,  500,   149  N.  W.   631 255,  267,  269,  270.  275 

277,  289,  297,  300,  521,  529,  540,  688 

Hermann  v.  Rhode  Island  Co.,  36  R.  L  447,  90  Atl.  813 362,  591.  679 

Herrett  v.  Puget  Sound,  etc.,  P.  Co.,  103  Wash.  101,  173  Pac.  1024.. 592,  597,  614 

Herrick  v.  Oakland  Motor  Co.,  29  Cal.  App.  414,  155  Pac.  1006 493 

Hersley  v.  Kansas  City  Rys.  Co.  (Mo.  App.),  214  S.  W.  287 588 

Heryford  v.  Spitcanfsky    (Mo.    App.),    200   S.    W.    123 259,  280,  281,  .'527 

498,  503,  513 

Herzig  v.  Sandberg    (Mont.),    172   Pac.    132 448,  481,  482 


1200  Table  of  Cases. 

Section 

Hess  V.  Kemmerer,  65  Pa.  Super.  Ct.  247 484 

Hester  v.  Hall  (Ala.  App.),  81  So.  361 277,  491 

Hewitt  V.  City  of  Seattle,  62  Wash.  377,  113  Pac.  1084 664 

Heyman  v.  Heyman,  19  Ga.  App.  634,  92  S.  E.  25 678 

Heyward  v.  Chisolm,  11  Rich.  L.  253 23 

Hibbard  v.  Edwards,  235  Pa.  454,  84  Atl.  437 ' 194 

Hickey  v.  Detroit  United  Ry.,  202  Mich.  496,  168  N.  W.  517 592,  599 

Hickman  v.  Birch,  24  Q.  B.  D.  (Eng.)  172 132 

Hicks  V.  Romaine,  116  Va.  401,  82  S.  E.  71 416 

Hicks  V.  Serrano,  74  Misc.  274,  133  N,  Y.  Suppl.  1102,  affirmed  149  App. 

Div.  926,  133  N.  Y.  Suppl.  1126 412 

Higbee  Co.  v.  Jackson  (Ohio),  128  N.  E.  61 638 

Higgins,  ex  parte  (Cal.  App.),  195  Pac.  740 874 

Higgins  V.  Bickford,  227  Mass,  52,  116  N.  E.  245 628 

Higgins  V.  Searle,  100  L.  T.  (Eng.)  280 491 

Highland  Avenue  &  B.  R.  Co.  v.  Sampson,  112  Ala.  425,  20  So,  566 921 

Hight  Accessory  Place  v.  Dam  (Ga.  App.),  105  S.  E.  872 212 

Hiler  v.  City  of  Oxford,  112  Miss.  22,  92  So.  837 72,  98 

Hill  V.  Condon,  14  Ala.  App.  332,  70  So.  208 297,  491,  821 

Hill  V.  Haynes,  204  Mich.  536,  170  N.  W.  685 628,  630,  637 

Hill  V.  Lappley,  199  Mich.  369,  165  N.  W.  657 458 

Hill  V.  Philadelphia  Rapid  Transit  Co.  (Pa.),  114  Atl.  634. .  .592,  603,  690,  692 

Hill  V.  Staats  (Tex.),  189  S.  W.  85 633 

Hillebrant  v.  Manz,  71  Wash.  250,   128  Pac.   892 297,  330,  332,  359,  452 

458,  464 

Hillhouse  v.  United  States,  152  Fed:  163,  81  C.  C.  A.  415 1 

Hillstrom  v.  Mannheimer  Bros.  (Minn.),  178  N.  W.  881 297,  301 

Himmelwright  v.  Baker,   82  Kans.   569,   109   Pac.   178 921,  924 

Hilton  V.  Iseman,  212  111.  App.  255 391 

Hinds  V.  Steere,  209  Mass.  442,  95  N.  E.  844 44 

Hines  v.  Champion    (Ala.) ,  85   So.   511 554,  575 

Hines  v.  Chicago,  etc.,  Ry.  Co.  (Wash.),  177  Pac.  795 553,  567,  580 

Hines  v.  Cooper  (Ala.) ,  86  So.  396 554,  568 

Hines  v.  Cooper  ( Ala.) ,  88  So.  133 568 

Hines  v.  Foreman  (Tex.  Civ.  App.),  229  S.  W.  630 575,  577,  580 

Hines  v.  Gunnells  (Ark.),  222  S.  W.  10 567 

Hines  v.  Hoover,   271   Fed.    645 554,  557,  567,  568,  577 

Hines  v.  McCullers,  121  Miss.  666,  83  So.  734 554,  580,  679 

Hines  v.  Moore  (Miss.),  87  So.  1 579,  686 

Hines  v.  Pacific  Car  Co.   (Wash.),  188  Pac.  29 889 

Hines  v.  Paden    (Ala.) ,  87  So.  88 554 

Hines  v.  Partridge   (Tenn.),  231  S.  W.   16 567,  572,  577 

Hines  v.  Roan    (Tex.  Civ.  App.) ,  230  S.  W.   1070 557.  580 

Hines  v.  Smith,  270  Fed.  132 563.  565 

Hines  v,  Stevens  (Ga.  App.) ,  106  S.  E.  298 557 

Hines  v.  Wilson   (Ga.  App.),  102  S.  E.  646 23,  126,  127 

Hines  v.  Wilson   (Tex.  Civ.  App.),  225  S.  W.  275 688 

Hinkel  v.  Stemper   (Minn.) ,  180  N.  W.  918 324 

Hinkelman,  ex  parte  (Cal.) ,  191  Pac.  682 780 


Table  of  Cases.  1201 

Section 

Hinkley  v.  Starrett,  91  Kans.  181,  137  Pac.  18 85ti 

Hinton  V.  Southern  Ry.  Co.,  172  N.  Oar.   587.  90  S.  E.   756...  298,  300,  304 

312,  572 

Hirch  V.  Cincinnati  Tr.  Co.,  32  Ohio,  Circuit  Rep.  685 598 

Hiroux  V.  Baum,  137  Wis.  197,  118  N.  W.  533,  19  L.  R.  A.  (N.  S.)  332.  .650.  657 

Hirsch  V.  Interurban  St.  R.  Co.,  94  N.  Y.  Suppl.  330 599 

Hirst  V.  Morris  Co.   (Cal.  App.),  187  Pac.  770 628,  66."? 

Hiscock  V.  Phinney,  81  Wash.  117,  142  Pac.  461 267,  372,  373 

Hobbs  V.  Hurley,  117  Me.  449,  104  Atl.  815 666,  667 

Hobbs  V.  Preston,  115  Me.  553,  98  Atl.  757 529,  542,  549 

Hoblitt  V.  Gorman,  8  Ohio  N.  P.  (N.  S.)  270 240 

Hobson  V.  Silvera  (Cal.  App.) ,  194  Pac.  525 204 

Hodges  V.  Chambers,  171  Mo.  App.  563,  154  S.  W.  429 24,  281,  452,  458 

486,  487 

Hodges  V.  Coey,  205  111.  App.  417 51S 

Hoel  V.  Flour  City  Fuel  &  Transfer  Co.,  144  Minn.  280,  175  N.  W.  300...205,  212 

Hoff  V.  Los  Angeles  Pac.  Co.,  158  Cal.  596,  112  Pac.  53.  .585,  591,  592,  609,  612 

Hoffert,  in  re,  34  S.  Dak.  271,  148  N.  W.  20,  50  L.  R.  A.  (N.  S.)  949..96.  110,  111 

Hoffman  v.  H.  G.  &  B.  El.  Ry.,  18  O.  W.  N.  (Canada)  92 «85 

Hoffman  v.  Liberty  Motors  Co.,  234  Mass.  437,  125  N.  E.  845 648 

Hoffman  v.  Prussian  Nat.  Ins.   Co.,   181   N.  Y.  App.  Div.  412,  168  N.   Y. 

Suppl.  841 814 

Hoffman  v.  State   (Tex.  Cr.),  209  S.  W.  747 758 

Hogan  V.  Anthony  (Cal.  App.)  198  Pac.  47 866,  871 

Hogan  V.  McCombs  Bros.  (Iowa),  180  N.  W.  770 891 

Hohl  V.  Modell,  264  Pa.  St.  516,  107  Atl.  885 194 

Holcomb  Co.  v.  Clark,  86  Conn.  319,  85  Atl.  376 210,  911 

Holden  v.  Hadley,  180  Mich.  568,  147  N.  W.  482 259,  308,  498,  501 

Holden  v.  McGillicuddy,  215  Mass.  563.  102  N.  E.  923 125,  226 

Holderman  v.  Witmer,  166  Iowa,  406,   147  N.   W.  926 335,  336,  438,  473 

Holland  v.  Bartoh,  120  Ind.  46,  22  N.  E.  83,  16  Am.  St.  Rep.  307 38,  49 

Holland  v.  City  of  Boston,  213  Mass.  560,  100  N.   E.   1009 125,  226,  712 

Holland  v.  Goode,  188  Ky.  525,  222  S.  W.  950 656 

Holland  v.  State,  11  Ga.  App.  769,  76  S.  E.  104 518 

Holland  v.  Yellow  Cab  Co.,  144  Minn.  475,  175  N.  W.  536 242,  694 

Hollander  v.  Dawson  Construction  Co.,  66  Pitts.  Leg.  Jour.   (Pa.)  97 722 

HoUiday  v.  Athens,  10  Ga.  App.  709,  74  S.  E.  67 696,  698 

Hollis  V.  Weissinger,  142  Ky.  129,  134  S.  W.  176 849 

Hollowell  V.  Cameron    (Cal.) ,  199  Pac.   803 344,  398 

Holmbrae  v.  Morgan,  69  Oreg.  395,  138  Pac.  1084 648 

Holmes  v.  Sandpoint  &  L  R.  Co.,  25  Idaho,  345,  137  Pac.  532 585,  596,  608 

Holmes  v.  Tyner   (Tex.  Civ.  App.) ,  179  S.  W.  887 848 

Holroyd  v.  Gray  Taxi  Co.,  39  Cal.  App.  693,  179  Pac.  709 524,  937 

Holt,  ex  parte  (Okla.),  178  Pac.  260 147 

Holton  V.  Monarch  Motor  Car  Co.,  202  Mich.  271,  168  N.  W.  539 79€ 

Holtz  V.  Lange,  148  La.  — ,  88  So.  245 380 

Holut  V.  Coolware,  169  Wis.  176,  170  N,  W.  939 476 

76 


1202  Table  of  Cases. 

Section 

Holzheimer  v.  Lit.  Bros.,  362  Pa.   150,  105  Atl.  73 672,  674 

Hood  V.  Stowe,  191  N.  Y.  App.  Div.  614,  181  N.  Y.  Suppl.  734 262,  285,  329 

Hood  &  Wheeler  Furniture  Co.  v.  Royal,  200  Ala.  607,  76  So.  965 77,  230 

276,  277,  305",  317,  322,  433,  441,  443,  480 

Hook  V.  Wylie,  10  O.  W.  N.  15 283 

Hoover  v.  Reichard,   63   Pa.   Super.   Ct.   517 249,  273,  378,  403 

Hopflinger  v.  Young   (Mo.  App.),  179   S.   W.   747 438,  443 

Hopkins  v.  American  Fidelity  Co.,  91  Wash.  680,  158  Pac.  535 832 

Hopkins  v.  Sweeney  Automobile  School  Co.  (Mo.  App.),  196  S.  W.  772 281 

504,  506 

Hopkins  v.  Tripp,  198  Mich.  94,  164  N.  W.  395 413 

Hoppe  V.  Chicago,  M.  &  St.  P.  R.  Co.,  61  Wis.  357,  21  N.  W.  227 928 

Hoppe  V.  Peterson,  165  Wis.  200,  161  N.  W.  738 250,  380.  382 

Horak  v.  Dougherty    (Iowa) ,  114  N,  W.   883 536,  549 

Horandt  v.  Central  R.  Co.,  81  K  J.  Law  488,  83  Atl.  511 679 

Horn  V.  Berg,  210  111.  App.  238 425  475 

Hornstein  v.  Southern  Boulevard  R.  Co.,  79  Misc.    (N.  Y.)    34,  138  N.  Y. 

Suppl.  1080 178,  642,  644 

Horowitz  V.  Gottwalt   (N.  J.),  102  Atl.   930 269,  283,  297,  327,  416,  424 

Horton  v.  Phillips   (Mass.) ,  131  N.  E.  324 201 

Hough  V.  Kobusch  Automobile  Co.,  146  Mo.  App.  58,  123  S.  W.  83..464,  484,  792 
House  V.  Cramer,  134  Iowa,  374,  112  N.  W.  3,  13  Ann.  Oas,  461,  10  L.  R.  A. 

(N.   S.)    655 48,  49,  519,  520,  525 

House  V.  Fry,   30   Cal.  App.   157,   157  Pac.   500.... 253,  255,  298,  300,  355,  380 

399,  403,  657,  658 

Houseman  v.  Karicoffe,  201  Mich.  420,   167  N.  W.  964 628,  634,  655,  677 

Houston  Belt  &  Terminal  Ry.  Co.  v.  Hardin  Lumber  Co.   (Tex.  Civ    App  ) 

189  S.  W.  518 577^  579'  580 

Houston  Belt  &  T.  R.  Co.  v.  Rucker  (Tex.  Civ.^,  167  S.  W.  301 277,  550 

Houston  Motor  Car  Co.  v.  Breshear  (Tex.  Civ.  App.),  158  S.  W.  233 871 

Houston,  etc.,  Ry.  Co.  v.  Iverson  (Tex.  Civ.  App.),  196  S.  W.  908 851 

Houston,  etc.,  Ry.  Co.  v.  Wilkerson  (Tex.  Civ.  App.),  224  S.  W.  574 572 

Howard  v.  Marshall  Motor  Co.,  106  Kans.  775,  190  Pac.  11 ^38 

Howard  v.  State,  76  Tex.  Cr.  347,  174  S.  W.  824 769 

Howard  v.  Worthington   (Cal.  App.),  195  Pac.  709 262,  394,  399,  4li 

Howarth  v.  Barrett    (Pa.),   112  Atl.   536 '  .  . .  .'.380'  396 

Howe  V.  Central  Vermont  Ry.  Co.,  91  Vt.  485,  101  Atl.  45 679,'  686 

Howe  V.  Corey   (Wis.) ,  179  N.  W.   791 678,  680^  694 

Howe  V.  Leighton,  75  N.  H.  601,  75  Atl.   102. .'.^Ss!  630 

Howell  V.  Burchville  Tp.   (Mich.),  179  N.  W.  279 700'  710 

Hoyle  V.  Northern  Pac.  R.  Co.,  105  Wash.  652,  178  Pac.  810 557,  56l'  689 

Hoyt  V.  Hainsworth  Motor  Co.   (Wash.),  192  Pac.  919 '. .  . .  .  863 

Hoyt  V.  Schillo,  etc.,  Co.,  185  111.  App.  628 '  '  848 

Hubbard  v.  Bartholomew,  163  Iowa,  58,  144  N.  W.  13 267    297    321  375 

Hubenthal  v.  Spokane,  etc.,  R.  Co.,  79  Wash.  581,  166  Pac.  797'. .  . .  .'.559'  575 

579  613 

Hubert  v.  Granzow,  131  Minn.  361,  155  N.  W.  204 313'  444 

Hudgens  v.  State,  15  Ala.  App.  156,  72  So.  605 62,  94,  106,  109^  239 


Table  of  Cases.'  1203 

Section 

Hudaon  v.  State  (Ga.  App.),  107  S.  E.  94 758 

Hudson-Oliver  Motor  Co.  v.  Vivian,  116  Misc.  (N.  Y.)   104 944 

Huey  V.  Dykes,  203  Ala.  231,  82  So.  481 229,  503 

Huff  V.  Michigan  Union  Traction  Co.,  186  Mich.  88,  152  N.  W.  936 613 

Huffaker  v.  Auert  (Cole),  197  Pac.  897 879 

Huirt  V.  Dougherty,  184  Mo.  App.  374,  171  S.  W.  17 281,  657 

Huggon  V.  Whipple  &  Co.,  314  MasB.  64,  100  N.  E.  1087 359 

Hughes  V.  Exchange  Taxicab  &  Auto  Livery,  11  Dom.  L.  R.  (Canada)  314, 

24  W.  L.  R.  174 169,  626 

Hughes  V.  Murdock   Storage   &   Transfer  Co.,    68   Pitts.   Leg.   Jour.    (Pa.) 

476,  affirmed   (Pa.),  112  Atl.  Ill 638 

Hughes  v.  New  Haven  Taxicab  Co.,  87  Conn.  416,  87  Atl.  421 95,  225 

Hughey  v.  Lennox  (Ark.),  219  S.  W.  323 292,  363,  480,  628,  785 

Hughey  v,  Sharbaro,  181  111.  App.  396 794 

Hull  v.  Crescent  Mfg.  Co.,  109  Wash.  129,  186  Pac.  322 262,  394 

Hull  V.  Seattle,  etc.,  R.  Co.,  60  Wash.  162,  110  Pac.  804 574 

Humes  v.  Schaller,  39  R.  I.  519,  99  Atl.   55 439,  458,  476 

Humphrey  v.  U.  S.  Macaroni  Co.  (Cal.  App.),  193  Pac.  609 248 

Hunt  V.  North  Carolina  R.  Co.,  170  N.  Car.  442,  87  S.  E.  210.  .  .  .567,  679,  684 

Hunt  v.  State   (Tex.  Cr.) ,  229  S.  W.   869 768,  934 

Hunt  V.  State   (Tex.  Cr.)",  230  S.  W.  406 768,  934 

Hunt  V.  State    (Tex.  Cr.),   231   S.   W.   775 768 

Hunter  v.  City  of  Saskatoon,  48  D.  L.  R.  (Canada)  68 690 

Hunter  v.  Mountfort,  117  Me.  555,  102  Atl.  975 508 

Hunter  V.  Quaintance    (Colo.),    168   Pac.   988 412,  722 

Hurnanen  v.  Nicksa,  228  Mass.  346,  117  N.  E.  325 119,  125,  886 

Hurschman  v.  Beal,   38   0.   L.  R.    (Canada)    40 626 

Hurt  V.  Southern  Ry.  Co.    (Ala.),  87  So.  533 568,  569,  575 

Hurt  V.  Yazoo,  etc.,  R.  Co.,   140  Tenn.  623,  205  S.  W.  437 550,  556,  557 

567,  577,  682,  688 

Hutehings  v.  Vacca,  224  Mass.  269.  112  N.  E.  652 667 

Hutchins  v.  Haffner,  63  Colo.  365,  167  Pac.  966,  L.  R.  A.  1918  A  1008... 660.  661 

Hutchins  v.  Maunder  (1920  K.  B.),  37  T.  L.  R.   (Eng.)   72 339 

Hutchinson  v.  Fawkes   (Minn.) ,  180  N.  W.   116 643 

Hutchinson  v.  Scatt,  35  Cal.  App.  171,   169  Pac.  415 84S 

Hutchinson  Purity  Ice  Cream  Co.  v.  Des  Moines  City  Ry.  Co.,   172  Iowa, 

527,  154  N.  W.  890 61. -5 

Hutson  V.  Des  Moines,  176  Iowa,  455,  156  N.   W.  883 131,  135,  136.  137 

138,  140,  144,  147,  153,  154,  155,  164.  168 

Hutson  V.  Flatt,  194  111.  App.  29 305.  317.  525 

Huyler  v.  City  of  New  York,  160  N.  Y.  App.  Div.   415,   145  N.  Y.   Suppl. 

650 706.  708 

Hyde  v.  Huberger,  87  Conn.   704,   87   Atl.   790 283,  416.  419 

Hyde  v.  McCreery,  145  N.  Y.  App.  Div.  729,  130  N.  Y.  Suppl.  269 126 

Hy.ffenic  Ice  Co.  v.  Connecticut  C/O.,  90  Conn.  21,  96  Atl.  152 590.  613 

Hyndman  v.  Stephens,  19  Man.  L.  R.   (Canada)    187 717 


1204  Table  of  Cases. 

I  Section 

lannone  v.  Webber-McLaughlin  Co.,  186  App.  Div.    (N.  Y.)    594,   174  N.  Y. 

Suppl.  580 416,  919 

Illinois  Cent.  R.  Co.  v.  Ashline,  171  111.  313,  49  N.  E.  521 925 

Illinois  Cent.  R.  Co.  v.  Camp,  201  Ala.  4,  75  So.  290 577 

Illsley  V.  Peerless  Motor  Car  Co.,  177  111.  App.  459 923 

Inangelo  v.  Peterson    (Mass.) ,   128  N.   E.   713 487 

Indian  Refining  Co.  v.  Marcrum  (Ala.) ,  88  So.  445 478 

Indianapolis  v.  Pell,  62  Ind.  App.  191,  111  N.  E.  22 486 

Indianapolis,  City  of  v.  Moss  (Ind.  App.),  128  N.  E.  857 696,  701 

Indianapolis  St.  Ry.  Co.  v.  Bordenchecker,  33  Ind.  App.  138,  70  N.  E.  995.  .  928 

Indianapolis,  etc..  Traction  Co.  v.  Harrell  (Ind.  App.),  131  N.  E.  17 558 

Indianapolis  St.  Ry.  v.  Hoffman,  40  Ind.  App.  508,  82  N.  E.  543 352 

Indianapolis,  etc.,  Traction  Co.  v.  Sherry,  65  Ind.  App.  1,  116  N.  E.  594.. 717,  720 

Indianapolis  Tr.  &  Terminal  Co.  v.  Lie  (Ind.  App.),  118  N,  E.  959 484 

Indiana  Springs  Co.  v.  Brown,  165  Ind.  465,  74  N.  E.  615,  6  Ann.  Cas.  656, 

1  L.  R.  A.   (N.  S.)    238n 31,  46,  47,  48,  49,  277,  278,  449 

Indiana  Union  Traction  Co.  v.  Love,  180  Ind.  442,  99  N.  E.  1005 553,  556 

576,  577,  579,  617,  619,  679 

Ingraham  v.  Storkamore,  63  Misc.  (N.  Y.)  114,  118  N.  Y.  Suppl.  399 38,  623 

624,  631 

International,  etc.,  Co.  v.  Bean,  159  Ky.  842,  169  S.  W.  549 863,  864,  871 

International  Harvester  Co.  v.  Brown,  182  Ky.  435,  206  S.  W.  622 871 

International  Harvester  Co.  v.  Lawyer,  56  Okla.  207,  155  Pac.  617 848,  857 

859,  867 

International  Harvester  Co.  v.  Porter,  160  Ky.  509,  169  S.  W.  993 863 

Interstate  Casualty  Co.  v.  Hogan   (Tex.  Civ.  App.),  232  S.  W.  354 158 

Invader  Oil  &  Refining  Co.  v.  City  of  Ft.  Worth    (Tex.  Civ.  App.),  229 

S.  W.  616 199 

Iowa  Savings  Bank  v.  Graham  (Iowa) ,  181  N.  W.  771 882 

Ireson  v.  Cunningham,  90  N.  J.  L.  690,  101  Atl.  49 348,  409,  413 

Irwin  V.  Finney  County,  106  Kans.  171,  186  Pac.  975 696 

Irwin  V.  Golden  State  Auto  Tour  Co.,  178  Cal.  10,  171  Pac.  1059 679,  688 

Irwin  V.  Judge,  81  Conn.  492,  71  Atl.  572 267,  278,  305,  324,  501 

Isaacs  V.  Wannamaker,  189  N.  Y.  122,  81  N.  E.  763 865 

Isaacs  V.  Wanamaker,  71  Misc.  (N.  Y.)  55,  127  N.  Y.  Suppl.  346 871 

Isbell  V.  Anderson  Carriage  Co.,  170  Mich,  304,  136  N.  W.  457 796 

Ivins  V.  Jacob,  245   Fed.   892 285,  339,  430 

Ivy  V.  Morx   (Ala.),  87  So.  813 438,  456,  458 

J 

Jabbour  v.  Central  Const.  Co.  (Mass.),  131  N.  E.  194 415,  416 

Jackels  v.  Kansas  City  Rys.  Co.  (Mo.  App.),  231  S.  W.  1023 614,  719,  720 

Jackson  v.  Burns,  203  111.  App.   196 308,  396 

Jackson  v.  Neff,  64  Fla.  326,  60  So.  350 94,  96,  101,  106,  136,  147 

Jackson  v.  Southwest  Missouri  R.  Co.   (Mo.),  189  S.  W.  381 556 

Jackson  v.  Southwestern  Bell  Telep.  Co.  (Mo.),  219  S.  W.  655 38,  281,  710 

Jackson  v.  Vaughn   (Ala.) ,  86  So.  469 450,  912,  926 

Jackson  Light  &  Traction  Co.  v.  Lee,  256  Fed.  97 614 


Tablk  of  Cases.  1205 

Section 

Jacob  V.  Ivins,   250   Fed.   431 430 

Jacobe  v.  Houston  Electric  Co.  (Tex.  Civ.  App.),  187  S.  W.  247 613 

Jacobs  V.  Atchison,  etc.,  Co.,  97  Kana.  247,  154  Pac.  1023.  .    .557,  564,  565,  567 

Jacobs  V.  Jacobs,   141  La.   272,  74  So.   992 678,  679,  682,  688,  692,  711 

Jacobs  V.  Koehler,  S.  G.  Co.,  208  N.  Y.  416,  102  N.  E.  519 478,  480 

Jacobs  V.  Richard  Carbel  Co.,  156  N.  Y.  Suppl.  766 243,  259,  390.  409 

Jacobson  v.  New  York,  etc.,  R.  Co.,  87  N.  J.  Law  378,  94  Atl.  577.  .  .  .277,  617 

Jacobson  v.  O'Dette  (R.  I.) ,  108  Atl.  653 401,  413 

Jacquith  v.  Richardson,    8   Mete.    (Mass.)    213 249,  250,  372,  373 

Jacquith  v.  Worden,  73  Wash.  349,  132  Pac.  33,  48  L.  R.  A.  (N.  S.)  827. .  .  327 

339,  344,  345,  459 

Jaeger  v.  Salentine    (Wis.) ,   177  N.  W.   886 660 

James  v.  Morton,  79  Misc.  R.  255,  139  N.  Y.  Suppl.  941 362 

James  v.  Mott  (Mo.  App.),  215  S.  W.  913 422 

James  Everard's  Breweries  v.  New  York  Rys.  Co.,  151  N.  Y.  Suppl.  905..585,  590 
Janik  v.  Ford  Motor  Co.,  180  Mich.  557,  147  N.  W.  510,  52  L.  R.  A.  (N.  S.) 

294 641,  665 

Jasnowski  v.  Board  of  Assessors  of  City  of  Detroit,   191  Mich.   287,   157 

N.   W.    891 57.  60,  63,  94,  96,  102,  106,  113,  122,  147,  238 

Jeflfares  v.  Wolfenden,  31  W.  L.  R.  (Canada)  428 •  431 

Jefson  V.  Crosstown  St.  Ry.,  72  Misc.  (N.  Y.)  103,  129  N.  Y.  Suppl.  233.  .  305 

694,  705,  715,  716 

Jenkins  v.  Chicago  &  A.  R.  Co.,  27  Mo.  App.  578 23 

Jenkins  v.  Goodall,  183  111.  App.  633,  637 46 

Jenkins  Taxicab  Co.  v.  Estes,  201  Ala.  174,  77  So.  700 677 

Jensen  v.  Wilcox  Lumber  Co.  (111.) ,  129  N.  E.  133 881 

JeroUeman  v.  New  Orleans  Terminal  Co.,  140  La.  895,  74  So.  186 577 

Jerome  v.  Hawley,  147  N.  Y.  App.  Div.  475,  131  N.  Y.  Suppl.  897.  .289,  349,  449 
.Terome  v.  New  York  Rys.  Co.,  190  N.  Y.  App.  Div.  311,  179  N.  Y.  Suppl. 

777 621 

Jerome,  etc.,  Co.  v.  Stephens  (Mo.  App.) ,  224  S.  W.  1036 886 

Jerrell  v.  Harrisburg  Assoc,  215  111.  App.  373 54 

.lessen  v.  J.  L.  Kesner  Co.,  159  App.  Div.  898,  144  N.  Y.  Suppl.   407 453 

458,  471 

Jessopp  V.  Clarke  (K.  B.  Div.),  99  Law  T.  R.  (N.  S.)   28 740 

Jester  v.  Philadelphia,  etc.,  R.  Co.  (Pa.),  109  Atl.  774 558,  568 

Jewell  V.  Cecil,  177  Ky.  822,  198  S.  W.  199 883.  885 

Jewell  V.  Rogers  Tp.,  208  Mich.  318,  175  N.  W.  151 680,  688,  701,  710 

Jewison  v.  Dieudonne,  127  Minn.  163,  149  N.  W.  20 215,  429 

J.  P.  Darmondy  Co.  v.  Read,  60  Ind.  App.  662,  111  N.  E.  317 329,  430,  480 

J.  L  Case  Threshing  Machine  Co.  v.  Lipper  (Tex.  Civ.  App.),  181  S.  W.  236.  882 

Jimeney  v.  San  Juan  Light  &  Transit  Co.,  3  Porto  Rico  Rep.  178 722 

Jimmo  v.  Frick,  255  Pa.  St.  353,  99  Atl.  1005 641 

Jitney  Bus  Assoc,  of  Wilkesbarre  v.  Wilkesbarre,  256  Pa.  St.  462,  100  Atl. 

954 71,  130,  135,  138,  140,  153,  155.  157.'  158 

J.  M.  Lowe  Auto  Co.  v.  Winkler,  127  Ark.  433,  191  S.  W.  927 875 

John  V.  Pierce    (Wis.),   178  N.  W.   297 249,  267,  297,  352.  90S 

John  Hemwall  Automobile  C/O.  v.  Michigan  Avenue  Trust  Co.,  195  111.  App. 

407 851.  872 


1206  Table  of  Cases. 

Section' 
John  M.  Hughes  Sons  Ck).  v.  Bergen  &  Westside  Auto  Co..  75  N.  J.  L.  355, 

67  Atl.   1018 628,'  66r. 

Johnson  v.  Brastad,  143  Minn.  332,  173  N.  W.  668 462,  464,  487 

Johnson  v.  Cadillac  Motor  Co.,  261  Fed.  878,  8  A.  L.  R,  1023 *  .  .  800 

Johnson  v.  Chicago  Surface  Lines,  209  111.  App.  26 690 

Johnson  v.  City  of  Marquette,  154  Mich.  50,  117  N.  W.  658 705 

Johnson  v.  City  of  Seattle  (Wash.),  194  Pac,  417 591,  613,  614 

Johnson  v.  Clark  Motor  Co.,   173  Mich.  277,   139  N.   W.   30,  44  L    R     \ 

(N.   S.)    830 35y 

Johnson  v.  Coey,  237  111.  88,  86  N.  E.  678,  21  L.  R.  A.  (N.  S.)  81.  .  .169,  177 

179,  644 

Johnson  v.  Cornelius,  193  Mich.  115,  159  N.  W.  318 656.  657 

Johnson  v.  Evans,  141  Minn.  356,  170  N.  W.  220,  2  A.  L.  R.  891.  .660,  678.  689 

Johnson  v.  Heitman,  88  Wash.  595,  153  Pac.  331.. 247,  267,  297,  300,  492.  497 

Johnson  v.  Hendrick   (Cal.  App.),  187  Pac.  782 247.  267,  297.  300,  492.  497 

Johnson  v.  Hull,  199  111.  App.  258 677 

Johnson  v.  Johnson,  137  Minn.  198,  163  N.  W.   160 326,  329,  423,  452,  487 

Johnson  v.  Kansas  City  Home  Telep.  Co.,  87  Kans.  441,  124  Pac.  528.  .453.  487 

Johnson  v.  Louisville  &  N.  R.  Co.,  203  Ala.  86,  82  So.  100 687 

Johnson  v.  New  York,  186  N.  Y.  App.  Div.  389,  173  N.  Y.  Suppl.  701.  .701.  710 

Johnson  v.  New  York,  104  Misc.    (N.  Y.)    395 332.  701.  715 

Johnson  V.  New  York,  109  N.  Y.  App.  Div.  821,  96  N.  Y.  Suppl.   1130.  .  .  .  728 
Johnson  v.  Oakland,    S.   L,    &   H.   Electric   R,    Co..    127   Cal.    608.    60    Pan. 

^''^ 922,  925 

Johnson  v.  Quinn.   130  Minn.   134,   153  N.  W.   267 329.  346.  447,  44S.  919 

Johnson  v.  Reliance  Automobile  Co.,  23  Cal.  App.  222,  137  Pac.  603 .-,4 

Johnson  v.  Sergeant,  168  Mich.  444,  134  N.  W.   468 .57.  626 

Johnson  v.  Shaw,  204  Mass.  165,  90  N.  E.  518 263,  499 

Johnson  v.  Small,   5   B.   Mon.    (Ky.)    25 375^  339,  377 

Jolinson  V.  Smith,   143  Minn.  350,  173  N.  W,  675 440 

Johnson  v.  State    (Ala.) ,    85    So.    567 97 

Johnson  v.  State  (Ga.  App.),  100  S.  E.  235 768 

Johnson  v.  Studebaker  Corp.,  160  Ky.  567,  169  S.  W.  992 S60 

John.son  Motor  Co.  v.  Payne   (S.  Car.),  107  S.  E.  252 710 

Johnson  Oil  Refining  Co.  v.  Galesburgh,  etc.,  Power  Co.,  200  111.  App.  392.  .  7i 

236,  262,  585,  588,  608,  609.  610 

Johnston  v.  Brown  Bros.  Co.  (Mo.  App.),  231  S.  W.  1011 886 

Johnston  v.  Chicago,  258  111.  494,  101  N.  E.  960,  Ann.  Cas.  1914  B  339    45 

L.  R.  A.  (N.  S.)  1167 '  664 

Johnston  v.  Cornelius,  200  Mich.  209,  166  N.  W.  983,  L.  R.  A.  1918  D,  880.  289 

299,  300,  331,  415,  448 

Jolman  v.  Alberts,  192  Mich.  25,  158  N.  W.  170 327,  367,  413,  906 

Jones  V,  Belle  Isle,  13  Ga.  App.  437,  79  S.  E.  357 189 

Jones  V.  City  of  Ft.  Dodge,  185  Iowa,  600,  171  N.  W.  16 41 5 

Jones  V.  City  of  Williamsburg,  97  Va.  722,  34  S.  E.  883,  47  L.  R.  A.  294.  .  18 
Jones  V.  Hoge,  47  Wash.  663,  92  Pac.  433,  125  Am.  St.  Rep.  915,  14  L.  R.  A. 

(N.  S.)   216 36,  37,  292.  624,  628.  630 

Jones  V.  Keefe,  159  Wis.  584,  150  N.  W.  954 862,  866 

Jones  V.  Kunkle,  65  Pitts.  Leg.  Jour.   (Pa.)   667 '  885 


Table  of  Cases.  1207 

Section 

Jones  V.  Magoon,  119  Minn.  434,  138  N.  W.  686 856 

Jones  V.  Norman  (Mo.  App.),  228  S.  W.  895 870,  871,  872 

Jones  V.  Orient  Ins.  Co.,  184  Mo.  App.  402,  171  S.  W.  28 812 

Jones  V.  Sioux  City,  185  Iowa,  1178,  170  N.  W.  445,  10  A.  L.  R.  474 664 

Jones  V.  Southern  Pac.  Co.,  34  Cal.  App.  629,  168  Pa<.-.  586. 557,  560,  569,  711 

Jones  V.  Stokes,  145  Ga.  745,  89  S.   E.   1078 67 

Jones  V.  Strickland,  201  Ala.   138,  77  So.  562 503.  628,  630,  653 

Jones  V.  Tanner  (Ga.  App.) ,  105  S.  E.  705 304 

Jones  V.  Wiese,  88  Wash.  356,  153  Pac.  330 459,  464 

Jonischkies  v.  State  (Tex.  Cr.) ,  227  S.  W.  952 773 

Jordon  v.  Am.  Sight-Seeing  Coach  Co.,  129  N.  Y.  App.  Div.  313,  113  N.  Y. 

Suppl.  786 283,  419,  459,  479 

Jordan  v.  Boston  &  M.  R.  Co.  (N.  H.) ,  113  Atl.  390 615,  '.)37 

Jordon  v.  Osborne,   147  Wis.   623,   133   N.   W.   32 617,  619 

Joslyn  V.  Cadillac  Automobile  Co.,  177  Fed.  863.  101  C.  C.  A.  77 850,  856 

878,  879,  881 

Joy  V.  Inhabitants  of  York,  99  Me.  237,  58  Atl.   1059 707 

Joyce  V.  Interurban  R.  Co.,   172  Iowa,  727,   154  N.  W.  936 585.  604,  611 

Joyce  V.  Smith    (Pa.),   112  Atl.   549 325,  475 

J.  Samuels  &  Bro.  v.  Rhode  Island  Co.,  40  R.  I.  232,  100  Atl.  402.  .    .348.  406 

Judy  V.  Doyle   (Va.),  108  S.  E.  6 339 

Julia  V.  McKinney,  3  Mo.  272 36 

Jung  V.  New  Orleans,  etc.,  Co..   145  La.   727 628 

K 

Kadolph  V.  Town  of  Herman,  166  Wis.  577.  166  N.  W.  433..  696,  698,  710.  712 

Kahn  v.  Home  Telep.  &  Teleg.  Co.,  78  Oreg.  308,  152  Pac.  240.  .  .628,  673.  674 

Kalb  V.  Redwood,  147  N.  Y.  App.  Div.  77,  131  N.  Y.  Suppl.  789 .  .  277,  423,  475 

Kalich  V.  Knapp,  73  Oreg.   558,  142  Pac.  22 58,  70,  71.  230,  730 

Kalinowske  v.  Veermann   (Mo.  App.),  211  S.  W.  723 513 

Kaminski  v.  Fournier    (Mass.),  126  N.  E.  279 443,  471,  472 

Kanaman  v.  Hubbard   (Tex.  Civ.  App.),  160  S.  W.  304 856,  871 

Kane  v.  Nakmoto    (Wash.),  194  Pac.  381 259,  270,  413,  719 

Kane  v.  State,  81  N.  J.  Law  594,  80  Atl.  453,  Ann.  Cas.  1912  D.  237 57.  64 

96,  103,  105,  111,  114,  115,  240 

Kansas  City  v.  McDonald,  60  Kans.  481,  57  Pac.  123,  45  L.  R.  A.  429 318 

Kansas  City  v,  Pengilley,  269  Mo.  59,  189  S.  W.  380 165 

Kansas  City  Auto  School  Co.  v.  Holoker.  etc.,  Mfg.   Co.    (Mo.   App.).   182 

S.   W.    759 23.  S75 

Kansas  City  Regal  Auto  Co.  v.  Old  Colony  Ins.  Co.,  187  Mo.  App.  514.  174 

S.  W.  153 842 

Kansas  City,  etc.,  R.  Co.  v.  Crocker,  95  Ala.  412,  11  So.  262 921.  925 

Kansas  City,  etc.,  R.  Co.  v.  O'Connell  (Tex.  Civ.  App.),  210  S.  W.  757.  .719.  912 

Kaplan  v.  Posner,  192  N.  Y.  App.  Div.  59,  182  N.  Y.  Suppl.  612.  .461,  464.  465 

Karaffa  v.  Ferguson,   68  Pitts.   Leg.  Jour.    109 443.  925 

Karahleos  v.  Dillingham    (Me.) ,   109   Atl.   815 62S 

Karavias  v.  Callinicoa    (1917),  W.   N.   323 r)7S 


1208  Table  of  Cases. 

Section 
Karg  V.  Seventy-ninth  St.  Garage  Corp.,  102  Mi&c.  (N.  Y.)   114,  168  N.  Y. 

Suppl.  164 199 

Karpeles  v.  City  Ice  Delivery  Co.,  198  Ala.  449,  73  So.  642 36,  37,  259,  278 

Kasprzak  v.  Chapman,  197  Mich.  552,  164  N.   W.  358 549 

Kathmeyer  v.  Mehl    (N.  J.),   60  Atl.   40 439,  476 

Kauffman  v.  Nelson,  225  Pa.  St.   174,  73  Atl.   1105 423.  475 

Kaufman  v.  Township  of  Korah,  46  O.  L.  R,   (Canada)   412 700 

Kaufman  Beef  Co.  v.  United  Rys.  &  Elec.  Co.,  135  Md.  524,  109  Atl.  191 . .  714 
Kayser  v.  Van  Nest,  125  Minn.  277,  146  N.  W.  1091,  51  L.  R.  A.   (N.  S.) 

970 .T57,  660 

Kearn8  v.  Widman  (Conn.) ,  108  Atl.  681 423 

Keber  v.  Central  Brewing  Co.  of  New  York,  150  N.  Y.  Suppl.  986 340 

Keck  V.  Jonea,  97  Kans.  470,  155  Pac.  950 665 

Keeney  v.  Springfield  St.  Ry.  Co.,  210  Mass.  44,  96  N.  E.  73 614 

Keeter  v.  State   (Okla.),  198  Pac.  866 940,  943.  947 

Keevil  v.  Ponsford   (Tex.  Civ.  App.),   173  S.  W.  518 297,  298,  300,  304 

318,  321,  524 

Keil  v.  Evans,  99  Kans.  273,  161  Pac.  639 359,  516 

Keinath  v.  Bullock   (Pa.  St.),  110  Atl.  755 617,  679 

Keiper  v.  Pacific  Gas  &  Elec.  Co.  (Cal.  App.),  172  Pac.  180 340,  415,  484 

Keith  V,  Great  Northern  Ry.  Co.   (Mont.),  199  Pac.  718 557,  567 

Kellaher  v.  Portland,  57  Oreg.   575,   112  Pac.   1076 71,  76,  97,  109,  110 

Kelleher  v.  City  of  Newburyport,  227  Mass.  462,  116  N.  E.  807 291,  338 

696,  702,  705 

Keller  v.  Blurton  (Mo.  App,),  183  S.  W.  710 228 

Kelley  v.  James,  37  S.  Dak.  272,  157  N.  W.  990 72,  77,  236.  248 

Kelley  v.  Keller  (Mich.) ,  179  N.  W,  237 512,  516 

Kelley  v.  Weaver,  77  Oreg.  267,  150  Pac.  166,  151  Pac.  463 921 

Kellner  v.  Christiansen,  169  Wis.  390,  172  N.  W.  796 452,  487 

Kelly  v.  City  of  Waterbury  (Conn.) ,  114  Atl.  530 913 

Kelly  v.  McKeon,  139  Minn.  285,  166  N,  W.  329 516 

Kelly  v.  Schmidt,  142  La.   91,  76  So.   250 327,  329,  332,  336,  423,  442,  448 

Kelly  V.  Times  Square  Auto  Co.,  170  Mo.  App.  64,  156  S.  W.  62 894 

Kendall  v.  City  of  Des  Moines,  183  Iowa,  866,  167  N.  W.  684 277,  326,  332 

335,  698,  710,  711.  715 

Kennamer  v.  State,  150  Ala.  74,  43  So.  482 Ill 

Kennard  v.  Burton,  25  Me.  39 351,  399 

Kennedy  v.  Knott,  264  Pa.  St.  26,  107  Atl.  390 630,  638 

Kennedy  v.  R.  &  L.  Co.,  224  Mass.  207,  112  N.  E.  872 642,  643,  644 

Kennedy  v.  Webster,  137  Minn.  335,  163  N.  W.  519 332,  336,  500 

Kennelly  v.  London  Guarantee  &  Accident  Co.,  Ltd,,  184  N.  Y.  App.  Div. 

1,  17  N.  Y,  Suppl.  423. 834 

Kenner  Co.  v.  Peters,  141  Tenn.  55,  206  S.  W.  188 885 

Kennery  v.  Northwestern  Junk  Co.,  108  Wash.  656,  185  Pac.  636 :-i85 

Kenney  v.  Village  of  Dorchester,  101  Neb.  425,  163  N,  W.  762.  .  .  .195,  199.  234 

Kent  v.  Treavorgy,  22   CoTo.  App.   441,   125  Pac.   128 278,  359 

Kent  v.  Walla-Walla  Valley  Ry.  Co.,  108  Wash.  351,  183  Pac.  87 567.  580 

Kentucky  Glycerine  Co.  v.  Clause,  187  Ky.  484,  219  S.  W.  788 189 

Kentucky  Motor  Car  Co.  v.  Darenkamp,  162  Ky.  219,  172  S.  W.  524 851 


Table  of  Cases.  1209 

Section 

Keoeayan  v.  Geiger,  188  N.  Y.  App.  Div.  829,  176  N.  Y.  Suppl.  585 438,  448 

Kerchner  v.  Davis,   183   111.  App.   600 50,  277,  423,  475 

Kerk  v.  Peters,  261  Pa.  279,   104  Atl.   549 486,  487 

Kersey  v.  Terre  Haute,  161  Ind.  471,  68  N.  E.  1027..  71,  75,  96,  110,  114,  23^ 

Kessler  v.  Washburn,   157  111.   App.   532 277,  289,  300,  301,  304,  305,  322 

324,  325.  326.  329,  332.  414,  441,  442,  443,  444.  448,  467,  468,  469,  486 

Kessler,  ex  parte,  26  Idaho,  764,  146  Pac.  113 94,  96,  106,  108,  111 

Ketchum  v.  Fillingham,  162  Mich.  704,  127  N.  W.  702 2T.> 

Keudelhuber  v.  Douglas  County,  100  Neb.  687,  161  N.  W.  174 679 

Keys  V.  Schaff,  107  Kans.  620,  193  Pac.  322 577 

Kidd  V.  Dewitt    (Va.),   105   S.   E.    124 630,  632 

Kidd  V.  New  York  Central,  etc.,  R.  Co.,  218  N.  Y.  313,  112  N.  E.  1051. . . .  557 

Kilgore  v.  Birmingham,  etc..  Power  Co.,  200  Ala.  238,  75  So.  966 416 

Kilgore,  J.  C.  v.  Whittaker  (Tex.  Civ.  App.),  217  S.  W.  445 208 

Kilkenny  v.  Bockius,   187   Fed.   382 397,  678,  679 

Kilker  v.  Ford  Motor  Co.,  39  S.  Dak.  293,  164  N.  W.  57 921 

Killingsworth  v.  Keen,  89  Wash.  597,  154  Pac.  1096 229 

Kilroy  v.  Justrite  Mfg.  Co.,  209  111.  App.  499 311,  352,  409 

Kimball  v.  Cushman,  103  Mass.  194.  4  Am.  Rep.  528 €41 

Kimbrough  v.  Hines   (N.  Car.) ,  104  S.  E.  684 567 

Kime  v.  Owens    (Iowa) ,  182  N.  W.   399 394 

Kime  v.  Southern  Railway  Co.,  153  N.  Car.  398,  69  S.  E.  274 592,  599,  603 

Kincaid  v.  Dunn,  26  Cal.  App.  686,  148  Pac.  235 717,  719,  720 

King  V.  Breham  Auto  Co.  (Tex.  Civ.  App.),  145  S.  W.  278 171,  411,  645 

King  V.  Brillhart    (Pa.).  114  Atl.   515 416,  432,  452,  463,  487 

King  V.  Burleson,  138  N.  Y.  App.  Div.  405,  122  N.  Y.  Suppl.  752 362,  934 

King  V.  Cline   (Cal.  App.),  194  Pac.  290 229,  887 

King  V.  Grien,  7  Cal.  App.  473,  94  Pac.  777 422,  482 

King  V.  HoUiday   (S.  C),  108  S.  E.  186 414,  480 

King  V.  Hyndman,  7  Canada  C.  C.  469 536 

King  V.  Kansas  City  Rys.  Co.  (Mo.  App.),  204  S.  W.  1129 587,  613 

King  V.  Rhode  Island  Co.  (R.  I.) .  110  Atl.  623 592,  609,  61.^ 

King  V.  San  Diego  Elec.  Ry.  Co.,  176  Cal.  266,  168  Pac.  131 290.  299.  415 

King  V.  Smythe,  104  Tenn.  217,  204  S.  W.  296,  L.  R.  A.  1918  F  293 624 

656.  657,  660,  673 

Kinmore  v.  Cresse,  53  Ind.  App.  693,  102  N.  E.  403 429,  450 

Kinne  v.  Town  of  Morristown,  184  N.  Y.  App.  Div.  408 682,  702.  716 

Kinney  v.  King   (Cal.  App.).   190  Pac.   834 262,  267.  297,  394,  403 

Kinsey  v.  Locomobile  Co.,  235  Pa.  St.  95.  83  Atl.  682 215 

Kirby  v.  Kansas,  etc.,  R.  Co.,   106  Kans.  163.  186  Par.   744 689 

Kirk  V.  St.  Paul  City  Ry.  Co..  141  Minn.  457,  170  N.  W.  517 585,  599 

Kirkland  v.  Atchison,  etc.,  Ry.  Co.  (Kans.),  179  Pac.  362 557.  569,  682 

Kirksey  v.  Southern  Traction  Co.    (Tex.),  217  S.  W.  139 577 

Kirlin  v.  Chittenden,    176   111.   App.    550 359.  525,  549 

Kirmse  v.  Chicago,  etc..  R.  Co.   (Ind.),  127  N.  E.  837 691 

Kishakiski  v.  Sullivan    (Conn.) .   108  Atl.  538 419.  478 

Kitchen  v.  Weatherby.   205   111.   App.    10 656,  658 

Kitz  V.  Scudder  Syrup  Co..  199  111.  App.  605 631 


1210  Table  of  Cases. 

Section 

Kling  V.  Thompson-McDonald  Lumber  Co.,  127  Minn.  468,  149  N.  W.  947.  .  277 

423,  425,  475 

Klock  V.  Newbury,  63  Wash.   153,  114  Pac.   1032 858,  871 

Klokow  V.  Harbaugh,  166  Wis.  262,  164  Wis.  999 453,  458.  462,  475,  487 

Klopfenstein  v.  Union  Tract.  Co.  (Kans.),  198  Pac.  930 711,  714 

Knapp  V.  Barrett,  216  N.  Y.  226,  110  N.  E.  428 459,  468 

Knapp  V.  Lyman  (Cal.  App.) ,  186  Pac.  385 .. 855 

KnaufiF  v.  Yarbray,  21  Ga.  App.  94.  94  S.  E.  75 208,  875 

Kneedler,  ex  parte,  243  Mo.  632,  147  S.  W.  983,  Ann.  Cas.  1913  0  923.  .  .  .57,  775 

Kneeshaw  v.  Detroit  United  Ry.,   169  Mich.   697,   135  N.  W.   903.... 327,  604 

612,  613,  680 

Kneflf  V.  Sanford,   63   Wash.   503,   115   Pac.    1040 628,  673,  674 

Knepp  V.  Baltimore,  etc.,  R.  Co.,  262  Pa.  421,  105  Atl.  636 568 

Knight  V.  Bentel   (Cal.  App.),  179  Pac.  406 856,  871 

Knight  V.  Cossitt,   102  Kans.   764,   172   Pac.   533 .657,  660,  668 

Knight  V.  Lanier,  69  N.  Y.  App.  Div.  454,  74  N.  Y.  Suppl.  999 277,  327 

517,  518,  540 

Knight  V.  Laurens  Motor  Car  Co.,  108  S.  Car.  179,  93  S.  E.  869.. 6^8,  630,  670 

Knight  V.  Savannah  Elec.  Co.,   20  Ga.  App.   719,  93   S.   E.   17 95,  123 

125,  126,  610 

Knight  V.  Willard,  26  N.  Dak.  140,  143  N.  W.  346 211 

Knight's  Case,  1  Lewin's  Crown   Cases,   168 758 

Knoxville  Ry.  &  Light  Co.  v.  Vangilden,  132  Tenn.  487,  178  S.  W.  1117 307 

308,  679,  685,  688,  690,  692,  715,  716 

Koch  V.  City  of  Seattle  (Wash.),  194  Pac.  572 295,  614 

Koenig  v.  Semran,  197  111.  App.   624 263,  332.  336,  499 

Koenig  v.  Sproesser,  161  Wis.  8,  152  N.  W.  473 362 

Kokesh  v.  Price,  136  Minn.  304,  161  N.  W.  715 679,  682,  685,  688,  690 

KokoU  V.  Brohm  &  Buhl  Lumber  Co.,  77  N.  J.  Law  169,  71  Atl.  120 543 

Kolankiewiz  v.  Burke,  91  N.  J.  Law   567,   103   Atl.   249 72,  77,  236,  267 

297,  299,  327,  418,  425 

Kolb  V.  State  (Tex.  Cr.),  228  S.  W.  210 768,  934 

Konig  V.  Lyon   (Cal.  App.),  192  Pac.  875 245,  493.  ^Q3.  512,  516 

Koonovsky  v.  Ouellette,  226  Mass.   474,   116  N.   E.   243 118,  125 

Kopper  V.  Bernhardt,  91  N.  J.  Law  697,  103  Atl.  186 348,  406 

Kramer  v.  Chicago,  etc.,  Ry.  Co.    (Wis.),  177  N.  W.  874 298.  345.  347 

Krebs  v.  Pascagoula  St.  Ry.  &  Power  Co.,  117  Miss.  771.  78  So.  753 588 

589,  590 

Kriens  v.  McMillan   (S.  Dak.) ,  173  N.  W.  731 503 

Krouse  v.  Southern  Mich.  Ry.  Co.  (Mich.),  183  N.  W,  768 575,  576.  693 

Krug  V.  Waldren  Express  &  Van  Co..  214  111.  App.  18,  affirmed  126  N.  E. 

97 418,  453,  478 

Kuchler  v.  Stafford,  185  111.  App.  199 258.  308,  326,  443,  445,  453,  476,  486 

Kuehne  v.  Brown,  257  Pa.  37,  101  Atl.  77 305.  329,  332,  4.38,  448,  480 

Kuhns  V.  Marshall  (Cal.  App.),  186  Pac.  632 380 

Kurtz  V.  Tourison,  241  Pa.  St.  435,  88  Atl.  656 465,  487.  628 


Tablk  of  Cases.  1211 

L  Section 

LaBrash   v.   Wall,   134  Minn.  IIJO,   loS   N.   \\  .  72:; 339.  525,  549 

LaBerge  v.  LaCouipagnie  tie  Tramway:',   24   R«v.   L«g   (Canada)    133 349 

Lacey   v.  Foreliand   (Ga.  App.),   108  S.  E.  247 €57 

Laeey   v.   Winn,  2  Pa.  Dist.  Kep.   811 18,  49 

Lacey  v.   Winn,  4  Pa.  Dist.  Rep.  409,  412 18,  49 

Lacker  v.  Strauss,  22  Mass.  579,  116  N.  E.  236 491 

Ladliman  v.  Young,  145  N.  Y.  Suppl.  1089 359,  413 

LaDuke  v.   Uu.\ter   (Mo.  App.),  202  S.  W.  254 366,  452,  487,  929 

Lady  v.  Douglass   (Neb.) ,  181  N.   VV.  173 320 

Laiitte  v.  Sehunamann,  19  Ga.  App.  799,  92  S.  E.  295 629,  717 

LaGoy  v.  Director  General,  231  N.  Y.  191 688 

Lake  County  Agr.  Soc.  v.  Verplank  (Ind.  App.),  124  N.  E.  494 189 

Lake  Erie  &  W.  K.  Co.  v.  Griswold  (Ind.  App.),  125  N.  E.  783 577,  580 

Lake  Erie  &  W.  R.  Co.  v.  Howarth   (Ind.  App.),  124  N.  E.  687 550,  553 

577,  580,  775 

Lake  Erie  &  W.  R.  Co.  v.  Sams  (Ind.  App.),  127  N.  E.  566 556,  682 

Lake  Erie  &  W.  R.  Co.  v.  Sanders  (Ind.  App.),  125  N.  E.  793 169,  177,  747 

Lake  Erie  &  W.  R.  Co.  v.  Schneider,  257  Fed.   675 510,  553,  568,  577 

Lamanna  v.  Stevens,  5  Boyce's  (Del.)   402,  93  Atl.  962 673 

Lamb  v.  Otto   (Cal.),  197  Pac.   147 863,  866 

Lambert  v.  American  Box  Co.,  144  La.  604,  81  So.  95,  3  A.  L.  R.  612 349 

Lames  v.  Armstrong,  162  Iowa,  327,  144  N.  W.  1,  49  L.  R.  A.  (N.  S.)  691n..8,  36 

Lamke  v.  Harty   Bros.   Trucking  Co.    (Conn.).    H4   Atl.   533 262,  394 

Laraont  v.  Adams'  Express  Co.,  264  Pa.   17,  107  Atl.  37.T 452 

Lampe  v.  Jacobsen,  46  Wash.  533,  90  Pac.  654 456 

Lampton  v.  Davis  Standard  Bread  Co.  (Cal.  App.),  191  Pac.  710 418,  463 

Lancaster  v.  Reese,  260  Pa.  390,  103  Atl.  891 413 

Lancaster,  City  of  v.  Broddus,  186  Ky.  226,  216  S.  W.  373 696,  700 

Lane  v.  McLay,  91  Conn.  185,  99  Atl.  498 872 

Lane  v.  Roth,  195  Fed.  255 677 

Lane  v.  Sargent,  217  Fed.   237 49,  277,  414,  453 

Lange  v.  Interstate  Sales  Co.  (Tex.  Civ.  App.),  166  S.  W.  900 851 

Lange  v.  New  York,  etc.,  R.  Co.,  89  N.  J.  Law  604,  99  Atl,  346 679,  686 

Landry  v.  Overson   (Iowa) ,  174  N.  W.  255 37,  673 

Lane  v.  Crandell   (No.  2).  10  Dom.  L.  R.   (Canada)   763,  5  A.  L.  R.  42.  23 

W.  L.  R.  69 642 

Lane  v.  Kansas  City  Rys.  Co.   (Mo.  App.),  228  S.  W.  870 594,  613 

Langford  v.   San  Diego  Elec.  Ry.  Co..  174  Cal.  729.  164  Pac.  398 247,  270 

271,  600,  602 

Langley  v.  Hines  (Mo.  App.),  227  S.  W.  877 559 

Langley  v.  Southern  Ry.  Co.  (S.  Car.).  101  S.  E.  286 682,  694 

Lanier  v.  Minneapolis,  etc.,  Ry.  Co.   (Mich.),  176  N.  W.  410 554,  572 

Lannon  v.  Fond  du  Lac,  141  Wis.  57,  123  N.  W.  629,  25  L.  R.  A.  (N.  S.)  40.  447 

Lansing  v.  TTaye.s.    196   App.   Div.   671 228.  631 

Lanterman  v.  Luby  (N.  J.) .  114  Atl.  325 87S 

Larendo  Electric  &  Ry.  Co.  v.  Hamilton,  23  Tex.  Civ.  App.  480,  56  S.  W. 

998,  1000 : 18 

Lamer  v.  New  York  Traiisp.  Co.,  149  App.  Div.  193.  133  N.  Y.  Suppl.  743.  .  453 


1212  Table  of  Cases. 

Section 

LaRose  v.  Nichols,  91  N.  J.  Law  355,  103  Atl.  390 875 

Larrabee  v.  Sewell,  66  Me.  376 351 

Larrow  v.  Martell,  92  Vt.  435,  104  Atl.  826 363 

Larsh  v.  Strasser,  183  Iowa,  1360,  168  N.  W.  142.  .322,  330,  488,  501,  502,  511 

Lasher  v.  State   (Fla.),  86  So.  689 768 

Lassen  v.  New  York,  etc.,  R.  Co.,  87  Conn.  705,  87  Atl.  734 560,  569,  575 

Latham  v.  Cleveland,  etc.,  R.  Co.,  164  111.  App.  559 220,  289,  300,  720,  722 

Latham  v.  Cleveland,  C.  C.  &  St.  L.  R.  Co.,  179  111.  App.  324 293,  573 

Latimer  v.  Anderson  County,  95  S.   Car.   187,  78  S.  E.   879 679,  689,  690 

696,  698,  716 

Laudenberger  v.  Easton  Transit  Co.,  261  Pa.  288,  104  Atl.  588 247,  256,  630 

Laufer  v.  Bridgeport  Traction  Co.,  68  Conn.  475,  37  Atl.  379,  37  L.  R.  A. 

533 23,  615 

Laughlin  v.  Seattle  Taxicab  &  Tr.  Co.,  84  Wash.  342,  146  Pac.  847 484 

Laurerce  v.  Middleton,  103  Miss.  173,  60  So.  130 191 

Laurino  v.  Donovan,  183  N.  Y.  App.  Div.  168,  170  N.  Y.  Suppl.  340 228 

Laurisch  v.  Minneapolis  St.  R.  R.  &  D.  Electric  Traction  Co.,  132  Minn. 

114,   155   N.   W.    1074 491,  509,  510,  512,  896 

Lauson  v.  Fond  du  Lac,  141  Wis.  57,  123  N.  W.  629,  25  L.  R.  A.  (N.  S.) 

40,  135  Am.  St.  Rep.  30 307,  716 

Laut  V.  City  of  Albany,  191  N.  Y.  App.  Div.  753,  182  N.  Y.  Suppl.  183.. 702,  706 

Lauterbach  v.  State,  132  Tenn.  603,  179  S.  W.  130 306,  321,  418,  419 

443,  444,  453,  758,  759,  763 

Lawler  v.  Montgomery   (Mo.  App.),  217  S.  W.  856 361,  399,  675 

Lawrence  v.  Channahon,  157  HI.  App.   560 297,  298,  300,  347,  704,  712 

Lawrence  v.  Denver,  etc.,  R.  Co.,  52  Utah,  414,  174  Pac.  817 550,  560,  682 

688,  589,  690 

Lawrence  v.  Fitchburg,  etc.,  R.  Co.,  201  Mass.  489,  87  N.  E.  898' 611 

Lawrence  v.  Goodwill    (Cal.    App.),    186    Pac.    781 27,  260,  262,  267,  275 

285,  297,  299,  311,  321,  411 

Lawrence  v.  Sioux  City,  172  Iowa,  320,  154  N.  W.  494 679,  682 

Lazarowitz  v.  Levy,  194  N.  Y.  App.  Div.  400,  185  N.  Y.  Suppl.  359.. 342,  430,  446 

Leach  v.  Asman,  130  Tenn.  510,  172  S.  W.  303 277,  278 

LeBlanc  v.  New  Orleans,  138  La.  243,  70  So.  212 135,  136,  138 

Lebrecht  v.  State   (Okla.) ,  172  Pac.  65 51 

Lebsack  v.  Moore,  65  Colo.  315,  177  Pac.  137 514 

Lee,  ex  parte,  28  Cal.  App.  719,  153  Pac.  992 57,  135,  164 

Lee  V.  City  of  Burlington,  113  Iowa,  356,  85  N.  W.  618 521 

Lee  V.  Donnelly   (Vt.),  113  Atl.  542 243,  263,  285,  329,  334,  679 

Lee  V.  Foley,  113  La.  663,  37  So.  594 270,  377 

Lee  V.  Pesterfield,   77  Okla.   317,   188  Pac.   674 262,  394 

Lee  V.  Van  Buren,  etc.,  R.  Co.,  190  N.  Y.  App.  Div.  742,  180  N.  Y.  Suppl. 

295 342,  446 

Leeds  v.  N.  Y.  Tel.  Co.,  178  N.  Y.  118,  70  N.  E.  219 800 

Lefkowitz  v.  Sherwood  (Tex.  Civ.  App.),  136  S.  W.  850 628,  750 

Legenbauer  v.  Esposito,  187  N.  Y.  App.  Div.  811,  176  N.  Y.  Suppl.  42 656 

Lehigh  &  Wilkes-Barre  Cotil  Co.  v.  Borough  of  Junction,  N.  J.  Law  1908, 

68  Atl.  806 86 


Table  of  Cases.  1213 

Section 

Lehigk  Valley  R.  €o.  v.  Emens,  231  Fed.  636,  145  C.  C.  A.  522 679,  690 

Leliigli  Valley  R.  Co.  v.  Kilmer,  231  Fed.  628,  145  C.  C.  A.  514 550,  554,  557 

558,  561,  580 

Lehman  v.  New  York  City  Railway  Company,  107  N.  Y.  Suppl.  561 615 

Lemke  v.  Ady  (Iowa),  159  N.  W.  1011 247,  305,  528,  656,  657,  659 

Lemuion  v.  Broadwater,  30  Del.  (7  Boyce's)  472,  108  Atl.  273 251,  297,  300 

321,  488,  493,  510,  512,  515 
Lendrum  v.  Village   of   Cobleskill,    192   N.   Y.   App.   Div.    828,    183   N.    Y. 

Suppl.  215 701 

Leopard  v.  Kansas  City  Rys.  Co.  (Mo.  App.),  214  S.  W.  268 688,  689 

Leopold  V.  Texas,  etc.,  R.  Co.,  144  La.  1000,  81  So.  904 686,  689 

Lepman  v.  Employer's  Liability  Assur.  Corp.,  170  111.  App.  379 816,  820 

Lessig  V.  Reading  Transit  &  L.  Co.  (Pa.),  113  Atl.  381 592 

Lesuer  v.  City  of  Lowell,  227  Mass.  44,  116  N.  E.  483 228 

Letendre  v.  Automobile  Ins.  Co.  (R.  L),  112  Atl.  783 813 

Letzter  v.  Ocean  Elec.  Ry.  Co.,  192  N.  Y.  App.  Div.  114,  182  N.  Y.  Suppl. 

G49 585,  612,  614 

Levein  v.  Rhode  Island  Co.   (R.  I.),  110  Atl.  602 592,  613 

Levesque  v.  Dumont,   116  Me.   25,   99   Atl.   719 329,  419,  448,  453,  461,  479 

Levin  v.  New   England   Casualty  Co.,   101   Misc.    (N.   Y.)    402,   166  N.   Y. 

Suppl.  1055 834 

Levine  v.  Ferlisi,  192  Ala.  362,  68  So.  269 654,  657.  67T 

Levings  v.  Pacific  Elec.  Ry.  Co.,  178  Cal.  231,  173  Pac.  87 — 

Levy  v.  Steiger,  233  Mass.  600,  124  N.  E.  477 353,  3y'j 

Levyn  v.  Koppin,   183  Mich.   232,   149   N.   W.   993 297,  310,  320,  329,  330 

423,  441,  442,  -443,  448,  626,  910 

Lewandowski  v.  Cohen   (Mass.),  129  N.  E.  378 632  673 

Lewis  V.  Amorous,  3  Ga.  App.  50,  59  S.  E.  338 36,  37,  39,  292,  624,  626 

628,  630,  653 

Lewis  V.  Berney   (Tex.  Civ.  App.) ,  230  S.  W.  246 193 

Lewis  V.  City  of  Savannah   (Ga.),  107  S.  E.  588 196 

Lewis  V.  Farmers   &   Mechanics   Nat.   Bank    (Tex.   Civ.  App.),   204   S.   W. 

888 865,  868 

Lewis  V.  Metropolitan  St.  Ry.  Co.,  181  Mo.  App.  421,  168  S.  W.  833 351 

Lewis  V.  National  Cash  Register  Co.,  84  N.  J.  Law  598,  87  Atl.  345 663 

Lewis  V.  Pope  Motor  Car  Co.,  202  N.  Y.  402,  95  N.  E.  815 86S 

Lewis  V.  Seattle  Taxicab  Co.,  72  Wash.   320,  130  Pac.   341 359,  476,  487 

Lewis  V.  Steel,   52  Mont.   300,   157   Pac.   575 304.  441,  443,  623,  624,  656 

657,  658,  659,  660 

Lewis  V.  Tanner  (Cal.  App.),  183  Pac.  287 453,  460,  47."^ 

Lewis  V.  Wood,  247  Pac.  St.  545,  93  Atl.  605 425,  453,  462.  46S,  471,  47.') 

Lev  V.  Henry,  50  Pa.  Super.  Ct.  591 677 

Levein  v.  Rhode  Island  Co.    (R.  L) ,  110  Atl.   606 59r, 

Lickleider  v.  Iowa  State  Traveling  Men's  Assoc,  184  Iowa,  423,  168  N.  W. 


884. 


845 


Liehecht  v.  Crandall,  110  Minn.  454,  126  N.  W.  69 423  47.=> 

Lillard  v.  Melton,  103  S.  Car.  10,  87  S.  E.  421 57,  63,  64,  94,  96,  111.  114 

Limbacher  v.  Fannon.  102  Misc.   (N.  Y.)   703.  160  N.  Y.  Suppl.  490.  .  .  .642.  662 

67.1.  674 


1214  Table  of  Cases. 

Section 

Lincoln  v.  Dehner,  268  111.   175,  108  N.  E.  991 77,  98 

Lincoln  Taxicab  Co.  v.  Smith,  88  Misc.   (N.  Y.)   9,  150  N.  Y.  Suppl.  86 ^94 

Lindahl  v.  Morse   (Minn.),  181  N.  W.  323 262,  394 

Linden  v.  Miller    (Wis.),  177  N.   W.  909 283,  338 

Lindley  v.  Fries,  etc.,  Co.,  153  N.  Car.  394,  69  S.  E.  274.8,  51,  592,  595,  599,  603 

Lindsay  v.  Cecchi,  3  Boyce's   (Del.)    133,  80  Atl.   523 126,  361,  451 

Lindstrom  v.  Seattle  Taxicab  Co.    (Wash.),  199  Pac.  389 486 

Lininger  v.  San  Francisco,  etc.,  R.  Co.,  18  Cal.  App.  411,  123  Pac.  235....  615 

616,  617,  679 

Link  V.  Fahey,  200  Mich.  308,  166  N.  W.  884 906 

Link  V.  Skeeles,  207  111.  App.  48 246,  271,  322,  475 

Linn  v.  Reid   (Wash.),  196  Pac.  13 855 

Linneball  v.  Levy  Dairy   Co.,   173  N.  Y.  App.   Div.   861,   160  N.   Y.   Suppl. 

114 300,  331,  502,  516 

Linstroth  v.  Peper   (Mo.  App.),  188  S.  W.   1125 82,  247.  433 

Linville  v.  Nissen,  162  N.  Car.  95,  77   S.  E.   1096 36,  38,  224,  295,  362 

623,  656,  657,  658,  660,  662 

Litherbury  v.  Kimmet   (Cal.) ,  195  Pac.  660 264,  387 

Little  V.  Hackett,  116  U.  S.  366,  29  L.  Ed.  652,  6  Sup.  Ct.   391 169,  171 

177,  695 

Little  V.  Maxwell,  183  Iowa,  164,  166  N.  W.  760 418,  421 

Littlewood  v.  Detroit  United  Ry.,   189  Mich.   388,   155  N,   W.   698 558,  559 

574,  576 

Livingston  v.  Barney,  62  Colo.  528,  163  Pac.  863 504 

Livingston  v.  Chambers  (Iowa) ,  183  N.  W.  429 338,  613 

Livingston  &  Co.  v.  Philley,  155  Ky.  224,  159  S.  W.  665 521,  679,  685,  709 

Livingston  v.  Dole,  167  Iowa,  639,  167  N.  W.  639 459,  836,  906.  920,  925 

Lloyd  V.  Calhoun,  78  Wash.  438.  139  Pac.  231 272.  362,  374,  377 

Lloyd  V.  Calhoun,    82    Wash.    35,    143    Pac.    458 249,267,272,  297 

398,  374,  377,  403 

Lloyd  V.  Kilpatrick,  71  Misc.   (N.  Y.)   19,  127  N.  Y.  Suppl.  1096 877 

Lloyd  V.  Northern  Pac.  R.  Co.,  107  Wash.  57,  181  Pac.  29,  6  A.  L.  R.  307 .  .  642 

Lobbett  &  Dean  v.  Oakland,  etc.,  Ry.  (Cal.  App.),  172  Pac.  1133 613 

Locke  V.  Greene,    100   Wash.    397,    171   Pac.    245 49,  325,  326,  414,  419 

441,  443,  484 

Locke  V.  Royal  Ins.  Co..  220  Mass.  202,  107  N.  E.  911 806 

Lockett  V.  Rawlins,  13  Ga.  App.  52,  78  S.  E.  780 867 

Lockhart  v.  Craig  St.  Ry.  Co.,  139  Pa.  St.  419,  21  Atl.  26,  J  Am.  Elec.  Cas. 

314 33 

Lockhart  v.  Litchtenthaler,  46  Pa.  St.  151 935 

Lockhead  v.  Jenson,  42  Utah,  99.  129  Pac.  347 305,  334,  325,  678,  688 

Loehr  v.  Abell,  174  Mich.  590,  140  N.  W.  936 636,  656,  660 

Loftus  v.  Pacific  Elec.  Ry.  Co.,  166  Cal.  464,  137  Pac.  34 535,  530 

Loftus  v.  Pelletier,  223  Mass.  63,  111  N.  E.  712 338,  679.  689 

Loggins  v.  Southern  Pub.  Utilities  Co.   (N.  Car.),  106  S.  E.  822 428 

Loiselle  v.  Rhode  Island  Co.   (R.  L) ,  110  Atl.  407 565 

Long  V.  Nute,  123  Mo.  App.  204,  100  S.  W.  511 638,  633,  673 

Long  v.  Philadelphia  Rapid  Transit  Co.,  65  Pa.  Super.  Ct.  381 609 

Long  Island  R.  Co.  v.  Darnell,  331  Fed.  191 679 


TiVBLE  OF  Cases.  1215 

Section 

Lonnecker  v.  Van  Patten  (Iowa),  179  N.  W.  432 413,  719,  720,  722 

Loomis  V.  Brooklyn  Heights  R.   Co.,   133  N.   Y.   App.   Div.   247,   117   N.   Y. 

Suppl.  392 560,  562 

Loose  V.  Deerfield  Twp.,   187   Mich.   206,    153   N.    W.   913 696,  700,  710 

908,  912,  920 

Loiah  V.  Rinehart,  243  Pa.  St.  231,  89  Atl.  967 277,  378,  309,  325,  326 

362,  366,  393,  399,  919 

Lorando  v.  Gethro,  228  Mass.  181,  117  N.  E.  185 837 

Lord  V.  Roberts,  102  Neb.  49,  165  N.  W.  892 413 

Lorenz  v.  Tisdale,  127  App.  Div.  (N.  Y.)  433,  111  N.  Y.  Suppl.  173 50,  385 

Lorenzo  v.  Manhattan  Steam  Bakery,  178  App.  Div.  706,  165  N.  Y.  Suppl. 

847 425,  487 

Imho   v.  Lancaster  County,  77  Neb.  466,  109  N.  W.  752,  8  L.  R.  A.  (N.  S.) 

618 ^.  679 

Lothatius  v.  Milwaukee,  etc..  Electric  Railway  &  Light  Co.,  157  Wis.  184, 

146  N.  W.  1122 607 

Lotz  V.  Hanlon,  217  Pa.  St.  339,  66  Atl.  525,  10  Ann.  Cas.  731,  10  L.  R.  A. 

(N.  S.)   202 630,  673 

Lougheed  v.  Collingwood  Co.,  16  0.  L.  R.  (Canada)  61 717 

Louisiana  Western  Ry.  Co.  v.  Jones  (Tex.  Civ.  App.),  233  S.  W.  363 560 

Louisville  &  N.  R.  Co.  v.  English,  78  Fla.  211,  82  So.  819 560,  577 

Louisville  &  N.  R.  Co.  v.  Harrison,  78  Fla.  381,  83  So.  89 574 

Louisville  &  N.  R.  Co.  v.  Scott's  Adm'r,  184  Ky.  319,  211  S.  W.  747 567,  679 

Louisville  Bridge  Co.  v.  Irving,  180  Ky.  729,  203  S.  W.  531 704,  710,  714 

Louisville,  etc.,  R.  Co.  v.  Armstrong,  127  Ky.  367,  32  Ky.  L.  Rep.  252,  105 

S.  W.  473 682 

Louisville,  etc.,  R.  Co.  v.  Cantrell,  175  Ky.  440,  194  S.  W.  353 583,  620 

Louisville,  etc.,  R.  Co.  v.  Clore,  183  Ky.  261,  209  S.  W.  55 567,  577,  580,  583 

Louisville,  etc.,  R.  Co.  v.  Jones,  108  Ind.  551,  9  N,  E.  476 921,  929 

Louisville,  etc.,  R.   Co.   v.   Markee,   103   Ala.    160.   15   So.    511,   49   Am.   St. 

Rep.  21 357,  548 

Louisville,  etc.,  R.  Co.  v.  Morgan,   174  Ky.   633,   192   S.   W.   672 550,  552 

567,  571,  582,  583 
Louisville,  etc.,  R.  Co.  v.  Schuester,  183  Ky.  504,  209  S.  W.  542,  4  A.  L.  R. 

1344 550,  558,  722 

Louisville,  etc.,  R.  Co.  v.  Speckman,  169  Ky.  385,  183  S.  W.  915 582 

Louisville,  etc.,  R.  Co.  v.  Treanor's  Adm'r,  179  Ky.   337,  200  S.  W.   634..  550 

552,  567,  580 

Louisville,  etc.,  R.  Co.  v.  Wehner,  153  Ky.  190,  154  S.  W.  1087 .'?51 

Louisville  Lozier  Co.  v.  City  of  Louisville,  159  Ky.  178,  166  S.  W.  767 196 

Louisville  Lozier  Co.  v.  Sallee,  167  Ky.  499,  180  S.  W.  481 663.  929.  934 

Louisville  Ry.  Co.  v.  Birdwell,  189  Ky.  424,  224  S.  W.  1065 262,  585.  619 

Lounsbury  v.  McCormick  (Mass.),  129  N.  E.  598 345,  611,  622,  836 

Loury  v.  Smith    (Mo.   App.),   198   S.   W.   437 453,  456.  458,  459,  462.  463 

Louthan  v.  Peet,  66  Colo.  204,  179  Pac.  135 452.  486.  487 

Love  V.  Worcester  Consolidated  Street  Railway,  213  Mass.   137,  99  N.  E. 

960 125 

Lovelt  V.  Scott.  232  Mass.  541,  122  N.  E.  646 419 

Lowell  V.  Williams,  183  N.  Y.  App.  Div.  701,  170  N.  Y,  Suppl.  596 628,  678 


1216  Table  of  Cases. 

Section 

Lowry  v.  Thompson,  20  O.  L.  R.   (Canada)   478 626 

Lubier  v.  Moliaud,  38  Que.  S.  C.   (Canada)    190 525 

Luckenbach  v.  Smith,  14  Cal.  App.  139,  111  Pac.  266 856 

Luckett  V.  Reighard,  248  Pa.  St.  24,  93  Atl.  773,  Ann.  Cas.  1916  A  662..     207 

213,  641 

Luckey  v.  Kansas  City,  169  Mo.  App.  666,  155  S.  W.  873 126 

Luckie  V.  Diamond  Coal  Co.  (Cal.  App.) ,  183  Pac.  178 344,  626,  645 

Ludberg  v.  Barghoorn,  73  Wash.  476,  131  Pac.  1165 628,  631 

Ludke  V.  Buick,  160  Wis.  440,  152  N.  W.  190,  L.  R.  A.  1915  D  969. .  .  .297,  301 

321,  444,  453 

Ludwigs  V.  Dumas,   72  Wash.   68,   129   Pac.   903 297,  311,  393,     472 

Luethe  V.  Schmidt-Gaertner  Co.,  170  Wis.  590,  176  N.  W.  63.... 452,  487.     926 

Luger  V.  Windell  (Wash.),  187  Pac.  407 413 

Luger  V.  Windell    (Wash.),   199  Pac.   760 837 

Lugiani  v.  Landon  Economic  Syphor  Co.,  38  Cal.  App.  146,  175  Pac.  468. .. .     869 

Lutz  V.  Flavey,  228  Mass.  253,  117  N.  E.  308 934 

Luken  v.  Pennsylvania  R.  Co.  (Pa.) ,  110  Atl.  151 558,    559 

Lummus  v.  Fireman's  Funds  Ins.  Co.,  167  N.  Car.  654,  83  S.  E.  688 809 

Lum  Yet  v.  Hugill,  1  Dora.  Law  Rep.  (Canada)  897 412 

Luterman  v.  Pittsburgh  Rys.  Co.,  66  Pitts.  Leg.  Jour.  311 5S)'.> 

Luther  v.  State,  177  Ind.  619,  98  N.  E.  640 49,  758,     767 

Luttenton  v.  Detroit,  etc.,  Ry.  Co.  (Mich.),  176  N.  W.  558 611,     721 

Lutz  V.  City  of  New  Orleans,  235  Fed.   178 96,  135,  137,  155,  156,     157 

Lutvin  V.  Dopkins  (N.  J.),  108  Atl.  862 678 

Lydon  v.  New  York,  etc.,  R.  Co.  (Mass.) ,  126  N.  E.  794 580 

Lyman  v.  James,  87  Vt.  486,  89  Atl.  932 719,     722 

Lynch  v.  Boston  Elevated  Ry.  Co.,  224  Mass.  93,  112  N.  E.  488 587,     614 

Lynch  v.  Curfman,  65  Minn.  170,  68  N.  W.  5 870 

Lynch  v.  Murphy  Hotel  Co.,  130  N.  Y.  App.  Div.  691,  115  N.  Y.  Suppl.  465.     162 
Lynch  v.  Shearer,  83  Conn.  73,  75  Atl.  88.... 247,  305,  329,  443,  478,  479,     487 

Lynde  v.  Browning,  2  Tenn.  C.  C.  A.  262 626,     659 

Lynn  v.  Goodwin,  170  Cal.  112,  148  Pac.  927 408,  679,  688.     691 

Lyon  V.  Nourse  ( Wash.) ,  176  Pac.  369 885 

Lyon  V.  Phillips  (Tex.  Civ.  App.) ,  196  S.  W.  995 679,     692 

Lyons  v.  Commonwealth,  176  Ky.  657.  197  S.  W.  387 767 

Lyons  v.  Jordan,  117  Me.   117,   102  Atl.  976 125,  127,     41.S 

Lyons  v.  Volz   (N.  J.),  114  Atl.  318 435, 

Lyter  v.  Hines   (Mo.  App.) ,  223  S.  W.  795 557, 

Lytic  V.  Hancock  County,  19  Ga.  App.  193,  91  S.  W.  219. .  .  .629,  684,  715.     716 

M 

Macale  v.  Lynch  (Wash.),  188  Pac.  810 644 

MacDonald  v.  Kusch,  188  N.  Y.  App.  Div.  491,  176  N.  Y.  Suppl.  823 259 

387,  390 

Macintosh  v.  Chicago  Elec.  Motor  Car  Co.  (Cal.),  186  Pac.  364 201 

MacKenzie  v.  Oakley  (N.  J.),  108  Atl.  771 338,  678 

Mackin  V.  Patterson  (Pa.),  112  Atl.  738 441,  462,  471 

Macomber  v.  Nichols,  34  Mich.  212,  22  Am.  Rep.  522 32,  47 


456 
558 


Table  of  Cases.  1217 

Section 

MacPherson   v.  Buick  Motor  Co.,  217  N.  V.  ^82,  111  N.  E.  1050 36,  800 

Ma^umber  v.  Detroit  Cadillac  Motor  Car  Co.,  173  App.  Div.  724,  159  N.  Y. 

Suppl.  890 446,  879 

Madding  v.  State,  118  Ark.  .506.   177  S.   W.   410 758 

Maddox  v.  .Tones  (Ala.)  ,89  So.  38 491 

Ma^ee  v.  Gavins  (Tex.  Civ.  App.),  197  S.  W.  1015 416 

Magee  v.  Vaughan,  212  Fed.  27i8,  134  C.  C.  A.  388 836 

Mahany  v.  Kansas  City  Rys.  Co.   (Mo.),  228  S.  W.  821 678,  679 

Mahar  v.  Lochen,  166  Wis.  152,  164  N.  W.  847 252,  270,  36.9,  383,  399,  403 

Mahegan  v.  Faber,  158  Wis.  645,  149  N.  W.  .397 286 

Maher  v.  Benedict,  133  App.  Div.  579,  108  N.  Y.  Suppl.  228.. 623,  656,  657,  660 
Mahoney  v.  Maxfield,  102  Minn.  377,  113  N.  W.  904,  14  L.  R,  A.   (N.  S.) 

251,   12  Ann.  Cas.  289 525,  536 

Main  St.  Garage  v.  Eganhouse  (Tex.  Civ.  App.),  223  S.  W.  316 628,  654 

Maitland  v.  McKenzie,  28  O.  L.  R.   (Canada)   506 283,  415 

Major  Taylor  Co.  v.  Harding,  182  Ky.  236,  206  S.  W.  285 305,  438,  441,  453 

Mallory  v.  Saratoga  Lake  Bridge   Co.,   53   Misc.    (N.   Y.)    446,   104  N.   Y. 

Suppl.  ]025 52 

Alaloy  V.  Roscbaum  Co.,  260  Pa.  466,  103  Atl.  882 632,  677 

-Manceaux  v.  i^unter  Canal  Co.,  148  La.  — ,  86  So.  665 252,  385 

Manion  v.  Loomis  Sanatorium,  162  N.  Y.  App.  Div.  421,  147  N.  Y.  Suppl. 

761 184,  369,  400 

Mankin  v.  Bartley,  226  Fed.  466 477 

Manly  v.  Abernathy,  167  N.  Car.  220,  S3  S.  E.  343 27,  277,  278,  279,  326 

329,  414,  434,  435,  441,  445,  448 

Mann  v.  Scott,  180  Cal.  550,  182  Pac.  281 425,  458,  475 

Mannheimer  Bros.  v.  Kansas  Casualty  &  Surety  Co.    (Minn.),  180  N.  W. 

229 222,  829 

Manny  v.  Wilson,  137  N.  Y.  App.  Div.  140,  122  N.  Y.  Suppl.  16 .  208 

Manor  v.  Dunfield,  33  Cal.  App.  557.  165  Pac.  983 889 

Marco  v.  State  (Ind.),  125  N.  E.  34 768 

Margolis  v.  Chicago  Rys.  Co.,  205  111.  App.  286 585 

Marion  H.  B.  Tract.  Co.  v.  Reese  (Ind.  App.),  124  N.  E,  500 689 

Marion  H.  B.  Tract.  Co.   (Ind.  App.) .  127  N.  E.  568 689 

Maris  v.  Lawrence  Ry.  &  Light  Co.,  98  Kans.  205,  158  Pa«.  6 .513,  613 

Martizky  v.  Shreveport  Rys.  Co..  144  La.  692,  81  So.  253 599,  679,  921 

Marius  v.  Motor  Delivery  Co..  146  N.  Y.  App.  Div.  608,  131  N.  Y.  Suppl. 

357 478 

Mark  v.  District  of  Columbia.  37  App.  D.  C.  563,  37  L.  R.  A.  (N.  S.)  440. .  .  63 

96,  106,  109,  112 

Mark  v,  Fritsch,  195  N.  Y.  282,  88  X.  E.  280,  22  L.  R.  A.  (N.  S.)   632 380 

Marks  v.  Stoltz,  165  N.  Y.  App.  Div.  462,  150  N.  Y.  Suppl.  953 228 

Marmon  Chicago  Co.  v.  Heath,  205   111.  App.  605 804,  811 

Marquis  v.  Messier,  39  R.  L  563,  99  Atl.  527 126,  226,  506 

Marsh  v.  Boyden,  33  R.  L  519,  83  Atl.  393 277.  423.  471,  475 

Marsh  v.  Burnham  (Mich.) ,  179  N.  W.  300 267 

Marsh  v.  Webster,  16  Minn.  375   (418) 870 

Marshall,  ex  parte,  75  Fla.  97,  77  So.  869 96.  145 

77 


1218  Table  of  Cases. 

Section 

Marshall  v.  Gowans,  20  Ont.  W.  R.  (Canada)  37,  24  0.  L.  R.  522 36,  283 

330,  542 

Marshall  v.  Illinois  Central  R.  Co.,  207  111.  App.  619 550 

Marshall  v.  Suburban  Dairy  Co.  (N.  J.),  114  Atl.  750. 491 

Marshall  v.  Taylor,  168  Mo.  App.  240,  153  S.  W.  527 372,  380,  656,  657 

660,  673,  677 

Marsters  v.  Isensee  (Oreg.),  192  Pac.  907 438,  441,  453,  487 

Marston  v.  Shreveport  Traction  Co.,  140  La.  18,  72  La.  794.. 594,  599,  609  613 

Martin  v.  Brown,  199  Ala.  250,  74  So.  241 855 

Martin  v.  Carruthers   (Colo.),  195  Pac.  105... 251,  267,  325,  345,  374,  376,  406 

Martin  v.  English,  23  Ga.  App.  484,  98  S.  E.  504 12,  62 

Martin  v.  Garlock,  82  Kans.  266,  108  Pac.  92 521,  548 

Martin  v.  Herzog,  176  N.  Y.  App.  Div.  614,  163  N.  Y.  Suppl.  189  affirmed 

228  N.  Y.  164,  126  N.  E.  814 298,  344,  348,  406 

Martin  v.  Herzog,  228  N.  Y.   164,  126  N.  E.  814 297,  406 

Martin  v.  Kansas  City  (Mo.  App.),  224  S.  W.  141 698,  910 

Martin  v.  Lilley,  188  Ind.  139,  121  N.  E.  443.. 36,  277,  332,  500,  624,  628.  836 
Martin  v.  Maxwell-Brisco  Motor  Vehicle  Co.,  158  Mo.  App.  188,  138  S.  W. 

65 650 

Martin  v.  Pennsylvania  R.  Co.,  263  Pa.  St.  569,  107  Atl.  330 568,  679 

688,  689,  690 

Martin  v.  White  (1910),  1  K.  B.  (Eng.)  665,  102  Law  T.  R.  (N.  S.)  23.. 95.  740 

Martinelli  v.  Bond  (Cal.  App.),  183  Pac.  463.. 259,  498,  623,  627,  628,  674.  677 

Marton  v.  Pickrell    ( Wash.) ,    191    Pae.    1101 244,  432.  457 

Marullo  v.  St.  Pastuer,   144  La.   926,  91   So.   403 623,  642 

Maryland  Casualty  Co.  v.  Industrial  Accident  Com.  (Cal.  App.),  178  Pac.  542  228 

Maryland  Ice  Cream  Co..  v.  Woodburn,  133  Md.  295,  105  Atl.  269 475 

Maryland  Motor  Car  Co.  v.  Hazzard  (Tex.  Civ.  App.),  168  S.  W.  1011 822 

Maryland  Motor  Car  Ins.  Co.,  ex  parte   (S.  C),  108  S.  E.  260 890 

Mason  v.  West.  61  N.  Y.  App.  Div.  160,  70  N.  Y.  Suppl.  478 524 

Mason-Seaman  Transp.   Co.   v.   Mitchell,   89  Misc.    (N.  Y.)    235.    153   N.   Y. 

Suppl.  461 71,  74,  1,30,   1?A.  135,  138,  144 

Mason-Seamon  Transp.  Co.  v.  Wineburgh,  130  N.  Y.  Suppl.  178 268 

Massaletti  v.  Fitzroy,  228  Mass.   487.   118  N.  E.   168 678 

Massie  v.  Barker,  224  Mass.  420,  113  N.  E.  199 277,  285,  363,  365.  413 

Mast  v.  Hirsh,  199  Mo.  App.  1,  202  S.  W.  275 660.  661 

Masten  v.  Cousins,  216  HI.   App.   268 322,  678,  694 

Mastin  v.  City  of  New  York,  201  N.  Y.  81 459 

Mathes  v.  Aggeler  &  Musser  Seed  Co..  179  Cal.  697,  178  Pac.  713 262',  267 

297,  311,  394,  412,  415 

Matthewson  v.  Edison  Ilium.  Co.,  232  Mass.  576,  122  N.  E.  743 632,  891 

Mathieson  v.  Omaha  St.  R.  Co.,  3  Neb.   (Unoff.)   743,  92  N.  W.  639.  .    .921.  924 

Matla  v.  Rapid  Motor  Vehicle  Co.,  160  Mich.  639,  125  N.  W.  708 921 

Matlach  v.  Sea,  144  Ky.  749,  139  S.  W.  930 452 

Mattei  v.  Gillies,  16  Ont.  L.  R.  (Canada)   558 626 

Matutinovich  v.  New  York  Central  R.  Co..   182  App.  Div.  451,   162  N.  Y. 

Suppl.  350 580 

Mauchie  v.  Panama-Pacific  Internat.  Exposition  Co.,  37  Cal.  App.  715,  174 

Pac.  400 457,  663 


Table  of  Cases.  1219 

Section 

Maupin  v.  Soloman   (Cal.  App.),  183  Pac.   198 673,  674 

Maxmillian  v.  Mayor,  62  N,  Y.  160 666 

Maxton  Auto  Co.  v.  Rudd,  176  N.  Car.  497,  97  S.  E.  477 878 

Maxwell  v.  Western  Auto  Stage  Co.   (Cal.  App.),  189  Pac.  710 394,  413 

May  V.  Allison,  30  Pa.  Super.  Ct.  50 430 

Mayer  v.  Anderson  (Cal.  App.),  173  Pac.  174 49,  459,  484 

Mayer  v.  Mellette,  65  Ind.  App.  54,  144  N.  E.  241 297,  300,  311,  327 

393,  410,  411 

Mayes,  ex  parte   (Okla.),  167  Pac.   749 57,  94,  96,  105,  108,  135,  147 

Mayes  v.  Fields  (Mo.  App.),  217  S.  W.  589 656,  657,  660 

Mayfield,  City  of  v.  Carter  Hardware  Co.  (Ky.),  230  S.  W.  298 97 

Mayhew  v.  Sutton,  86  L.  R.   (Eng.)    18 '. 278,  744 

Maynard  v.  Barrett,  261  Pa.  378,  104  Atl.  612 452 

Maynard  v.  Westfield,  87  Vt.  532,  90  Atl.  504 521,  701,  705,  905 

Mayor,  Lane  &  Co.  v.  Commercial  Casualty  Ins.  Co.,  169  N.  Y.  App.  Div. 

772,  155  N.  Y.  Suppl.  75 830,  833,  834,  835 

McAdoo  V.  State   (Md.),  Ill  Atl.  476 679,  688 

McAUeenan  v.  Massachusetts  Bonding  Ins.  Co.,  173  N.  Y.  App.  Div.   100, 

150  N.  Y.  Suppl.  401 834 

McAUeenan  v,  Massachusetts  Bonding  &  Ins.  Co.,   179  App.  Div.   34,  166 

N.  Y.  Suppl.  185 834 

McAUeenan  v.  Massachusetts  Bonding  &  Ins.  Co.,  190  N.  Y.  App.  Div.  657, 

180  N.  Y.  Suppl.  287 834 

McArthur  Bros.  Co.  v.  Hagihara    (Ariz.),  194  Pac.  336 885,  889 

McBeth  V.  Atchison,  etc.,  R.  Co.,  95  Kans.  364,  148  Pac.  621 575,  579 

McBride  v.  Beakley   (Tex.  Civ.  App.),  203  S.  W.  1137 875,  878,  879 

McCabe  v.  Allan,  29  Que.  S.  C.  (Canada)  29 626 

McCabe  v.  Chicago,  etc.,  R.  Co.,  215  111.  App.  99 723 

McCann  v.  Davison,  145  N.  Y.  App.  Div.  522,  130  N.  Y.  Suppl.  473 128 

McCann  v.  Silke,  75  Wash.  383,  134  Pac.  1063 283 

McCarragher  v.  Proal,  114  N.  Y.  App.  Div.  470,  100  N.  Y.  Suppl.  208.  .    .  297 

298,  506,  507,  512 

McCarter  v.  Ludlam,  etc.,  Co.,  71  N.  J.  Eq.  330,  63  Atl.  761 360 

McCarthy  v.  Inhabitants  of  Town  of  Leeds,   115  Me.   134,  98  Atl.   72....  125 

McCarthy  v.  Town  of  Leeds,  116  Me.  275,  101  Atl.  448 125,  712 

McChesney  v.  Dane  County    (Wis.),   177  N.  W.   12 713 

MeClain  v,  Brooklyn  City  R.  R.,  116  N.  Y.  459,  470,  22  N.  E.  1062 459 

McCleave  v.  United  Rys.  Co.  of  St.  Louis  (Mo.  App.),  181  S.  W.  1084.  ...  593 
McClung  v.  Pennsylvania   Taximeter   Cab    Co.,    252    Pa.    St.    478,    97   Atl. 

694 173,  351,  391,  393,  408 

McClure  v.  Southern  Pac.  Co.  (Cal.  App.),  183  Pac.  248 568.  576 

McClure  v.  State   (Ala.  App.) ,   88  So.   35 97 

McClure  v.-  Wilson   (Wash. ) ,  186  Pac.  302 452,  487 

McCormick  v.  New  York,  162  App.  Div.  529,  147  N.  Y.  Suppl.  917 678 

McCormick  Harvesting  Machine  Co.  v.  Chesrown,  33  Minn.  32,  21  N.  W. 

846 870 

McCown  V.  Mudrow,  91  S.  Car.  523,  74  S.  E.  386 297,  321,  444 

McCray  v.  Sharpe,  188  Ala.  375,  66  So.  441 177,  277,  278,  375 

McCreedy  v.  Fournier  fWash.),  194  Pac.  398 413.  896 


1220  Table  of  Cases. 

Section 

McCreeiy  v.  United  Rys.  Co.,  321  Mo.  18,  120  S.  W.  24 606,     619 

McCullock  V.  Maryland,  4  Wheat   (U.  S.)   316,  4  L.  Ed.  415 91 

MeCummins  v.  State,  132  Wis.  236,  112  N.  W.  25 327,  537,     774 

McCutcheon  v.  Wozencraft   (Tex.  Civ.  App.),  230  S.  W.   733 146 

McDonald  v.  City  of  Paragould,  120  Ark.  226,  179  S.  W.  335 80,  100,     142 

McDonald  v.  City  of  Philadelphia,  248  Pa.  St.  145,  93  Atl.  959. .  .  .697,  705,     706 
McDonald  v.  Lake  Erie  &  Western  Ky.  Co.,  208  111.  App.  442.  .  .  .577,  .580,     720 

McDonald  v.  Lawrence,  170  Wash.  576,  170  Pac.  576 158,  171,     645 

McDonald  v.  Levenson   (Mass.),  131  N.  E.   160 681,     685 

McDonald  v.  Messaba  Ry.  Co.,  137  Minn.  275,  163  N.  w.  298..679,  687,  688,     690 

McDonald  v.  Yodder,  80  Kans.  25,  101  Pac.  468 336,     390 

McDorman  v.  Dunn,  101  Wash.  120,  172  Pac.  244,  4  A.  L.  R.  1500 169 

McEniry  v.  Tri-City  Ry.   Co.,   179   111.   App.    132 591 

McEvoy  V.  Quaker  City  Cab  Co.,  264  Pa.  418,  107  Atl.  777 423 

McFadden,  Matter  of,  112  S.  Car.  258,  99  S.  E.  838 626,     889 

McFadden  v.  Metropolitan  St.  Ry.  Co.,  161  Mo.  App.  552 133,  169,     775 

McFarlane  v.  Winters,  47  Utah,  598,  155  Pac.  437 36,  277,  623,  624,     656 

657,  660,     673 

McFern  v.  Gardner,  121  Mo.  App.  1,  97  S.  W.  972 38,  332,     375 

MoGt.  V.  Young,  132  Ga.  606,  64  S.  E.  689 249,  267,  376,     433 

McGeever  v.  O'Rryne    (Ala.),   82   So.   508 678,  679,  688,  691,     694 

McGettigan  v.  Quaiver  City  Automobile  Co.,  48  Pa.  Super.  Ct.  602 266,     430 

McGlothern  v.  City  of  Seattle  (Wash.),  199  Pac.  457 137,  138,     154 

McGourty  v.  DeMarco,  200  Mass.  57,  85  N.  E.  891 246,  252,     382 

McGrath  v.  Wehrle,  233  Mass.  456,  124  N.  E.  253 628 

McGraw  Tire  &  Rubber  Co.  v.  Gri?ath,  198  Fed.  566 803 

McGuire  v.  Autocar  Sales  Co.,  150  N.  Y.  App.  Div.  278,  134  N.  Y.  Suppl. 

702 648 

McGuire  v.  Chicago,  etc.,  R.  Co.  (Mo.  App.),  228  S.  W.  541 574,     575 

McHarg  v.  Adt,  163  N.  Y.  App.  Div.  782,  149  N.  Y.  Suppl.  244 634,  641,     643 

Mcllhenny  v.  Baker,  63  Pa.  Super.  Ct.  385 326 

Mcllroy  v.  Kobald,  34  D.  L.  R.  (Canada)  587 G26 

Mcllroy  v.  Kobald,  34  D.  L.  R.  (Canada)  587 626 

Mclntire  v.  Hartf elder-Barbutt  Co.,  9  Ga.  App.  327,  71  S.  E.  492 627,     630 

Mcintosh  v.  Johnson,  211  N.  Y.  265,  105  N.  E.  416 57,  71,  74,     199 

Mclntyre  v.  Coote,  19  Ont.  L.  R.    (Canada)    9 340,     523 

Mclntyre  v.  Orner.  166  Ind.  57,  76  N.  E.  750,  4  L.  R.  A.   (N.  S.)   1130,  117 

Am.  St.  Rep.  359,  8  Ann.  Cas.  1087.. 32,  36,  39,  48,  327,  361,  520,  530,     542 

McKeen  v.  Iverson    (N.  Dak.) ,   180  N.   W.   805 678,     691 

McKeever  v.  Ratcliffe,  218  Mass.   17,   105  N.   E.  552 632,  677,     906 

McKellar  v.  Yellow  Cab  Co.   (Minn.),  181  N.  W.  348 132,     169 

McKenna  v.  Lynch    (Mo.),   233   S.   W.    175 453,  457,  463,  471,     487 

McKiernan  v.  Lehmaier,  85  Conn.   Ill,  81  AtL  969....  421,  472,  486,' 487,     633 
McKinney  v.  Port  Townsend  &  P.  S.  Ry.  Co.,  91  Wash.  387,  158  Pac.  107.     550 

559,  567,  569,     580 
McLain  v.  West  Virginia  Automobile  Co.,  72  W.  Va.  738,  79  S.  E.  731...202,     206 

McLane  t.  Sharpe,  2  Hart.  (DeL)  481 351 

McLaren  v.  Marraon-Oldsmobile  Co.    (N.  J.),   113  Atl.   236 870 

McLaughlin   v.  Griffin.  155  Iowa,  302,  135  N.  W.  1107 417,     481 


TAiii.F.  oi-   Casks.  1221 

Sexjtiox 

McLaughlin   v.   I'itlsljuryli  Rys.  Co.,  253  Pa.  tit.  .32.  97  Atl.  ]07 ^rt] 

McLaughlin  v.  State   (Okla.),   193  Pac,  1010 768 

McMillen  v.  Strallmann,  24(5  Pa.  St.  13,  107  Atl.  332.. 283,  416,  441,  453,  90S 
McMilliam  v.  Atlanta  &   C.   Air  Line  Ry.  Co.,   172  N.   Car.   853,   90  S.  E. 

683 579,  679 

McMonagle  v.  Simpers   (Pa.   St.),  110  Atl.  83 423,  43S 

McMullin  V.  Davenport   (Cal.  App.),  186  Pac.  796 462,  471 

McNaniara  v.  Leipzig.   180  X.  Y.  App.   Div.   515,   167   N.  Y.   Suppl.   981,   8 

A.  L.  R.  480 644,  836 

McNamara  v.  Leipzig,  227  N.  Y.  291,  125  N.  E.  244,  8  A.  L.  R.  480 644 

McNamara  v.  Rings,  80  Misc.  (N.  Y.)  239,  140  N.  Y.  Suppl.  934 198 

McNaughton  Co.  v.  McGirl,  20  Mont.  124,  49  Pac.  651,  38  L.  R.  A.  367 86 

McNeal  v.  Detroit  United  Ry.,  198  Midi.  108,  164  N.  W.  417 600,  614 

McNeal  v.  McKain,  33  Okla.  449.  126  Pac.  742,  41  L.  R.  A.   (X.  S.)    775..  657 

659,  660 

McNeil,  e.x  parte    (Ala.  App.),  So  So.   569 708 

McNeil  V.  Board  of  Supervisors  of  Suffolk  County,   114  N.   Y.  App.   Div. 

761.    100   X.    Y.   Suppl.   239 782 

McNeil  V.  Webeking,   66   Fla.   407,   63   So.   728 127 

McNiff  V.  Boston  Elev.  Ry.  Co.,  234  Mass.  252,  125  N.  E.  391 621 

McNobb  V.  Juergens    (Iowa) ,    125    N.    W.    758 868 

McQueen  v.  People's  Store  Co.,  97  Wash   387,   166   Pac.   626 638 

McSpadden  v.  Axmear  (Iowa) ,  181  N.  W.  4 322,  325,  413 

McSweeny  v.  Erie  Railroad  Co..  93  N.  Y.  App.  Div.  496,  87  N.  Y.  Suppl. 

836 564 

McVoy  v.  Cliassin   ( A4a,  App.) ,  88  So.  29 50:; 

Mead  v.  Central  Penn.  Tract.  Co.,  54  Pa.  Super.  Ct.  400 611 

Mead  v.  Central  Pa.  Traction  Co.,  63  Pa.  Super.  Ct.  76 611 

Meade  v.  Poppenberg,  167  N.  Y.  App.  Div.  411,  153  N.  Y.  Suppl.  182.. 786,  790 
Meade  Co.  v.  Products  Mfg.  Co.,  110  Misc.   (N.  Y.)   648,  180  N.  Y.  Suppl. 

641 262,  391 

Mears  v.  McElfish   (Md.) ,  114  Atl.  701 414,  457,  46.". 

Mechling  v.  Harvey.  68  Pitts.  Leg.  .Jour.    (Pa.)    149 413 

Mediana,  The   (1900) ,  A.  C.    (Eng.)    112 722 

Meech  v.  Sewall,  232  Mass.  460,  122  N.  E.  446 396,  4i:> 

Meenacb  v.  Crawford    (Mo.),  187  S.  W.   879... 49,  381,  327,  332,  414,  423,  435 

Meenagh  v.  Buckmaster,  26  N.  Y.  App.  Div.  451,  50  N.  Y.  Suppl.  85 691 

Megeath  v.  Ashworth    (Utah) ,   196  Pac.  338 869 

Mehegan  v.  Faber.  158  Wis.  645,  149  N.  W.  397 290,  415,  430 

Meier  v.  Golden  G.  State  Aufo  Tour  Corp.  (Cal.  App.).  195  Pac.  290 IfiO 

Meier  v.  Wagner,  27  Cal.  App.  579,  150  Pac.  797 362 

Meister  &  Sons  Co.  v.  Wood  &  Tatum  Co.,  26  Cal.  App.  584,  147  Pac.  981.  .  850 

Melchionda  v.  American  Locomotive  Co.,  229  Mass.  202.  118  N.  E.  265.  .623,  644 

Meliker  v.  Sedlacek   (Iowa),   179  N.  W.   197 491 

Melton  v.  Manning  (Tex.  Civ.  App.),  216  S.  W.  488 41:: 

Meltzer  v.  Barrett,  193  N.  Y.  App.  Div.  183,  184  N.  Y.  Suppl.  241 410 

Melville  v.  Rollwage,  171  Ky.  607,  188  S.  W.  638 288.  459,  476 

Memphis,  City  of  v.  State.  133  Tenn.  83,  179  S.  W.  631,  L.  R.  A.  1916  B 

1151 130,  135,  137,  144,  146,  155 


1222  Table  of  Cases. 

Section 

Memphis  Street  E.y.  Co.  v.  Rapid  Transit  Co.,  138  Teiin.  594,  198  S.  W.  890.  141 

Memphis  St.  Ry.  Co.  v.  Stratton,  131  Tenn.  620,  176  S.  W.  105 700 

Menard  v.  Lussier,  50  Que.  S.  C.   (Canada)    159 252,  380 

Mendelson  v.  Van  Renselaer,  118  N.  Y.  App.  Div.  516,  103  N.  Y.  Suppl.  578.  257 

Manefee  v.  Whistler,  169  Iowa,  19,  150  N.  W.  1034 359 

Manton  v.  L.  Patterson  Co.,  145  Minn.  310,  176  N.  W.  991... 631,  642,  663,  674 

Mequet  v.  Algiers  Mfg.  Co.,  147  La.  364,  84  So.  904 414,  453,  456 

Mercer  v.  Corbin,  117  Ind.  450,  20  N.  E.  132,  3  L.  R.  A.  221,  10  Am.  St. 

Rep.  76 38 

Merchants'  &   Planters'  Bank  v.  Brigraan,   106   S.   Car.   362,   91   S.   E.   332  38 

57,  61,  238,  626,  890 

Merchants'  Transfer  Co.  v.  Wilkinson   (Tex.  Civ.  App.),  219  S.  W.  891 452 

487,  923 

Meredith  v.  Claycomb  (Mo.  App.),  216  S.  W.  794 503,  516 

Merkl  v.  Jersey  City  H.  &  P.  St.  Ry.  Co.,  75  N.  J.  Law  654,  6-8  Atl.  74..  325 

452,  501 

Merrill  v.  Caro  Ins.  Co.,  70  Wash.  482,  127  Pac.  122 189 

Merrill  v.  Chicago,  etc.,  R.  Co.  (Wis.) ,  177  N.  W.  613 597,  614 

Merriman  v.  City  of  Chillicothe   (Mo.  App.),  217  S.  W.  637 717 

Mertz  V.  Connecticut  Co.,  217  N.  Y.  475,  112  N.  E.  166 611 

Mertz  V.  Detroit  Electric  R.  Co.,  '125  Mich.  11,  83  N.  W.  1036 921 

Meserve  v.  Libby,   115  Me.  282,   98  Atl.   754 327,  478 

Messer  v.  Bruening,  25  N.  D.  599,  142  N.  W.  158 .359,  536,  539 

Messer  v.  Bruening,  32  N.  Dak.   515,  156  N.  W.  241... 359,  525,  539,  542,  549 
Messersmith  v.  American  Fidelity  Co.,  187  N.  Y.  App.  Div.  35,  175  N.  Y. 

Suppl.  169 ' 829 

Metcalf  V.  Mellen    (Utah) ,  192  Pac.   676 719,  720 

Meyer  v.  Shapton,  178  Mich.  417,  144  N.  W.  887 854,  855 

Meyer  &  Peter  v.  Creighton,  83  N.  J.  Law  749,  85  Atl.  344 362 

Meyers  v.  Barrett,  167  N.  Y.  App.  Div.  170,  152  N.  Y.  Suppl.  921.  .267,  297,  302 
Meyers  v.  Tri-State  Auto  Co.,  121  Minn.  68,  140  K  W.   184,  44  L.  R.  A. 

(N.  S.)    113 179,  643,  644 

Meyers  v.  Winona  Interurban  Ry.  Co.,  58  Ind.  App.  516,  106  N.  E.  377...  412 

Michael  v.  Pullman    (Mo.  App.) ,  215  S.  W.  763 624,  628 

Michalsky  v.  Putney,  51  Pa.  Super.  Ct.  163 : 443,  475,  487 

Michigan  Ins.  Co.  v.  Willis,  57  Ind.  App.  256,  106  N.  E.  725 838 

Mickelson  v.  Fischer,   81   Wash.   423,   142  Pac.   1160 247,  267,  297,  433 

453,  454,  458,  460,  473,  487 

Midland  Valley  R.  Co.  v.  Lawhorn    (Okla.),  198  Pac.  586 580,  911 

Miles  v.  Hines  (Ala.) ,  87  So.  837 575 

Miles  Auto  Co.  v.  Dorsey,  163  Ky.  692,  174  S.  W.  502 849 

Milgrim  v.  Coon,  93  Misc.   (N.  Y.)   78,  156  K  Y.  Suppl.  54 875 

Miller  v.  Addison.  69  Md.  731,  54  Atl.  967 360 

Miller  v.  Boston  &  Northern  Street  Ry.,  197  Mass.  535,  83  N.  E.  990 679 

Miller  v.  Burke,  6  Daly  (N.  Y.)   171 150 

Miller  v.  County   of   Wentworth,    5    O.   W.    K    (Canada)    317,    affirmed    5 

O.  W.  N.    (Canada)    891 688,  713 

Miller  v.  Detroit  United  Ry.,  166  N.  W.  870 599 

Miller  v.  Eversole,  184  111.  App.  362 277,  278,  414,  418,  919 


Table  of  Cases.  1223 

Section 

Miller  v.  Flash  Chemical  Co.,  230  Mass.  419,  119  N.  E.  702.  .478,  480,  487,  628 

Miller  v.  Ft.  Smith  Light  &  Tract.  Co.,  136  Ark.  355.  206  S.  W.  329.. 587,  685 

Miller  v.  Jenness,  84  Kans.  608,  114  Pac.  1052 921,  929 

Miller  v.  New  York  Taxicab  Co.,  120  N.  Y.   Suppl.   899 49,  260,  414 

435,  452,  464 

Miller  v.  Northern  Pac.  Ry.  Co.,  105  Wash.  645,  178  Pac.  808 557,  575 

Miller  v.  Eice-Slix  Dry  Goods  Co.    (Mo.  App.),  223  S.  W.  437 631 

Miller  v.  Tildemann,  249  Pa.   234,  94  Atl.   835 452,  487 

Miller  v.  Week,  186  Ky.   552,  217  S.  W.   904 80,  671.  906 

Miller  v.  Zander,  85  Misc.  (N.  Y.)  499,  147  N.  Y.  Suppl.  479.. 862,  865,  867,  871 
Miller  North  Broad  Storage  Co.  v.  Philadelphia  Rapid  Transit  Co.,  62  Pa. 

Super.  Ct.   568 592 

Milliman  v.  Appleton,  139  N.  Y.  App.  Div.  738,  124  N.  Y,  Suppl.  482 249 

359,  374,  413 

Mills  V.  Court  of  Comr's   (Ala.) ,  85   So.   564 8.  97 

Mills  V.  Powers,  216  Mass.  36,  102  N.  E.  912 459,  463,  478,  470 

Mills  V.  Waters,  198  Mich.  637,  165  N.  W.  740 560.  577 

Millsaps  V.  Brogdon,  97  Ark.  469,  134  S.  W.  632.. 283,  416,  417,  453,  458,  481 

Milne  v.  Kane,  64  Wash.  254,  116  Pac.  659 661 

Milner's  Adm'r  v.  Evansville  Ry.  Co.,  188  Ky.  14,  221  S.  W.  207 688.  689 

Minasian  v.  Poff,  217  111.  App.  8 661 

Miner  v.  Franklin,  78  N,  H.  240,  99  Atl.  647 701,  710 

Miner  v.  Rembt,  178  N.  Y.  App.  Div.  173,  164  N.  Y.  Suppl.  175.  164  N.  Y. 

Suppl.  945 318,  503,  509 

Miner  v.  Town  of  Rolling,  167  Wis.  213,  167  N.  W.  242 703 

Minneapolis  Harvester  Works  v.  Bonnallie,  29  Minn.  273,  13  N.  W.  149..  S70 
Minneapolis,  etc.,  Railroad  Co.  v.  Beckwith,  129  U.  S.  29,  32  L.  Ed.  585. 

9  Sup.  Ct.  Rep.  207 220 

Minneapolis  St.  Ry.  Co.  v.  Odegaard,  182  Fed.  56,  104  C.  G.  A.  496 599 

Minniek  v.  Denver  Motor  Co.  (Tex.  Ov.  App.),  227  S.  W.  365 851 

Minnis  v.  Lemp  Brewing  Co.   (Mo.  App.),  226  S.  W.  999 261 

Minor  v.  Mapes,  102  Ark.  351,  144  S.  W.  219 277,  423,  475 

Minor  v.  Stevens,  65  Wash.  423,  118  Pac.   313 .49,  627 

Missell  V.  Haynes,  86  N.  J.  Law  34S,  91  Atl.  322 659,  660,  677 

Missouri,  etc.,  R.  Co.  v.  Thayer  (Tex.  Civ.  App.),  178  S.  W.  988 558,  577 

Mitchell  V.  Brown    (Mo.  App.),  190  S.  W.  354 305,  326,  331,  391,  397.  398 

Mitchell  V.  Kramer,  211  111.  App.  563 395 

Mitchell  V.  Rochester  Ry.  Co.,  151  N.  Y.  107,  45  N.  E.  354,  34  L.  R.  A.  781.  35r. 

Mitchell  V.  Van  Keuler  &  W.  Lbr.  Co.,  175  Mich.  75,  140  N.  W.  973 21.  626 

Mittelstadt  v.  Kelly,  202  Mich.  524,  168  N.  W.  501 669 

Mobile  Auto  Co.  v.  Sturges  &  Co.,  107  Miss.  848,  66  vSo.  205 867.  870 

Mobile,  City  of  v.  Gentry,  170  Ala.  234,  54  So.  488 97 

Mobile  Light  &  R.  Co.  v.  Harris  Grocery  Co.  (Ala.  App.K  84  So.  867.  .587.  590 

617.  719 

Mobile  Light  &  R.  Co.  v.  Harris  Grocery  Co.  (Ala.  App.),  88  So.  55 911 

Mobile  Light  &  R.  Co.  y.  McEvoy,  65  Ala.  App.  46,  7.")  So.  191 589 

Moffatt  V.  Link   (Mo.  App.),  229  S.  W.  836 330.  414.  457,  471 

Mogle  V.  A.  W.   Scott  Co.,   144  Minn.   173.   174  N.   W.   832 624.  631.  642 

660,  663 


1224  Table  of  Cases. 

Section 

Moir  V.  Hart,  189  HI.  App.  566 338,  364 

Molin  V.  Wark,    113   Minn.    190,    129   N.    W.    383 349,  250.  359,  308,  326 

498,  501 

Molitor  V.  Blackwell  Motor  Co.   (Wash.),  191  Pa*.  1103 300,  49s 

Monahan  v.  Mutual  Insurance  Co.,  103  Md.  157,  63  Atl.  212,  5  L.  R.  A.  759.  80C, 

Mondt  V.  Iowa,  L.  &  H.  Co.,  178  Iowa,  666,  155  N.  W.  245 613 

Monroe  v.  Chicago,  etc.,  R.  Co.   (Mo.),  219  S.  W.  68... 551,  552,  554,  567,  577 

Monrufel  v.  B.  C.  Electric  Co.,  9  D.  L.  R.    (Canada)    569 260,  392 

Monso  V.  Bellingham  &  N.  Ry.  Co.,  106  Wash.  299,  179  Pac.  848 557,  575 

Monson  v.  Chicago,  R.  I.  &  P.  Ry.  Co.   (Iowa),  159  N.  W.  679.  .  .574.  575.  718 

Montague  v.  Missouri  &  K.  I.  Ry.  Co.  (Mo.  App.),  193  S.  W.  935 61:! 

Montague  v.  Salt  Lake  &  U.  R.  Co.,  52  Utah,  368,   174  Pac.   871.... 679,  688 

689,  690 

Montgomery,  City  of  v.  Orpheum  Taxi  Co.   (Ala.).  82  So.  117 71,  72,  77 

138,  139,  152 

Moody  V.  Milwaukee  Elec.  Ry.  &  L.  Co.   (Wis.),  180  N.  W.  266. 592,  .594.  597 

Moody  V.  Osgood,   54  N.  Y.  488 35 1 

Moon  V.  Matthews,  227  Pa.  St.  488,  76  Atl.  219,  29  L.  R.  A.   (N.  S.)   856.  634 

673,  677 

Moore  v.  B.  C.  Elec.  Ry.  Co.,  35  D.  L.  R.   (Canada)    771 &V.: 

Moore  v.  Bloomington,  etc.,  R.  Co.,  295  111.  63,  128  N.  E,  721 577,  937 

Moore  v.  Hart,  171  Ky.  725,  188  S.  W.  861 126,  173,  326,  300,  305.  322 

324,  330,  350,  357,  361,  380,  408 

Moore  v.  Kansas  City  Rys.  Co.   (Kans.),  196  Pac.  430 599 

Moore  v.  Roddie,   103  Wash.   386,   174   Pac.   648.... 38,  462,  487,  637.  673.  674 

Moore  v.  Roddie,   106  Wash.  '548,   180  Pac.   879 3^^ 

Moore  v.  State,  148  Ga.  457,  97  S.  E.  76 874 

Moore  v.  State,  22  Ga.  App.  797,  97  S.  E.  458 874 

Moore  v.  State,  83  Tex.  Cr.  319,  203  S.  W.  767 768 

Moore  v.  State,  85  Tex.  Or.  573,  214  S.  W.  347 768 

Moran  v.  Smith,  114  Me.  55,  95  Atl.  272 478,  479,  4S4 

Morbrose  Investment  Co.  v.  Flick,  187  Mo.  App.  528,  174  S.  W.  189 85r. 

Morel  V.  New  York,  etc.,  R.  Co.   (Mass.),  131  N.  E.  175 553.  554,  681 

Moren  v.  Duevillez,  212  HI.  App'.  208 49 1 

Moreno  v.  Los  Angeles  Transfer  Co.    (Oal.  App.),  186  Pac.  800 253,  380 

409,  679 

Morfa  V.  Rhodes,   213   111.   App.   354 878,  881 

Morgan  Millwork  Co.  v.  Dover  Garage  Co.,  7  Boyce's   (30  Del.)    383,  108 

Atl.  62 202,  208.  212,  71!) 

Morgan  v.  Williams,  179  Ky.  428,  200  S.  W.  650 72? 

Morin  v.  Nunan,  91  N.  J.  Law  506,  103  Atl.  376 136.  137,  144,  152 

Morken  v.  St.  Pierre  (Minn.),  179  N.  W.  681 250.  493,  655,  660 

Morley  v.  Consolidated  Mfg.  Co.,  196  Mass.  357,  81  N.  E.  993 859,  86.^ 

Morneault  v.  National  Surety  Co.,  37  Cal.  App.  285,  174  Pac.   81..    .719.  722 

Morrell  v.  Skene.  04  Misc.  (N.  Y.)   185,  119  N.  Y.  Suppl.  28 55 

Morris  v.  Allen,  217  Mass.  572,  105  N.  E.  364 228 

Morris  v.  Chicago,  etc.,  R.  Co.,  101  Neb.  479,  163  N.  W.  799 617.  689.  692 

Morris  v.  Interurban  St.  Ry,  Co,,  100  N.  Y.  App.  Div.  295,  91  N.  Y.  Suppl. 

479 642,  700 


Table  of  Cases.  1225 

Section 

Morris  v.  Raymond,  101  Wash.  34,  171  Pac.  1006 668 

Morrison  v.  Clark,   196  Ala.   670,  72  So.  305 341,  249,  256,  267,  270,  372 

373,  374,  375,  376,  377,  380,  382,  383,  396,  412 

Morrison  v.  Conley  Taxicab  Co.,  04  Wash.  436,  162  Pac.  365 ....  327,  422.  482 
Morrison  v.  Royal   Indemnity  Co.,   180  N.  Y.   App.   Div.    709,    167   N.   Y. 

Suppl.  732 826,  829 

Morrissey  v.  Connecticut  Valley  St.  Ry.  Co.,  233  Mass.  554,  124  N.  E.  435.  614 

896,  934 

Morrow  V.  Hines    (Mo.    App.),   233    S.   W.   493 553,  557 

Moses  V.  Pittsburgh,  etc.,  R.  Co.,   21   111.   515 47 

Moss  V.  Aitken  County   (S.  Car.),  103  S.  E.  .520 664 

Moss  V.  H.  R.  Boynton   (Cal.  App.),  186  Pac.  631 459,  461,  462,  487 

Moss  V.  Moore,  18  Johns.  (N.  Y.)   128 10,  48 

Moss  V.  Smith  (Cal.),  185  Pac.  385 865 

MosBO  V.  Stanton  Co.,  75  Wash.  220,  134  Pac.  941 458.  484 

Motor  Car  Indemnity  Exch.  v.  Lilienthal   (Tex.  Civ.  App.),  229  S.  W.  703.  158 

Moye  V.  Beaumont,  S.  L.  &  W.  Ry.  Co.  (Tex.  Civ.  App.),  212  S.  W.  471. .553  577 

Moye  V.  Reddick,  20  Ga.  App.  649,  93  S.  E.  256 27,  311 

Moyer  v.  Shaw  Livery  Co.,  205  111.  App.   273 226,  300,  399,  413 

M07  Quon  V.  M.  Furuya  Co.,  81  Wash.  526,  143  Pac.  99..  ..247,  267,  268,  279 

297,  329,  330,  433,  448,  484 

Mulcahy  v.  Diendonne,  103  Minn.  352,  115  N.  W.  536 870 

Mull  V.  Touchberr,  112  S.  Car.  422,  100  S.  E,  152 864 

Mullia  V.  Ye  Planry  BIdg.  Co.,  32  Cal.  App.  6,  161  Pac.  1008 663 

MuUins  V.  Lemley   (Ala.) ,  88  So.  831 412 

Mulroy  v.  Farulli,  190  N.  Y.  App.  Div.  637,  180  N.  Y.  Suppl.  427 647 

Mumme  v.  Sutherland  (Tex.  Civ.  App.),  198  S.  W.  395 126,  521.  934 

Muncey  v.  Pullman  Taxi  Service  Co.   (Pa.),  112  Atl.  30 169 

Munn  v.  Anthony  (Cal.  App.) ,  171  Pac.  1082 856.  870 

Murdock  v.  Warwick,  4  Gray    (Mass.)    178 339 

Murphy  v.  Georgia  Ry.  &  Power  Co.,  146  Ga,  297,  91  S.  E,  108 588 

Murphy  v.  Moon  Motor  Car  Co.,  147  N.  Y.  App.  Div.  91,  131  N.  Y.  Suppl. 

873 851 

Murphy  v.  New  York  City  R.  Co.,  58  Misc.  (N.  Y.)   237,  108  N.  Y.  Suppl. 

1021 720,  722.  72.T 

Murphy  v.  Wait,  102  N.  Y.  App.  Div.  121,  92  N.  Y.  Suppl.  253 48,  277,  518 

Murray  v.  Liebmann,  231  Mass.  7,  120  N.  E.  79. 430 

Murray  v.  Southern  Pac.  R.  Co.,  177  Cal.  1,  169  Pac.  675 557,  559,  568 

Musgrave  v.  Studebaker  Bros.  Co.  of  Utah,  48  Utah,  410,  160  Pac.  117..  277 

344,  349,  414,  447.  449 

Muskogee,  City  of  v.  Wilkins  (Okla.),  175  Pac.  497 72.  98,  105,  147 

Muster  v.  Chicago,  M.  &  St.  P.  R.  Co..  61  Wis.  325,  21  N.  W.  223,  50  Am. 

Rep.  1414 928 

Mutch  V.  Long  Beach  Imp.  Co.  (Cal.  App.),  190  Pac.  038 723 

Muth  V.  St.  Louis,  etc.,  R.  Co.,  87  Mo.  App.  422 924 

Muther  v.  Capps,  38  Cal.  App.  721,  177  Pac.  382 72,  77,  82,  311 

Myers  v.  Fortunato   (Del.) ,  110  Atl.  847 197 

Myers  v.  Hinds,  110  Mich.  300.  68  N.  W.  156,  157,  33  L.  R.  A.  356.  64  Am. 

St.  Rep.  345 IS 


1226  Table  of  Cases. 

Section 

Myers  v.  State  (Md.),  113  Atl.  92. 768 

Myers  v.  Tri-State   Automobile   Co.,    121    Minn.    68,    140    N.    W.    184,    44 

L.  R.  A.   (N.  S.)   113 177,  294 

N 

Nadeau  v.  Sawyer,  73  N.  H.  70,  59  Atl.  369 384,  542 

Nafziger  v.  Mahan  (Mo.  App.),  191  S.  W.   1080 254,  317,  322,  385 

bailor  V.  Maryland,   D.   &  V.  Ry.   Co.,   6   Boyce's    (29  Del.)    145,  97  Atl. 

418 559,  577 

Nails  V.  State   (Ga.  App.) ,  107  S.  E.  354 741 

Nason  v.  West,  31  Misc.   (N.  Y.)   583,  65  N.  Y.  Suppl.  651 32,  48 

National  Cash  Register  Co.  v.  Williams,  161  Ky.  550,  171  S.  W.  162.. 207,  212 

645,  67.-) 

National  Casket  Co.  v.  Powar,  137  Ky.  156,  125  S.  W.  279.. 297,  357,  526,  548 

National  Motor  Vehicle  Co.  v.  Kellum,  184  Ind.  457,  109  N.  E.  196 54,  412 

Naughton  Mulgrew    Motor   Car   Co.    v.    Westchester   Fish   Co.,    105    Misc. 

(N.  Y.)  595,  173  N.  Y.  Suppl.  437 723 

Navailles  v.  Dielmann,  124  la.  421,  50  So.  449 417 

Navratel  v.  Curtiss  Door  &  Sash  Co.,  290  111.  526,  125  N.  E.  282 673 

Naylor  v.  Haviland,  88  Conn.  256,  91  Atl.  186 310,  423,  47.'i 

Neafsey  v.  Szemeta  (Mass.) ,  126  N.  E.  368 486 

Neal  V.  Randall,  98  Me.  69,  56  Atl.  209,  63  L.  R.  A.  668 251,  267,  374,  375 

Needy  v.  Littlejohn,  137  Iowa,  704,  115  N.  W.  483 250,  269,  305,  37.-. 

Neel  V.  Smith   (Iowa) ,  147  N.  W.  183 369,  89.' 

Neff  V.  Brandeis,  91  Neb.  11,  135  N.  W.  232,  39  L.  R.  A.   (N.  S.)   933 192 

213,  641 

Nehing  v.  Charles  M.  Monroe  Stationery  Co.  (Mo.  App.),  191  S.  W.  1054.  .  422 

423,  439,  482 

Neidy  v.  Littlejohn,  146  Iowa,  355,  125  N.  W.  198 306,  356,  921 

Nell  V.  Godstrey   (N.  J.),  101  Atl.  50 171,  677 

Nels  V.  Rider,  185  Iowa,  781,  171  N.  W.  150 .  679 

Nelson  v.  Hedin,  184  Iowa,  657,  169  N.  W.  37 513,  516,  926 

Nelson  v.  Holland,  127  Minn.  188,  149  N.  W.  194 517,  518,  530,  538 

Nelson  v.  Pacific  Coast  Casualty  Co.,  96  Wash.  43,  164  Pac.  594 158 

Nelson  v.  State   (Ga.  App.),  107  S.  E.  400 780 

Nemzer  v.  Newkirk  Ave.  Automobile  Co.,  154  N.  Y.  Suppl.  117 362 

Nesbit  V.  Crosby,  74  Conn.  554,  51  Atl.  550 341,  39.') 

Nesmith  v.  Martin,  147  Ga.  27,  98  S.  E.  551 12,  62 

Neubrand  v.  Kraft,  169  Iowa,  444,  151  N.  W.  455,  457 36,  176,  644 

Neuman  v.  Apter  (Conn.) ,  112  Atl.  350 262,  394,  41.^ 

Neumiller  v.  Acme  Motor  Car  Co.,  49  Pa.  Super.  Ot.  183 177.  644 

Neve  V.  Graves  (Ga.  App.) ,  106  S.  E.  305 667 

Newark  Public  Schools  v.  Wright.  4  Boyce  (Del.)  279,  88  Atl.  462 239 

Newbauer  v.  Nassau  Elec.  R.  Co..  191  N.  Y.  App.  Div.  732,  182  N.  Y.  Suppl. 

20 257.  598 

Newcomb  v.  Albertson,  85  N.  J.  Law  435,  89  Atl.  928 228 

New  Haven  Taxicab  Co.  v.  Connecticut  Co.,  87  Conn.  709,  89  Atl.  92 351 


Tablf.  of  Cases.  1227 

Section 
Newmann   v.  Hudson  County  Co.,  155  N.  Y.  App.  Div.  271,  139  N.  Y.  Suppl. 

1028 503,  506,  514 

Newman  v.  Overholtzer    (Cal.),  190  Pac.   175 304,  413 

New  Orleans  v.  LeBIanc,  139  La.   113,   71  So.  248 135,  138,  155,  157 

New  Orleans,  City  of  v.  Gilly,  147  La.  1089,  86  So.  564 140 

Newport,  City  of  v.  Merkel  Bros.  Co.,  156  Ky.  580,  161  S.  W.  549 57,  90 

97,  114 

Newton  v.  Harvey   (Mo.  App.) ,  202  S.  W.  249 613 

Newton  v.  MeSweeney,  225  Mass.  402,  114  N.  E.  667... 298,  311,  312,  330,  391 
New  York  Cent.  &  H.  R.  R.  Co.  v.  Maidment,  168  Fed.  21,  93  C.  C.  A.  415, 

21  L.  R.  A.   (N.  S.)    924 552,  567,  568 

New  York,  Matter  of  Mayor  of,  135  N.  Y.  253,  260,  31  N.  E.  1033,  31  Am. 

St.  Rep.  825 23 

New  York  Motor  Car  Co.  v.  Greenfield,  145  N.  Y,  Suppl.  33 201 

New  York  Transp.  Co.  v.  Garside,  157  Fed.  521,  85  C.  C.  A.  285.. 247,  268,  280 

305,  351,  377,  423,  427,  433,  438,  442,  443,  458,  460.  473.  475,  487,  920 

Niagara  Gorge  R.  Co.  v.  Gaiser,  109  Misc.  (N.  Y.)  38,  178  N.  Y.  Suppl.  156.  143 

Nicolas  V.  Kelley,  159  Mo.  App.  20,  139  S.  W.  248 281,  628 

Nichols  V.  City  of  Cleveland   (Ohio),  128  N.  E.   164 310,  773 

Nichols  V.  Grand  Trunk  Western  Ry.  Co.,  203  Mich.  372,  168  N.  W.  1046. . 

567,  580 

Nichols  V.  Kissel  Motor  Car  Co.,  144  Minn.  137,  174  N.  W.  733 784 

Nichols  V.  Pacific  Elec.  Ry.  Co.,  178  Cal.  630,  174  Pac.  319 603,  678,  688 

Nicholson  v.  Houston  Elec.  Co.  (Tex.  Civ.  App.),  220  S.  W.  632 179,  630 

Nicholson  v.  Stillwater,  208  N.  Y.  203,  101  N.  E.  858 701 

Nickels  v.  Prewitt  Auto  Co.  (Tex.  Civ.  App.),  149  S.  W.  1094 792 

Nickelson  v.  Fischer,  81  Wash.   423,  142  Pac.   1160 460,  465 

Nicol  V.  Oregon-Washington  R.  &  Nav.  Co.,  71  Wash.  409,  128  Pac.  628..  574 

575,  576,  57« 

Niman  v.  Detroit  United  Ry.  (Mich.),  183  N.  W.  48 614 

Ninth  St.  Improvement  Co.  v.  Ocean  City,  90  N.  J.  Law  106,  100  Atl.  568.. .  195 

Nixon  V.  Williams  (Ga.  App.),  103  S,  E.  880 521 

Nixon  Mining  Drill  Co.  v.  Burk,  132  Tenn.  481,  178  S.  W.  1116 84S 

Noakes  v.  New  York  Central,  etc.,  R.  Co.,   121   N.   Y.  App.  Div.   716,   106 

N.  Y.  Suppl.  522 679,  6811 

Noel  V.  Garford  Motor  Truck  Co.   (Wash.),  191  Pac.  828 871 

Nolan  V.  Davis    (N.  J.) ,   112  Atl.   188 262,  497,  510 

Nolan  v.  Reichman,  225  Fed.   812 135,  137,  138,  144,  147,  155 

Noltmeir  v.  Roscnberger,  131  Minn.  369,  155  N.  W.   618 277,  332,  438,  452 

Noonan  v.  Leavitt  Co.   (Mass.),  131  N.  E.  297 452 

Noonan  v.  Maus,   197  111.  App.   103 329.  330.  93T 

Noot  V.  Hunter,  109  Wash.  343,  186  Pac.  851 262,  394,  407,  409 

Nordley  v.  Sorlie,   35  N.  Dak.   395,   160  N.  W.   70 250.  488.  49.^ 

Nordyke  &  Marmon  Co.  v.  Smith   (Ind.  App.),  131  N.  E.  414 516 

Norfolk  &  Western  Ry.  Co.  v.  Simmons  (Va.),  103  S.  E.  609 558.  567.  580 

Norfolk-Southern  R.  Co.  v.  Smith,  122  Va.  302,  94  S.  E.  789 553,  575 

Norfolk-Southern  R.  Co.  v.  Whitehead,  121  Va.  319,  92  S.  E.  916 574,  575 

Norin  V.  Nunan  (N.  .L).  103  Atl.  378 65,  76 


1228  Table  of  Cases. 

Sectiox 

Northern  Pac.  Ry.  Co.  v.  Tripp,  220  Fed.  286 552,  557,  559 

Northern  Pac.  R.  Ck).  v.  Vidal,  1S4  Fed.  707 576 

Northern  Texas  Tract.  Co.  v.  Smith  (Tex.  Civ.  App.),  223  S.  W.  1013.. 619,  901 

Northern  Texas  Tr.  Co.  v.  Stone  (Tex.  Civ.  App.),  230  S.  W.  754 246 

North  Alabama  Tract.  Co.  v.  McNeil  (Ala.  App.),  85  So.  568 708 

North  St.  Lumber  Co.  v.  Charleston,  etc.,  Co.  (S.  Car.),  105  S.  E,  406 262 

265,  278,  591 

Northrup  v.  Robinson,  33  R.  I.  496,  82  Atl.  392 628,  630,  632 

Northwestern  Telephone  Exch.  Co.  v.  Minneapolis,  81  Minn.  140,  86  N.  W. 

69,  53  L.  R.  A.  17 23 

Norton  v.  Hall  (Ark.)  ,232  S.  W.  934 660 

Novis,  ex  parte  (K.  B.  Civ.),  93  Law  T.  R.  (N.  S.  534 742 

Norwegian  News   Co.   v.    Simokovitch,   112   Mise.    (N.   Y.)    141,   182   N.   Y. 

Suppl.  595 643,  644 

Nugent  v.  Campbell,  180  N.  Y.  App.  Div.  257.  167  N.  Y.  Suppl.  617 671 

Nugent  v.  Gunn,  16  0.  W.  N.  145,  affirmed  17  O.  W.  N.  53 329 

Nussbaum  v.  Trauing  Label,  etc..  Co.    (Cal.  App.),  189  Pac.  728 628,  631 

637,  673 

0 

Oakland  Motor  Car  Co.  v.  American  Fidelity  Co..  190  Mich.  74,  155  N.  W. 

729 831 

Oakland  Motor  Car  Co.  v.  Indiana  Automobile  Co.,  201  Fed.  499 7i8€,  787 

Oakshott  V.  Powell,  6  Alta.  (Canada)   178,  12  D.  L.  R.  148 288 

O'Beirne    v.    Stafford,    87    Conn.    354,    87    Atl.    743,    46    L.    R.    A.    (N.    S.) 

1183 327,  652 

Oberg  v.  Berg,  90  Wash.  435,  156  Pac.  391 342,  446,  452 

Oberholzer  v.  Hubbell    (Cal.   App.),    171   Pac.    436 262,  394,  401,  413,  896 

O'Brien  v.  Bieling    (Pa.),   110  Atl.   89 352,  452,  473,  475,  487 

O'Brien  v.  Crawford,  208  111.  App.  485 412 

O'Brien  v.  L.  E.  White  Lumber  Co.   (Cal.  App.),  185  Pac.  514 188 

O'Brien  v.  Stern  Bros.,  223  N.  Y.  290,  119  N.  E.  550 628,  630,  632 

O'Brien  v.  Washington,  W.  P.  Co.,  71  Wash.  688,  129  Pac.  391 600 

O'Connor  v.  Maryland  Motorcar  Ins.   Co.,   287   111.   204,   122  N.  E.  489,   3 

A.  L.  R.  787 843 

O'Connor  v.  Maryland  Motor  Car  Co.,  211  111.  App.  549 .  843 

Odhert  v.  Webster  M.  &  B.  &  R.  C.  S.  R.  Co.,  50  Pa.  Super.  Ct.  525 591 

Odom  V.  Schmidt,  52  La.  Ann.  219,  28  So.  350 340,  395 

O'Donnell  v.  Johnson,  36  R.  I.  308,  90  Atl.  165 241,  380,  894 

O'Donnell  v.  O'Neil,  130  Mo.  App.  360,  109  S.  W.  '815 48,  49,  519 

O'Donoghue  v.  Moon,  90  Law  T.   (N.  S.)   843,  68  J.  P.  349 19 

O'Donohoe  v.  Duparquet,  Huot  &  Moneuse  Co.,  67  Misc.  (N.  Y.)   435,  123 

N.  Y.  Suppl.  193 340,  395 

O'Dowd  V.  Newnliam.  13  Ga.  App.  220,  80  S.  E.  36 50,  277,  278,  297,  321 

329,  440,  457.  458 

Oelrich  v.  Kent,  259  Pa.  St.  407,  103  Atl.  109 471,  487 

Off  V.  Crump,  40  Cal.  App.  173,  180  Pac.  360 244,  473,  487 

Offerman  v.  Yellow  Cab  Co.,  144  Minn.  478,  175  N.  W.  537 448,  487 


Table  of  Cases.  1229 

Section 

Offner  v.  Wilke,   208  111.   App.   463 371,  657,  720,  722 

Ogilvie  V.  Harley,  141  Tenn.  392,  210  S.  W.  645 94,  111 

O'Hara  v.  Gould,  84  N.  J.  Law  583,  87  Atl.   117 491 

O'Hara  v.  Nelson,  71  N.  J.  Eq.  161,  63  Atl.  836 193 

O'Hare  v.  Gloag,  221  Mass.  24,  108  N.  E.   566 223,  302 

Ohio  Electric  Ry.  Ck).  v.  Weingertner,  93  Ohio  St.  124,  112  N.  E.  203 559 

Ohio  Valley  Mills  v.  Louisville  Ry.  Co.,  168  Ky.  758,  182  S.  W.  955 616 

Oldfield  V.  International  Motor  Co.    (Md.),  113  Atl.   632 857,  864 

Olds  V.  Hinea,  95  Oreg.  580,  187  Pac.  586 552,  556,  560 

Olds  Motor  Works  v.  Shaffer,   145  Ky.  616,   140  S.  W.  1047,  37  L.  R.  A. 

(N.  S.)  560,  Ann.  Cas.  1913  B  689 800 

O'Leary  v.  St.  Paul  Fire  &  Marine  Ins.  Co.    (Tex.  Civ.  App.),  196  S.  W. 

574 819 

Olmsted  v.  Town  of  Greenfield,  155  Wis.  452,  144  N.  W.  987 * 714 

O'Loughlin  v.  Mackey,  182  N.  Y.  App.  Div.  637,  169  N.  Y.  Suppl.  835 627 

Olsen  V.  Clark    (Wash.),   191  Pac.   810 644,  673 

Olsen  V.  Peerless  Laundry  Co.  (Wash.),  191  Pac.  756 448,  462,  487 

Olson  V.  Holway,  152  Wis.  1,  139  N.  W.  422 382 

Olson  V.  Veness,  105  Wash.  599,  178  Pac.  822 644 

Omaha  &  C.  B.  St.  Ry.  Co.  v.  McKeeman,  250  Fed.  386 621 

O'Malley  v.  Dom,  7  Wis.  236 275,  377 

O'Malley  v.  Public  Ledger  Co.,  257  Pa.  17,  101  Atl.  94 672 

Ommen  v.  Grand  Trunk  Western  Ry.,  204  Mich.  392,  169  N.  W.  914 .  .  679,  688 

One  Cadillac  Automobile  v.  State  (Okla.),  172  Pac.  63 12,  51 

One  Hudson  Super-Six  Automobile  v.  State  (Okla.),  173  Pac.  1136 12,  54 

O'Neil  V.  Cheatwood   (Va.) ,  102  S.  E.  596 882 

O'Neil  V.  Kopke,  170  N.  Y.  App.  Div.  601,  156  N.  Y.  Suppl.  664 423,  487 

O'Neil  V.  Potts,  130  Minn.  353,  153  N.  W.  856 260,  386 

O'Neil  V.  Redfield,  158  Iowa,  246,  139  N.  W.  555 321 

O'Neill  V.  Everet,  189  N.  Y.  App.  Div.  221,  178  N.  Y.  Suppl.  506.  .462.  468,  469 

O'Neill  v.  Queen  Ins.  Co.,  230  Mass.  269,  119  N.  E.  678 805 

Onell  v.  Chappell,  38  Cal.  App.   375,   176  Pac.   370 362 

One  Moon  Automobile  v.  State  (Okla.),  173  Pac.  66 12,  52 

Ontario  Hughes-Owen  v.  Ottawa  Elec.  Co.,  40  (Canada)  O.  L.  R.  614 599 

Opdyke  v.  City  of  Anniston  (Ala.  App.),  78  So.  634 143 

Opinion  of  Atty.  Gen'l,  35  Pa.  Co.  Ct.,  512 120 

Opitz  V.  Schenck   (Cal.),   174  Pac.   40 297,  302,  308,  311,  324,  326,  498,  501 

Opocensky  v.  City  of  South  Omaha,  101  Neb.  336,  163  N.  W.  325 324 

Opp  v.  Pryor    (111.) ,  128  N.   E.   580 580,  679,  689 

O'Reilly  v.  Davis,  136  N.  Y.  App.  Div.  386,  120  N.  Y.  Suppl.  883 464 

Orester  v.  Dayton  Rubber  Mfg.  Co.,  228  N.  Y.  134,  126  N.  E.  510 789 

Orient  Ins.  Co.  v.  Van  Zandt  Drug  Co.,  50  Okla.  558,  151  Pac.  323 811 

O'Rourke  v.  A.-G.  Co.,  Inc.,  332  Mass.  129,   122  N.  E.  193 637,  628.  631 

663,  673 

Orr  v.  Jackson  .Jitney  Car  Co.,  115  Miss.  140,  75  So.  945 875,  877 

Orr  V.  Oldtown,  99  Me.  190,  58  Atl.  914 710,  713 

Orth  V.  H.  G.  &  B.  Ry.  Co.,  43  O.  L.  R.  (Canada)   137 606 

Osberg  v.  Cudahy  Packing  Co.,  198  111.  App.  551.  .  .325,  359,  416,  419,  443.  452 


1230  Table  of  Cases. 

Section 

Osborne  v.  Landis,  34  W.  L.  R.    (Canada)    118....  243,  267,  268,  278,  280,  433 

Oshkosh,  City  of  v.  Campbell,  151  Wis.  567,  139  N.  W.  316 71,  77,  236 

258,  271,  388,  434 

Ottaway  v.  Gutman,  207  Mich.  393,  174  N.  W.  127 464 

Ostermeier  v.  Kingsman,  etc.,  Co.,  255  Mo.  128,  164  S.  W.  218 422 

Ostrander  v.  Armour  &  Co.,  176  N.  Y.  App.  Div.  152,  161  N.  Y.  Suppl.  961.  .  420 

631,  663 

Oswald  &  Utah  L.  &  R.  Co.,  39  Utah,  245,  117  Pac.  46 592,  597,  614,  615 

Otis  V.  Parker,  197  U.  S.  606 '^'^^ 

Otto  V.  Duluth  St.  Ry.  Co.,  138  Minn.  312,  164  N.  W.  1020 609,  614 

Ottoby  V.  MLssissippi  Valley  Trust  Co.,  197  Mo.  App.  473,  196  S.  W.  428. .  281 

484,  924 

Ottomeier  v.  Harnberg,  50  Wash.  316,  97  Pac.  235 677 

Oullette  V.  Superior  Motor  &  M.  Works,  157  Wis.  531,  147  N.  W.  1014..  213 

439,  452,  476,  487,  623,  641 

Overall  v.  Chicago  Motor  Car  Co.,  183  HI.  App.  276 865,  911 

Overland  Sales  Co.  v.  Kaufman,  76  Misc.  (N.  Y.)  230,  134  N.  Y.  Suppl.  599.  869 

Overland  Sales  Co.  v.  Pierce  (Tex.  Civ.  App.),  225  S.  W.  284 852 

Overstreet  v.  Hancock    (Tex.  Civ.  App.),   177   S.  W.  217.... 785,  790,  792,  802 

Overton  v.  Bush,  2  Ala.  App.  623,  56  So.  852 412 

Owens  V.  Iowa  County,   186  Iowa,  408,   169  N.  W.  388.... 307,  339,  710,  711 

715,  921 

Owens  V.  W.  J.  Burt  Motor  Car  Co.  (Cal.  App.),  186  Pac.  722 453,  471 

P 

Pabst  Brewing  Co.   v.  Laetner    (Mo.  App.),  208   S.  W.   487 ' 413 

Pacific  Gas  &  Electric  Co.  v.  Roberts,  168  Cal.  420,  143  Pac.  700 107 

Pacific  Hardware  &  Steel  Co.  v.  Monical,  205  Fed.  116,  123  C.  C.  A.  348 ... .  457 
Packard  v.  New  York,  etc.,  R.  Co.,   160  N.  Y.  App.   Div.   856,   146   N.   Y. 

Suppl.  878 ^'^^ 

Paducah  Traction  Company  v.  Sine,  111  S.  W.  356,  33  Ky.  Law  Rep.  792. .  397 

Page  V.  Brink's  Chicago  City  Express  Co.,  192  HI.  App.   389.... 386,  396,  413 

Page  V.  Brooks  (N.  H.),  104  Atl.  786 • 195 

Painter  v.  Davis,  113  Minn.  217,  129  N.  W.  368 629 

Palmer  v.  Baker,  11  Me.  338 249,  267,  372,  375 

Palmer  v.  Bull  Dog  Auto  Ins.  Assoc.,  294  HI.  287,  128  N.  E.  499 838 

Panama  R.  Co.  v.  Bosse,  239  Fed.  303 663 

Pangburn  v.  Buick  Motor  Co.,  151  App.  Div.  756,  137  N.  Y.  Suppl.  37....  628 

653,     677 
Pankopf  v.  Hinkley,  141  Wis.  146,  123  N.  W.  625,  24  L.  R.  A.  (N.  S.)  1159.     356 

Pannell  v.  Allen,  160  Mo.  App.  714,  142  S.  W.  482 252,     382 

Pantages  v.  Seattle  Elec.    Co.,   55   Wash.   453,   104   Pac.    629.... 296,  586,     587 

602,     913 

Pantagis  v.  Seattle  El.  Co.,  63  Wash.  159,  114  Pac.  1044 600,  602 

Papic  V.  Freund   (Mo.   App.),   181   S.  W.   1161 422,  471,  482 

Parish  v.  City  of  Richmond,  119  Va.  180,  89  S.  W.  102 140 

Park  V.  City  of  Duluth,  134  Minn.  296,  159  N.  W.  627.. 64,  71,  76,  77,  96,  97 

109,  111,  114 


Table  of  Cases.  1231 

Section 

Park  V.  Orbison   (Cal.  App.),  184  Pac.  438 307,  414,  453,  460,  472,  473 

Parker  v.  Adams,  12  Mete.   (Mass.)   403 267,  351,  375,  376,  399 

Parker  v.  Cartier    (R.   I.),   105   Atl.    393 488,  506 

Parker  v.  Drake   (Mo.  App.),  220  S.  W.  1000 339 

Parker  v.  Funk  (Cal.) ,  197  Pac.  83 889 

Parker  v.  General  Omnibus  Co.,  101  L.  T.  (Eng.)  623 338 

Parker  v.  Kindenmann,  161  Wis.  101,  151  N,  W,  787 486 

Parker  v.  London  General  Omnibus  Company,  Limited    (K.  B.  Div.),   100 

Law  T.  R.    (N.  S.)    409 338 

Parker  v.  Seaboard  Air  Line  Ry.  (N.  C),  106  S.  E.  755 565,  580,  679,  693 

Parker  v.  Sweet  (Tex.  Civ.  App.) ,  127  S.  W.  881 9,  44 

Parker  v.  Wilson,  179  Ala.  361,  60  So.  150,  43  L.  R.  A,  (N.  S.)  87 36,  37 

215,  292,  295,  624,  656,  657,  660,  662,  670 

Parmele  v.  Abdo   (Tex.  Civ.  App.),  215  S.  W.  369 654 

Parmenter  v.  McDougall,   172   Cal.    306,    156   Pac.   460 247,  359,  493,  515 

679,  688 

Parr,  ex  parte,  82  Tex.  Cr.  525,  200  S.  W.  404 71,  77,  78,  96,  97,  102,  135 

139,  140,  144,  147,  155 

Parria  v.  Jaquitli    (Colo.).   197  Pac.   750 204 

Parry  v.  American  Motors  Calif.  Co.,  25  Cal.  App.  706,  145  Pac.  165.. 792,  796 

Parsons  v.  State  (Ind.) ,  131  N.  E.  381 ; 768,  934 

Parsons  v.  Wisner,  113  N.  Y.  Suppl.  922 623,  628 

Partlow-Jenkins  Motor  Car  Co.  v.  Stratton  (Ind.  App.),  124  N.  E.  470 877 

Pascagoula  St.  Ry.  &  Pr.  Co.  v.  McEachern,  109  Miss.  380,  69  So.  185 260 

351,  393 

Paschel  v.  Hunter,  88  N.  J.  Law  445,  97  Atl.  40 252,  256,  494 

Pask  v.  London  &  Lancashire  F.  Ins.  Co.,  211  111.  App.  27 842 

Passenger  Cases,  48  U.  S.   (7  How.  283) 86 

Patnode  v.  Foote,  153  N.  Y.  App.  Div.  494,  138  N.  Y.  Suppl.  231 678 

Paton  V.  Cashmere  W^arehouse  «fe  Storage  Co.  (Wash.),  176  Pac.  544 249 

Patrick  v.  Deziel,  223  Mass.  505,  112  N.  E.  223 453,  478 

Patten  v.  Sturgeon,  214  Fed.  65,  130  C.  C.  A.  505 9,  37 

Patterson  v.  Adan,  119  Minn.  283,  137  N.  W.  1112 228 

Patterson  v.  Chicago,  etc.,  R.  Co.,  95  Minn.  57,  103  N.  W.   621 851,  911 

Patterson  v.  Detroit  United  Rys.  Co.,  187  Mich.  567,  153  N.  W.  670 351 

Patterson  v.  Indiana  Investment,  etc.,  Co.   (Ind.  App.),  131  N.  E.  19.. 768,  855 

Patterson  v.  Millican,  12  Ala.  App.  324,  66  So.  914 671,  673 

Patterson  v.  Standard  Accident  Ins.  Co.,   178  Mich.  288,  144  N.  W.  491. 

51  L.  R.  A.  (N.  S.)  583,  Ann.  Cas.  1915  A  632 825 

Patterson  v.  State,  16  Ala.  App.  483,  79  So.   157 68,  874 

Patterson  v.  State,  96  Ohio  St.  90,  117  N,  E.  169 768 

Patterson  v.  Wagner,   204   Mich.    593.   171   N.   W.   356 278,  279,  324,  414 

452,  487 

Patton  V.  Woodward  Co.  (Cal.  App.),  197  Pac.  368 646 

Patton-Worsham  Drug  Co.  v.  Drennon,  104  Tex.  62,  133  S.  W.  871 47,  48 

Paul  V.  Clark,  161  N.  Y.  App.  Div.  456,  145  N.  Y.  Suppl.  985 478,  479 

Paul  v.  Pfefferkorn   (Wis.) ,  178  N.  W.  247 410,  413 

Paulsen  v.  Klinge.  92  N.  J.  99,  104  Atl.  95 172,  173,  176,  391,  394 


1232  T.VBLE  OF  Cases. 

S^TION 

Payne  v.  Cbal-max  Motor  Oo.  (Ga.  App.) ,  104  S.  E.  453 864 

Payne  v.  Healey  (Md.) ,  114  Atl.  693 575 

Payne  v.  Wallis  (Tex.  Civ.  App.),  231  S.  W.  1114 572 

Peabody  v.  Lynch,  184  111.  App.  78 720 

Pease  v.  Cochran  (S.  Dak.),  173  N.  W.  158,  5  A.  L.  R.  936 518,  519,  530 

Pease  v.  Gardner,  113  Me.  264,  93  Atl.  550 17^8,  263,  643,  666,  667,  679 

Pease  v.  Montgomery,   111  Me.  582,  88  Atl.  973 72,  178,  623,  628,  629 

Peck  V.  New  York,  etc.,  R.  Co.,  50  Conn.  379,  394 550 

Peck  V.  O'Gilvie,  13  R.  L.  N.  S.  (Canada)  54,  31  Queb.  S.  C.  227 72,  230 

Peevehouse  v.  Smith  (Tex.  Civ.  App.),  152  S.  W.  1196 39,  43 

Pegg  V.  Columbus,  80  Ohio  St.  367,  89  N.  E.  14 .76,  78,  114 

Pekrack  v.  Myers,   159   Iowa,  206,   140  N.  W.  409 517,  518,  540 

Pemberton  v.  Army  (Cal.  App.),  183  Pac.  356,  affirmed  182  Pac.  964 71,  258 

433,  434,  452 

Pemberton  v.  City  of  Albany,  196  App.  Div.  831 702 

Pendroy  v.  Great  Northern  Ry.  Co.,  17  N.  Dak.  433,  117  N.  W.  531 425 

Pennige  v.  Reynolds,  98  Misc.  (N.  Y.)  239,  162  N.  Y.  Suppl.  966 452,  487 

Pens  V.  Dreitzer,   98   Kans.   759,   160   Pac.   200 256,  273,  359,  382,  403,  405 

Pensacola  Tel.  Company  v.  Western  Union  Tel.  Co.,  96  U.  S.  1,  24  L.  Ed. 

708 .= •••  86 

Penticost  v.  Massey,  201  Ala.  261,  77  So.  675 655,  661,  673,  674 

People  V.  Adams,  289  111.  339,  124  N.  E.  575 758 

People  V.  Beak,  291  III.  449,  126  N.  E.  201 66,  729 

People  V.  Barnes,  182  Mich.  179,  148  N.  W.  400 300,  757,  929 

People  V.  Bell,  148  N.  Y.  Suppl.  753 71,  230,  730 

People  V.  Bond,  291    111.   74,  125  N.   E.   740 768 

People  V.  Braun,  100  Misc.  (N.  Y.)  343,  166  N.  Y.  Suppl.  708 58,  72,  77 

People  V.  CahilL  1 1  Cal.  App.  685,  106  Pac.   115 . 768 

People  V.  Camberis  (111.) ,  130  N.  E.  712 758 

People  V.  Chapman.  S8  Miiic.   (N.  Y.)   469,  153  N.  Y.  Suppl.  204 79,  81,  82 

730,  742 

People  V.  Clink  (111.) ,  60  Nat.  Corp.  Rep.  155 767 

People  V.  aink,   216  111.   App.   357 767 

People  V.  Conlon,  85  Misc.  (N.  Y.)  229.  148  N.  Y.  Suppl.  321 725 

People  V.  Curts,  225  N.  Y.  519,   122  N.  E.  623 775 

People  V.  Curtis,  217  N.  Y.  304,  112  N.  E.  54 775,  776,  777 

People  V.  Darragh,  141  N.  Y.  App.  Div.  408,  126  N.  Y.  Suppl.  522 758.  759 

People  v.  DeGraff.  56  Misc.  (N.  Y.)   429,  107  N.  Y.  Suppl.  1038 742 

People  V.  Diller.  24  Cal.  App.  799,  142  Pac.  797 775 

People  V.  DiPietro   (Mich.) ,  183  N.  W.  22 934 

People  V.  Dow,  155  Mich.  115,  118  N.  W.  745 736 

People  V.  Dwyer,  136  N,  Y.  Suppl.  148 71,  230,  730 

People  V.  Falkovitch,  280  111.  321,  117  N.  E.  398 1,  317,  322,  758 

People  V.  Fernow,  286  111.  627,  122  N.  E.  155 781 

People  V.  Field  &  Co.,  266  HI.  609,  618,  107  N.  E.  864 47 

People  V.  Finley,  27  Cal.  App.  291,  149  Pac.  779 775 

People  V.  Fizgerald,  101  Misc.  (N.  Y.)  695,  168  N.  Y.  Suppl.  930 71,  72,  77 

322,  729 


Table  of  Cases.  1233 

Section 

People  V.  Fodera,  33  Cal.  App.   8,   164  Pac.   22 775,  776 

People  V.  Fuchs,  71  Misc.   (N.  Y.)   69,  129  N.  Y.  Suppl.  1012 741 

People  V.  Fulton,  96  Misc.  (N.  Y.)  663,  162  N.  Y.  Suppl.  125 223.  770 

People  V.  Harris  (Mich.),  182  N.  W.  673 758 

People  V.  Harrison,  183  N.  Y.  App.  Div.  812,  170  N.  Y.  Suppl.  876.. 725,  734,  735 

People  V.  Hayes,  66  Misc.  (N.  Y.)  606,  124  N.  Y.  Suppl.  417... 77,  79,  731,  734 

People  V.  Hopper    (Colo.) ,   169   Pac.   152 767 

People  V.  Kasker,  209  HI.  App.  597 769 

People  V.  Kelly,   204   HI.    App.    201 317,  322,  729 

People  V.  Kepford   (Cal.  App.) ,  199  Pac.  64 769 

People  V.  Levin,  181  HI.  App.  429 740 

People  V.  Lintz,  203  Mich.  683,  169  N.  W,  98 768 

People  V.  Lloyd,  178  111.  App.  66..  .73.  82,  242,  244,  305,  325,  729,  744,  921.  924 

People  V.  MacWilliams.  91  N.  Y.  App.  Div.  176,  86  N.  Y.  Suppl.  357.. 57,  95 

96,  101,  110,  113 

People  V.  Marshall  Field  &  Co.,  266  111.  609,  107  N.  E.  864 32 

People  V.  Martinitis,  168  N.  Y.  App.  Div.  446,  153  N.  Y.  Suppl.  791.. 241,  77.-] 

People  V.  McGraw,  184  Mich.  233,  150  N.  W.  836 58,  71,  72,  77,  96,  98 

People  V.  McLaughlin,  100  Misc.  (N.  Y.)  340,  165  N.  Y.  Suppl.  545 777,  778 

People  V.  Mellen,  104  Misc.    (N.  Y.)    355 322 

People  V.  Milne,  86  Misc.  (N.  Y.)  417,  149  N.  Y.  Suppl.  283 71,  144,  149 

People  V.  Morosini,  N.  Y.  Law  Journal,  April  18,  1918 70,  71,  725,  735 

People  V.  Mulvaney,  286  HI.  114,  121  N.  E.  229 768 

People  v.  Murname   (Mich.) ,  182  N.  W.  62 768 

People  v.  Oak  Park,  266  111.  365,  107  N.  E.  636 195,  197 

People  v.  Payne,  71  Misc.  (N.  Y.)  72,  129  N.  Y.  Suppl.  1007 741 

People  v.  Pennsylvania  R.  Co.,  251  Pa.  St.  375,  96  Atl.  652 557,  558.  56S 

People  v.  Persce,  204  N.  Y.  397,  97  N.  E.  877 776 

People  V.  Pretswell,  202  Mich.  1,  167  N.  W.  1000 758 

People  V.  Reppin,  126  N.  Y.  Suppl.   169 739 

People  V.  Rosenheimer,  309  N.  Y.   115.   102  X.   E.   530,  Ann.   Cas.   1915  A 

161,  46  L.  R.  A.  (N.  S.)   77 775 

People  V.  Ruetiman,  85  Misc.  (N.  Y.)  233,  148  N.  Y.  Suppl.  612.  .  .730,  735,  754 

People  V.  Sargent,  254  111.  514,  98  N.  E.  959 59.  60,  101,  122 

People  V.  Scanlon,  132  N.  Y.  App.  Div.  528,  117  N.  Y.  Suppl.  57 297,  320 

725,  763 
People  v.  Schneider,  139  Mich.  673.  10:5  N.  W.  172,  12  Det.  Leg.  N.  32,  69 

L.  R.  A.  345,  5  Ann.  Cas.  790 94,  95,  97,  101.  109,  89J 

People  v.  Schoepflin,  78  Misc.   (N.  Y.)   62,  137  N.  Y.  Suppl.  675 96.  124 

People  V.  Schwartz   (111.),   131   N.  E.  806 758 

People  V.  Schwartz   (Mich.) ,  183  N.  W.  723 768 

People  V.  Smith,  156  Mich.  173.  120  N.  W.  581,  16  Ann.  Cas.  607,  21  L.  R.  A. 

(N.  S.)  41n 18 

People  V.  Smith  (Mich.),  182  N.  W.  62 769 

People  V.  Stroehel.   156  N.  Y.  App.  Div.  457,  141  N.  Y.  Suppl.  1014 197 

People  V.  Sumwalt.  178  111,  App.  357 729,  744 

People  V.  Suraw    (111."),   129  N.  E.  504 1,  76S 

People  V.  Thexton.  188  HI.  App.  2 73.1 

78 


1234  Table  of  Cases. 

Section 

People  V.  Thompson,  209  111.  App.  570 197 

People  V.  Townsend   (Mich.),  183  N.  W.  177 758 

People  V.  Traina,  92  Misc.  (N.  Y.)  82,  155  N.  Y.  Suppl.  1015 82,  730,  893 

People  V.  Unteimyer,  153  N.  Y.  App.  Div.  176,  138  N.  Y.  Suppl.  334... 71  79 

730,  731 

People  V.  Weaver,  188  N.  Y.  App.  Div.  395,  177  N.  Y.  Suppl.  71 772 

People  V.  Winston,  155  N.  Y.  App.  Div.  907,  139  N.  Y.  Suppl.  1072 741 

People  ex  rel.  Busching  v.  Ericson,  263  111.  368,  105  N.  E.  315 193,  195 

197,  891 
People  ex  rel.  Cavanaugh  v.  Waldo,  72  Misc.  (N.  Y.)  416,  131  N.  Y.  Suppl. 

307 73,  232 

People  ex  rel.  Hainer  v.  Keeper  of  Prison,  121  N.  Y.  App.  Div.  645,  106 

N.  Y.  Suppl.  314,  affirmed  190  N.  Y.  315,  83  N.  E.  44 59,  72,  77,  96 

People  ex  rel.  Howe  v.  Hanna,  136  N.  Y.  Suppl.  162,  26  N,  Y.  Cr.  R.  324. .  118 

People  ex  rel.  Hoyne  v.  Chicago  Motor  Bus  Co.  (111.),  129  N.  E.  114 73 

People  ex  rel.  Weatherwax  v.  Watt,  115  Misc.  (N.  Y.)   120 150 

Perez  v.  Hartman,  39  Cal.  App.  601,   179  Pac.  706 259,  498 

Perez  v.  Sandrowitz,  180  N.  Y.   396,  73  N.  E.  228 459 

"Perkins  v.  Brown,  132  Tenn.  294,  177  S.  W.  1158 722,  723 

Perkins  v.  Galloway,  184  Ala.  265,  69  So.  875 678 

Perkins  v.  Holser  (Mich.),  182  N.  W.  49 464,  487 

Perkins  v.  Stead,  23   Times  L.   Rep.    (Eng.)    433 647 

Perlmutter  v.  Bryne,   193  N.  Y.  App.  Div.  769,  184  N.  Y.  Suppl.  580 487 

631,  677 
Perlstein  v.  American  Exp.  Co.,  177  Mass.  530,  59  N.  E.  194,  52  L.  R.  A. 

959 267,  376 

Perrill  v.  Virginia  Brewing  Co.  (Minn.),  153  N.  W.  136 18 

Perrin  v.  New  Orleans  Terminal  Co.,  140  La.  818,  74  So.  160 550,  554,  557 

559,  560,  568 

Pershing  v.  Detroit,  etc.,  R.  Co.,  206  Mich.  304,  172  N.  W.  530 557 

Perry  v.  Fox,  93  Misc.   (N.  Y.)   89,  156  N.  Y.  Suppl.  369 192,  645,  646 

Perry  v.  McAdoo  (N.  C.) ,  104  S.  E.  673 567,  580 

Peru  Turnpike  Co.  v.  Peru,  91  Vt.  295,  100  Atl.  679 53 

Peters  v.  City  of  San  Antonio  (Tex.  Civ.  App.),  195  S.  W.  989.... 5*7,  58.  70 

71,  74,  135,  136,  153,  154 

Peters  v.  Cuneo,  123  N.  Y.  App.  Div.  740,  108  N.  Y.  Suppl.  264 374 

Peters  v.  Streep,  138  N.  Y.  Suppl.  146 720,  722 

Peterson  v.  Ballantine  &  Sons,  205  N.  Y.  29,  39  L.  R.  A.  (N.  S.)   1147.  .  .  .  459 

Peterson  v.  Chicago,  etc.,  R.  Co.,  185  Iowa,  378,  170  N.  W.  452 582 

Peterson  v.  Eighimie,  175  N.  Y.  App.  Div.  113,  161  N.  Y.  Suppl.  1065 ....  450 

Peterson  v.  New  Orleans  Ry.  &  Light  Co.,  142  La.  835,  77  So.  647 618 

Peterson  v.  New  Orleans  Ry.  &  Light  Co.,  142  La.  835,  77  So.  647 679 

Peterson  v.  Pallis,   103  Wash.   180,   173  Pac.   1021 82,  267,  269,  493 

Peterson  v.  United  Rys.  Co.  of  St.  Louis,  270  Mo.  67,  192  S.  W.  938 611 

Peterson  v.  United  Ry.  Co.,  183  Mo.  App.  715,  168  S.  W.  254 611 

Petrie  v.  E.  A.  Myers  Co.   (Pa.),  112  Atl.  240 452,  457 

Petrillo  V.  Connecticut  Co.,  92  Conn.  235,  102  Atl.  607 602 

Petty  V.  Maddox,   190  111.   App.  281 277,  283,  305,  32? 


Table  of  Cases.  1235 

Sectiok 

Pezenik  v.  Greenburg,  94  Misc.  (N.  Y.)  192,  157  N.  Y.  Suppl.  1093 875 

Pfeiffer  v.  Radke,  143  Wis.  512,  125  N.  W.  934 529 

Philadelphia  Motor  Tire  Co.   v.   Horowitch,   190  N.  Y.  App.   Div.   771,   180 

N.  Y.  Suppl.  €61 870 

Phillips,  ex  parte  (Okla.),  167  Pac.  221 94,  98,  99,  139,  148,  239 

Phillips  V.  City  of  Perry,  178  Iowa,  173,  159  N.  W.  653 710,  712,  715 

Phillips  V.  Denver  City  Tramway  Co.,  53  Colo.  458,  128  Pac.  460,  Ann.  Cas. 

1914  B  29 277,  278 

Phillips  V.  Donaldson  (Pa.) ,  112  Atl.  236 193,  194 

Phillips  V.  Gookin,  231  Mass.  250,  120  N.  E.  691 642.  673 

Phillips  V.  Stapleton,  23  Ga.  App.  303,  97  S.  E.  885 12,  60 

Pliillips  V.  Taxi  Service  Co.,  183  Fed.  869 462 

Philpot  V.  Fifth  Ave.  Coach  Co.,  142  N.  Y.  App.  Div.  811,  128  N.  Y.  Suppl. 

35 338,  430 

Phipps  V.  City  of  Perry,  178  Iowa,  173,  159  N.  W.  653 126 

Picken  v.  Miller,  59  Ind.  App.   115,   108  N.   E.   968 362,  412 

Pickering  v.  Snyder    (Pa.),   113   Atl.   375 516 

Pidcock  V.  West  (Ga.  App.) ,  102  S.  E.  360 413 

Pierce  v.  Fiorette,  140  Ark.  306,  215  S.  W.  646 .  848 

Pierce  v.  Morrill  Bros.  Co.,  116  Me.  517,  102  Atl.  230 228 

Pierce  Arrow  Sales  Co.  v.  Irwin,  86  Oreg.  683,  169  Pac.  129 876,  878 

Piersall's  Adm'r  v.  Chesapeake  &  0.  Ry.  Co.,  180  Ky.  659,  203  S.  W.  551 .  .  550 

559,  579.  580 

Pietsch  V.  McCarthy,  159  Wis.  251,  150  N.  W.  482 351 

Pigeon  v.  Lane,  80  Conn.  237,  67  Atl.  888,  11  Ann.  Cas.  371 678 

Pigeon  V.  Massachusetts,  etc.,  St.  Ry.  Co.,  230  Mass.  392,  119  N.  E.  762..  226 

597,  609,  611,  619,  689,  690 

Pilgrim  v.  Brown,   168  Iowa,   177,   150  N.   W.   1 71,  230,  352,  372,  730 

Pilson  V.  Tip-Top  Auto  Co.,  67  Oreg.  528,  136  Pac.  643 208 

Pinchard  v.  Pease    (Wash.) ,   197  Pac.  49 678 

Pinder  v.  Wickstrom,   80  Oreg.    118,   156   Pac.   583 249,  352.  512 

Pine  Bluflf  Co.  v.  Crunk,  129  Ark.  39,  195  S.  W.  397 591 

Pine  Bluff  Co.  v.  Whitelaw  (Ark.),  227  S.  W.  13 679,  688,  689 

Pine  Bluff  Transfer  Co.  v.  Nichol,  140  Ark.  320,  215  S.  W.  579 97,  106.  Ill 

Pinion  v.  State  (Tex.  Cr.),  219  S.  W.  831 773 

Piper  V.  Adams  Express  Co.    (Pa.),   113   Atl.   562 267,  330,  380,  382 

Piper  V.  New  York  State  Rys.,  185  N.  Y.  App.  Div.  1«4,  172  N.  Y.  Suppl. 

838 169,  687 

Piper  V.  Oakland  Motor  Co.    (Vt.),  109  Atl.  911 800.  848 

Pinter  v.  Wenzel   (Wis.) ,  180  N.  W.   120 204 

Pitcher  v.  Webber,  103  Me.  101,  68  Atl.  593 871 

Pittsburgh,  etc.,  R.  Co.  v.  Dove,  184  Ind.  447,  111  N.  E.  609 550,  552,  553 

557,  558,  567,  579.  580 

Pittsburgh  Rys.  Co.  v.  Givens,  211  Fed.  885,  128  C.  C.  A.  263 621 

Pittsburgh,  etc.,  R.  Co.  v.  Kephert,  61  Ind.  App.  621,  112  N.  E.  251 679 

Pittsburgh,  etc.,  Ry.  Co.  v.  Nichols  (Ind.  App.),  130  N.  E.  546 550,  556.  579 

Pisarke  v.  Wisconsin  Tunnel  &  Constr.  Co.   (Wis.),  183  N.  W.  164 41.J 

Pizlee  V.  Buick  Motor  Co.   (Mo.  App.),  198  S.  W.  86 780 


1236  Table  of  Cases. 

Sectiok 

Plancq  V.  Marks  (K.  B.  1). ) ,  94  L.  T.  R.   (Eng. )   577 933 

Plasch  V.  Fass,  144  Minn.  44,  174  N.  W,  438 452,  487,  523 

Plasikowski  v.  Arbus,  92  Conn.  556,  103  Atl.   642 228 

Plekkwell  v.  Wilson,   5  Carr  &   Payne    (Eng. )    103 268,  377 

Pluckwell  V.  Wilson,  5  Car.  &  P.  (Eng.)  375 280,  351 

Plumb  V.  Richmond  L.  &  R.  Go.,  195  N.  Y.  App.  Div.  354 621 

Pogue  V.  Great  Northern  Ry.  Co.,  127  Minn.  79,  148  N.  W.  889 560,  565 

Pollock  V.  Wheeling  Tract.  Co.,  83  W.  Va.  76'8,  99  S.  E.  267 701 

Polmatier  v.  Newbury,  231  Mass.  307,  120  N.  E.  850 226,  506,  934 

Polsky  V.  New  York  Transp.  Co.,  96  N.  Y.  App.  Div.  613,  88  N.  Y.  Suppl. 

613,  88  N.  Y.  Suppl.  1024 416 

Pool  V.  Brown,   89   N.   J.   Law   314,   98   Atl.   262.... 49,  247,  252,  254,  276,  277 

326,  329,  332,  414,  433,  438,  441,  448.  453,  465,   471.  472,  473,  487 

Poplin  V.  Brown,  200  Mo.  App.  255,  205  S.  W.  411 854 

Poppenberg  v.  Owen  &  Co.,  84  Misc.   (N.  Y.)   126,  146  N.  Y.  Suppl.  478 790 

Porter  v.  Buckley,  147  Fed.  140,  78  C.  C.  A.  138 921,  927 

Porter  v.  Fletcher,  153  N.  Y.  App.  Div.  470,  138  N.  Y.  Suppl.  557 848 

Porter  v.  Hetherington,  172  Mo.  App.  502,  158  S.  W.  469 281 

Porter  v.  Jacksonville  Electric  Co.,  64  Fla.  409,  60.  So.  188 126 

Porter  v.  Nesmith   (Miss.) ,  87  So.  5 500,  516 

Posener  v.  Harvey  (Tex.  Civ.  App.),  124  S.  W.  356 412 

Posener  v.  Long  (Tex.  Civ.  App.),  156  S.  W.  591 423 

Posner  v.  Harvey  (Tex.  Civ.  App.) ,  125  S.  W.  356 — 

Potter  v.  Black  County  Transp.  Co.,  33  Cal.  App.  24,  164  Pac.  342..452,  486.  487 

Potter  V.  Glassell,   146  La.   687,   83   So.  898 267,  272,  492,  514 

Potter  v.  O'Donnell,  199  111.  119,  64  N.  E.  1026 921 

Potts  V.  Pardee,  220  N.  Y.  431,  116  N.  E.  78 623,  -629,  673,  674 

Pouch  V.  Staten  Island  Midland  Ry.  Co.,  142  App.  Div.  16,  126  N.  Y.  Suppl. 

738 574,  688 

Powell  V.  Alitz   (Iowa) ,  182  N.  W.  236 509,  516 

Powell  V.  Berry,  145  Ga.  696,  89  S.  E.  753 277,  294,  678,  691 

Powell  V.  Detroit  United  Ry.,  206  Mich.  698,  173  N.  W.  349 614 

Powell  V.  Kansas  City  Rys.  Co.  (Mo.),  226  S.  W.  916 613 

Power  V.  Arnold  Eng.  Co.,  142  N.  Y.  App.  Div.  401,  126  N.  Y.  Suppl.  839 . .  663 

Powers  v.  Loring,  231  Mass.  458,  121  N.  E.  425 432,  453,  457 

Powers  v.  Williamson,  189  Ala.  600,  66  So.  585 678 

Powers  v.  Wilson,  138  Minn.  407,  165  N.  W.  231 436,  452,  487 

Prater  v.  Riechman,  135  Tenn.  485,  187  S.  W.  305 8,  11 

Pratt  v.  Burns,  189  N.  Y.  App.  Div.  33,  177  N.  Y.  Suppl.  817 252,  380 

Pratt  v.  Cloutier  (Me.),  110  Atl.  353,  10  A.  L.  R.  1434 660 

Pratt  v.  Inhabitants  of  Cohasset,  177  Mass.  488,  59  N.  E.  79 637 

Pratt  Institute  v.  City  of  New  York. '183  N.  Y.  151,  75  N.  E.  1119,  5  Ann. 

Cas.  198 96,  99 

Praught  v.  Great  Northern  Ry.  Co.,  144  Minn.  309,  175  N.  W.  998.  .  .  .679.  688 

Preferred  Accident  Ins.  Co.  v.  Patterson,  213  Fed.  595,  130  C.  C.  A.  175 ...  845 

Premier  Motor  Mfg.  Co.  v.  Tilford,  61  Ind.  App.  164,  111  N.  E.  645.  .    .36.  37 

623,  624,  627,  628,  631.  674 

Prendergast  v.  Walls,  257  Pa.  547,  101  Atl.  826 193 

Presoott  v.  Hines  (S.  Car.) ,  103  S.  E.  543 566 


Table  of  Cases.  1237 

Section 

Presser  v.  Doughertj',  239  Pa.  St.  312,  86  Atl.  854 267,  376,  510 

Presson  v.  Parker   (Mo.  App.),  224  S.  W.  1009 409.  411 

Price  V.  Hornburg,  101  Wash.  472,  172  Pac.  575 790 

Price  V.  Newell,  53  Pa.  Super.  Ct.  628 359 

Prickett  v,  Peterson   (N.  Dak.),  179  N.  W.  718 856 

Priebe  v.  Crandell  (Mo.  App.),  187  S.  W.  605.  .281,  289,  325,  326,  330,  489,  925 

Primrose  Casualty  Co.,  232  Pa.  210,  81  Atl.  212,  37  L.  R.  A.  (N.  S.)  618..132,  845 

Prince  v.  Clausen-Flanagan  Brewery,   177  N.  Y.   Suppl.   168 462 

Prince  v.  Detroit  United  Ry.  Co.,  192  Mich.  194,  IS'S  N.  W.  861 599,  609 

615,  617 

Prince  v.  Taylor  (Tex.  Civ.  App.),  171  S.  W.  826 662 

Pritchard  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  09  Kana.  600,  162  Pac.  315 557 

558,  560,  569 

Proprietors  of  Cornish  Bridge  v.  Fitts  (N.  H.),  107  Atl.  626 52 

l*rovince.  City  of  v.  Paine,  41  R.  I.  333,  103  Atl.  786 155,  158 

Provincial  Motor  Cab  Company,  Limited  v.  Dunning  (1909),  Z  K.  B.  (Eng.) 

599,  101  I>aw  T.  R.  (N.  S.)    (Eng.)   231 339,  344 

Provo  v.  Conrad,  130  Minn.  412,  153  N.  W.  753 624,  627,  628,  630 

Prusch  V.  Greenough  Bros.  Co.,  79  Wash.  109,  139  Pac.  870 628,  630 

Public  Service  Commission  v.  Booth,   170  N.  Y.  App.  Div.   590,   159  N.  Y. 

Suppl.  140 135,  137,  139,  143,  144.  146 

Public  Service  Commission  v.  Hurtgan,  91  Misc.    (N.  Y.)    432,   154  N.  Y. 

Suppl.  897 143 

Public  Service  Commission  v.  Mount  Vernon  Taxicab  Co.,  101  Misc.  (N.  Y.) 

497,  168  X.  Y.  Suppl.  83 143 

Public  Service  Ry.  Co.  v.  Reinhardt  (N.  J.  Eq.),  112  Atl.  850 135 

Public  Utilities  Com.  v.  Jones   (Utah) ,  179  Pac.  745 144 

I*uffer  v.  Muskegon,  etc.,  Co.,  173  Mich.  193,  139  N.  W.  19 592,  593 

Pudget  Sound  Tract.,  L.  &  P.  Co.  v.  Grassmeyer,  102  Wash.  482,  173  Pac. 

504 135,  145,  155,  156 

Pugh  v.  City  of  Des  Moines.  176  Iowa,  593,  156  N.  W.  892.  .  .71,  135,  160,  234 

Pugsley  V.  Tyler,  130  Ark.  491,  197  S.  W.  1177 934 

Puhr  V.  Chicago,  etc.,  R.  Co.   (Wis.),  176  N.  W.  767 557,  567,  569.  680 

Pulok  V.  Thurston,  25  R.  L  36,  54  Atl.  600 251,  270 

Pullman  v.  Moore   (Mo.  App.) ,  2118  S.  W.  938 281.  491 

Pullman  v.  State,  88  Ala.  190,  7  So.  148 23 

Purdy  V.  Sherman,   74   Wash.   309,   133   Pac.   440 673,  674 

Pusey  V.  Atlantic  Coast  Line  R.  Co.  (N,  C),  106  S.  E.  452 582,  679,  682 

Pyers  v.  Tiers.  89  N.  J.  Law  520.  99  Atl.  130 264.  291,  499.  514 

Q 

Quackenbush   v.  Ford  Motor  Co..  153  N.  Y.  Suppl.   131 800 

Quarles  v.  Gem  Plumbing  Co..  18  Ga.  App".  592.  90  S.  E.  92 317.  744 

Quigley  v.  Gorham,  5  Col.  418,  63  Am.  Dec.  139 132 

Quigley  v,  Thompson,  211  Pa.  St.  107,  60  Atl.  506 674 

Quinlan  v.  Hugh  Nawn  Contracting  Co.   (Mass.),  126  N.  E.  369 453 

Quinn  v.  Ros>;  Motor  Car  Co..  157  Wis.  543.  147  N.  W.  100 47S 

Quirk  v.  Wordeii.  190  N.  Y.  App.  Div.  773.  180  N.  Y.  Suppl.  647 630.  673 


1238  Table  of  Cases. 

R  Section 

Raber  v.  Hinds,  133  Iowa,  312,  110  N.  W.  597 530 

Rabinowitz  v.  Hawthorne,   89   N.  J.   Law   308,   98   Atl.   315 261,  359,  391 

393,  409,  413 

Racine  Tire  Co.  v.  Grady   (Ala.) ,  88  So.  337 453 

Radney  v.  Town  of  Ashland,  199  Ala.  635,  75  So.  25 193 

Radnor  Tp.  v.  Bell,  27  Pa.  Super.  Ct.  1 71,  230,  241,  730 

Radwick  v.  Goldstein,  90  Conn.   701,  98   Atl.   583 283,  300,  305,  310,  311 

322,  488,  501,  513 

Raflferty  v.  Butler,   133   Md.   430,   105   Atl.    530 866 

Ralph  N.  Blakeslee  Co.  v.  Rigs  (Conn.) ,  109  Atl.  173 722 

Randall,  Town  of  v.  Roveistad,  105  Wis.  410,  81  N.  W.  819 23 

Randle  v.  Barden  (Tex.  Civ.  App.) ,  164  S.  W.  1063 201 

Randolph  v.  Hunt   (Cal.  App.),  183  Pac.  358 244,  317,  432,  444,  453,  486 

487,  627,  674 

Rape  V.  Barker  (Ga.  App.) ,  103  S.  E.  171 628 

Rapetti  v.  Peugeot  Auto  Import  Co.,  97  Misc.  (N.  Y.)  610,  162  N.  Y.  Suppl. 

133 349,  449 

Rapoport  v.  Rapoport  Exp.  Co.,  90  N.  J.  Eq.  519,  107  Atl.  822 «83,  885,  886 

Rappaport  v.  Roberts    (Mo.  App.),  203  S.  W.  676 297,  679,  688,  694 

Rasmussen  v.  Drake,   185   111.   App.   526 359,  423,  452,  475,  487 

Rasmussen  v.  Whipple,  211  Mass.   546,  98  N.   E.   592 305,  324,  443,  448 

452,  453,  478,  487 

Ratcliffe  v.  McDonald,  123  Va.  781,  97  S.  E.  307 418 

Rateliffe  v.  Speith,  95  Kans.  923,  149  Pac.  740 359 

Raub  V.  Donn,  254  Pa.  St.  203,  98  Atl.  861 292,  295,  657,  662 

Ray  V.  Brannan,  196  Ala.  113,  72  So.  16 262,  305,  307,  403,  409,  410 

Ray  V.  Young,  160  Iowa,  613,  142  N,  W.  393,  38  Ann.  Cas.  258 191 

Raybaum  v.  Phillips,  160  Mo.  App.  534,  140  S.  W.  977 929 

Raybourn  v.  Phillips,  160  Mo.  App.  534,  140  S.  W.  977 230 

Rayhill  v.  Southern  Pac.  Co.,  35  Cal.  App.  231,  169  Pac.  718.  .550,  557,  559,  563 

Raymen  v.  Galvin    (Mo.),  229   S.  W.   747 330,  448,  453,  487 

Raymond  v.  General  Motorcycle  Co.,  230  Mass.  54,  119  N.  E.  359 847 

Raymond  v.  Hill,  68  Cal.  473,  143  Pac.  743 421 

Raymond  v.  Sauk  County,  167  Wis.  125,  166  N.  W.  29 277,  305,  326,  696 

701,  702,  705,  710,  711,  713,  715 

Raymond  v.  Tp.  of  Bosanquet,  43  O.  L.  R.  (Canada)  434 696 

Read  v.  Pacific  Elec.  Ry.  Co.  (Cal.),  197  Pac.  791 599,  613 

Reader  v.  Ottis  (Minn.),  180  N.  W.  117 54 

Reames  v.  Heymanson,  186  Wash.   325,  186  Piac.  325 475 

Reaves  v.  Haybank,  193  Ala.   614,  69  So.   137 277,  278,  359,  418.  478 

Rebillard  v.  Railroad  Co.,  216  Fed.  503 695 

Record  v.  Penn.  R.  R.  Co.,  75  N.  J.  Law  311,  67  Atl.  1040 320 

Reda  v.  Hammond  Co..  187  HI.  App.  182 720 

Redeout  v.  Howlett  (Canada),  12  E.  L.  R.  527 23 

Redick  v.  Peterson,  99  Wash,  368,  169  Pac.  804 462 

Redman  v.  State,  33  Ala.  428 728 

Reed  v.  Edison  Elec.  Illuminating  Co.,  225  Mass.  163,  114  N.  E.  289.. 708,  914 

Reed  v.  Guessford,  7  Boyce's   (30  Del.)   228 • 362 


Table  of  Cases.  1239 

Sectiox 

Reed  v.  Horton,  135  Minn.  17,  159  N.  W,  1080 870 

Reed  v.  Martin,   160  Mich.  253,  125  N.  W.  61 259,  498,  516 

Reed  v.  Met.  St.  Ry.,  180  N.  Y.  315,  73  N.  E.  41 459 

Reed  v.  Public  Service  Ry.  Co.,  89  N.  J.  Law  431,  99  Atl.   100 8,  36,  346 

261,  262,  585 

Reed  v.  Sievers,  146  La.  391,  83  So.  6S5 438 

Reed  v.  Snyder,  38  Pa.  Super.  Ct.   421 527 

Reed  v.  St.  Paul  Fire  &  M.  Ins.  Co.,   165  N.  Y.  App.  Div.  660,  151  N.  Y. 

Suppl.  274 SOfi 

Reed  v.  Tacoma  Ry.  &  Pr.  Co.  (Wash.),  188  Pac.  409 585,  609 

Reems  v.  Chavigny,  139  La.  539,  71  So.  798 351,  403 

Reese  v.  France,  62  Pa.  Super.  Ct.  128 327,  441,  452 

Reg.  V.  Birchall,  4  F.  &  F.    (Eng.)    1087 725,  763 

Reg.  V.  Cavendish,  2  C.  &  K.  230 764 

Reg.  V.  Cook,  1  L.  D.  Raym   (Eng.)    143 757 

Reg.  V.  Jones,  2  Cox  C.  C.  544 678,  765 

Reg.  V.  Jones,  22  L.  T.  N.  S.  217,  11  Cox  C.  C.  544 762 

Reg.  V.  Juston,  24  Ont.  (Canada)   327 18 

Reg.  V.  Murray,  5  Cox  C.  C.  509 761 

Reg.  V.  Swindall,  2  C.  &  K.   (Eng.)   229 760 

Reg.  V.  Timmins,  7  C.  &  P.   (Eng.)   500 759,  760 

Regan  v.  Cummings,  228  Mass.  414,  117  N.  E.  «00 289,  415,  430 

Regan  v.  John  L.  Kelly  Contracting  Co.,  226  Mass.  58,  114  N.  E.  726.  .622,  628 

Regan  v.  Los  Angeles  Ice  &  Cold  Storage  Co.   (Cal.  App.),  189  Pac.  474..  45:i 

461,  471 

Rehin  v.  Viall,  185  111.  App.  425 877,  881 

Reich  v.  Cone  (N.  Car.),  104  S.  E.  530 623,  631 

Reichert  v.  Russell  Motor  Car  Co.,  186  Iowa,  437,  170  N.  W.  441 790 

Reichle  v.  Detroit  United  Ry.,  203  Mich.  276,  168  N,  W.  972 593,  60it 

Reid  Auto  Co.  v.  Gorsczya  (Tex.  Civ.  App.),  144  S.  W.  688 628,  654,  65.'^ 

908,  934 

Reilly  v.  Conable,  214  N.  Y.  586,  108  N.  E.  853 623,  627,  628,  631,  637 

Reimers  v.  Proctor  Pub.  Co.,  85  N.  J.  L.  441,  89  Atl.  931 630 

Reines  v.  N.  Y.  Rys.  Co.,  103  Misc.  (N.  Y.)  669,  171  N.  Y.  Suppl.  53..8,  601,  618 

Reinick  v.  Smetana,  205  111.  App.  321 631 

Reipe  v.  Elting,  89  Iowa,  82,  56  N.  W.  285,  26  L.  R.  A.  769 270,  377,  433 

Reiter  v.  Grober  (Wis.) ,  181  N.  W.  739 629,  667,  679,  680 

Reitz  v.  Hodgkins,  185  Ind.  163.  112  N.  E.  386 259,  498,  512 

Renault  v.  Simpson-Crawford  Co..  108  N.  Y.  Suppl.  700 722 

Renault  Ta.xi  Service  v.  Park  Carriage  Co.,   125  N.  Y.  Suppl.  5'l8 128 

Renfroe  v.  Fouche  (Ga.  App.) ,  106  S.  E.  303 202,  203,  212 

Renner  v.  Buchanan  Co.    (Iowa),  183  N.  W.  320 696 

Retail  Dealers  License.  Matter  of   (Iowa),  183  N.  W.  440 118,  874 

Reudelhuber  v.  Douglas  County.  100  Neb.  687,  161  N.  W.  174..679,  696,  704,  716 

Rex  v.  Atcheson,  25  Can.  Cr.  Cas.  36,  9  O.  W.  N.  65 14(1 

Rex  V.  Barker,  47  Nova  Scotia  (Canada)  248,  12  D.  L.  R.  346 932 

Rex  V.  Gill  (K.  B.  Div.) .  100  Law  T.  R.  (N.  S.)  858 9.S 

Rex  V.  Jacques,  10  D.  L.  R.   (Canada)   763 64.S 


1240  Table  of  Cases. 

Section 
Rex  V.  Justices   of   West   Riding   of   York    (K.    B.    Div.),    102   Law   T.   R. 

(N.  S.)    138 91 

Rex  V.  Marsham,  97  Law  T.  R.   (N.  S.)   396 93 

Rex  V.  Plouden  (K.  B.  Div.),  100  Law  T.  R.  (N.  S.)  856 04 

Rex  V.  Timmins,  7  C.  &  P.   (Eng.)   499 761 

Rex  V.  Wells,  91  L.  T.   (Eng.)   98 66,  278.  744 

Rex  V.  Wilhaham   (K.  B.  Div.),  96  Law  T.  R.   (N.  S.)   712 238 

Rex  V.  Wilson,  32  Canada  C.  C.  102,  50  D.  L.  R.  117 488 

Rey  V.  Swindall,  2  C.  &  K.   (Eng.)    230 758 

Reynolds  v.  Buck,  127  Iowa,  601,  103  N.  W.  946 657,  658,  660 

Reynolds  v.  Denholm,  213  Mass.  576,  100  N.  E.  1006 628,  636,  677 

Reynolds  v.  Garber-Buick  Co.,  183  Mich.  157,  149  N.  W.  985 847 

Reynolds  v.  Inter-ui})au   Ry.   Co.    (Iowa),   182   N.  W.   804 557,  562 

Reynolds  v.  Kenyon    (Mo.),  222   S.   W.   476 , 414,  418.  448,  484 

Rhad  v.  Duquesne  Light  Co.,  225  Pa.  St.  409,  100  Atl.  262 291,  342,  446 

Rhodes  v.  Firestone  Tire  &  Rubber  C-o.    (Cal.  App.),  197  Pae.   392 285,  410 

413,  719,  720,  909 

Ribas  v.  Revere  Rubber  Co.,  37  R.  I.  189,  91  Atl.  58 252,  254,  496 

Rice  v.  Erie  R.  Co.    (Pa.) ,   114  Atl.   640 553,  568 

Rice  V.  Lowell  Buick  Co.,  229  Mass.  53,  118  N.  E.  185 250,  375,  377,  390 

Richards  v.  Palace  Laundry  Co.    (Utah),  186  Pac.  439 247,  277,  278,  279 

332,  333,  352,  510,  512,  513 
Richardson  v.  Danvers,  176  Mass.  413,  57  N.  E.  688,  50  L.  R.  A.  127,  79 

Am.  St.  Rep.  330 19 

Richardson  v.  Flower,  248  Pa.  St.  35,  93  Atl.  777 228 

Ricliardson  v.  Haverhill,  etc.,  Ry.  Co.,  218  Mass.  52,  105  N.  E.  221 614 

Richardson  v.  Nassau  Elec.  R.   Co.,   190  N.  Y.  App.  Div.   529,   180  N.  Y. 

Suppl.  529 621 

Ricbmond  V.  Town  of  Bethlehem  (N.  H.),  104  Atl.  773 631,  632 

Ricker  v.  Gray,  118  Me.  492,  107  Atl.  295 250,  374,  403 

Rieker  v.  Rhode  Island  Co.    (R.  L) ,  107  Atl.   72 .  .' 593,  613 

Rick€rt  V.  Union  Pac.  R.  Co.,  100  Neb.  304,  160  N.  W.  86 550,  552,  557 

558,  569,  580,  581 

Ridder  v.  Lynch,   133   N.   Y.    Suppl.   468 869,  872 

Ridley  v.  Portland  Taxicab  Co.,  90  Oreg.  529,  177  Pac.  429 228 

Rieck  v.  Chicago  &  Milwaukee  Elec.  Ry.  Co.,  160  Wis.  232,  151  N.  W.  243.  614 

Riggles  V.  Priest,  163  Wis.   199,  157  N.  W.  755... 252,  301,  321,  496,  501,  50:: 

Riley  v.  Fisher   (Tex.  Civ.  App.) ,  146  S.  W.  581 519 

Riley  v.  Roack,   168  Mich.  294,  135  N.  W.   14 628,  630,  654 

Riley  v.  Standard  Oil  Co..  191  N.  Y.  App.  Div.  490,  181  N.  Y.  Suppl.  573.  .  632 

Riley  v.  Standard  Oil  Co.,  231  N.  Y.  301 633 

Rimmele  v.  Huebner,  190  Micli.  247,  157  N.  W.  10 871 

Ringgold  v.  Denhardt    (Me.) ,   110  Atl.   321 194,  195 

Riser  v.  Smith,  136  Minn.  417,  162  N.  W.  520 321,  501,  516 

Risser  v.  Parr   (Iowa) ,  168  N.  W.  865 '629 

Ritthouse-Winterson  Auto  Co.  v.  Kissner,  129  Md.  102,  98  Atl.  361... 859,  862 

866.  867 

Roach  v.  Hinchcliff.  214  Mass.  267.  101  N.  E.  383 213,  452,  663.  677 


Table  of  Cases.  1241 

Section- 

Roaoh  V.  Wright,   195  Ala.   333,    70   So.   271 357.  530.  54!= 

Robb  V.  State,  52  Ind.  218 72> 

Robbins  v.  Weed   (Iowa) ,  169  N.  W.  773 900 

Roberts  v.  Kinley,  80  Kans.  885,  132  Pac.  1180,  45  L.  R.  A.  (N.  S.)  938.  .  202 
Roberts  v.  Parker.  117  Iowa,  389,  90  N.  W.  744,  57  L.  R.  A.  7G4.  94  Am. 

St.  Rep.  316 1  V 

Roberts  v.  Ring,   143  Minn.  151,  173  N.  W.   437 294,  478,  891 

Roberts  v.  Sohanz,  83  Misc.   (N.  Y.)   139,  144  N.  Y.  Suppl.  824 66(i 

Robertson  v.  McAllister,  19  Canada  C.  C.  441,  5  D.  L.  R.  (Canada)  476.  .  .  .  770 

Robinson  v.  Campbell,  8  O.  W.  N.   (Canada)   538 340 

Robinson  v.  Clemons   (Cal.  App.),  190  Pac.  203 362,  299,  304,  353,  393 

Robinson  v.  Louisville  R.  Co.,  112  Fed.  484,  50  C.  C.  A.  357 931,  927 

Robinson  v.  Pence  Automobile  Co.,  140  Minn.  332,  168  N.  W.  10 673 

Robinson  v.  Oregon-Washington  R.  &  Nav.  Co.,  90  Oreg.  490,  176  Pac.  594.  550 

557,  558,  559,  565,  567,  577,  679,  682,  688 

Robinson  v.  Town  of  Somers,  189  N.  Y.  App.  Div.  792,  179  N.  Y.  Suppl.  107.  698 

Robinson  v.  Troy  Laundry   (Neb.) ,  180  N.  W.  43 399 

Roby  V.  Kansas  City  Southern  Ry.  Co.,  130  La.  880,  58  So.  696,  41  L.  R.  A. 

(N.  S.)   355 679 

Rochester  v.  Bull,  78  S.  Car.  249,  58  S.  E.  766 524,  549 

Rockett  V.  Philadelphia,   256  Pa.   St.   347,   100   Atl.    826 73,  71.", 

Rock  Springs  Distilling  Co.  v.  Employers'  Indemnity  Co.,  160  Ky.  317,  169 

S.  W.  730 828 

Rodenburg  v.  Clinton    Auto    &    Garage   Co.,    85    N.    .J.    Law    729.    91    Atl. 

1070 177,  644 

Roe  V.  Wellesbey,  43  O.  L.  R.  (Canada)  214 662 

Roeder  v.  Kenmore  Mfg.  Co.,  191   111.  App.   463 861 

Roeser  v.  Sauk  County,  166  Wis.  417,  165  N.  W.  1086 704 

Rogers,  In  Re   (Pr.  Ed.  Island),  7  East  L.  R.  312 231 

Rogers  v.  Mann   (R.  I.) ,   70  Atl.   1057 380,  413 

Rogers  v.  Phillips.  206  Mass.  308.  92  N.  E.  327,  28  L.  R.  A.   (N.  S.)   944..  47! 

487,  500,  501,  502,  508 

Rogers  v.  Phillips,  217  Mass.  52,   104  N.  E.  466 332 

Rogers  v.  Portland,  etc.,  P.  Co.,  66  Oreg.  244,  134  Pac.  9... 679,  689.  690,  692 

Rogers,  Matter  of.  7  E.  L.  B.   (Canada)  212 57 

Rogles  V.  United  Ry.  Co.    (Mo.) ,  232   S.  W.   93 4.10 

Rohan  v.  American  Sugar  Refining  Co.   (N.  J.).  100  Atl.  346 710 

Rolfe  V.  Hewitt,  327  N.  Y.  486.  125  N.  E.  804 638 

Rolfs  V.  Mullins,  179  Iowa,  lL'2;!.  162  N.  W.  7H'A 4!».  4.53,  459,  471.  487 

Rolfs  V.  MuUins,  180  Iowa,  472.  163  N.  W.  232 330,  331.  448 

RoUi  V.  Converse.  227  Mass.   162,  116  N.  E.  507 116,  125.  236 

Rollins  V.  City  of  Winston-Salem,  176  N.  Car.  411,  97  S.  E.  211.  .648.  654,  677 

Ronan  v.  Barr.  82  N.  .1.     Kq.   583,  89  Atl.  283 193,  194 

Rook  V.  Schultz    (Oreg.) .   198  Pac.  234 6.1s 

Rooney  v.  I^vinson   (Conn.).  Ill  Atl.  794 51,1 

Root  V.  Connecticut   Co.    (Conn.) ,    108   Atl.    506 582 

Roper  V.  Greenspon.  272  Mo.  288.  198  S.  W.  1107,  L.  R.  A.  1918  D.  126.  .71.  77 

230,  252,  325,  348.  369.  400 


1242  Table  of  Cases. 

Section 

Roper  V.  Greenspon    (Mo.    App.),    192   S.    W.    149 300,  3^6,  327,  332,  335 

336,  344,  348,  369,  403,  406 

Rose  V.  Balfe,  223  N.  Y.  481,  119  N.  E.  842 630,  673,  674 

Rose  V.  Clark,  19  West.  L.  R.  456 423 

Rose  V.  Clark,  21  Man.    (Canada)    635 278,  485 

Rose  V.  Gypsum  City   (Kans.) ,  179  Pac.  348 54 

Rosenfield  v.  Swenson,  45  Minn.  190,  47  N.  W.  718 870 

Rosenau  v.  Peterson    (Minn.) ,   179   N.   W.   647 262,  270 

Rosenstein  v.  Bernhard    &    Turner    Automobile    Co.     (Iowa),    180    N.    W. 

282 628,  722 

Ross  V.  Brannon,  198   Ala.   124,  73   So.   439 591,  592,  599,  603,  604,  613 

Ross  V.  Reynolds,  112  Me.   223,  91  Atl.   95^ 856 

Ross  V.  Rose,  109  Wash.  273,  186  Pac.  892 544,  549 

Ross  V.  State,  186  IST.  Y.  App.  Div.  156,  173  N.  Y.  Suppl.  656 54 

Rossbach  v.  Fincher  Motor  Co.,  178  111.  App.  559 865 

Rossman  v.  Ward   (Mich.) ,  178  N.  W.  41 883 

Rothfeld  V.  Clerkin,  98  Misc.   (N.  Y.)   192,  162  N.  Y.  Suppl.  105&, 469,  487 

Rothroek  v.  Alabama  Great  Southern  R.  Co.,  201  Ala.  308,  78  So.  84.  .559,  579 

Rothrock  v.  Lehigh  Valley  Transit  Co.,  260  Pa.  463,  103  Atl.  918 614,  617 

Rotter  V.  Detroit  United  Ry.,  205  Mich.  212,  171  N.  W.  514 297,  516 

Rouche  V.  MeCloudy,  19  Ga.  App.  Div.  588,  91  S.  E.  999 380,  413 

Rouse  V.  Blair,   185   Mich.   632,   152   N.   W.    204 554,  567 

Rouse  V.  State  (Okla.) ,  195  Pac.  498 944,  945 

Rouse  V.  St.  Paul  F.  &  M.  Ins.  Co.  (Mo.  App.),  219  S.  W.  689.. 815,  816.  817 

Routh  V.  Weakley,  97  Kans.  74,  154  Pac.  218 478 

Routledge  v.  Rambler  Auto  Co.   (Tex.  Civ.  App.),  95  S.  W.  749 169,  177 

644,  679,  694 

Rowand  v.  Germantown  Trust  Co.,  248  Pa.  341,  93  Atl,  1070 452 

Rowe  V.  Hammond,  172  Mo.  App.  203,  157  S.  W.  880 ^60,  279,  305,  311 

326,  332,  362,  391,  435 

Rowell  V.  Crothers,  75  Conn.  124,  52  Atl.  818 379 

Roy  V.  Kansas  City  (Mo.  App.),  224  S.  W.  132 698,  707 

Roy  V.  Kirn,  208  Mich.   571,  175  N.  W.  475 678,  680 

Roy  V.  North  Kansas  City  Development  Co,  (Mo.  App.),  209  S.  W.  990..  516 
Royal  Indemnity  Co.  v.  Patt  &  Washburn  Refining  Co.,  98  Misc.    (N.  Y.) 

631,   163   N.   Y.    Suppl.    197 638 

Royal  Indemnity  Co.  v.  Schwartz   (Tex.  Civ.  App.),  172  S,  W,  581 78,  222 

829,  835 

Rubick  V.  Sandler   (Mo.  App.) ,  219  S.  W.  401 .. 448,  452,  484 

Rubin  V.  Bruman,  87  Misc.  (N.  Y.)   174,  149  K  Y.  Suppl.  483 655 

Rubin  V.  Towarders   Auto    Trucking   Corp.,    Ill    Misc.    (N.   Y.)    376,    181 

N.  Y.  Suppl.  451 205 

Rubin  V.  Whan,  188  N.  Y.  App.  Div.  16,  1T6  N.  Y.  Suppl.  385 656 

Rudd  V.  Fox,  112  Minn.  477,  128  K  W.  675 633 

Ruggles  V.  State,   120  Mo.   553,  87  Atl.   1080. 95,  220.  224 

Rule  V.  Atchison  Ry.  Co.,  107  Kans.  479,  192  Pac.  729 567.  57r-, 

Rule  V,  Claar  Transfer  &  Storage  Co.,  102  Neb.  4,  165  N.  W.  883... 259.  267 

297,  320,  325,  434.  452,  478.  487 


Table  of  Cases.  1243 

Section 

Rump  V.  Keebles,  175  111.  App.  619 393 

Rump  V.  Woods,  50  Ind.  App.  347,  98  N.  E.  — .  .  .  .359,  362,  453,  455,  472,  487 

Ruoff  V.  Long  &  Co.,  1916  L.  R.  1  K,  B.  (Eng.)   148 342 

Rupener  v.  Cedar  Rapids  &  Iowa  City  Railway  &  Light  Co.,  178  Iowa  615, 

159  N.  W.  1048 558,  577 

Rupp  V.  Keeblea,   175   111.  App.   619 261 

Rush  V.  Boston  Ins.  Co.,  88  Misc.   (N.  Y.)   48,  150  N.  Y.  Suppl.  457 568 

Rush  V.  Metropolitan  St.  R.  Co.,  157  Mo.  App.  504,  137  S.  W.  1029...  172,  613 

679,  687 

Rush  V.  Philadelphia  &  R.  Ry.  Co.,  232  Pa.  St.  327,  81  Atl.  409 568 

Rushmore  v.  Manliattan,  etc.,  Stamping  Works,  163  Fed.  939,  19  L.  R.  A. 

(N.  S.)   269 803 

Ruskovic  V.  Linder,  67  Pitts.  Leg.  Jour.   (Pa.)    144 660 

Russ  V.  Strickland,  130  Ark.  406,  197  S.  W.  709... 48,  277,  351,  517,  518,  534 

Russell  V.  Electric  Garage  Co.,  90  Neb.  719,  134  N.  W.  253 339,  366 

Russell  V.  Kemp,  95  Misc.   (N.  Y.)   582,  159  N.  Y.  Suppl.  865 248,  258,  264 

386,  403,  404 

Russell  V.  Martin,  232  Mass.  379,  122  N,  E.  447 885,  889 

Russell  V.  Scharfe  (Ind.) ,  130  N.  E.  437 438,  448,  641 

Russell  V.  State   (Tex.  Cr.) ,  228  S.  W.  566 66,  774 

Russell  V.  Vergason    (Conn.),   Ill   Atl.   625 453,  459,  469,  471,  484 

Russell's  Express  v.  Bray's  Garage  (Conn.),  109  Atl.  722 210 

Russo  V.  McAviney    (Conn.),   112  Atl.   657 657,  677 

Rydstrom  v.  Queen  Ins.  Co.  of  America  (Md.),  112  Atl.  586 840 


Saari  v.  Wells-Fargo   Exp.   Co.,   109   Wash.   415,   186   Pac.   898 262,  497 

Salinen  v.  Ross,    125    Fed.    997 383,  655,  906 

Sale  V.  Pacific  Coast  Casualty  Co.,  95  Wash.  109,  163  Pac.  384 155,  158 

Sampson  v.  Wilson,  89  Conn.  707,  96  Atl.  163 679 

Samuels  v.  Hiawatha  Holstein  Dairy  Co.    (Wash.),   197   Pac.   24 654,  673 

674,  677,  90S 

San  Antonio.  City  of  v.  Besteire  (Tex.  Civ.  App.),  209  S.  W.  472 134 

San  Antonio,  etc.,  Ry.  Co.  v.  Moore  (Tex.  Civ.  App.),  208  S.  W.  754 574 

San  Antonio  Public  Service  Co.  v.  Tracy  (Tex.  Civ.  App.),  221  S,  W.  637.  599 

Sanders  v.  Austin,   180  Cal.   664,   182  Pac.  449 204.  718 

Sanders  v.  City  of  Atlanta,  147  Ga.  819,  95  S.  E.  695 71,  74,  135,  160.  234 

Sanders  v.  Pennsylvania  Railroad   Co.,  225  Pa.  St.   105.  73   Atl.   1010 584 

Sanders  v.  Taber,  79  Oreg.  522,  155  Pac.  1194 515,  679 

Sandlovich  v.  State  (Neb.) ,  176  N.  W.  81 768 

Sandresky  v.  Erie  R.  Co.,  91  Misc.  (N.  Y.)  67,  153  N.  Y.  Suppl.  612 572 

Sandruck  v.  Wilson,   117   Md.   624,   84  Atl.   54 872 

Sandry  v.  Hines    (Mo.  App.) .  226  S.  W.  646 565,  575 

Sanford  v.  Grand  Trunk  Western  Ry.  Co.,  190  Mich.  390,  157  N.  Y.  38..567,  572 

Sansone  v.  Studebaker  Corp.    (Kans.),   187  Pac.   673 883 

Santina  v.  Tomlinson   (Cal.  App.),  171  Pac.  437 302,  425 

Santoro  v.  Biokford,  229  Mass.  357,  118  N.  E.  665 628 


1244  Table  of  Cases. 

Sectiox 

Saper  v.  Baker,   91   N.   J.   Law   713,   104   Atl.   26 348,  482 

Sapp  V.  Hunter,  134  Mo.  App.  685,  115  S.  W.  463 519,  524,  525,  54'; 

Sapulpa,  City  of  v.  Deason   (Okla.),  196  Pac.  544 696,  70  t 

Sarcey  v.  Golden,  172  Ky.  42,  188  S.  W.  1098 54s 

Sargent  Paint  Co.  v.  Petrovitsky   (Ind.  App.),  124  N.  E.  881 177,  644,  677 

Sarmente  v.  Vance,  231  Mass.  310,   120  N.   E.   848 453,  487 

Sarver  v.  Mitchell,  35  Pa.  Super.  Ct.  69 623,  630 

Savage  v.  Boyce,  53  Mont.  470,  164  Pac.   887 249,  250,  267,  376,  401,  41:: 

Savage  v.  Public  Service  Ry.  Co.,  89  N.  J.  Law  555,  99  Atl.  383 307,  586 

602,  603 

Saviers  v.  Smith    (Ohio) ,  128  N.   E.  269 105,  111 

Savoy  v.  McLeod,  111  Me.  234,  S8  Atl.  721,  48  L.  R.  A.   (N.  S.)   971.. 278,  374 

405,  418 

Saylor  v.  Motor  Inn,  136  Minn.  466,  162  N.  W.  71 491 

Saylor  v.  Taylor    (Cal.   App.),   183   Pac.   843 412,  413 

Schaar  v.  Comforth,  128  Minn.  460,  151  N.  W.  275 57,  230,  536,  729 

Sehaefer  v.  Arkansas  Valley  Interarban  Ry.   Co.    (Kans.),  179  Pac.  323..  681 

679,  688,  692 

Schaepp  v.  Cerety,  263  Pa.  St.  538,  107  Atl.  317 338 

Schafer  v.  Rose-Gorman-Rose,  192  N.  Y.  App.  Div.  860,  183  N.  Y.  Suppl. 

161 425 

Schaflf  V.  Bearden    (Tex.  Civ.  App.),  211  S.  W.   503 312,  313,  572,  580 

Schaff  V.  Merchant   (Tex.  Civ.  App.),  212  S.  W.  970 577 

Schaffer  v.  Miller,  185  Iowa,  472,  170  N.  W.   787 252,  322,  324,  382 

Schall  V.  Northland  Motor  Car  Co.,  123  Minn.  214,  143  N.  W.  357 7is 

Schanning  v.  Standard  Castings  Co.,  203  Mich.  612,  169  N.  W.  879 22s 

Scheel  v.  Shaw,  255  Pa.  451,  97  Atl.  685 631,  673 

Schell  V.  DtiBois,  94  Ohio  St.  93,  113  N.  E.  664 70,  71,  78,  230,  297,  299 

300,  304,  310,  321,  325,  415,  425 

Scheuermann  v.  Kuetemeyer  (Gal.) ,  199  Pac.  13 43.'2 

Schier  v.  State,  96  Ohio  245,  117  N.  E.  229 1,  23,  758 

Schiflfman  v.  Peerless  Motor  Car  Co.,  13  Cal.  App.  600,  110  Pac.  460 792 

SeMnogle  v.  Baiighman    (Mo.    App.),   228    S.   W.    897 311,  325,  438,  452 

485,  487 

Schmid  v.  Heath,  173  111.  App.  649 84fl 

Schmidt  v.  Mobile  &  R.  Co.    (Ala.) ,  87  So.  181 591.  604 

Schmitt  V.  Standard  Oil  Co.   (Mo.  App.),  221  S.  W.  389 38(i 

Schnabel  v.  Kafer,  39  S.  Dak.  70,  162  N.  W.  935 249,  250,  49:: 

Schneider  v.  Hawks  (Mo.  App.) ,  211  S.  W.  681 41 1 

Schneider  v.  State,  181  Ind.  218,  104  N.  E.  69 767 

Schock  V.  Cooling,   175  Misc.   313,  141  N.  W.  675 346,  359,  362.  487 

Schoelkopf   Saddlery   Co.    v.   Crawley    (Tex.    Civ.   App.),   1171.... 289.  297,  300 

304.  321 

Schoening  v.  Young,   55   Wash.   90,   104   Pac.    132 387 

Sthoepp  v.  G«rety,  263  Pa.  St.  538,  107  Atl.  317 414,  441,  443,  452 

Scholl  v.  Grayson,  147  Mo.  App.  652,  127  S.  W.  415 355,  484,  919 

Schrankel  v.  Minneapolis  St.  Ry.  Co..  144  Minn.  465,  174  N.  W.  820... 593,  597 

Sehrayer  v.  Bishop  &  Lyons,  92  Conn.  677,  104  Atl.  349 478,  488,  503 


Table  of  Cases.  1245 

Section 

Schreiber  v.  Matlack,  90  Misc.   (N.  Y.)   667,  154  N.  Y.  Suppl.  109 677 

Schriner  v.  Grinnell,  89  N.  J.  Law  37,  97  Atl.  781 456,     626 

Schrunk  V.  St.  Joseph,  120  Wis.  223,  97  N.  W.  946 €97 

Schuenemann  v.  Wolkeher  Ck).   ( Wis.) ,  176  N.  W.  59 869 

Schueppe  v.  Uhl,  97  Neb.  328,  149  N.  W.  789 517 

Schuler,  ex  parte,  167  Cal.  232,  139  Pac.  685 57,  58,  64,  94,  96,  101,     105 

106,  109,  111,  113,  114,     122 

Schultz  V.  Morrison,  91  Misc.  (N.  Y.)  248,  154  N.  Y.  Suppl.  257 36,     222 

295,  656.     662 

SeJiultz  V.  Nicholson,  116  Misc.    (N.  Y.)    114 262 

.Schultz  V.  Old   Colony   St.  Ry.,   193  Mass.  309,   79  N.  E.   873,   S   L.  R.   A. 

(N.  S.)   597,  118  Am.  St.  Rep.  502,  9  Ann.  Cas.  402 6T'.t 

Schultz  V.  Stan-,  180  Iowa,  1319,  164  N.  W.   163 322,     330 

Schultz  V.  State.  88  Neb.  613,  130  N.  W.  972.  34  L.  R.  A.   (N.  S.)  243.  .57,     518 

758,     765 

Schumacher  v.  Meinrath,  177  111.  App.  530 • 287.     297 

Schweitzer  v.  Quaker  City  Cab  Co.   (Pa.),  112  Atl.  442 442 

Schweitzer  v.  Thompson  &  Norris  Co.,  229  N.  Y.  97,  127  N.  E.  904 644 

Scofield  V.  Hatfield  (Ga.  App.),  103  S.  E.  732 674 

Schofield  V.  Town  of  Poughkeepsie,  122  N.  Y.  App.  Div.   868,   107  N.  Y. 

Suppl.  767 ^^^' 

Scott  V.  Dounson,  148  La.  —,  86  So.  821 476 

Scott  V.  Kansas  State  Fair  Assoc,  102  Kans.  653,  171  Pac.  634 54 

Scott  V.  Mercer  Garage,  etc.,  Co.   (W.  Va.),  106  S.  E.  425 877 

Scott  V.  O'Leary,  157  Iowa,  222,  138  N.  W.  512 277,  278,     38(3 

Seragg  v.  Sallee,  24  Cal.  App.  133,  140  Pac.  706 297,  302,  906,     910 

Scranton  v.  Hawley,  9  Lack.    (Pa.)    65 740 

Scranton  v.  Laurel  Run  Turnpike  Co.,  225  Pa.  St.  82,  73  Atl.  1063 23,       52 

Scranton  v.  Laurel  Turnpike  Co.,  14  Luz.  Leg.  Reg.  97 38,       49 

Scranton  Gas  &  Water  Co.  v.  Weston,  63  Pa.  Super.  Ct.  570 836 

Seaboard  Air  Line  Ry.  v.  Abernathy,  121  Va.  173,  92  S.  E.  913 550.     557 

559.  567,  577.     718 

Seaboard  Air  Line  Ry.  Co.  v.  Good  (Fla.) ,  84  So.  733 554 

Seaboard  Air  Line  Ry.  Co.  v.  Hallis,  20  Ga.  App.  555,  93  S.  E.  2r.4..550,  577,     580 
Seager  v.  Foster,  185  Iowa.  33,  169  N.  W.  681,  8  A.  L.  R.  690.  .  .  .77,  236.     262 

394,  909,     922 

Seaman  v.  Mott,  127  N.  Y.  App.  Div.  18,  110  N.  Y.  Suppl.  104O 283,     414 

Searcy  v.  Golden,    172   Ky.    42,    188    S.    W.    1098 306.  308.  327.  357.     531 

534.     548 

Sears  v.  Gowvre,  52  Que.  S.  C.   (Canada)    186 720 

Sears  v.  Seattle  Consol.  St.  R.  Co.,  6  Wash.  227,  33  Pac.  389 921 

Seattle,  City  of  v.  King,  74  Wash.  277,  133  Pac.  442 71.  96,  97.  135.     138 

144,     147 

Seattle,  City  of  v.  Rothweiler.  101  Wash.  680,  172  Pac.  825 72,  73,       77 

230,     730 
Seattle  Taxicab  &  Tr.  Co.  v.  Seattle,  —  Wash.  594,  150  Pac.  1134...  71.     135 

138,     16,"} 
S«4)astine  v.  Haney,  68  Pitts.  Leg.  -Tour.    (Pa.)    100 380.     4i:; 


1246  Table  of  Cases. 

Section 

See  V.  Worinser,  129  N.  Y.  App.  Div.  596,  113  M.  Y.  Suppl.  1093. .734,.  900,  934 

Seeing  Denver  Co.  v.  Morgan   (Colo.),  185  Pac.  339 169 

Sefton  V.  Baltimore  &  Ohio  R.  Co.,  64  Pa.  Super.  Ct.  218 568 

Segerstrom  v.  Lawrence,   64  Wash.   245,   116  Pac.    876 247,  267,  280,  329 

344,  433,  448,  464,  899 

Segler  v.  Callister,  167  Cal.  377,  139  Pac.  819 207 

Seibert  v.  Ware,  158  N.  Y.  Suppl.  229 194 

Seibold  v.  State    {Tex.  Cr.) ,  232  S.  W.   328 768 

Seiden  v.  Reimer,  190  N.  Y,  App.  Div.  713,  180  N.  Y.  Suppl.  345 668 

Seidl  V.  Knop   (Wis.),  182  N.  W.  980 638 

Seigel  V.  White  Co.,  81  Misc.   (N.  Y.)   171,  142  N.  Y.  Suppl.  318 642 

Seignious  v.  Limehouse,  107  S.  Car.  545,  93   S.  E.   193 882 

Seijak  v.  United  Rys.,  etc.,  Co.,  135  Md.  367,  109  Atl.  107 557 

Self  Motor  Co.  v.  First  State  Bank  of  Crovsrell  (Tex.  Civ.  App.),  226  S.  W. 

428 883 

Selinger  v.  Cromer    (Mo.  App.),  208   S.   W.   871 442,  448 

Senft  v.  Western  Md.  Ry.  Co.,  246  Pa.  St.  446,  92  Atl.  553.  .568,  679,  685,  688 

Serfas  v.  Lehigh,  etc.,  R.  Co.  (Pa.),  113  Atl.  370 307,  312,  568 

Sethman  v.  Union  Depot,  etc.,  Co.   (Mo.  App.),  218  S.  W.  879 613 

Setterstrom  v.  Brainard  &  N.  M.  R.  Co.,  89  Minn.  262,  94  N.  W,  882 ....  928 

Sgier  V.  Philadelphia,  etc.,  Ry.  Co.,  260  Pa,  343,  103  Atl.  730. 563 

Shaffer  v.  Coleman,  35  Pa.  Super,  Ct.  386 542,  923 

Shaffer  v.  Miller,   185  Iowa,  472,  170  N.  W,   787 322,  334 

Shafir  V.  Sieben   (Mo.),  233   S,  W.   419 699,  709 

Shalkowitz  v.  J.  M,  Horton  Ice  Cream  Co.,  172  N,  Y.  App.  Div,  211,  158 

K  Y.  Suppl.   519 • 453 

Shamp  V.  Lambert,  142  Mo.  App.  567,  121  S,  W.  770 263,  423,  455,  627 

€28,  675 
Sharot  v.  City  of  New  York,  177  N.  Y.  App.  Div.  869,  164  N.  Y.  Suppl. 

804 697 

Sharkey  v.  Skilton,  83  Conn.  503,  77  Atl.  950 519 

Sharpnaek  v.  Des  Moines  City  R.  Co.   (Iowa),  115  N.  W.  475 602 

Shaver  v.  Smith,  179  Ky.  26,  200  S.  W.  8 380 

Shaw,  ex   parte    (Okla.),    157   Pac.    900 58,  94,  96,  98,  106,  108,  148,  239 

Shaw  v.  Connecticut  Co.,   86   Conn.   409,   85  Atl.   536 118 

Shaw  v.  Covington,  171  111.  App.  232 330 

Shaw  V.  Thiebahr,   82  N.  J.   Law  23,   81   Atl.   497 ; .  127 

Shaw  V.  Webb,  131  Tenn.  173,  174  S.  W.  273 875,  877,  878 

Shaw  V.  Wilcox  (Mo.  App.),  224  S.  W.  58 247,  409,  413 

Shawnee,  City  of  v.  Landon,  3  Okla.  Cr.  440,  106  Pac.  662 306 

Sheffield  v.  Union  Oil  Co.,  82  Wash.  386,  144  Pac.  529 267,  297,  514 

Sheldon  v.  .Tames,  175  Cal.  474,  166  Pac.  8,  2  A.  L.  R.   1493 247,  263,  440 

453,  462,  463 

Shelly  V.  Norman    (Wash.),    195    Pac.   243 272,  373,  376,  910 

Shelton  v.  Hunter,  162  Ky.  531,  172  S.  W.  950 519 

Shelton  v.  Little  Rock  Auto  Co.,  103  Ark.  142,  146  S,  W.  129 192 

Shelton  v.  Union  Traction  Co.,  99  Kans.  34,  160  Pac.  977 592,  594 

Shepard  v.  Jacobs,  204  Mass.  110,  90  N.  E.  392,  26  L.  R.  A.  (N.  S.)  442.. 177,  844 


Table  of  Cases.  1247 

JSection 

Shepard  v.  Norfolk,  etc.,  R.  Ck)..  166  N.  Car.  539,  82  S.  E.  872.  .  .  .304,  557,  562 

563,  567 

Shepard  v.  Norfolk  Southern  R.  Co.,  1«9  N.  Car.  239,  84  S.  E.  277 572 

Shepard  v.  Wood,  116  N.  Y.  App.  Div.  861,  102  N.  Y.  Suppl.  306 412 

Shepard  v.  Marston   (Me.) ,  109  Atl.  387 380,  413 

Shepard  v.  Johnson,  11  Ga.  App.  280,  75  S.  E.  348 297.  345,  362 

Sherman  v.  Livingston,   128   N.  Y.   Suppl.   581 193 

Sherris  v.  Northern  Pac,  Ry.  Co.,  55  Mont.  189,  175  Pac.  269 679,  689 

Sherwood  v.  New   York   Central,  etc.,   R.  Co.,    120   N.   Y.   App.   Div.    639. 

105    N.    Y.    Suppl.    547 576 

Shevlin  v.  Schneider,  193  N.  Y.  App.  Div.  107,  183  N,  Y.  Suppl.  178.  .643,  677 

Shield  V.  F.  Johnson  &  Son  Co.,  132  La.  773,  61  So.  787 169,  590,  613 

Shields  v.  Fairehild,  130  La.  648,  58  So.  497 49,  260,  277,  391,  435 

ShUliam  v.  Newman,  94  Wash.  637.  162  Pae.  977 262,  409 

Shimoda  v.  Bundy,  24  Cal.  App.  675,  142  Pac.  109 126 

Shinkle  v.  McCullugh,  116  Ky.  960,  77  S.  W.  196... 49,  277,  327,  518,  524,  530 

Shoemaker  v.  Central  Railroad  of  New  Jei-sey  (N.  J.),  89  Atl.  517 558,  560 

Shore  v.  Dunham  (Mo.  App.),  178  S.  W.  900 593,  908 

Shore  v.  Ferguson,  142  Ga.  657,  83  S.  E.  518 49,  362 

Shore  v.  Ogden,  55  Ind.  App.  394,  103  N.  E.  852 875 

Short  V.  Metz  Co.,  165  Ky.  319,  176  S.  W.  1144 785,  794,  795 

Short  V.  State,  109  Misc.  (N.  Y.)  617,  179  N.  Y.  Suppl.  539 710,  714 

Shortino  v.  Salt  Lake  &  U.  R.  Co.,  52  Utah,  476,  174  Pac.  861 550,  557 

577,  579,  896 

Shortle  v.  Sheill  (Wis.),  178  N.  W.  304 359,  413 

Shott  V.  Kom,  1  Ohio  App.  458,  34  Ohio  Circuit  Rep.  260 469,  487 

Shreveport  v.  Stringf ellow,  137  La.  552^,  68  So.  951 99 

Shrouder  v.  Sweat,  148  Ga.  378,  96  S.  E.  881 882 

Shufelt  V.  McCartin  (Mass.),  126  N.  E.  .".62 116 

Shupe  V.  Rodolph   (Cal.),  197  Pac.  57 249,  376,  410 

Siegel  V.  Union  Assur.  Soc,  153  N.  Y.  Suppl.  661 841 

Siegeler  v.  Neuweiler,  91  N.  J.  Law.  273,  102  Atl.  349 339,  359,  516 

Siglin  v.  Armour  &  Co.,  261  Pa.  30,  103  Atl.  991 228 

Signet  V.  Werber.  159  N.  Y.  Suppl.  894 305,  329,  459 

Sikorski  v.  Philadelphia,  etc.,  Ry.  Co.,  260  Pa.  243,  103  Atl.  618 563 

Silbcrman  v.  Huyette,  22  Montg.  Co.  L.  R.  Rep.  39 49,  519 

Silverman  v.  City  of  New  York,  114  N.  Y.  Suppl.  59 429 

Silvia  v.  Scotten   (Del.),  114  Atl.   206 442,  450 

Simeone  v.  Lindsay,  6  Pa.  224,  65  Atl.  778 48,  49,  283,  380 

Simmons  v.  Lewis,  146  Iowa,  316,  125  N.  W.  194 49,  519 

Simmons  v.  Murray   (Mo.  App.).  232  S.  W.   754 644 

Simmons  v.  Peterson,  207  Mich.  508,  174  N.  W.  536 352,  355,  361,  413 

Simmons  v.  Ruggles  (Tex.  Civ.  App.),  176  S.  W.  152 857,  871 

Simmons  v.  Stephens   (Cal.  App.),  191  Pac.  978 452 

Simms  v.  Sullivan   (Ore.) .  198  Pac.  240 202 

Simon  v.  Lit  Bros..  264  Pa.  St.  121,  107  Atl.  635 261 

Simpson  v.  Schiff   (Kans.).  197  Pac.  857 515,  516 

Simpson  v.  Whitman.  147  N.  Y.  App.  Div.  642.  132  N.  Y.  Suppl.  801 507 

Sims  v.  Eleazer   (S.  Car.).  106  S.   E.   854 247,  250,  267 

Sinclair  v.  Pioneer  Truck  Co.   (CaJ.  App.),  196  Pac.  281 413 


]248  Table  of  Cases. 

Section 

Sinelair  v.  U.  S.  (D.  C),  48  Wash.  L.  Rep.  454 758,  763 

Singer  v.  Erie  R.  Co.,  231  N.  Y.  268 577 

Singer  v.  Martin,  96  Wash.  231,  164  Pae.  1105 155,  158.    LCD.  282,  299,  304 

Singleton  v.  Commonwealth,  164  Ky.  243,  175  S.  W.  372 769 

Sinica  v.  New  York  Rys.  Co.,  190  N.  Y.  App.  Div.  727,  180  N.  Y.  Suppl. 

377 679 

Sidson  V.  City  of  Philadelphia,  248  Pa.  140,  93  Atl.  936 679 

Skene  v.  Graham,  116  Me.  202,  100  Atl.  938 118 

Skerry  v.  Rich,  229  Mass.  462.  117  N.  E.  824 664 

Slack  V  Joyce,  163  Wis.  567,  158  N.  W.  310 516,  938 

Slade  V.  City  of  Chicago,  1  111.  Cir.  Ct.  Rep.  520 71,  75,  109,  110,  124,  233 

Slate  V.  Witt,  188  Ky.  133,  221  S.  W.  217 413 

Slater  v.  Advance  Thresher  Co.,  97  Minn.  305,  107  N.  W.  133 623,  624 

627,  628,  663 

Slaughter  v.  Goldberg,  Bower  &  Co.,  26  Cal.  App.  318,  147  Pac.  90 367,  373 

375,  433,  492,  493 

Slipp  V.  St.  Louis,  etc.,  Ry.  Co.  (Mo.  App.),  211  S.  W.  730 550,  551 

557,  565,  567 

Slothower  v.  Clark,  191  Mo.  App.  105,  179  S.  W.  55 633,  639 

Smiley  v.  East  St.  Louis  &  S.  Ry.  Co.,  256  111.  482,  100  N.  E.  157 49 

Smith,  ex  parte,  26  Cal.  App.  116.  146  Pae.  82 57.  58.  .59,   71.   72.  77 

230,  729,  730 

Smith,  ex  paite,  33  Cal.  App.  161,  164  Pac.  618 57,  80,  97,  100,  142 

Smith  V.  American  Automobile  Ins.  Co.,  188  Mo.  App.  297,  175  S.  W.  113.  .  806 

Smith  V.  Associated  Omnibus  Co.,  Div.  Ct.    (Eng.)   916 217 

Smith  V.  Bailey,  195  Mich.  105,  161  N.  W.  822 202,  212 

Smith  V.  Barnard,  82  N.  J.  Law,  468,  81  Atl.  734 385,  906 

Smith  V.  Bolster,  70  Wash.  1,  125  Pac.  1022 859 

Smith  V.  Boon,  84  L.  T.   (Eng.)  593 317,  744 

Smith  V.  Brenner,  120  W.  R.   (Canada)  9 626 

Smith  V.  Bruce,  131  Minn.  51,  154  N.  W.  659 452,  487 

Smith  V.  Bums,  71  Oreg.  133,  142  Pac.   352 657,  658,  660 

Smith  V.  Columbus  Buggy  Co.,  40  Utah,  580,  123  Pac.  580 856,  871 

Smith  V.  Commonwealth,  175  Ky.  286,  194  S.  W.  367 57,  60,  94 

96,  102,  105,  106,  111 

Smith  V.  Dygert,  12  Barb.    (N.  Y.)   613 249,  372,  'M?, 

Smith  V.  Economical  Garage  Inc.,  107  Misc.  (N.  Y.)  430,  176  N.  Y.  Suppl. 

479 202 

Smith  V.  Erie  R.  Co.,  182  N.  Y.  App.  Div.  528,  169  N.  Y.  Suppl.  831 574 

Smith  v.  Gardner,  11  Gray   (Mass.),  418. 275,  377 

Smith  v.  Heibel,  157  Mo.  App.  177,  137  S.  W.  70 613.  622 

Smith  V.  Heish,  161  lU.  App.  83 534 

Smith  V.  Howard  (R.  I.) ,  105  Atl.  648 696,  704 

Smith  V.  Illinois  Cent.  R.  Co.,  162  Wis.  120,  155  N.  W.  933 582 

Smith  V.  Inland  Empire  R.  Co.  (Wash.),  195  Pac.  236 553.  560 

Smith  V.  Jackson  Tp.  Co.,  26  Pa.  Super.  Ct.  234 335,  714 

Smith  V.  Jordan,  211  Mass.  269,  97  N.  E.  761 .  .656.  657,  659 

Smith  V.  Listmau,  96  Misc.  (N.  Y.)  285,  160  N.  Y.  Suppl.  129 469 

Smith  V.  McAdoo,  266  Pa.  328,  109  Atl.  759 560 

Smith  V.  Mis.souri  Pac.  R.  Co.,  138  Ark.  589,  211  S.  W.  657 550,  554,  565 


Table  of  Cases.  1249 

Section 

Smith  V.  O'Brien,  46  Misc.  (N.  Y.)  325,  94  IS!.  Y.  Suppl.  673 191,  881 

Smith  V.  Schoenhofen  Brewinp^  Co.,  201    111.   App.  552 416,  420 

Smith  V.  Smith,  2  Pick.   (Mass.)   621 '  339 

Smith  V.  Somerset  Tract.  Co.,  117  Me.  407,  104  Atl.  788 601,  613 

Smith  V.  State,  130  Md.  482,  100  Atl.  778 63,  135,  144,  145 

Smith  V.  State,  66  Tex.  Cr.  246,  146  S.  W.  547 .....'  768 

Smith  V.  State,  83  Tex.  Cr.  485,  203  S.  W.  771 768 

Smith  V.  Stato  (Tex.  Cr.),  227  S  W.  1105 768 

Smith  V.  State  (Tex.  Cr.),  230  S.  W.  160 768 

Smith  V,  Tappen,  208  lU.  App.  433 438,  452,  480,  660 

Smith  V.  Village  of  SidelJ,  205  111.  App.  66 696,  710 

Smith  V.  Yellow  Cab  Co.  (Wis.),  180  N  W.  125 171,  628,  836 

Smoak  v.  Martin,  108  S.  Car.  472,  94  S.  E.  869 247,  250,  382,  394,  395 

Smoker  v.  Baldwin  Locomotive  Works,  261  Pa.  341,  104  Atl.  597 614 

Smott  V.  Ryan,  187  Ala.  396,  65  So.  828 847 

Snowden,  ex  parte,  12  Cal.  App.  521,  107  Pac.  724 62,  63,  72 

75,  76,  77,  231,  318,  737 

Snyder  v.  Eriksen   (Kans.) ,  19S  Pac.  1080 637 

Sohl  V.  Chicago,  etc.,  Ry.  Co..  183  Iowa,  616,  167  N.  W.  529 553,  557,  569 

Soloman  v.  Braufman,  175  M.  Y.  Suppl.  835 285,  289,  304,  305,  415 

Solomon  v.  Commonwealth  Trust  Co.  of  Pittsburg,  256  Pa.  55,  100  Atl.  534.  630 

632,  673 

Soloman  v.  Federal  Ins.  Co.,  176  Cal.  133,  167  Pac.  859 806 

Solon  V.  Pasche   (Tex.  Civ.  App.),   153  S.  W.  672 297,  317,  321,  668 

Sommerman  v.  Seal,  176  App.  Div.  598,  163  N.  Y.  Suppl.  770 414 

Sondern  v.  Walsh,  108  Misc.   (N.  Y.)   193,  178  N.  Y.  Suppl.  192 197 

Sorensen  v.  Chicago  Rys.  Co.,  217  111.  App.  174 613 

Soronson  v  Bell,  51  Utah,  262 452,  487 

Sorsby  v.  Benninghoven,  82  Oreg.  345,  161  Pac.  251 310,  416,  419 

Sorrusca  v.  Hobson,  155  N.  Y.  Suppl.  364 342,  446 

Sotille  V.  Stokes,  111  S.  Car,  481,  98  S.  E.  334 870 

Southern  Cotton  Oil  Co.  v.  Anderson  (Fla.),  86  So.  629 624,  627,  630,  631 

Southern  Garage  Co.  v.  Brown,  187  Ala.  484,  65  So.  400 207,  212,  628,  822 

Southern  Kansas  Railway  Co.  v.  Oklahoma  City,  12  Okla.  82,  69  Pac.  1050.  23 

Southern  Pac.  Co.  v.  Martinez,  270  Fed.  770 574,  582 

Southern  Pac.  R.  Co.  v.  Walker  (Tex.  Civ.  App.),  171  S.  W.  264 577,  580 

Southern  Ry.  Co.  v.  FljTit,  203  Ala.  65,  82  So.  25 582 

Southern  Ry.  v.  Kentucky  Grocery  Co.,  166  Ky.  94,  178  S.  W.  1162 717,  718 

719.  720.  722,  723 
Southern  Ry..  v.  Voughan's  Adm'r,   118  Va.  692.  88  S.  E.  305,  L.  R.  A. 

1916E,  1222   126,  150,169,  282,  555,  573 

Southern  Traction  Co.  v.  Jones  (Tex.  Civ.  App),  209  S.  W.  457 297,  321 

Southern  Traction  Co.  v.  Kicksey  (Tex.  Civ.  App.),  181  S.  W.  545.  .557,  566,  603 

Southern  Traction  Co.  v.  Kirksey   (Tex.  Civ.  App.),  222  S.  W.  702 294 

556,  557,  937 

Southwestern  Gas  &  Elec.  Co.  v.  Grant  (Tex.  Civ.  App.),  223  S.  W.  544 613 

Sowerby  v.  Wadsworth,  3  R.  F.  &  F.  (Eng.)  734 728 

Spangler  v.  Marklcy,  39  Pa.  Super.  Ct.  351 361,  530,  536,  544 

Sparks  v.  Reliable,  etc.,  Car.  Co.,  85  Kans.  29,  116  Pac.  363 792 

Sparks  v.  State,  76  Tex.  Cr.  263,  174  S.  W.  351 769 

79 


1250  Table  of  Cases. 

Section 

Spa\\ai  V.  Goldberg  (N.  J.),  HO  Atl.  565 260,  262,  277,  361,  394 

Speakmaii  v.  PhiladelpWa,  etc.,  Co.,  42  Pa.  Super.  Ct.  558 598,  601 

Speaks  Lime  &  Cement  Co.  v.  Duluth  St.  Ry.  Co.  (Wis.),  179  N.  W.  579.  .602,  617 

Spearman  v.  McCrary,  4  Ala.  473,  58  So.  927 356,  921 

Speer  v.  Southwest  Missouri  R.  Co.,  190  Mo.  App.  328,  177  S.  W.  329 352 

Spence  v.  Fisher   (Cal.),  193  Pac.  255 626  656,  660 

Spencer  v.  Magrini  (Wash.),  195  Pac.  1041 380 

Spence  v.  Milwaukee  Electric  Ry.  &  Light  Co.,  163  Wis.  120,  157  N.  W.  517.  597 
Spencer  v.  New  York  Cent.,  etc.,  R.  Co.,  123  N.  Y.  App.  Div.  789,  108  N.  Y. 

Suppl.  245 558,  559 

Spickelmeir  v.  Hartman  (Ind.  App.),  123  N.  E.  232 896 

Spillers  v.  Griffin,  109  S.  Car.  78,  95  S.  E.  133 503,  513 

Spofford  V.  Harlow,  3  AJlen,  176 267,  376 

Spokane,  City  of,  v.  Knight,  96  Wash.  403,  165  Pac.  105.  .82,  730,  744,  753,  893 

Spokane,  City  of,  v.  Knight,  101  Wash.  65G,  172  Pac.  823 72,  144,  145,  148 

Spradlin  v.  Wright  Motorcar  Co.,  178  Ky.  772,  199  S.  W.  1087. 292 

Spratt  V.  Gray  (Fla.) ,  87  So.  760 945 

Spring  V.  McCabe  (Cal.  App.),  200  Pac.  41. 321,  678 

Spring  V.  Tawa  (Cal.  App.),  192  Pac.  1051 416,  459 

Springer  v.  Chicago,  etc.,  R.  Co.,  95  Kans.  408,  148  Pac.  611 575 

Springfield  F.  &  M.  Ins.  Co.  v.  Chandler,  41  App.  (D.  C.)  209 808 

Squires  v.  Brooks,  44  App.   (D.  C.)   320 343 

Stack  V.  General  Baking  Co.  (Mo.),  223  S.  W.  89 248,  298,  377,  399,  410 

Stacke  v.  Routledge  (Tex.  Civ.  App.),  175  S.  W.  444 663 

Staha  V.  State,  69  Tex.  Crim.  356,  151  S.  W.  543 192 

Stahl  V.  Sollenberger,  246  Pa.  St.  525,  92  Atl.  720 283,  416,  419,  453 

Staley  v.  Forrest,  157  Iowa,  188,  138  N.  W.  441 308,  517,  529 

Stalloups,  ex  parte  (Tex.  Cr.),  220  S.  W.  547 

Standard  Auto  Sales  Co.  v.  Lehman  (Cal.  App.),  186  Pac.  178 885 

Standard  Oil  Co.  v.  City  of  Kearney  (Neb.),  184  N.  W.  109 197 

Standard  Oil  Co.  of  Kentucky  v.  Thompson  (Ky.),  226  S.  W.  368 361 

398,  661,  685 

Stanhope  v.  Sliambow,  54  Mont.  360,  170  Pac.  752 847 

Stanton  v.  Western  Macaroni  Mfg.  Co.   (Utah),  174  Pac.  821 48,  247 

249,  251,  267 
Stapleton  v.  Independent  Brewing  Co.  (L.),  198  Mich.  170,  164  N.  W.  520, 

R.  A.   1918  A   1916 37,  38,  626,  642 

Star  Omnibus  Co.,  London  (Limited) ,  v.  Tagg  (Div.  Ct.) 237 

Starr  v.  Schenck,  25  Mont.  L.  Rep.   (Pa.)   18 284,  424,  442,  475,  925 

State  V.  Aaron,  90  Vt.  183,  97  Atl.  659 744 

State  V.  Albertalli   (N.  J.  Law) ,  112  Atl.  724 767 

State  V.  Amos,  76  Fla.  26,  79  So.  433 63,  68,  111 

State  to  Use  of  Stumpf  v.  Baltimore,  etc.,  Rys.  Co.,  133  Md.  411,  105  Atl. 

532 246,  591,  592 

State  V.  Bailey,  107  Kans.  637,  193  Pa«.  354 729.  758 

State  V.  Barber  (N.  Car.),  104  S.  E.  760 874 

State  V.  Battery,  6  Baxt.  (Tenn.)  545 728 

State  ex  rel.  McClung  v.  Becker  (Mo.),  233  S.  W.  54 93,  94,  111 

State  v.  Biewen,  169  Iowa,  256,  151  N.  W.  102 758 

State  V.  Bixby,  91  Vt.  287,  100  Atl.  42 780 


Table  of  Cases.  12r)l 

Section 

State  V.  Blwk.  S7  Conn.  573,  8!)  Atl.  Irt7 762 

State  V.  Boggs,  181  Iowa,  35S.  164  X  AV.  759 768,  769 

State  V.  Born,  85  Ohio  St.  430,  98  N.  E.  108 758 

State  V.  Bratcher.  105  KaJis.  593,  185  Pac.  734 768 

State  V.  Brummett.  98  Wash.  182.  167  Pac.  120 886 

State  V.  Buchanan.  32  R.  I.  490.  79  Atl.  1114 79,  735.  740,  741,  756,  932 

State  V.  Burgett,  Smith,  340 728 

State  V.  Burton.  41  K.  I.  303,  103  Atl.  962 319,  737 

State  V.  Bussian,  111  Miuu.  488,  127  N.  W.  495,  31  L.  E.  A.  (N.  S.)  682.. 248,  773 

Stat€  V.  CampboU,  82  Conn.  671,  74  Atl.  927,  18  Ann.  Cas.  236 758,  761,  765 

Stat«  V.  Catchings,  43  Tex.  654 728 

State  ex  rel.  Shaffer  v.  City  of  Spokane,  109  Wash.  360,  186  Pac.  864.. 71,  135 

136,  137,  154 

State  to  Use  of  Decelius  v.  C.  .T.  Bcns^on  &  Co.  (Md.),  100  Atl.  505 628 

630,  631,  674 

State  V.  Claiborne,  185  Iowa,  170,  170  N.  W.  417,  3  A.  L.  R.  392 346,'  780 

State  V.  Cobb,  113  Mo.  App.  156,  87  S.  W.  551 100,  101,  770 

State  V.  Collins,  16  R.  I.  371,  17  Atl.  131,  3  L.  R.  A.  394n 18 

State  V.  Collins,  94  Wash.  310,  162  Pac.  556 63,  94,  96,  108,  112 

State  V.  C-owaji,  29  N.  Car.  239 23 

State  V.  Ousack,  4  Boyee  (Del.)  469,  89  Atl.  216 769 

State  V.  Davis  (Iowa) ,  179  N.  W.  514 768 

State  V.  Davis,  108  Mo.  667 775 

State  V.  Da\-is,  88  S.  Car.  229,  70  S.  E.  811 769 

State  V.  Derrickgon   (Del.),  114  Atl.  286 768 

State  V.  Derry.  US  Me.  431,  108  Atl.  568 772 

State  V.  Dotson.  97  Wash.  607,  166  Pac.  769 .' 768 

State  V.  DunMee,  76  X.  H.  439,  84  Atl.  — ,  40  Ann.  Cas.  1913  B  754 8.  .36 

State  V.  Elliott  (N.  J.),  110  Atl.  135 758,  765 

State  V.  Ellison  (Mo.),  229  S.  W.  1059 677 

State  V.  Ferry  Line  Auto  Bu.'^  Co.,  93  Wash.  614,  161  Pac.  467 135.  138,  139 

144,  145,  150 

State  V.  Ferry  Line  Auto  Bu.s  Co..  99  Wash.  64,  168  Pac.  893 112,  135,  145 

State  V.  Pidler,  26  Tenn.   (7  Humph.)   502 728 

State  V.  Fink   (N.  Car.) ,  103  S.  E.  16 139.  148 

State  V.  Fleetwood.  16  Mo.  448 728 

State  V.  Gish,  168  Iowa,  70,  150  N.  W.  37 95.  96,  104,  124 

State  V.  Goetz,  83  Conn.  437,  76  Atl.  1000,  30  L.  R.  A.  (N.  S.)  458 758,  767 

State  V.  Goldstonc  (Minn.),  175  N.  W.  892 98,  99,  317,  758 

State  V.  Goodwin.  169  Ind.  265,  82  X.  E.  459 68.  327,  539 

State  V.  Gorham   (Wash.).  188  Pac.  457 318,  737 

State  V.  Gray  (X.  Car.),  104  S.  E.  647 278,  758.  765.  919 

State  V.  Hamley  137  Wis.  458.  119  X.  W.  114 81.  742 

State  V.  Hajiahan,  111  S.  Car.  58,  96  S.  E.  667 758.  764.  765 

State  V.  Harper,  166  Wis.  303,  165  X.  W.  281 197 

State  ex  rel.  Xehrbass  v.  Harper,  162  Wis.  589,  156  X.  W.  941 197 

State  V.  Harris  (Del.),  114  Atl.  2S4 769 

State  V.  Hatters,  184  Iowa,  878,  169  X.  W.  113 768 

State  V.  Herring  (Iowa),  174  X.  W.  495 76S 

State  V.  Hines  (Mimi.),  182  X.  W.  450 759,  765 


1252  Table"  of  Cases. 

Section 

State  V.  Homer,  266  Mo.  109,  180  S.  W.  873 281,  758 

State  ex  rel.  Case  v.  Howell,  85  Wash.  294,  147  Pac.  1159 135,  144,  155 

State  V.  Ingalls,  18  N.  Mex.  211,  135  Pac.  1177 59,  72,  94,  96 

105,  106,  108,  110 
State  V.  Inhabitants  of  City  of  Trenton,  54  N.  J.  Law  (25  Vroom.)  92,  23 

Atl.   281 4 

State  V.  Jarvis,  89  Vt.  239,  95  Atl.  541 71,  78,  94,  107,  132,  134 

135,  138,  144,  145,  147,  148,  239 

State  V.  Johnson  (N.  Car.),  107  S.  E.  433 942,  945 

State  V.  Jones  (N.  Car.),  106  S.  E.  827 772 

State  V.  Kreuger  (Del.),  Ill  Atl.  911 758,  767 

State  V.  Keller  (Iowa),  183  N.  W.  307 768 

State  V.  Lake  (Utali),  196  Pac.  1015 758 

State  V.  Long,  7  Boyce's  (30  Del.)  397,  108  Atl.  36 758 

State  ex  rel.  Lunig  v.  Johnson,  71  Fla.  363,  72  So.  477 58,  122 

State  V.  Larrabee,  104  Minn.  37,  115  N.  W.  948 71,  236,  242,  773 

State  V.  Lawrence,  105  Miss.  58,  61  So.  975 105 

State  V.  Lawrence,  108  Miss.  291,  66  So.  745 62,  63,  94,  96 

108,  109,  110,  14,  122 

State  V.  Lewark,  106  Kans.  184,  186  Pac.  1002 768 

State  V.  Martin,  111  S.  Car.  352,  98  S  R.  127 769 

State  V.  Maxwell  Motor  Sales  Corp.,  142  Minn.  226,  171  N.  W.  566 91,  239 

State  V.  Mayo,  106  Me.  62,  75  Atl.  295,  20  Ajm.  Cas.  512,  26  L.  R.  A. 

(N.  S.)   502n 57,  71,  74,  232,  226,  720,  776 

State  V.  Mclver,  175  N.  Car.  761,  94  S.  E.  682 758,  765 

State  V.  Mclvor  (Del.),  Ill  Atl.  616 758 

State  V.  Mills  (K  C.),*  106  S.  E.  677 732 

State  V.  Myette,  30  R.  I.  556,  76  Atl.  664 344 

State  V.  Ness,  1  Ind.  64 729 

State  V.  New  Jersey  Indemnity  Co.  (N,  J.) ,  113  Atl.  491 824 

State  V.  Oakley,  176  N.  Car.  755,  97  S.  E.  616 758,  765 

State  V.  One  Ford  Automobile  (Okla.),  174  Pac.  488 12,  55 

State  V.  One  Packard  Automobile  (Okla.),  172  Pac.  66 12,  52 

State  V.  Orman  (Mo.),  217  S.  W.  25 768 

State  V.  Pfeifer,  96  Kans.  791,  153  Pac.  552 68,  744 

State  V.  Phillips,  107  Me.  249,  78  Atl.  283. 57,  232 

State  V.  Phillips  (Kans.) ,  186  Pac.  117 768 

State  V.  Philips,  106  Kans.  192,  186  Pac.  742 768 

State  Public  Utilities  Com.  v.  Bartonville  Bus  Line,  290  111.  574,  125  N.  E. 

373 143 

State  V.  Raph,  184  Iowa  28,  168  N.  W.  258 .12,  63 

State  V.  Reed,  162  Iowa,  572,  144  N.  W.  310 344 

State  V.  Richardson,  179  Iowa,  770,  162  N.  W.  28 768 

State  V.  Robinson,  78  N.  H.  286,  99  Atl.  292 742 

State  ex  rel.  Constanzo  v.  Robinson  (W.  Va.),  104  S.  E.  473 77 

State  V.  Rodgers,  91  N.  J.  Law,  212,  102  Atl.  433 772 

State  V.  Rountree  (N.  C),  106  S.  E.  669 758 

State  V.  Salmer,  181  Iowa,  280,  164  N.  W.  620 i...  758 

State  V.  Schaeffer,  96  Ohio  St.  215,  117  N.  E.  220.  .57,  59,  66,  317,  744,  758,  898 

State  V.  Scheidler,  91  Conn.  234,  99  Atl.  492 72,  96,  306,  308,  144,  148 


Tabu-:  of  Cases.  1253 

Section 

State  V.  Schutte,  87  N.  J.  Law,  15,  93  Atl.  112 757,  767 

State  V.  Schutte,  88  N.  J.  Law,  396,  96  Atl.  659 305,  320,  767 

State  V.  Seattle  Taxicab  &  Transfer  Co.,  90  Wash.  416.  156  Pac.  837 135 

137,  155,  157 

State  V.  Seinknecht,  136  Tenn.  130,  188  S.  W.  534 770 

State  V.  Shafer  (Okla.) ,  179  Pac.  782 764,  770 

State  V.  Sheppard,  64  Minn.  287,  67  N.  W.  62,  36  L.  R.  A.  305 318 

State  V.  Shiffiin,  92  Conn.  583,  103  Atl.  899 163 

State  V.  Shoemaker,  96  Ohio  St.  570,  117  N.  E.  958 768 

State  V.  Smith,  29  R.  I.  245,  69  Atl.  1061 22,  733 

State  V.  Stephens  (Kans.),  198  Pac.  1087 940,  943,  944 

State  V.  Sterrin,  78  N.  H,  220,  98  Atl.  482 775,  776,  779 

State  V,  Strawbridge  (Ala.  App.),  76  So.  479 70,  71,  81,  106 

State  V.  Swagerty,  203  Mo.  517,  102  S.  VV.  483 110,  220 

State  V.  Thompson  (Mo.),  222  S.  W.  789 768 

State  V.  Thurston,  28  R.  I.  265,  66  Atl.  580 22 

State  V.  Verrill  (Me.),  112  Atl.  673 775 

State  V.  Wagner  (R.  I.),  86  Atl.  147 758 

State  V.  Wagston,  75  Mo.  107 728 

State  V.  Waterman,  112  Minn.  157,  130  N.  W.  972 230,  729,  744 

State  V.  Watson,  216  Mo.  421,  115  S.  W.  1011 758,  921 

State  V.  Weisengoff  (W.  Va.),  101  S.  E.  450 678,  758,  765 

State  V.  Weiss  (Mo.  App.),  219  S.  W.  368 768 

State  V.  Welf ord,  29  R.  I.  450,  72  Atl.  396 744,  929 

State  ex  rel.  City  of  Fargo  v.  Wetz  (N.  Dak.),  168  N.  W.  835,  5  L.  R.  A. 

731 106,  108,  239 

State  V.  Wiles  (Wash.),  199  Pac.  749 123 

State  V.  Wilson,  188  Mo.  App.  342,  174  S.  W.  163 536 

Staver  Carriage  Co.  v.  American,  etc.,  Mfg.  Co.,  188  111.  App.  634 867,  895 

Staten  v.  Monroe  (Tex.  Civ.  App.),  150  S.  W.  222 297,  330 

St.  Clair  v.  State  (Ga.  App.) ,  107  S.  E.  570 772 

Steele  v.  Burkhardt,  104  Mass.  59 267,  376,  433 

Steele  v.  Maxwell  Motor  Sales  Corp.,  68  Pitts.  Leg.  Joum.  97 678 

Steenson  v.  Flour  City  Fuel  &  Transfer  Co.,  144  Minn.  375.  175  N.  W.  681. 

205,  212 

Steering  Wheel  Co.  v.  Fee  Elec.  Car  Co.,  174  Mich.  512,  140  N.  W.  1016 863 

Steffen  v.  McNaughton,  142  Wis.  49,  124  N.  W.  1016,  19  Ann.  Cas.  1227,  26 

L.  R.  A.   (N.  S.)   382 37,  623,  624,  628,  637 

Stein  V.  Lyon,  91  N.  Y.  App.  Div.  593,  87  N.  Y.  Suppl.  125 193 

Stein  V.  Scarpa  (N.  J.) ,  114  Atl.  245 852 

Steinberger  v.  California  Elec.  Grarage  Co.,  176  Cal.  386,  168  Pac.  570 349 

449,  453,  9.''.4 

Stem  V.  Nashville  Ry.,  142  Tenn.  494,  221  S.  W.  192 558,  579,  688,  690 

Stenzler  v.  Standard  Gas  Light  Co.,  179  N.  Y.  App.  Div.  774,  167  N.  Y. 

Suppl.  282 628,  642 

Stepham  v.  Chicago,  etc.,  R.  Co.  (Mo.  App.),  199  S.  W.  273 562 

Stephen  Putney  Shoe  Co.  v.  Ormsby's  Adm'r  (Va.),  105  S.  E.  563.  ,459,  464,  484 

Stephens  v.  Luther  (Nob.),  180  N.  W.  87 297,  320,  659,  685 

Stephenson  v.  Pai-ton,  89  Wash.  653.  155  Pac.  147 277,  439 

453,  471,  476,  484 


1254  Table  of  Cases. 

Section 

Stepp  V.  Minneapolis,  etc.,  R.  Co.,  137  Minn.  117.  I(i2  N.  W.  1051 ijG?..  577 

Sterling  v.  Bowling  Green,  5  C.  C.  (N.  S.)  217,  16  Cir.  Dec..  5S1 S.  35 

Sterling  v.  City  of  Detroit,  134  Midi.  22,  95  N.  W.  986 297 

Stern  v.  International  Ry.  Co..  167  N.  Y.  App.  Div.  503,  153  N.  Y.  Suppl. 

520 '. 297.  359.  663,  673 

Sterner  v.  Issitt,  89  Kans.  357,  131  Pac.  551 536 

Sternfield  v.  Willison,  174  N.  Y.  App.  Div.  842.  161  N.  Y.  Suppl.  472 423 

461.  465.  475 

Stevens  v.  Saskatoon  Taxicab  Co.,  45  D.  L.  R.  (Canada)  763 491 

Stevens  v.  Stewart-AVarner  Speedometer  Corp.,  223  Mass.  44,  111  N.  E.  771. 

205,  844 

Stevens  v.  Tampa  Elec.  Co.  (Fla.) ,  88  So.  303 615 

Stevenson  v.  Detroit  United  Ry..  167  Midi.  45.  132  N.  W.  451 599 

Stevenson  v.  United  States  Express  Company,  221  Pa.  St.  59,  70  Atl.  275.  .  543 

Stewart  v.  Baiiidi,  103  N.  Y.  App.  Div.  577,  93  N.  Y.  Suppl.  161.  .628,  630.  673 

Stewart  v.  San  Joaquin  L.  &  P.  Co.  (Cal.),  186  Pac.  160.  .679,  688,  695,  708,  716 

Stewart  v.  Smith.  16  Ala.  App.  461.  78  So.  724 294.  344.  345,  541.  542 

Stewart  v.  State,  23  Qa.  App.  139,  97  S.  E.  871 297,  534,  768 

Stewart  v.  Steel,  6  Dom.  L.  Rep.  (Canada)  1,  5  Sask.  L.  R.  359 297,  320 

Stewart  Taxi-Service  Co.  v.  Roy,  127  Md.  70,  95  Atl.  1057 344,  447,  663 

StiU  v.  Atlantic  Coast  Line  R.  Co.  (S.  Car.),  101  S.  E.  836 582 

Stillwagon  v,  Callan  Bros.,  Inc.,  183  N.  Y.  App.  Div.  141,  170  N.  Y.  Suppl. 

677 228 

Stilwdl  v.  People  (Colo.),  197  Pac.  239 768 

Stipotich  V.  Security  Stove  &  Mfg.  Co.  (Mo.  App.),  218  S.  W.  964 420 

Stix  V.  Travelers'  Indemnity  Co.,  175  Mo.  App.  171,  157  S.  W.  870 817 

St..  Louis,  City  of.  v.  AUen,  275  Mo.  501,  204  S.  W.  1083 74,  236,  265 

St.  Louis,  CitT  of,  V.  Hammond  (Mo.).  199  S.  W.  411 57,  59,  62,  71,  74 

75,  78,  230,  729,  730 

St.  Louis,  City  of,  v.  Williams,  235  Mo.  503,  139  S.  W.  340 98,  124,  775 

St.  Louis,  etc!,  R.  Co.  v.  Bell,  58  Okla.  84,  159  Pae.  336 679,  682,  700 

St.  Louis,  etc.,  Ry.  Co.  v.  Harrell  (Tex.  Civ.  App.),  194  S.  W.  971.  .550.  557,  567 

St.  Louis,  etc.,  R.  Co.  v.  Model  Laundry,  42  Okla.  501,  141  Pac.  970 277,  550 

St.  Louis,  etc.,  Ry.  Co.  v.  Morgan  (Tex.  Oiv.  App.),  220  S.  W.  281.  .294,  569,  577 

St.  Louis,  etc.,  Ry.  Co.  v.  Stewart,  137  Ark.  6,  207  S.  W.  440 550.  567,  577 

St.  Louis  Southwestern  Ry.  Co.  v.  Ri.stine  (Tex.  Civ.  App.),  129  S.  W.  515.  708 

Stobie  V.  Sullivan,  118  Me.  483,  105  Atl.  714 249.  376 

Stock  V.  St.  Paul  City  Ry.  Co.,  142  Minn.  315,  172  N.  W.  122 611 

Stockell  V.  Hailey  (Tenn.) ,229  S.  W.  382 874 

Stoddard  v.  Fiske,  35  Cal.  App.  607,  170  Pac.  663 642 

Stoddard  v.  Reed  (N.  Dak.),  175  N.  W.  219. .369 

Stodgel  V.  Elder,  172  Iowa,  739,  154  N.  W.  877 215 

Stoeeker  &  Price,  etc.,  Co.  v.  Erving  (Mo.  App.),  204  S.  W.  29 875 

Stohlman  v.  Martin,  28  Cal.  App.  338,  152  Pac.  319 247,  267,  270,  297 

373,  376,  377.  378 

Stoker  v.  Tri-Oity  Ey.  Co.,  182  Iowa,  1090,  165  N.  W.  30.  .616,  619,  679,  684,  688 

Stone  v.  American  Mutual  Auto.  Ins.  Co.  (Mich.),  181  N.  W.  973 838,  842 

Stone  v.  GiU  (Cal.  App.).  198  Pac.  640 438,  463 

Stone  v.  Northern  Pacific  Ry.  Co.,  29  N.  Dak.  480,  151  N.  W.  36. .  .559,  896,  921 

Storer  v.  Downey,  215  Mass.  273,  102  N.  E.  321 195 


T.vBLE  OF  Cases.  1255 

Section 

Stork,  Matter  of,  167  Cal.  294,  i:j9  Pac.  684 - 220,  223,  224 

Stotts  V.  Puget  Sound  Tractipn,  Light  &  Power  Co.,  94  Wash,  339,  162  Pac. 

519 888 

Stout  V.  Taylor,  168  111.  App.  410 327,  530,  531,  534 

Stovall  V.  Corey-Highlands  Land  Co.,  189  Ala.  576.  66  So.  577 126,  663 

Stowe  V.  Morris.  147  Ky.  386.  144  S.  W.  52,  .39  L.  R.  A.  (N.  S.)  224 659 

St.  Paul,  etc.,  Ins.  Co.  v.  Huff  (Tex.  Civ.  App.),  172  S.  W.  755 806,  810 

Strand  v.  Grinnell  Automobile  Garage  Co.,  136  Iowa.  68.  113  N.  W.  488..  518 

530.  538,  542,  549 

Strang  v.  City  of  Kenosha  (Wis.),  182  N.  W.  741 294,  706 

Strapp  V.  Jerabek  (Minn.),  175  N.  W.  1003 328 

Strauss  v.  Entight,  105  Misc.  (N.  Y.)  367,  174  N.  Y.  Suppl.  11.". 57,  140 

Stream  v.  Grays  Harbor  Ry.  &  L.  Co.  (Wash.),  195  Pac.  1044 594,  614 

Streetman  v.  Bussey  (Ga.  App.),  104  S.  E.  517 478 

Stretton  v.  N.  Y.,  etc.,  R.  Co.,  198  Mass.  573,  84  N.  E.  790 577 

Strever  v.  Woodard,  178  Iowa,  30,  158  N.  W.  504 328,  386,  404 

Strickland  v.  Shatley,  142  Ga.  802.  83  S.  E.  856 305.  313,  :U7.  528,  732,  744 

Stringer  v.  Railroad  Co.,  99  .\la.  397,  13  So.  75 357 

Strogoli  V.  Receivers  (R.  I.) .  113  Atl.  655 613 

Strosnick  v.  Connecticut  Co.,  92  Conn.  594.  103  Atl.  755 614 

Stroud  V.  Board  of  Water  Coni'rs  of  City  of  Hartford,  90  Conn.  412,  97 

Atl.  336 125 

Strouse  v.  Whittlesey,  41  Conn.  559 271,  377 

Stuart  V.  Doyle  (Conn.),  112  Atl.  653 396,  627,  677 

Stubbs  V.  Molberget,  108  Wash.  89,  182  Pac.  936,  6  A.  L.  R.  318 259,  270 

390,  409,  720 

Studebaker  Bros.  Co.  v.  Kitts  (Tex.),  152  S.  W.  464 631,  663,  671,  673 

Studebaker  Bros,  of  Utah  v.  Anderson,  50  Utah.  319,  167  Pac.  663.  .865,  870,  871 

Studebaker  Corp.  v.  Dodds,  161  Ky.  542,  171  S.  W.  167 789,  797 

Studebaker  Corp.  of  America  v.  Miller,  169  Ky.  90,  183  S.  W.  256.  .717,  865,  866 

Studebaker  Bros.  Co.  v.  Witcher  (Nev.) ,  195  Pac.  334 885,  889 

Studer  v.  Plumlee,  130  Tenn.  517,  172  S.  W.  305 359,  490 

Stuht  V.  Maryland  M.  C.  Ins.  Co.,  90  Wash.  576.  156  Pac.  557 838 

Stuht  v.  United  States  Fidelity  &  Guaranty  Co.,  89  Wash.  93,  154  Pac.  137.  818 

Stults  V.  Miltenberger,  176  Ind.  561,  96  N.  E.  581 848 

Sturgeon  v.  Minneapolis,  etc.,  R.  Co.  (Iowa),  174  N.  W.  381 558 

Suddarth  v.  Kirkland  Daley  Motor  Co.  (Mo,  App.),  220  S,  W.  699 440 

Suell  V.  .Jones,  49  Wash.  582,  96  Pac.  4 247 

Suga  V.  Haase  (Conn.) ,  110  Atl.  837 464 

Sullivan,  ex  parte,  77  Tex.  Cr.  App.  72,  178  S.  W.  357 93.  152 

SulUvan  v.  Chadwick  (Mass.) ,  127  N.  E.  632 480 

Sullivan  v.  Chauvenet  (Mo.  App.) ,  186  S.  W.  1090 458,  487 

Sullivan  v.  Chauvent  (Mo.  App.),  222  S.  W.  757.. 27.  311,  330,  344,  443,  448,  487 

Sullivan  v.  Chicago  City  Ry.  Co..  167  HI.  App.  152 344 

Sullivan  v.  Sprung,  170  App.  Div.  237.  156  N.  Y.  Suppl.  332 194 

Sullivan  v.  William  Ohlhaver  Co.,  291  111.  359.  126  N.  E.  191 396 

Sultzbach  v.  Smith,  174  Iowa,  704,  156  N.  W.  673 656,  658,  662 

Summers  v.  Prove  Foundry  &-  Ma.'hine  Co..  53  Utah,  320.  17S  Pac.  916 857 

859,  871 


1256  Table  of  Cases. 

Section 
Sumner  County  v.  Interurban  Transp.  Co.,  141  Tenn.  493,  213  S.  W.  412, 

5  A.  L.  E.  765 48,  231 

Sunnes  v.  Illinois  Cent.  R.  Co.,  201  111.  App.  378 553,  557,  558,  559 

Super  Modell  Twp.,  88  Kans.  698,  129  Pac.  1162. .  .277,  307,  335,  696,  711,  714 

Surmeian  v.  Simons  (R.  I.),  107  Atl.  229 348,  407 

Sutter  V.  Milwaukee  Board  of  Fire  Underwriters,  164  Wis.  532,  166  N.  W. 

57 48,  71,  77,  236,  488 

Sutton  V.  City  of  Chicago,  195  111.  App.  261 679,  688,  691,  716 

Sutton  V.  Virginia  Ry.  &  P.  Co.,  125  Va.  449,  99  S.  E.  670. . .  .585,  589,  603,  613 

Swain  v.  City  of  Spokane,  94  Wash.  616,  162  Pac.  991 697,  705 

Swain  v.  Kleiber,  39  Cal.  App.  341,  178  Pac.  728 792 

Swanoutt  v.  Trout  Auto  Livery  Co.,  176  111.  App.  606 169,  592,  638 

Swank  v.  Moison,  85  Oreg.  662,  166  Pac.  962 119,  852 

Swann  v.  City  of  Baltimore,  132  Md.  256,  103  Atl.  441 57,  71,  77 

135,  138,  140,  160 

Swearingen  v.  U.  S.  Railroad  Administration  (Iowa),  183  N.  W.  330.. 560,  565 

Sweet  V.  Perkins,  196  N.  Y.  482,  90  N.  E.  50 800 

Sweet  V.  Salt  Lake  City,  43  Utah,  306,  134  Pac.  1167 347,  696,  700,  714 

Sweetman  v.  Snow,  187  Mich.  169,  153  N.  W.  770 641 

Sweetman  v.  City  of  Green  Bay,  147  Wis.  586,  132  N.  W.  1111 713 

Swenson  v.  Wells,  140  Wis.  316,  122  N.  W.  724 36 

Swigart  v.  Lusk,  196  Mo.  App.  471,  192  S.  W.  138 554,  557,  565,  572,  576 

Switzer  v.  Baker,  178  Iowa,  1063,  160  N.  W.  372 434,  435,  436 

Swinehart  v.  Kansas  City  Rys.  Co.  (Mo.  App.),  233  S.  W.  59 613 

Switzer  v,  Sherwood,  80  Wash.  19,  141  Pac.  181 126 

Syok  V.  Duluth  St.  Ry.  Co.  (Minn.),  177  N.  W.  944 246,  262,  585,  592 

Sykes  v.  State,  78  Fla.  167,  82  So.  778 768 

Sylvester  v.  Gray,  118  Me.  74,  105  Atl.  815 249,  294,  398,  403 

Symes,  ex  parte  (K.  B.  Div.),  103  Law  T.  R.  (N.  S.)  428 780 

Symington  v.  Sipes,  121  Md.  313,  88  Atl.  134 624,  628,  630 

Szszatkowski  v.  People's  Gas  Light  &  Coke  Co.,  209  111.  App.  460 628,  663 

T 

Tacoma  Auto  Livery  Co.  v.  Union  Motor  Car  Co.,  87  Wash.  102,  151  Pac. 

243 202 

Tait  v.  B.  C.  Electric  R.  Co.,  27  D.  L.  R.  (Canada)  538,  34  W.  L.  R.  684, 

22  B.  C.  R.  571 610 

Tannehill  v.  Kansas  City,  etc.,  Ry.  Co.,  279  Mo.  158,  213  S.  W.  818 557 

575,  679,  682 

Tanzer  v.  Read,  160  N.  Y.  App.  Div.  584,  145  N.  Y.  Suppl.  708 660,  661 

Tarver  v.  State  (Tex.  Cr.),  202  S.  W.  734 767 

Tasker  v.  Arey,  114  Me.  551,  96  Atl.  737 491 

Tasker  v.  Farmingdale,  85  Me.  527,  27  Atl.  464 • 

Tate  v.  Brazier  (S.  Car.),  105  S.  E.  413 890 

Taxicab  Co.  v.  Grant,  3  Ala.  App.  393,  57  So.  141 186,  412 

Taxicab  Ci).  v.  Parks,  202  Fed.  909,  121  C.  C.  A.  267 277,  423 

Taxicab  Co.  of  Baltimore  City  v.  Emanuel,  125  Md.  246,  93  Atl.  807 359 

Taxicab  Sei-vice  Co.  v.  Phillips,  187  Fed.  734,  109  C.  C.  A.  482.. 423,  453,  458,  462 

Taxicab  &  Touring  Car  Co.  v.  Cabiness,  9  Ala.  App.  549,  63  So.  774 300,  359 

Taylor  v.  Brewer  (N.  J.),  110  Atl.  693 719 


Table  of  Cases.  1257 

Section 

Taylor  v.  First  National  Bank,  25  Wyo.  204,  167  Pac.  707 811,  871,  872 

Taylor  v.  Glens  Falls  Automobile  Co.,  161  N.  Y.  App.  Div.  442,  146  N.  Y. 

Suppl.  699   359 

Taylor  v.  Goodwin,  4  Q.  B.  228 19 

Taylor  v.  Lehigh  Valley  R.  Co.,  87  N.  J.  Law,  673,  94  Ail.  566.. 278,  578,  579,  582 

Taylor  v.  Pacific  Electric  Ry.  Co.,  172  Cal.  638,  158  Pac.  119 591,  612,  613 

Taylor  v.  Philadelphia  Rapid  Transit  Co.,  55  Pa.  Super.  Ct.  607 587 

Taylor  v.  Shephan's  Adra'r,  163  Ky.  770,  174  S.  W.  790 627,  630,  633 

Taylor  v.  Stewart,  172  N.  Car.  203,  90  S.  E.  134 258,  295,  297,  300,  656,  662 

Taylor  v.  Stewart,  175  N.  Car.  199,  95  S.  E.  167. .  .222,  267,  295,  297,  300,  662 

Taylor  v.  Thomas,  77  N.  H.  410,  92  Atl.  740 267,  375 

Tedford  Auto  Co.  v.  Horn,  113  Ark.  310,  168  S.  W.  133 797 

Temple  v.  Walker,  127  Ark.  279,  192  S.  W.  200 259,  267,  272,  390 

Templeton  v.  Northern  Texas  Traction  Co.  (Tex.  Civ.  App.),  217  S.  W.  440.  516 

Tennessee  Cent.  R.  Co.  v.  Vanhoy  (Temi.),  226  S  W.  225 678,  688 

Tereau  v.  Meads,  114  Minn.  517,  130  N.  W.  3 667 

Teren  v.  Hallenbeck,  66  Oreg.  104,  132  Pac.  1164 208 

Terminal  Taxicab  Co.  v.  Kutz,  241  U.  S.  252,  36  S.  Ct.  583,  modifying  43 

App.  D.  C.  120 44,  134 

Temes  v.  Giles,  93  Kans.  140,  435,  144  Pac.  1014 277 

Terre  Haute,  etc..  Tract.  Co.  v.  Overpeck  (Ind.  App.),  131  N.  E.  543 613 

Terrill  v.  Walker,  5  Ala.  App.  535,  59  So.  775 453 

Terry  Dairy  Co.  v.  Parker  (Ark.),  223  S.  W.  6.. 452,  487,  628,  645,  671,  673,  674 
Terwilliger  v.  Long  Island  R.  Co.,  152  N.  Y  App.  Div.  168,  136  N.  Y.  Suppl. 

733 679,  688,  689,  690,  692,  908 

Texarkana  &  Ft.  Smith  Ry.  Co.  v.  Rea  (Tex.  Civ.  App.),  180  S.  W.  945.  .565,  580 

Texas,  The,  134  Fed.  909 51 

Texas,  etc.,  Ry.  v.  Behymer,  189  U.  S.  468 386 

Texas,  etc.,  R.  Co.  v.  Dumas  (Tex.  Civ.  App.),  149  S.  W.  543 575 

Texas,  etc.,  R.  Co.  v.  Eddleman  (Tex.  Civ.  App.),  175  S.  W.  775 559,  581 

Texas,  etc.,  R.  Co.  v.  Hilgartner  (Tex.  Civ.  App.),  149  S.  W.  1091 567,  672 

Texas,  etc.,  R.  Co.  v.  Houston  Undertaking  Co.  (Tex.  Civ.  App.),  218  S.  W. 

552 558 

Texas,  etc.,  Co.  v.  Harrington  (Tex.  Civ.  App.),  209  S.  W.  685 '. . .  .289,  300 

312,  557,  572 

Texas,  etc.,  R.  Co.  v.  Peveto  (Tex.  Civ.  App.),  224  S.  W.  446 

Texas  Co.  v.  Veloz  (Tex.  Civ.  App.),  162  S.  W.  377 36,  38 

Texas  Electric  Ry.  Co.  v.  Crump  (Tex.  Civ.  App.),  212  S.  W.  827 687,  617 

Texas  Electric  Ry.  Co.  v.  Williams  (Tex.  Civ.  App.),  223  S.  W.  1013 619 

Texas  Motor  Co.  v.  Buffington,  134  Ark.  320,  203  S.  W.  1013 277,  289,  329 

330,  414,  438,  440,  443,  448 

Texas  Traction  Co.  v.  Wiley  (Tex.  Civ.  App.),  164  S.  W.  1028 362 

Thayer  v.  State  (Okla.),  177  Pac.  381 768 

Thibodeau  v.  Hamley   (N.  J.),  112  Atl.  320 169 

Thielke  v.  Albee,  76  Oreg.  449,  150  Pac.  854 137,  143 

Thies  V.  Thomas,  77  N.  Y.  Suppl.  276 278,  324,  326,  329,  332,  352,  418 

438,  441,  442,  478,  479,  480 

Thomas  t.  Armitage,  111  Minn.  288,  126  N.  W.  735 628,  629 

Thomas  v.  Burdick  (R.  I.) ,  100  Atl.  398 334,  438,  452,  487 

Thomas  v.  Chicago  &  G.  T.  R.  Co.,  86  Mich.  496,  49  N.  W.  547 923 


Thompsou  V.  Oity  of  Bellingliam  (Wash.),  1^2  Pac.  952 697, 

Thompson  v.  Dodge,  58  Minn.  555,  60  N.  W.  545.  98  L.  R.  A.   "" 


1258  Table  of  Cases. 

Section 

Thomas  v.  Hackney.  192  Ala.  27,  68  So.  296 203,  212 

Thomas  v.  Howatt,  210  lU.  App.  380 516 

Thomas  v.  Illinois  Cent.  R.  Ck).,  169  Iowa,  337,  151  N.  W.  .187 6S8,  689 

Thomas  v.  Lockwood  Oil  Co.  (Wis.),  182  N.  W.  841 632,  639,  90S 

Thomas  v.  Rasmusseu  (Neb.),  184  N.  W.  104 54 

Thomas  v.  Southern  Penn.  Traction  Co.  (Pa.),  112  Atl.  918 428 

Thomas  v.  State.  83  Tex.  Cr.  282,  203  S.  W.  773 768 

Thomas  v.  Stevenson  (Minn.),  178  N.  W.  1021 297,  .344.  346.  447 

Thompson  v.  Aultman  &  Tavlor  Machinery  Co..  96  Kans.  259.  150  Pac.  587. 

628,  677 
710 

608 38,  49 

Thompson  v.  Fischer.  188  N.  Y.  App.  DiOv.  878.  177  N.  Y.  Suppl.  491 32© 

Thompson  v.  Lewiston,  etc..  St.  Ry..  115  Me.  560,  99  Atl.  370 559,  613 

Thompson  v.  Los  Angeles,  etc.,  R.  Co.,  165  Cal.  748,  134  Pac.  709 172,  619 

679,  687,  688,  690 

Thompson  v.  Philadelphia  &  R.  Ry.  Co.,  263  Pa.  St.  569.  107  Atl.  330 568 

Thompson  v.  Southeni  Pac.  Co.,  31  Cal.  App.  567,  161  Pac.  21 557,  558 

559,  568 

Thorogood  v.  Bryan.  8  C.  B.  (Eng.)   115 680 

Thourot  V.  Delahaye  Import  Co.,  69  Misc.  (N.  Y.)  351,  125  N.  Y.  Suppl.  827.  877 

Thrasher  v.  St.  Louis,  etc.,  Ry.  Co.  (Okla.),  198  Pac.  97 557,  575,  682 

Thread<^ill  v.  United  Rvs.  Co.  of  St.  Louis,  279  Mo.  466,  214  S.  W.  161.  ..  .  281 

551,  591 

Throughton  v.  Manning,  92  L.  T.  (Eng.)  855 317,  744 

Th-urber  Art  Galleries  v.  Rienz  Garage  (lU.),  130  N.  E.  747 881 

Tiffany  v.  Times  Sqiiare  Auto  Co.,  168  Mo.  App.  729,  154  S.  W.  865 856 

Tiffany  &  Co.  v.  Di-ummond,  168  Fed.  47,  93  C.  C.  A.  469 458 

Tift  V.  Shiver   (Ga.  App.),  102  S.  E.  47 786,  787 

Tift  V.  State,  17  Ga.  App.  663,  88  S.  E.  41 294,  767 

Tilliughast  v.  Leppeit,  93  Conn.  247,  105  Atl.  615 358 

Tincknell  v.  Ketchman,  78  Misc.  (N.  Y.)  419,  139  N.  Y.  Suppl.  620 836 

Tiuline  v.  White  Cross  Ins.  Co.,  151  L.  T.  Jour.  (Eng.)  434 823 

Titus  V.  Tangemaa,  116  N.  Y.  App.  Div.  487,  101  N.  Y.  Suppl.  1000. . .  .449,  651 

Toadvine  v.  Sinnet  (Kans.),  178  Pac.  401 ♦^30 

Todd  V.  Chicago  City  Ry.  Co.,  197  111.  App.  544 169,  609,  937 

Todd  V.  Orcutt  (Cal.  App.),  183  Pac.  963 247,  433,  478 

Todesco  V.  Maas,  23  D.  L.  R.   (Canada)   417.  8  A.  L.  R.  187,  7  W.  W.  R. 

-^373  459.  469,  476 

Toguazzini  v.  Freeman,  18  Cal.  App.  468,  123  Pac.  540 412 

Toledo  Electric  St.  R.  Co.  v.  Wcsterhul)or,  22  Ohio  Cir.  Ct.  Rep.  67.  12  Ohio 

Cir.  Dec.  22 ^^^ 

Toledo  Rys.  &  Light  Co.  v.  Mayers,  93  Ohio  St.  304,  112  N.  E.  1014.  .  .  .679,  688 

Tolmie  V.  Woodward  Tajcicab  Co..  178  Mich.  426,  144  N.  W.  855 283 

Tompkins  v.  Barnes,  145  App.  Div.  637.  130  X.  Y.  Suppl.  320 351.  489 

Tonseth  v.  Portland,  etc..  Co.,  70  Oreg.  341,  141  Pac.  868 679 

Tonsley  v.  Pacific  Electric  Ry.  Co.,  166  Cal.  457,  137  Pac.  31 351 

Tooker  v.  Fowlers  &  Sellers  Co.,  147  N.  Y.  App.  Div.  164,  132  N.  Y.  Suppl. 

' 38,  372 


213 

Tooker  v.  Perkins,  86  Wash.  .567.  150  Pac.  1138 352, 


409 


Table  of  Cases.  12.11) 

Section 

Topper  V.  Maple,  Ibl  Iowa,  786,  165  N.  W.  28 325.  344,  348,  359.  367.  406 

Tornroos  v.  White  Co.,  220  Mass.  336,  107  N.  E.  1015 177,  644,  650 

Toronto  General  Trusts  Corp.  v.  Dunn,  115  West  L.  R.    (Canada)    314,  20 

Man.  L.  B.  412 329,  348,  352,  471 

Towers  v.  Errington.  78  Misc.  (N.  Y.)  297,  138  N.  Y.  Suppl.  119 38 

Towers  v.  Wildason  (Md.) ,  109  Atl.  471 131 

Towle  V.  Morse,  103  Me.  250,  68  Atl.  1044 32.  47.  48,  361,  540 

To^\Tier  V.  BrookljTi  Heights  R.  Co.,  44  N.  Y.  App.  'Div.  628,  60  N.  Y.  Suppl. 

289 49,  260,  277.  306 

Townsend  v.  Brooklyn  Heights  R.  Co.,  168  N.  Y.  App.  Div.  449,  153  N.  Y. 

Suppl.  833   459 

Townsend  v.  Butterfield,  168  Cal.  564,  143  Pac.  760 490 

Townsend  v.  Keith,  34  Cal.  564,  168  Pac.  402 516 

Toy  V.  McClemeuts,  68  Pitts.  Leg.  Journ.  (Pa.)  680 628,  654 

Trademark  Cases,  100  U.  S.  82,  25  L.  Ed.  550 86 

Traeger  v.  Wasson,  163  111.  App.  572 49,  256,  405,  489,  490,  517,  518 

Trask  v.  Boston  &  M.  B.  Co.,  219  Mass.  410,  106  N.  E.  1022 580,  581 

Traverman  v.  Oliver's  Adm'r,  125  Va.  458,  99  S.  E.  647 430 

Trauernicht  v.  Bichter,  141  Minn.  496,  169  N.  W.  701 195 

Travelers'  Indemnity  Co.  v.  Detroit  United  Ry.,  193  Mich.  375,  159  N.  W. 

528 585,  591,  599,  615 

Travelers'  Indemnity.  Co.  v.  Fawkes,  120  Minn.  353,  139  N.  W.  703 207,  212 

Travei-s  v.  Haitman,  5  Boyce  (Del.)  302,  92  AtL  855 283,  297,  321,  351 

Tremainc  v.  Johne,  145  N.  Y.  Suppl.  46 351 

Trimble  v.  Philadelphia  B.  &  W.  B.  Co.,  4  Boyce  (Del.)  519,  89  Atl.  370.. 277.  550 
Triple  Action  Spring  Co.  v.  Goyeua,  93  Misc.  (N.  Y.)  171,  156  N.  Y.  Suppl. 

1064 S80 

Tripp  V.  Taft,  219  Mass.  81,  106  N.  E.  578 315,  317,  418,  443,  448,  480 

Trombley  v.  Stevens-Duryea  Co.,  206  Mass.  516,  92  N.  E.  764 125,  128,  5.S6 

Troughton  v.  Manning,  92  L.  T.  B.  (Eng.)  855 329 

Trout  Brook  Ice  Co.  v.  Hartford  Electric  Light  Co.,  77  Conr.  338.  59  Atl. 

405 412,  547 

Trout  Livery  Co.  v.  Pex)ple's  Gas,  Light  &  Coke  Co.,  168  HI.  App.  56. .  .401,  409 
Troy  Automobile  Exchange  v.  Home  Ins.  Co.,  102  Misc.   (N.  Y.)  331,  169 

N.  Y.  Suppi.  796 838 

Truva  v.  Goodyca:-  Tire  &  Rubber  Co.  ( Wash.) .  194  Pac.  386 523 

Trzetiatowski  v.  Evening  American  Pub.  Co.,  185  111.  App.  451. . .  .247,  352,  433 

443,  473,  925 

Tschirley  v.  Lambert,  70  Wash.  72,  126  Pac.  80 362,  363,  401,  409,  410 

Tucker  v.  Carter  (Mo.  App.),  211  S.  W.  138 491,  919,  920 

Tudor  V.  Bowen,  152  N.  Car.  441,  67  S.  E.  1015,  30  L.  B.  A.   (N.  S.)  804, 

21   Ann.  Cas.   646 525 

Tulsa  Ice  Co.  v.  Wilkes,  54  Okla.  519,  153  Pac.  1169 38,  241,  2-45 

249,  250,  267,  270 
Turch  V.  New  York,  etc.,  B.  Co.,  108  N.  Y.  App.  Div.  142,  95  N.  Y.  Suppl. 

1100 557,  559,  569 

Turk  V.  Goldberg  (N.  J.),  109  Atl.  732 158 

Turley  v.  Thomas,  8  Ca^r  &  Payne  (Eng.)  103 270,  L'75,  377 

Turnor  v.  Bennett,  161  Iowa,  379,  142  N.  W.  999 344 

Turner  v.  Fidelitv  &  Casualtv  Co..  L'74  Mo.  1078.  202  S.  W.  1078 ^^43 


1260  Table  of  Cases. 

Section 

Turner  v.  Hall,  74  N.  J.  Law,  214.  64  Atl.  1060 487 

Turner  v.  Los  Angeles  Ry.  Corp.  (Cal.  App.),  1^8  Pac.  56 611 

Tuiney  v.  United  Rys.  of  St.  Louis,  155  Mo.  App.  513,  135  S.  W.  93. ,.  .617,  619 

620,  679,  688,  d89 

Tuttle  V.  Briscoe  Mfg.  Co.,  190  Mich.  22,  155  N.  W.  724.  .414,  430,  453,  463,  487 

Twinn  v.  Noble  (Pa.),  113  Atl.  686 326,  414,  441,  453 

Twitchell  v.  Thompson,  78  Oreg.  285,  153  Pac.  45 , . .  513 

Tyler  v.  Hoover,  92  Neb.  221.  138  N.  W.  128 .50,  517,  518 

Tyler  v.  Stephan's  Adm'r,  163  Ky.  770,  174  S.  W.  790.  .  .  .36,  37,  623,  624,  628 

Typper  v.  Union  St.  Ry.  Co.  (Mass.),  129  N.  E.  881 615 

Tyree  v.  Tudor  (N.  C).  106  S.  E.  675 656,  660 

Tyrell  v.  Leege,  105  Wash.  438,  178  Pac.  467 503 

Tyrell  v.  Goslant  (Vt.),  106  Atl.  585 929 

u 

Ude  V.  Fuller,  153  N.  W.  769,  187  Mich.  483 351 

Uithoven  V.  Snyder  (Mich.) ,  182  N.  W.  80 313,  836 

Ulman  v.  Lindeman  (N.  Dak.),  176  N.  W.  25,  10  A.  L.  R.  1440 661 

Ulmer  v.  Pistole,  115  Miss.  485,  76  So.  522 321,  326,  332,  334 

336,  361,  391,  394 

Umsted  Auto  Co.  v.  Henderson  Auto  Co.,  137  Ark.  40,  207  S.  W.  437 875 

Underbill  v.  Stevenson,  100  Wash.  129,  170  Pac.  354 •. 484 

Underwood  v.  Colburn  Motor  Car.  Co.,  166  N.  Car.  458,  82  S.  E.  855 857,  865 

Underwood  v.  Oskaloosa  Tr.    Light  Co.,  157  Iowa,  352,  137  N.  W.  933.  .613,  614 

UnderwTitres  v.  Vicksburg  Traction  Co.,  106  Miss.  244,  63  So.  455 822 

Union  Marine  Ins.  Co.  v.  Charlie's  Tr.  Co.,  186  Ata.  443,  65  So.  78 812 

Union  Pac.  R.  Co.  v.  Ruyicka,  65  Neb.  621,  91  N.  W.  543 924 

Union  Traction  Co.  v.  Elmore,  66  Ind.  App.  95,  116  N.  E.  837 550,  565,  617 

Union  Traction  Co.  v.  Howard,  173  Ind.  355,  90  N.  E.  764 579,  617 

Union  Traction  Co.  v.  McTurnan  (Ind.  App.),  129  N.  E.  404 565 

Union  Traction  Co.  v.  Moneyhun  (Ind.  App.),  127  N.  E.  443 592 

Union  Traction  Co.  of  Indiana  v.  Hawworth,  187  Ind.  451,  115  N.  E.  753. .  557 

558,  577,  679,  688 
Union  Transfer  &  Storage  Co.  v.  Westcott  Express  Co.,  79  Misc.  408,  140 

N.  Y.  Suppl.  98 534,  536 

United  Motor  Atlanta  Co.  v.  Paxson  Bros.,  14  Ga.  App.  172,  80  S.  E.  704. .  864 

United  Rys.  &  Elec.  Co.  v.  Crain,  123  Md.  332,  91  Atl.  405 679 

United  Rys.  &  Elec.  Co.  v.  Stat©  to  Use  of  Mantik,  127  Md.  197,  96  Atl. 

261 585,  617,  619 

United  States  v.  Auto  Import  Co.,  168  Fed.  242,  93  C.C.  A.  456 1 

United  States  v.  Burns,  270  Fed.  681 946 

United  States  v.  Colorado  &  N.  W.  R.  R.,  157  Fed.  321,  85  O.  C.  A.  27,  13 

Ann.  Cas.  893,  15  L.  R.  A.  (N.  S.)   167 86 

United  States  v.  Grace  &  Co.,  166  Fed.  748,  92  C.  C.  A.  536 1 

United  States  v.  Kane,  273  Fed.  275 944 

United  States  v.  Manabat,  28  Philippine,  560 172 

United  States  v.  Mincey  (C.  C.  A.),  254  Fed.  287,  5  A.  L.  R.  211 12,  59 

United  States  v.  One  Automobile,  237  Fed.  891 .' 11,  50 

United  States  v.  One  Shaw  Automobile,  272  Fed.  491 945,  946 

United  States  v.  One  Stephens  Automobile,  272  Fed.  188 947 


Table  of  Cases.  1261 

Section 

Uiiited  States  ex  rel.  Early  v.  Richards,  35  App.  D.  C.  540 197 

United  States  v.  Sharp,  1  Pet.  C.  C.  Rep.  118 732 

United  States  v.  Slusser,  270  Fed.  818 947 

United  States  v.  Sylvester,  273  Fed.  253 944 

United  States  Casualty  Co.  v.  Ellcson,  65  Colo.  252,  176  Pac.  279 845 

United  States  Restaurant  Co.  v.  Schulte,  67  Misc.   (N.  Y.)   633,  124  N.  Y. 

Suppl.  203   161 

United  Traction  Co.  v.  Smith,  115  Misc.  (N.  Y.)  73 135 

United  Transp.  Co.  v.  Hass,  91  Misc.   (N.  Y.)  311,  155  N.  Y.  Suppl.  110, 

affirmed   155   N.  Y.  Suppl.   1145 125,  353 

Universal  Service  Co.  v.  American  Ins.  Co.  (Mich.),  181  N.  W.  1007 815 

Universal  Taximeter  Cab  Co.  v.  Blumenthal,  143  N.  Y.  Suppl.  1056 722 

University  Garage  v.  Heiser,  142  N.  Y.  Suppl.  315 205 

Unnacht  v.  Whitney   (Minn.),  178  N.  W.  886 259,  297,  434,  473,  487 

Unwin  v.  State,  73  N.  J.  Law,  529,  64  Atl.  163 94,  96,  110.  252,  372,  382 

Uphoflf  V.  McCormick,  139  Minn.  392 660,  671 

Upton  V.  United  Rys.  &  Elec.  Co.  (Md.),  110  Atl.  484 599 

Upton  V.  Windham,  75  Conn.  288,  53  Atl.  660 49,  518,  701 

Utterbach-Gleason  Co.  v.  Standard  Accident  Ins.  Co.,  193  N.  Y.  App.  i)iv. 

646,  184  N.  Y.  Suppl.  862 .■>....  834 

V 

Vail  V.  Marshall  Motor  Co.,  107  Kans.  290,  191  Pac.  579 677 

Vale  V.  Boyle,  179  Cal.  180,  175  Pac.  787 849 

Vallery  v.  Hesse  Bldg.  Material  Co.  (Mo.  App.),  223  S.  W.  437 663,  674 

Valley  Mercantile  Co.  v.  St.  Paul  Fire  &  M.  Ins.  Co.,  49  Mont.  430,  143  Pac. 

559,  L.  R.  A.  1915  B  327 838 

Van  Blaricom  v.  Dodgson,  220  N.  Y.  Ill,  115  N.  E.  443 660 

Van  Clease  v.  Walker  (Tex.  Civ.  App.),  210  S.  W.  767 631 

Van  Dyke  v.  Johnson,  82  Wash.  377,  144  Pac.  540 330 

Vanek  v.  Cliicago  City  Ry.  Co.,  210  111.  App.  148 587,  679,  688 

Van  Goosen  v.  Barium  (Mich.),  183  N.  W.  8. 452,  900 

Van  Hoeffen  v.  Columbia  Taxicab  Co.,  179  Mo.  App.  591,  162  S.  W.  694 132 

Van  Horn  v.  Simpson,  35  S.  Dak.  640,  153  N.  W.  883 517,  518 

Van  Ingen  v.  Jewish  Hospital,  182  N.  Y.  App.  Div.  10,  169  N.  Y.  Suppl. 

412 262,  391,  663 

Vannett  v.  Cole  .(N.  Dak.),  170  N.  W.  663 283,  324,  330,  332 

416,  448,  452,  487,  661 

Van  Orsdal  v.  Illinois  Cent.  R.  Co.,  210  111.  App.  619 558,  579,  580,  682 

Van  Rensselaer  v.  Crism,  186  N.  Y.  App  Div.  557,  174  N.  Y.  Suppl.  751 432 

Van  Sciver  v.  Public  Service  Ry.  Co.  (N.  J.),  114  Atl.  146 719 

Van  Vliet  Fletcher  Auto  Co.  v.  Crowell,  171  Iowa,  64,  149  N.  W.  861 856 

Van  Winckler  v.  Morris,  46  Pa.  Super.  Ct,  142 338 

Vaughn  v.  Davis  (Mo.  App.),  221  S.  W.  782 628,  645 

Vaught  V.  Knue,  64  Ind.  App.  467,  115  N.  E.  108 875,  878 

Veach's  Adm'r  v.  Louisville,  etc.,  Ry.  Co.  (Ky.),  228  S.  W.  35 679 

Velie  Motor  Co.  v.  Kopmeier  Motor  Car  Co.,  194  Fed.  324,  114  C.  C.  A.  284.  786 

Verdon  v.  Crescent  Automobile  Co.,  80  N.  J.  Law,  199,  76  Atl.  340 479 

Vemor  v.  Secretary  of  State,  179  Mich.  157,  146  N.  W.  338 94,  96,  105 

Vesper  v.  Lavender  (Tex.  Civ.  App.),  149  S.  W.  377 452,  456,  458 


1262  Table  of  Cases. 

Section 

Veziua  v.  Shermer  (Mich.),  165  N.  W.  697 516 

Vickery  v.  Armstead  (Iowa),  180  N.  W.  893 267,  297,  372 

Vilicki  V.  New  York  Transportation  Co.,  65  Misc.    (N.  Y.)   43,  119  N.  Y. 

Suppl.  220  467 

ViUage  of  So.  Orange  v.  Heller  (N.  J.  Eq.),  113  Atl.  697 197 

Vincent  v.  Crandall  &  Godley  Co..  131  N.  Y.  App.  Div.  200,  115  N.  Y.  Suppl. 

600 342,  446 

Vincent  v.  Seymour,  131  N,  Y.  App.  Div.  200,  115  N.  Y.  Suppl.  600 37 

Virgilio  v.  Walker,  254  Pa.  St.  241,  98  Atl.  815 277,  278,  279,  332 

414.  421,  435,  456,  457,  486 

Virginia  Ry  &  Power  Co.  v.  Cherry  (Va.),  105  S.  E.  657 621 

Virginia  By.  &  Power  Co.  v.  Gorsuch,  120  Va.  655,  91  S.  E.  632 679,  685 

Virginia  Ry.  &  Pr.  Co.  v.  Slack  Grocery  Co.  (Va.),  101  S.  E.  878,  .262,  599,  614 

Virginia  &  S.  W.  Ry.  Co.  v.  Skinner,  119  Va.  843,  89  S.  E.  887 557,  558 

560,  575,  688,  689 

Virginia  Ry.  &  Pr.  Co.  v.  Smith  (Va.),  105  S.  E.  532 609,  613 

Vocca  V.  Pennsylvania  R.  Co.,  259  Pa.  St.'  42,  103  Atl.  283 679,  688,  690 

Vodney  v.  United  Traction  Co.,  193  N.  Y.  App.  Div.  329 848 

Voelker  Products  Co.  v.  United  Rys.  Co.,  185  Mo.  App.  310,  170  S.  W,  332.  592 

593,  609 
Vogler  v.  Central  Grosstown  K.  Co.,  83  N.  Y.  App.  Div.  101,  82  N.  Y.  Suppl. 

485 928 

Vogt  V.  United  Rys.  Co.  of  St.  Louis  (Mo.  App.),  219  S.  W.  997 589 

Volosko  V.  Interurban  St.  Ry.,  190  N.  Y.  206,  15  L.  R.  A.  (N.  S.)  1117 459 

Vos  V.  Franke,  202  111.  App.  133 433,  456,  938 

w 

Wabash  Ry.  v.  McDaniels,  107  U.  S.  454 386 

Wachsmith  v.  Baltimore  &  O.  R.  Co.,  233  Pa.  St.  465,  82  Atl.  755.  .675,  677,  688 

Wade  V.  Brents,  161  Ky.  607,  171  Ky.  188 305,  308,  322,  528,  543,  549 

Wadley  v.  Dooly,  138  Ga.  275,  75  S.  E.  153 423 

Wagener  v.  Motor  Ti-uck  Renting  Corp.,  197  App.  Div.  371 644 

Wagner  v.  Kloster  (Iowa),  175  N.  W.  840 260,  391,  413,  679,  682,  688 

Wagner  v.  Larsen  (Wis.),  182  N.  W.  3.36 413,  644 

Waking  v.  Cincinnati,  etc.,  R.  Co.   (Ind.  App.),  125  N.  E.  799 550,  557 

558,  565,  567 

Wald  V.  Auto  Salvage  &  Exch.  Co.  (Iowa),  179  N.  W.  856 : 768 

Wald  v.  Packard  Motor  Car  Co.,  204  Mich.  147,  169  N.  W.  957 671 

Waldeu  v.  Stone   (Mo.  App.),  223  S  W.  136 344,  447,  476 

Waldman  v.  Picker  Bros..  140  N.  Y.  Suppl.  1019 177,  644,  666 

Wales  V.  Harper  (Manitoba),  17  Wast  L.  R.  623 27,  501,  502 

Walker  v.  Brout  Bros.  Automobile  Co.,  124  Mo.  App.  628 1 

Walker  v.  Commonwealth,  40  Pa.  Super.  Ct.  638 231 

Walker  v.  Faelber,  102  Kans.  646.  171  Pac.  605 304,  337,  522 

Walker  v.  Fuller,  223  Mass.  566.  112  N.  E.  230 638 

Walker  v.  Grout  Bros.  Automobile  Co..  124  Mo.  App.  628,  102  S.  W.  25.  .35,  861 

Walker  v.  Hilland,  205  111.  App.  243 261,  359,  390,  413,  720 

Walker  v.  Lee  (X.  C),  106  S.  E.  682 250,  378 

Walker  v.  Martin,  45  O.  L.  R.  (Canada)  504,  46  O.  L.  R.  587 626,  656 


Table  of  Cases.  1263 

Section 

Walker  v.  Rodiguez,  139  La.  251,  71  So.  499 291,  312,  326,  415,  438 

441,  557,  558,  572,  585,  592,  593,  603 

Walker  v.  Southern  Fac.  Co.,  38  Cal.  App.  377,  170  Pac.  175 550,  557,  568 

Walker  v.  Tp.  of  Southwald,  46  O.  L.  R.  (Canada)  265 696 

Walkup  V.  Beebe,  139  Iowa,  395,  116  N.  W.  321 530,  536,  538 

Wall  V.  Merkert,  166  N.  Y.  App.  Div.  608,  152  N.  Y.  Suppl.  293 337 

421,  448,  486 

Wallace  v.  Keystone  Automobile,  239  Pa.  St.  110,  86  Atl.  699. . .  .177,  179,  644 

Wallace  v.  Waterhouse,  86  Conn.  546,  86  Atl.  10 491 

Walleigh  v.  Bean,  248  Pa.  St.  339,  93  Atl.  1069 260,  305,  487 

492,  501,  508,  516 

Waller  v.  Southern  Ice  &  Coal  Co.,  144  Ga.  695,  87  S.  E.  888 638 

Walldem  Express  &  Van  Oo.  v.  Krug,  291  111.  472.  126  N.  E.  97 484 

Wallower  v.  Webb  Cty,  171  Mo.  App.  214,  156  S.  W.  48.  .332,  698,  710,  711,  714 

WaUs  V.  Windsor,  5  Boyce  (28  Del.)  265,  92  Atl.  989 517,  518,  519,  534 

Walmer-Roberts  v.  Hennessey  (Iowa),  181  N.  W.  798 288,  330,  442 

448,  475,  476 

Walmsley  v.  Pickrell  (Wash.),  386  Pac.  847 510,  516 

Walterick  v.  Hamilton,  179  Iowa,  607,  161  N.  W.  684 259,  304,  501,  514 

Walters  v.  Chicago,  etc.,  R.  Co.,  47  Mont.  501,  133  Pac.  357,  46  L.  R.  A. 

(N.  S.)   702 556,  567 

Walters  v.  City  of  Seattle,  97  Wash.  657,  167  Pac.  124 38,  267,  696 

707,  710,  713 
Walton  &  Co.  v.  The  Vanguard  Motorbus  Co..  T.  L.  Rep.,  vol.  XXV,  No  2, 

p.  13,  Oct.  27,  1908 338 

Wanner  v.  Philadelphia,  etc.,  Ry.  Co..  261  Pa.  27.').  104  Atl.  570 580 

679,  687,  689 
Ward  V.  Brooklyn  Heights  R.  Co.,  119  N.   Y.  App.  Div.   487.   104  N.  Y. 

Suppl.   95 679 

Ward  V.  Cathey  (Tex.  Civ.  App.),  210  S.  W.  289 277,  297.  425,  '475,  486 

Ward  V.  Chicago  St.  P.  M.  &  O.  R.  Co.,  85  Wis.  601,  55  N  W.  771 923 

Ward  V.  Clark,  189  N.  Y.  App.  Div.  344.  179  N.  Y.  Suppl.  466 262 

394,  685.  690 

Ward  V.  DeYoung  (Mich.),  177  N.  W.  213 516.  906 

Ward  V.  Ft.  Smith  Light  &  Traction  Co.,  123  Ark.  548,  185  S.  W.  1085 617 

Ward  V.  Gildea  (Cal.  App.).  186  Pac.  612 262,  497 

Ward  V.  International   Ry.   Co.,   206   N.   Y.   S3,  99   N.   E.   268,  Ann.   Cas. 

1914   A   1170 •"-Jl-  -^97 

Ward  V.  Meadows  (Ahi.) ,  88  So.  427 513 

Ward  V.  Meeds,  114  Minn.  18,  130  N.  W.  2 667,  679.  682 

Ward  V.  Meredith,  220  111.  66,  77  X.  E.  119 297.  .".22.  534 

Ward  v.  Meredith,  122  111.  App.  159 534 

Ward  V.  Teller  Reservoir  &  I.  Co..  60  Colo.  47,  153  Pac.  219.  .673.  674,  677.  836 

Ware  v.  Laman,  18  Ga.  App.  673,  90  S.  E.  364 297.  .".06,  321 

Ware  v.  Lamer,  16  Ga.  App.  560,  85  S.  E.  824 26.  :!06.  321 

Warley  v.  Metropolitan  Motor  Car  Co.,  72  Wash.  243.  130  Pac.  107 886 

Wame  v.  Moore,  86  N.  J.  Law,  710,  94  Atl.  307 645 

Warner  v.  Berthoff,  40  Cal.  App.  776,  181  Pac.  808 43>s.  463 

Warner  v.  Brill,  195  App.  Div.  64,  185  N.  Y.  Suppl.  586 678 

Warren  v.  Finn,  84  N.  J.  Law,  206,  86  Atl.  530 192 

Warren  v.  Mendenhall.  77  Minn.  145,  79  N.  W.  661 318 


1264  Table  of  Cases. 

Section 

Warren  v.  Norguard,  103  Wash.  284,  174  Pac.  7 656,  660,  674 

Warren  v.  Renault  Freres  Selling  Branch,  195  111.  App.  117 857 

Warren  v.  Walter  Automobile  Co.,  50  Misc.   (N.  Y.)   605,  99  N.  Y.  Suppl. 

396 859 

Warren  Co.  v.  Whitt,  19  Ariz.  104,  165  Pac.  1097' 325,  715 

Warrington  v.  Bird,  168  Mo.  App.  385,  151  S.  W.  754 628 

Warrington  v.  Byrd  (Mo.  App.),  181  S.  W.  1079 305,  391,  401,  413 

Warruna  v.  Dick,  261  Pa.  602,  104  Atl.  749 417,  924 

Washburn  v.  Ranier  Co.,  130  N.  Y.  App.  Div.  42,  114  N.  Y.  Suppl.  424.  .795,  872 
Washington  &  Birmingham  Southern  R.  Co.  v.  Harrison,  203  Ala.  295,  82 

So.  545   580 

Washington  Electric  Vehicle  Transp.  Co,  v.  District  of  Columbia,  19  App. 

D.  C.  462 8,  34,  97,  123,  145 

Washington  &  O.  D.  Ry.  v.  Zell's  Adm'x,  118  Va.  755,  88  S.  E.  309. . .  .550,  552 

556,  557,  559,  567,  682 

Washington,  etc.,  Ry.  Co.  v.  Fingles,  135  Md.  574,  109  Atl.  431 590,  722 

Washington,  etc.,  R.  Co.  v.  State  (Md.),  Ill  Atl.  164 678,  679,  688 

Wasser  v.  Northampton  County,  249  Pa.  St.  25,  94  Atl.  444 305,  696,  697 

701,  702,  715 

Wasson  v.  City  of  Greenville  (Miss.),  86  So.  450 78,  97,  101 

Waters  v.  Chicago,  etc.,  R.  Co.  (Iowa),  178  N.  W.  534 560,  575 

Watkins  v.  Brown,  14  Ga.  App.  99,  80  S.  E.  212 629 

Watkins  v.  Clark,  103  Kans.  629,  176  Pac.  131 660 

Watkins  v.  Curry,  103  Ark.  414,  147  S.  W.  43 853,  889 

Watley  v.  Nesbit  (Ala.),  85  So.  550 261,  391 

Watson  V.  Atlanta,  136  Ga.  370,  71  S.  E.  664 664 

Watson  V.  Herman,  118  Miss.  264,  79  So.  92 848 

Watson  V.  State,  3  Ind.  123 728 

Waters  v.  Davis  (Mass.),  129  N.  E.  443 258,  259,  269,  413 

Watta  V.  Montgomery  Traction  Co.,  175  Ala.  102.  57  Ala.  471 71,  246,  247 

297,   298,  600 

Watts  V.  Ry.,  34  Pa.  Co.  Ct.  Rep.  373 598,  601 

Watts  V.  Stroudsburg  Passenger  Ry.  Co..  34  Pa.  Oo.  Ct.  Rep.  377 41 

Wayde  v.  Lady  Carr,  2  Dowl.  &  R.  255 270,  351,  377,  399 

Weary  v.  Winton  Motor  Car  Co.,  198  111.  App.  379 934 

Weaver  v.  Carter,  28  Cal.  App.  241,  152  Pac.  323 232,  289,  300 

304,  492,  494,  501 

Webb  V.  Moore,  136  Ky.  708,  125  S.  W.  152 371,  530,  531 

Webber  v.  Billings,  184  Mich.  119,  150  N.  W.  332 680 

Weber  v.  Beeson,  197  Mich.  607,  164  N.  W.  255 262,  304,  320,  351 

497,  506,  508,  509,  516 

Weber  v.  Greenbaum  (Pa.),  113  Atl.  413 262,  394 

Weber  v.  Swallow,  136  Wis.  46,  116  N.  W.  844 509 

Weber  v.  Thompson-Belden  &  Co.  (Neb.) .  181  N.  W.  649 672 

Weber  Implement  &  Automobile  Co.  v.  Pearson  (Ark.),  200  S.  W.  273 875 

877,  878 

Weber  Motor  Car  Co.  v.  Roberts  (Mo.  App.) ,  219  S.  W.  994 869 

Webster  v.  Motor  Parcel  Delivering  Co.   (Cal.  App.),  183  Pac.  220 452,  487 

Webster  v.  Perry,  (1914)  K.  B.  (Eng.)  51 18 

Week  V.  Reno  Traction  Co.,  38  Nev.  285,  149  Pac.  65 249.  372 


Table  of  Cases.  1265 

Section 

Weeks  v.  Heurich,  40  App.  D.  C.  46 197 

Wegmann  v.  City  of  New  York,  195  N.  Y.  App.  Div.  540 699 

Wehe  V.  Atchison,  etc.,  Ry.  Co.,  97  Kan».  794,  156  Pac.  742,  L.  R.  A.  1916 

E  455   550,  .551,  557,  559,  567 

Weidner  v.  Otter,  171  Ky.  167,  188  S.  W.  335 49,  276,  277,  305,  326,  329 

332,  414,  435,  438,  443,  448,  453,  454,  459,  462 

Weidlich  v.  New  York,  etc.,  R.  Co.,  93  Conn.  438,  106  Atl.  323.  .679,  688,  689,  692 

Weihe  v.  Rathjen  Mercantile  Co.,  34  Cal.  App.  302,  167  Pac.  287.  .269,  278,  414 

435,  453,  454,  487 

WeU  V.  Detroit  United  Ry.,  186  Mich.  614,  152  N.  W.  959 591 

Weil  V.  Hagan,  161  Ky.  292,  170  S.  W.  618 355 

Weil  V.  Hagan,  166  Ky.  750,  179  S.  W.  835 675 

Weil  V.  Kreutzer,  134  Ky.  563,  121  S.  W.  471,  24  L.  R.  A.  (N.  S.)  557.  .38,  421 

Weimer  v.  Rosen,  100  Ohio,  361,  126  N.  E.  307 297,  321,  324,  444 

Weiner  v.  Mairs,  234  Mass.  156,  125  N.  E.  149 658,  660 

Weirich  v.  State,  140  Wis.  98,  121  N.  W.  652,  22  L.  R.  A.   (N.  S.)   1221, 

17  Ann.  Cas.  802 23 

Weiskpof  V.  Ritter,  29  Ky.  Law  Rep.  1268,  97  S.  W.  1120 549 

Weiss  V.  Sodemann  Heat  &  Power  Co.  (Mo.  App.),  227  S.  W.  837.  .438,  448,  485 

Welch  V.  Lawrence,  2  Chitty  (Eng.)  262 339 

Welcome  v.  State  of  New  York,  105  Misc.  (N.  Y.)   115,  175  N.  Y.  Suppl. 

314 704 

Wellington  v.  Reynolds,  177  Ind.  549,  97  N.  E.  155 414,  423,  476 

Wells  V.  Shepard,  135  Ark.  466,  205  S.  W.  806 439,  471,  476 

Wells  V.  Walker  (Wash.),  186  Pac.  857 872 

Wella  Fargo  &  Co.  v.  Keeler  (Tex.  Civ.  App.),  173  S.  W.  926 544 

Welton  V.  Tanebome  (K.  B.  Div.),  99  Law  T.  R.  (N.  S.)  668 739 

Wennell  v.  Dowson,  88  Conn.  710,  92  Atl.  663 641 

Wentworth  v.  Butler,  134  Minn.  382,  159  N.  W.  828 359 

Wentworth  v.  Waterbury,  90  Vt.  60,  96  Atl.  334 172,  308,  327 

679,  682,  688,  692,  715 

Wentzell  v.  Boston  Elev.  Ry.  Co.,  230  Mass.  275,  119  N.  E.  652 125,  610 

Wescoat  v.  Decker,  85  N.  J.  L.  716,  90  Atl.  290 420,  421,  486 

Wesler  v.  Chicago,  etc.,  R.  Co.,  143  Minn.  159,  173  N.  W.  563 569 

Wessels  v.  Stevens  County  (Wash.),  188  Pac.  490 696,  701 

West  V.  City  of  Asbury  Park,  89  N.  J.  Law.  402,  99  Atl.  190 57,  71,  74,  76 

135,  137,  138,  155,  164,  168 

West  V.  Kern,  88  Oreg.  247,  171  Pac.  413 673 

West  V.  Marion  County,  95  Oreg.  529,  188  Pac.  184 701,  712 

Westbrook,  ex  parte,  250  Fed.  636 82,  86 

West  Constr.  Co.  v.  White,  130  Tenn.  520,  172  S.  W.  310 307,  324.  715 

Western  Indemnity  Co.  v.  Berry  (Tex.  Civ.  App.),  200  S.  W.  245 155 

Western  Indemnity  Co.  v.  Murray  (Tex.  Civ.  App.),  208  S.  W.  696 158 

Western  Indemnity  Co.  v.  Wasco  Land  &  Stock  Co.   (Cal.  App.),  197  Pac 

390 344.  347 

Western  Investment  &  Land  Co.  v.  First  Nat.  Bank,  23  Colo.  App.  143,  128 

Pac.  476 848,  850 

Western  Lumber  Exch.  v.  Johnson  (Wash.),  188  Pac.  388 889 

Western  Union  Tcleg.  Co.  v.  Hopkins,  160  Cal.  116,  116  Pac.  567 58 

Westervelt  v.  Schwabacher  (Wash.) ,  176  Pac.  545 462 

80 


1266  Table  of  Cases. 

Skction 

WestfaJls,  etc.,  Express  Co.  v.  City  of  Chicago,  280  111.  318,  117  N.  E.  439. .  62 

76,  109,  110 

West  Helena  Consol.  Co.  v.  McGray,  256  Fed.  753 587 

West  Point  Motor  Car  Co.  v.  McGliee  (Miss.),  84  So.  690 875 

Westminster  Inv.  Co.  v.  MeCurtain,  39  Utah,  544,  118  Pac.  564 875 

Weston  V.  District  of  Columbia,  23  App.  D.  C.  367 199 

Weston  V.  Grand  Eapids  R.  Co.,  180  Mich.  373,  147  N.  W.  630 594,  603 

Westover  v.  Grand  Rapids  R.  Co.,  180  Mich.  373,  147  N.  W.  630 297,  307 

311,  320,  326 
Wettengil  v.  United  States  Lloyds,  157  Wis.  433,  147  N.  W.  360,  Ann.  Cas. 

1915  A  626 817 

Wetzler  v.  Gould  (Me.),  110  Atl.  686 475 

Weygandt  v.  Bartle,  88  Greg.  310,  171  Pac.  587 305,  317,  326 

414,  441,  443,  453 

W.  F.  Jahn  &  Co.  v.  Paynter,  99  Wash.  614,  170  Pac.  132 261,  393,  394 

Whalen  v.  Sheekan  (Mass.),  129  N.  E.  379 278,  645,  646 

Whaley  v.  Ostendorff,  90  S.  Car.  281,  73  S.  E.  186.  .297,  300,  304,  321,  415,  444 

Wheaton  v.  Cadillac  Automobile  Co.,  143  Mich.  21,  106  N.  W.  399 787,  796 

Wheeler  v.  Flatonia  (Tex.  Civ.  App.),  155  S.  W.  951 698 

Wheeler  v.  Wall,  157  Mo.  App.  38,  137  S.  W.  63 377,  403 

Whetstone  v.  Jensen,  96  Greg.  576,  189  Pac.  983 413 

WMdden  v.  Davidson  (Miss.),  83  So.  178 889 

Whimster  v.  Holmes  (Mo.  App.),  190  S.  W.  62 628,  632,  633,  640 

654,*  671,  673,  67f 
White  V.  East  Side  MiU  &  Lumber  Co.,  84  Oreg.  224,  161  Pac.  969,  164  Pac. 

736 259,  332,  422,  434,  458,  454,  483,  910,  917 

White  V.  Hegler,  29  D.  L.  R.  480,  34  W.  L.  R.  1061 283,  414,  438,  456,  484 

White  V.  Home  Mut.  Ins.  Co.  (Iowa),  179  N.  W.  315 191,  194,  806,  809,  810 

White  V.  Levi  &  Co.,  137  Ga.  269,  73  S.  E.  376 639 

White  v.  Lokey,  7  Boyce's  (30  Del.)  598,  110  Atl.  560 192 

White  v.  Metropolitan  St.  Ry.  Co.,  195  Mo.  App.  310.  19]  S.  W.  1122 48,  49 

415,  457 

White  v.  Portland  Gas  &  Coke  Co.,  84  Oreg.  643,  165  Pac.  1005 679 

688,  690,  716 

White  v.  Rukes,  56  Okla.  476,  155  Pa«.  1184 49,  276,  278,  489 

White  V.  State,  82  Tex.  Cr.  274,  198  S.  W.  964,  198  S.  W.  964 82,  730,  741 

754,  893,  932 

White  V.  Texas  Motorcar  &  Supply  Co.  (Tex.  Civ.  App.),  203  S.  W.  441.  .878,  879 

White  V.  Turner  (Wash.),  195  Pac.  240 79,  97,  231 

White  Automobile  Co.  v.  Dorsey,  119  Md.  251,  86  Atl.  617 857,  865,  866 

870,  871,  872,  9.36 

Whitelaw  v.  McGillard,  179  Cal.  349,  176  Pac.  679 262.  497,  516 

White  Oak  Coal  Co.  v.  Rivoux,  88  Ohio,  18,  102  N.  E.  302,  45  L.  R.  A. 

(N.  S.)   1091,  Ann.  Cas.  1914  C  1082 623,  628,  673,  677 

White  Swan  Laundry  Co.  v.  Wehrhan,  202  Ala.  87,  79  So.  479 277 

278,  .3.59,  414 

Whitingham,  Town  of,  v.  Bowen,  22  Vt.  317 

Whitman  v.  Colin,  196  Mich.  540,  162  N.  W.  950 25 

Whitner  v.  Southern  R.  Co.,  101  S.  Car.  441,  85  S.  E.  1064 583 

Whitney  v.  Briggs,  92  Misc.  (N.  Y.)  424,  156  N.  Y.  Suppl.  1107. .  .785,  797,  886 


Table  of  Cases.  1-67 

Section 

Whitney  v.  Carr  (N.  H.),  106  Atl.  ^.7 516 

Whitney  v.  Northwestern  Pac.  R.  Co.,  .iit  C'al.  App.  139,  178  Pac.  326 568 

Whitney  v.  Sioux  City,  172  Iowa.  330.  1.34  N.  W.  497 925 

Whitten  v.  Burtwell,  47  O.  L.  R.  210 283 

Whittenberg  v.  Hyatt's  Supply  Co.  (Mo.  App.),  219  S.  W.  686 484 

Wliitwell  V.  Wolf,  127  Minn.  529,  149  N.  W.  299 283,  491 

Wiar  V.  Wabash  R.  Co.,  162  Iowa,  702,  144  X.  W.  703 277,  550 

Wickham  v.  Traders '  State  Bank,  96  Kans.  350,  150  Pac.  51:: 45 

Wickstrum.  In  re,  92  Neb.  523,  138  N.  W.  733 220 

Wiedeman  v.  St.  Louis  Taxicab  Co.,  182  Mo.  App.  523,  165  S.  W.  1105.  ...  359 

628.  673 

Weir  V.  American  Locomotive  Co.,  215  Mass.  303.  102  N.  F..  m 792 

Wichita  Falls,  etc.,  R.  Co.  v.  Groves  (Okla.).  196  Pac.  677 575.  577 

Wigginton's  Adm'r  v.  Pickert,  186  Ky.  650,  217  S.  W.  933. .  .294,  622,  903.  929 

Wild  V.  Deig,  43  Ind.  455,  13  Am.  Rep.  399 23 

Wilde  V.  Pearson,  140  Minn.  394,  168  N.  W.  582 657.  658 

Wilder,  Matter  of,  221  Fed.  476 9>  45,  132 

Wiley  V.  Cole  (Cal.  App.),  199  Pac.  550 412 

Wiley  V.  Young,  178  Cal.  681,  174  Pac.  316 254,  496,  515,  679,  688.  690 

Wilkins  v.  New  York  Transp.  Co..  52  Misc.  (N.  Y.)  167.  101  N.  Y.  Suppl. 


650. 


459 


Wilkinson  v.  Bray  (Ga.  App.).  108  S.  E.  133 297.  679 

Wilkinson  v.  Myatt-Dicks  Motor  Co.,  136  La.  977.  68  Bo.  96 177.  644 

Wilkinson  v.  Rohrer  (Cal.  App.).  190  Pac.  650 359,  399.  403 

Wilkinson  v.  Searoy,  76  Ala.  176 ■ •'^57 

Willard  v.  People,  4  Scam.  (111.)  461 36 

Williams  v.  Baldrey,  52  Okla.  126,  152  Pac.  814 357 

Williams  v.  Benson.  87  Kans.  421.  124  Pac.  531 357.  451.  458 

Williams  V.  Blue,  173  N.  C.  452.  92  S.  E.  270 655 

Williams  v.  Brennan,  213  Mass.  28,  99  N.  E.  516 338 

Williams  v.  Holbrook,  216  Mass.  239,  103  N.  E.  633 338 

Williams  v.  Holland,  6  Car.  &  P.  23 351 

Williams  v.  lola  Elec.  R.  Co.,  102  Kans.  268,  170  Pac.  397. .  .  .591.  593,  604.  617 

Williams  v.  Kansas  City  (Mo.  App.),  177  S.  W.  783 277,  359 

Williams  v.  Larson,  140  Minn.  468,  168  N.  W.  348 516 

Williams  v.  Lombard,  87  Oreg.  245.  170  Pac.  316 484 

Willijuns  V.  Ludwig  Floral  Co.,  252  Pa.  140,  97  Atl.  206 673 

Williams  v.  May,  173  N.  Car.  78,  91  S.  E.  604 657 

Williams  v.  Nelson,  228  Mass.  191,  117  N.  E.  1S9 S29.  837 

Williams  v.  Raper,  139  Ga.  811,  78  S.  E.  253 38 

Williams  v.  State  (Ga.  App.),  107  S.  E.  620 943 

WiUiams  v.  Withington,  88  Kans.  809.  129  Pac.  114S 679,  685,  688.  690 

Williamson  v.  National  Cash  Register  Co.,  157  Ky.  836.  164  S.  W.  112 207 

Willo  V.  Luozka,  193  N.  Y.  App.  Div.  826,  184  N.  Y.  Suppl.  751 344 

Wills  V.  Citv  of  Ft.  Smith.  121  Ark.  606,  182  S.  \V.  275 135.  137 

138,  139,  144,  155 

Willis  V.  Harby,  150  N.  Y.  App.  Div.  94,  144  N.  Y.  Suppl.  154 453 

Willis  V.  Schertz   (Iowa).  175  N.  W.  321 412,  679,  688,  689 

Willys-Overland  Co.  v.  Evans  (Kans.),  180  Pac.  235 877,  878 

Willvs-Overland  Co.  of  Cal.  v.  Chapman  (Tex.  Civ.  App.),  206  S.  W.  978.  .  883 


1268  Table  of  Cases. 

Section 

Wilmes  v.  Foumier,  111  N.  Y.  Misc.  9,  180  N.  Y.  Suppl.  860 678 

Wilmot  V.  Southwell,  25  L.  T.  22 23,  339 

Wilson  T.  Central  Railroad  of  N.  J.,  88  N.  J.  Law,  342,  96  Atl.  79 567 

Wilson  V.  Johnson,  195  Mich.  94,  161  N.  W.  924 305,  443 

Wilson  V.  Polk,  175  N.  Car.  490,  95  S.  E.  849 656.  657,  658,  673 

Wilson  V.  Puget  Sound  Elec.  Ry.,  52  Wash.  522,  101  Pac.  50 179 

Wilson  V.  State  (Tenn.),  224  S.  W.  168 60,  94,  96,  106 

Wilson  V.  Wyckoff,  Church  &  Partridge,  133  N.  Y.  App.  Div.  92,  117  N.  Y. 

Suppl.  783   206 

Wiltsoe  V.  Arnold,  15  Com.  L.  R.   (Canada)  915,  2'7  W.  L.  R.  259,  6  W.  W. 

R.  4 626 

Wimpfheimer  v.  Demarent  &  Co.,  78  Misc.   (N.  Y.)   171,  137  N.  Y.  Suppl. 

908 202,  212 

Winch  V.  Johnson,  92  N.  J.  Law,  219,  104  Atl.  81 259,  270 

Wincheski  v.  Morris,  179  N.  Y.  App.  Div.  600,  166  N.  Y.  Suppl.  873 228 

Winckowski  v.  Dodge,  183  Mich.  303,  149  N.  W.  1061 277,  278,  458 

Winder  v.  Caldwell,  55  U.  S.  (14  How.)  434,  14  L.  Ed.  487 86 

Windham  v.  Newton,  200  Ala.  258,  76  So.  24 128,  655,  671 

Windsor,  City  of,  v.  Bast  (Mo.  App.),  199  S.  W.  722 23,  71,  75,  77 

78,  230,  322,  730 

Wine  V.  Jones,  183  Iowa.  1166,  1G2  N.  W.  196,  168  N.  W.  318. . .  .330,  414.  448 

453,  454,  456,  459,  462 

Winfrey  v.  Lazaras,  148  Mo.  App.  388,  128  S.  W.  286 628,  630,  634 

Wing  V.  Eglinton,  92  Conn.  336,  102  Atl.  655 371,  378 

Wing  V.  London  General  Omnibus  Company,  Limited,   (1909)   2KB.  652 

(Eng.),  101  Law  T.  R.  (N.  S.)  411 338 

Wingert  v.  Clark  (Md.),  110  Atl.  857 305 

Wingert  v.  Cohill  (Md.),  110  Atl.  857 257,  264,  413 

Wingert  v.  Philadelphia,  etc.,  Ry.  Co.,  262  Pa.  21,  104  Atl.  859 558,  568,  580 

Winkler  v.  United  Rys.  Co.  of  St.  Louis  (Mo.  App.),  229  S.  W.  229. . .  .617,  619 

Winn  V.  Haliday,  109  Miss.  691,  69  So.  685 657,  659 

Winner  v.  Linton,  120  Md.  276,  87  Atl.  674 277,  278 

Winegrad  v.  Olson,  207  111.  App.  343 193 

Winona,  City  of,  v.  Botset,  169  Fed.  321 695 

Winslow  V.  New  England  Co-op.  Soc.  225  Mass.  576,  114  N.  E.  748 253 

292,  495,  628 

Winston's  Adm'x  v.  City  of  Henderson,  179  Ky.  220,  200  S.  W.  330 5,  294 

679,  682,  688,  691,  693 

Winter  v.  British  Columbia  Elec.  R.  W.  Co.,  13  W.  L.  R.  (Canada)  352 587 

Winter  v.  Van  Blarcom,  258  Mo.  418,  167  S.  W.  498 283,  329,  416,  419,  448 

Winterbottom  v.  Wright,  10  M.  &  W.  (Eng.)  109 800 

Winton  Co.  v.  Weister,  133  Md.  318,  105  Atl.  301 875,  885 

Wirth  V.  Bums  Bros.,  229  N.  Y.  148,  128  N.  E.  Ill 82,  263,  440 

Wirth  V.  Fawkes,  109  Minn.  254,  123  N.  W.  661 870 

Wise  V.  Chicago,  183  111.  App.  215 197 

Wise  V.  Schneider  (Ala.),  88  So.  662 294 

Wiswell  V.  Doyle,  160  Mass.  42,  35  N.  E.  107,  39  Am.  St.  Rep.  451 480 

Withey  v.  Fowler,  164  Iowa,  377,  145  N.  W.  923 362,  408 

Witmer  v.  Bessemer,  etc.,  R.  Co.,  241  Pa.  St.  112,  88  Atl.  314 568,  577 

Witte  V.  Mitchell-Lewis  Motor  Co.,  244  Pa.  172,  90  Atl.  528 632 


Table  of  Cases.  1'^69 

Section 

Witzler  v.  Gould  (Me.),  HO  Atl.  686 '^23 

Wodley  v.  Dooly,  138  Ga.  275,  75  S.  E.  153 277 

Wolcott  V.  Renault  SelUng  Branch,  175  N.   Y.   App.   Div.   858,   162  N.   Y. 

Suppl.   496    226,  289,448,  449 

Wolcott  V.  Renault  Selling  Branch,  223  N.  Y.  288,  119  N.  E.  556 329 

349,  449,  452,  487 

Woloott  V.  Whitcomb,  40  Vt.  40 25 

Wolf  V.  Schmidt  &  Sons  Brewing  Co.,  236  Pa.  St.  240,  84  Atl.  778 488 

Wolf  V.  Sulik,  93  Conn.  431,  106  Atl.  443,  4  A.  L  R.  356 626,  642,  646,  661 

Wolf  V.  Sweeney  (Pa.),  112  Atl.  869 172,  325,  687 

Wolfe  V  Ives,  83  Conn.  174,  76  Atl.  526,  19  Ann.  Caa.  752 322,  355 

459,  921,  923 

Wolff  V.  Hartford  F.  Ins.  Co.  (Mo.  App.),  223  S.  W.  810 820,  911 

Wolford  V.  City  of  Grinnell,  179  Iowa,  689,  161  N.  W.  686 126,  696,  698 

699,  710,  711,  712 

Wolfschlager  v.  Applebaum   (Mich.),  182  N.  W.  47 193 

WoUaston  v.  Stiltz  (Del.),  114  Atl.  198 297,  300,  414,  416,  628 

Wolleston  v.  Park,  47  Pa.  Super.  Ct.  90 380 

Woodard  v.  Bush  (Mo.),  220  S.  W.  839 567 

Wood  V.  Indianapolis  Abattoir  Co.,  178  Ky.  188,  198  S.  W.  732. . .  .599,  600,  603 

Wood  V.  Luscomb,  23  Wis.  287 351 

Woodcock  V.  Sartie,  84  Misc.  (N.  Y.)  488,  146  N.  Y.  Suppl.  540. . .  .192,  645,  646 

Woodhead  v.  Wilkinson  (Cal.),  185  Pac.  851 330,  448 

Wooding  V.  Thorn,  148  N.  Y.  App.  Div.  21,  132  N.  Y.  Suppl.  50 639 

Woods  V.  Bowman,  200  111.  App.  612 192,  644,  645,  646 

Woods  V.  Clements  113  Miss.  720,  74  So.  422 36,  38,  657,  660 

Woods  V.  Clements,  114  Miss.  301,  75  So.  119 656,  657 

Woods  V.  Nichols,  92  Kans.  258,  140  Pac.  862 858,  859 

Woods  V.  North  Carolina  Public  Service  Co.,  174  N.  Car.  697,  94  S.  E.  459, 

1  A.  L.  R.  942 427,  428,  463 

Woods  V.  State,  15  Ala.  App.  251,  73  So.  129 775,  776 

Wood  Transfer  Co.  v.  Shelton,  180  Ind.  273,  101  N.  E.  718 298,  302,  351 

Woodward  v.  New  York  Railways,  164  N.  Y.  App.  Div.  658,   149   N.   Y. 

Suppl.  1003   459 

Woodward  v.  Pierce  Co.,  147  111.  App.  339 209 

Wood  v.  Louisville  Ry.  Co.,  153  Ky.  14,  154  S.  W.  384 615 

Woolridge  v.  Lavoie  (N.  H.),  104  Atl.  346 847 

Wooley  V.  Doby,  19  Ga.  App.  797,  92  S  E.  295 630 

Worcester  Morris  Plan  Co.  v.  Mader  (Mass.),  128  N.  E.  777 883,  885 

Work  V.  Philadelphia  Supply  Co.  (N.  J.),  112  Atl.  185 430 

Worthington,  ex  parte,  21  Cal.  App.  497,  132  Pac.  82 741,  753 

Wortman  v.  Trott,  202  111.  App.  528 49,  247,  259,  414.  433,  435 

Wright,  ex  parte,  82  Tex.  Cr.  247,  199  S.  W.  486 67,  730 

Wright  V.  Concord,  etc.,  Ry.  Co.  (Mass.) ,  126  N.  E.  666 619 

Wright  V.  Crane.  142  Mich.  508,  106  N.  W.  71,  12  Dct.  Leg.  N.  794 329 

344,  924,  927 

Wright  V.  Fleischman,  41  Misc.  (N.  Y.)  533,  85  N.  Y.  Suppl.  62 249 

250,  373,     374 

Wright  V  Intermountain  Motorcar  Co.,  53  Utah,  176,  177  Pac.  237 628 

631,  642.     648 


1270  Table  of  Cases. 

Section 

Wright  V.  Lindsay,  92  Vt.  335,  104  Atl.  148 882 

Wright  V.  Lyons,  224  Mass.  167,  112  N.  E.  870 193,  197 

Wright  V.  MitcheU,  252  Pa.  325,  97  Atl.  478 252.  270,  271,  51o'  514 

Wright  V.  Young,  160  Ky.  636,  179  S.  W.  25 311'  388 

W.  S.  Conrad  Go.  v.  St.  Paul  City  By.  Co.,  130  Minn.  128,  153  N.  W.  256. .'  720 

Wyker  v.  Texas  Co.,  201  Ala.  585,  79  So.  7 413,  822 

Wynn  v.  Allard,  5  Watts  &  S.  524 .'  351 

Wynne  v.  Dalby,  16  Com.  Law  Rep.   710,   affirming  Wynne  v.   Dalby,   13 

Com.  Law  Eep.  569,  29  Ont.  Law  Eep.  62,  4  Ont.  W.  N.  1330 .  .21,  626 

Wynne  v.  Wagoner  Undertaking  Co.   (Mo.),  204  S.  W.  15 484 

X 

Xenodochius  v.  Fifth  Ave.  Coach  Co.,  129  N.  Y.  App.  Div.  26.  113  N.  Y. 

Suppl.  135 422^  483 

Y 

Yahnke  v.  Lange,  168  Wis.  512,  170  N.  W.  722 286,  287,  298,  302 

348,  368,  398,  406 

Yanase  v.  Seattle  Taxicab  &  Transfer  Co.,  91  Wash.  415,  157  Pac.  1076 423 

462,  471,  475 

Yarbrough  v.  Carter,  179  Ala.  356,  60  So.  833 359 

Yawitz  Dying  &  Cleaning  Co.  v.  Erlenback  (Mo.  App.),  221  S.  W.  411.  .281,  720 

Yazos,  etc.,  R.  Co.  v.  WiUiams,  114  Miss.  238,  74  So.  835 554,  557,  579,'  580 

Yeager  v.  Gately  &  Fitzgerald,  Inc.,  262  Pa.  466,  106  Atl.  76 419,'  480 

Yeager  v.  Winston  Motor  Carriage  Co.,  53  Pa.  Super.  Ct.  202 116.  126,  216 

Yellow  Cab  Co.  v.  Cook's  Taxicab  Co.,  142  Minn.  120.  171  X.  W.  269 803 

Yellow  Cab  Co.  v.  John  G.  Carlsen,  211  111.  App.  299 376.  398 

Yellow  Taxicab  Co.  v.  Gaynor,  82  Misc.  (N.  Y.)  94,  143  N.  Y.  Suppl.  279, 

affirmed  on  opinion  Ijelow  1.59  N.  Y.  App.  Div.  893 135,  137.  145 

152,  160,  163,  166,  167 

Yeoman  v.  Muskegon  Tract.  &  L.  Co.  (Mich.),  181  N.  W.  1021 617 

Yetter  v.  Cedar  Rapids,  etc.,  Ry  Co.,  182  Iowa,  1241,  166  N.  W.  592 599 

Yingst  V.  Lebanon  &  A.  St.  R.  R.  Co.,  167  Pa.  St.  438,  31  Atl.  687 925 

Yohachi  v.  Bundy,  24  Cal.  App.  675,  142  Pac.  109 921 

Younkin  v.  Yetter  (Iowa),  181  N.  W.  793 549 

Young  V.  Avery  Co.,  141  Minji.  483,  170  N.  W.  693 413 

Young  V.  Bacon  (Mo.  App.),  183  S.  W.  1079 49,  281.  329 

414,  429,  448,  474,  919 
Young  V.  Campbell,  20  Ariz.  71,  177  Pac.  19,  appeal  dismissed  on  re-hear- 
ing, 181  Pac.  171 311^  503,  509 

Young  V.  Dunlap,  195  Mo.  App.  119,  190  S.  W.  1041 71,  74,  238 

311,  317,  896,  915 
Young  V.  Herrmann,  119  N.  Y.  App.  Div.  445,  104  N.  Y.  Suppl    7^    192 

N.  Y.  554 '349^  4^9 

Young  V.  Phillips,  202  Mich.  480,  168  N.  W.  549 883,  886'  887 

Young  V.  Township  of  Brace,  24  O.  L.  R.  (Canada)  546 '.  .    .  .'  707 

Young  V.  Wilson,  99  Wash.  159,  168  Pac.  1137 ][[  I5I 

Younguist  v.  L.  J.  Droese  Co.,  167  Wis.  458,  167  N.  W.  736 171,  62s,  632 

Yttregarl  v.  Young,  77  Wash.  523,  137  Pac.  1043 519 

Yuill  V.  Berrj-man,  94  Wash.  458,  162  Pac.  513 .261,  393 


Table  of  Cases.  1271 

Z  Section 

Zackary  v.  Morris,  78  Fla.  316,  82  So.  830 

Zackivok  v.  Hanover  Films  Co.  (Mo.  App.),  225  S.  W.  135 806,  815 

Zageir  v.  Southern  Express  Co.,  171  N.  Car.  692,  89  S.  E.  43 226 

Zalotuchin  v.  Metropolitan  St.  By.  Co.,  127  Mo.  App.  577,  106  S.  W.  548...  172 

679,  686 

Zamiar  v.  People's  Gas,  Light  &  Coke  Co.,  204  111.  App.  290 677 

Zarzana  v.  Neve  Drug  Co.,  180  Cal.  32,  179  Pac.  203 305 

Zechiel  v.  Los  Angeles  Gas  &  Elec.  Corp.  (Cal.) ,  192  Pac.  720 330 

Zeeb  V.  Bahnmaier,  103  Kans.  599,  176  Pae.  326,  2  A.  L.  R.  883 36,  629,  656 

Zegeer  v.  Barrett  Mfg.  Co.,  226  Mass.  146,  115  N.  E.  291 702 

Ziegler  v.  United  Bys.  Co.  of  St.  Louis  (Mo.  App.),  220  S.  W.  1016 617 

685,  688 

Zeis  V.  United  Bys.  Co.  (Mo.  App.),  217  S.  W.  324 593,  614 

Zelezny  v.  Birk  Bros.  Brew.  Co.,  211  111.  App.  282 520 

Zellmer  v.  McTaigue,  179  Iowa,  534,  153  N.  W.  77 253,  382,  529,  910 

Zenner  v.  Great  Northern  By.  Co.,  135  Minn.  37,  159  N.  W.  1087 679,  688 

Ziehm  v.  Vale,  98  Ohio,  306,  120  N.  E.  702,  1  A.  L.  B.  1381 420 

Zinunerman  v.  Mednikoff,  165  Minn.  333,  162  N.  W.  .349 301,  327,  352 

425,  453,  454,  475 

Zink  V.  State  to  Use  of  Renstrom,  132  Md.  670,  104  Atl.  264 663 

Zolpher  v.  Cainden  &  S.  R.  Co.,  69  N.  J.  Law,  417,  55  Atl.  249 928 

Zoltovski  V.  Gzella,  159  Mich.  620,  124  N.  W.  527,  26  L.  H.  A.  (N.  S.)  435. .  297 

345,  479,  925 

Zom  V.  City  of  New  York,  85  Misc.  (N.  Y.)  45,  147  N.  Y.  Suppl.  70 697 

Zom  V.  Pendleton,  163  N.  Y.  App.  Div.  33,  148  N.  Y.  Suppl.  370 646,  677 

Zuccone  v.  Main  Fish  Co.  (Wash.),  177  Pac.  314 249,  497,  503 

Zucht  v.  Brooks  (Tex.  Civ.  App.),  216  S.  W.  684. . .  .172,  2.59,  267,  297,  390,  397 

Zueker  v.  Whitridge,  205  N.  Y.  50,  Ann.  Gas.  1913  D  1250 459 


INDEX 


[1273] 


INDEX 

[References  are  to  Pages.] 


A 

Abutting  owners                    .  i'age 

liability  of,   for   defective   highway 930 

Accessories 

automobile   offenses    956 

Accident 

{See  "Negligence.") 

Accident  insurance 
(See  "Insurance.") 

Action 

joinder   of   causes   of 419 

Acts  in  emergencies 

(See  also  "Emergencies.") 

collision  with  street  car 775 

passenger    remaining    in    machine 911 

Admissions 

(See  also  "Evidence.") 

chauffeur,    by    1116 

declarations    of    suffering 1117 

owner,   by    1115 

res   gestae    1117 

Ad  valorem  tax 
(See  "Taxation.") 

Advertising 

ordinance   prohibiting,   on   vehicles 79 

Age 

chauffeurs,    of    248-250 

driver,  of,  effect  on  insurance 1045 

machine,   of,   misrepresentation   as   to 1068 

Aged  persons 

injury    to 499 

Agency 

(See  also  "Chauffeur") 

admissions    by   agent 1116 

authority  of  dealer  to  bind  manufacturer 1016 

defined    1008 

purchase  of  machine  by  or  from  agents 1062 

rights  and  liabilities  of  automobile  agents 1008-1026 

statements  of  agent  as  to  warranty 1082 

termination    of    dealer's 1017 

[1275] 


1276  Index. 

Alertness  ^^°^ 

(See  also  "Lookout.") 

duty   of    ^"^^ 

Aliens 

discrimination    as    to 69,81, 163 

Ambigniity 

insurance    policy xwou 

Animals 

(See  also  "Frightening  Horses.") 

deflection    to    avoid 433 

frightening   horses    641-679 

fill 
injury    to     ^^^ 

lights  on  vehicles  drawn  by 412 

Answer 

(See   "Pleading.") 

Appliances 

garage  should  furnish  suitable,  for  servants 243 

Appraisal 

fire  insurance  loss   ^^^^ 

Approach 

signal   of    ^4^ 

warning  of    ^^' 

Appurtenance 

automobile  as  a    ^^ 

Arm 

extension  of,  out  of  window  of  jitney  as  contributory  negli- 
gence            1" 

Army 

speed  of  military  machine 374 

Arrest 

automobilist,  of,  evidence  of    1113 

night,   at    975 

speed  cases,  in    ^''1 

Art 

automobile  as  work   of 2,  28 

Assault 

automobile,    with    *87 

taxicab    passenger ^^^ 

toll   gate  keeper,  on    55 

Assignment 

lien  for  repairs 1098 

Assumption 

danger  of   defective   road,  of 935 

Auto 

defined    3 

Anto  Buses 

regulation  of 154-202 


Index. 


1277 


.      ,  PAGE 

Auto  car  ^ 

defined     .'  '  " 

Automobile  bus 

,  .,  _  low 

public    automobile,   as    

Automobile  club 

issuance  of  blank  licenses  to   

Automobiles 

absence  of  lights,  as  a  crime 

appurtenance,    as    a. ^^^ 

assault    with     

avoidance  of  street  cars 

care  at  street  crossings 

care  in  avoiding  other  vehicles 

carriage,  as  a   ^  ^ 

^^"^^""^  ^\ ;;;■.■.■.  1099.  noi 

chattel    mortgages         .245.260 

chauffeurs   in   general    ' 

....  _  0U4 

Children   climbing   on    Ksft  7^7 

collisions  at   railroad   crossing 4^7 Ai' 

collisions   with    other   vehicles "487550 

collisions   with   pedestrians    " 

competency  of  driver .'.V/.V.  1*102-1105 

conditional  sale  of    

contributory    negligence    of    pedestrians 332 

^°^^^'°^    ""^  „ .V.V.V.'.V. 952-1006 

criminal    offenses     

dangerous   machine,   as   a 

4U2 

defective    

defective,   liability  of  owner ^j^^ 

defects  in  other   

defined    ; ; „         ' 

degree  of  care  required  in  operation  of rfis-^ou 

development    of     124-130 

discrimination    as    to 

distinction  between,  and  other  vehicles  at  railroad  crossings.        684 

driven    along   street   railway    track ^^^'Io4 

driving   machine    on   sidewalk • 

effect  of  violation  of  regulation. J44-iJ&& 

equal    rights    of 

exemption   laws,   under 

exemption  of,  as  a  tool  or  implement  of  trade JO 

failure  to  register  as  crime qn  100 

federal    control    over fiAi'fi'-q 

frightening    horses    01  /oil 

garages   and   garage  keepers 22o'227 

garages,   regulation  of    01 9 

guest  or  passenger  riding  in  defective »i^ 

■     f,  ^  ,  22-27 

history   of    

homicide    in    operation    of 978-98 

horse  drawn  vehicles  compared 3^-  '* 


1278  Index. 

Automobiles — (Continued).  pack 

household    effect,    as 2 

identificatiou    from    track 1121 

implement    of    trade,    as 10,  43 

njury    from    wagon 435 

injury    to    animals 613 

injury  to,  from  defects  in  highways 914-939 

njury   to   passenger   in    public 197-199 

nsurable    interest    in 1030 

insurance    of    ; 1029-1058 

ntoxication  of   diver 341 

itney,  as  a   152 

oint   ownership   of 861 

judicial    notice    of    nature   of 1108 

larcency   of    990 

law  of  the  road 275-314 

left  in  street  unattended    404-407 

liability  for  acts  of  driver 788-87G 

liability  of  garage  keeper 230-244 

liability  of  manufacturer  for  defects  in 1023 

liability  of  owner  for  negligence  of  child. 839 

license  of  public   170-180 

licensing  and   registration   of 101-148 

lien  for  injury  caused  by 1106 

lien    for   storage 1098 

liens    on    1092-1106 

lights    required     407-413 

loaned,  liability  of  owner 824 

lookout   for    travelers 393-398 

machine,    as    a 11,28,29 

manufacturers  of,  rights  and  liabilities  of 1007-1028 

measure  of  damages  for  injury  to 940-951 

meeting    other    travelers 282-285 

motorcycle  of  same  character  as. 13 

nature    and    status    of 28-43 

negligence  in  moving,  under  direction  of  traffice  ofhcer 335 

negligence   in   operation   of 318-426 

negligence    in    stopping 387 

not   inherently   dangerous 791 

not  more  dangerous  than  horse  and  cari-iage 32 

nuisance,    not    a 29 

opinion  as  to  distance  of  stopping 1122 

opinion   as   to  noise 1121 

opinion   of  value  of    1118 

outlaw,    not    an 30 

personal    property,    as 29 

photographs 1111 

pleasure  carriage,   as   a 9 

pledge  of    1101 

power  of  municipalities  to  regulate 73-89 


Index.  1279 

Automobiles—  ( Continued ) .  p^^^ 

presumption  of  ownership  of gg4 

priority  at   intersecting  streets 459 

private    hire    of     203-213 

private  use   by   chauffeur g06 

public,  municipal  regulation  of 163-168 

regulations   for  indentification   of 266 

Tented,   injury   to    208 

replevin    of    09 

resriction  to  certain  streets 264 

rights    at    intersecting    streets 52   295 

rights  at  railroad  crossings '    53 

rights   of   cyclists g^o 

rights  of  horseback  travelers g^o 

rights  of   horses    g^j^ 

rights    of    pedestrians 4gg 

rights  on  ferries  and  vessels 53 

right   to   use   highways 44-59 

running   against   street   car 7g9 

s^'^s    of    .'..*.'.  1060-1091 

signal  from  one  driver  to  another 303 

skidding 400 

«P^^^ ..'.355-382 

speed  regulations    261 

stage  coach,  as  a c 

stalled  on  railroad  crossing 723 

stalled  on  street  car  track Y^o 

standing   in   street 530 

standing  near  street    railway   track 759 

status  of  passengers  in   877-913 

statutory    regulation    of 60-72 

stopping  of    3g4 

stopping,  to  avoid  frightening  horses 658-665 

street   car,    collision    with 739-778 

street   intersections,    speed    og^ 

subject    to    shattel    mortgage     1099 


taxation   of 


271 


tendency    to    frighten    horses 4j 

toll  roads, 
tool,  as  a 


toll  roads,  use  of   54 


,      .         , 10,  43 

towing   disabled    4J4 

traction   engine,    as    •»■, 

turning  or   backing   in   street    300 

turning  or  backing  on  street  railway  track 770 

unreasonable  speed  prohibited    357 

use  of  highways  by    2k 

use  of,   without  owner's  consent    g04 

vehicle,  as  a *  » 

wagon,   as   an    o 

warning  of  approach    3g7 


1280  Indkx. 

Antomobile&— (Continued).  ^^^^ 


washing,  as  domestic  use  of  water    

work  of  art,  as    

Antomobilism 

defined    

Automobilist 

(See  "Automobiles,"  "Chauffeur;"  "Owner;"  "Highways.") 

defined    

equal    rights   of    

right  to  use  highways 

status  of    

Auto  motor 

defined    


14 
50 
48 
38 


Auto  stages 

jitneys   contrasted    • *^^^ 


Auto  truck 
defined 


B 


Backing 

automobile    into   street    car    "^^^ 

automobile  on  street  car  track 770 

injury  to  cyclist ^^^ 

injury   to   pedestrian .  .  . ^31 


machine   in   street 


300 


Bailee 

(See  "Bailment.") 

registration   of   machine   by    134 

Bailment 

automobiles,    ot 203-213 

car  let  for  hire,  liability  of  owner 827 

garage  keeper  as   a  bailee 216 

garage  keeper  as  gratuitous  bailee   232 

liability  of  bailee  for  negligence  of  drlrer  . . ... .  • 859 

liability    of    garage   keeper    230-244 

machine  loaned,  liability  of  owner   .  .  ... •  •        824 

Barriers 

guarding   highway • 922 

Battery 

(See  "Assault.") 

Be^ar 

contributory   negligeice   of    595 

Injury  to    499 

Bells 

as  a  warning  of  approach  of  machine   393 

ringing,  on  railroad  engines 732 


Index.  1281 

Bicycles  pack 
(See  also   "Cyclists.") 

carriages    as    ^4 

discriminatory  statutes    6S 

law  of  road,  application   to    278 

nature  of    32 

not  within  motor  vehicle  laws   12 

vehicles  as 12 

Blind 

contributory    negligence    of    595 

injury   to    499 

Blowout 

negligence   based   on    402 

Bonds 

jitney    183-190 

Brakes 

collision   with  street  car    769 

defective     32,403 

engines    as     17 

failure  of    434 

Bridges 

(See  also  "Highways.") 

contributory   negligence    in    approaching 936 

defective     , 925 

drawbridge   keeper   negligent 925 

inspection   of,    before   crossing 397 

over    street    920 

public  highway,  as  a 18 

right  of  traveler  to  assume  safety  of .  .  . 933 

running  off,    insurance   against 1039 

speed  over    369 

sufficiency    of    995 

Burden  of  evidence 

(See  "Burden  of  Proof.") 

Burden  of  proof 

action   against  garage  man    240 

action  by  hirer  against  owner 207 

competency    of    driver 3 40 

contributory    negligence     468 

furnishing   identity   after   accident 1002 

homicide,    of    985 

negligence   at  railroad   crossings 687 

negligence   of   street   railway 7  46 

proceedings  on  forefeiting  vehicle  violating  law 1150 

proximate  cause  of  injury  to  pedestrian    497 

registration    of    machine    146 

Burglary 

garage,   of    991 

81 


1282  Index. 

Bystander  ''-^'■' 

opinion  of,  as  to  sped  of  machine 1124 

c 

Cable 

towing    disabled    vehicle ^1^ 

Capacity 

(See  "Seating  Capacity.") 

Car 

defined    

Carbureter 

defined    ^^ 

Care 

(See  also  "Negligence.") 

degree  of,   violation  of  law  of  road 307 

operation   of   motor   vehicles   in   general 318-426 

Carriage 

automobile    as    a 8 

automobile    as    a    pleasure 9 

bicycle    as    a 1^ 

collision    with    automobiles 428-486 

injuries    to    automobile    from 435 

lights  on    "^l^ 

motorcycle,    as .  • 1  ^ 

Carriers 

automobiles   as    ^2 

care   at   railroad   crossing    .•        690 

defined    1^2 

degree  of  care  by   330 

garage   men,   as    1^4 

injury  to   passenger    197-199 

jitney  as    1^2 

public    carriage    for   hire 149-202 

sightseeing  automobiles  as    •        154 

taxicabs    as    152 

taxicabs  as,  within  accident  Insurance 10.58 

Casualty  insurance 
(See  "Insurance.") 

Catalogue 

machine  purchased  from   l'^64 

Cattle 

driving,  along  highway 615 

Cause 

(See   "Proximate  Cause.") 

Caveat  emptor 
(See  "Sales.") 


Index.  1283 

Certainty  PAOb; 

speed    regulation,    of    961 

statutes  with  no  prescribed  limit  of  speed    969 

Chain 

breaking  of    402 

Character 

frightened    horse    111.: 

Chassis 

defined    1  fi 

Chattel  mortgages 

automobiles,    on     1099.  1100 

description   in    1090 

filing  or  recording    1101 

forfeiture  of   vehicles  violating   law 1144 

priority  of  lien  for  repairs   1095 

priority  of  lien  for  storage 1099 

recovery  of  mortgagor  for  injuries  to  machine 1101 

validity    of 1101 

Chauffeurs 

admissions  by  '.  .' 1117 

after   laundi-y,    liability    of   owner 817 

age  of    248-250 

auto  used  for  private  hire,  liability  for  acts  of 204-207 

collisions  at  railroad  crossings 680-737 

competency   of 339 

criminal   responsibility  for  acts  of 953-956 

crippled    342 

defective    eye    sight    342 

defined    24(; 

discharge  of,  after  accident,  evidence  of 1114 

divergence   from   proper   course 809 

driving  machine  for  meals,  liability  of  owner 817 

evidence  of  competency  of 1139 

evidence   of   habits   of 1139 

failui-e   to   have   license 99  5 

fellow   servants   of    836 

garage,  of,  liability  for  acts  of 2  41 

having  attacks   of   dizziness    342 

imputation  of  negligence  of.   to  guest 883 

incompetent,  liability  of  owner 853 

injury   to,   at  garage 243 

instruction   of   unlicensed    253 

intoxicated,    criminal   offense    996 

joint   ownership  of  car    861 

liability    for    act    of    salesman 797 

liability   for   acts  of    788-8  76 

liability   of   bailee   for  acts  of 859 

liability  of  corporations  for  acts  of 855 

liability  of  master  for  injury   to 267 


1284  Index. 

Chauffeurs —  ( Continued) .  paob 

liability  of  owner  for  homicide  committed  by 985 

liability   of  passenger  for  acts  of 861 

liability,  of,  to  owner    260 

liability   of,    towing   disabled   machine 242 

license    fees   of 252 

licensing     105,  180,  251-256 

loaned    to    another    employer 822,  824 

lookout  for  defects  in  highway 935 

lookout  for  pedestrians    527 

lookout   for   travelers    393-398 

machine  loaned   to   third   person 824 

matters  concerning    245-260 

municipal    856 

negligence   of,   imputed   to   owner 895 

notice   that   horses   take    fright 647 

operating  under   direction  of  owner's   family 816 

opinion  as  to  speed  of  machine   1123 

opinion  of  competency  of 344,  1121 

origin  of   term    247 

passenger   riding   with    intoxicated 908 

physical  condition  of 341 

presumption    as    to    skill    of 340 

prior   reputation   for  care 987 

public  automobile,  of,  liability  for  acts  of 199 

ratification  of  unauthorized  act  of 863 

regulation    of     248-256 

repairs  to  machine  on  authority  of 228 

right    to    compensation 256 

salesman  as    246,  251 

statements  of,   as  evidence 837 

status   of    247 

taking  passenger,  liability  of  owner   818 

teaching   operation   of  machine 835 

testing  machine,   liability  of  owner 816 

use  of  brake    403 

use  of  machine  for  private  purposes 806 

using  macliine  without  consent  of  owner 804 

Children 

chauffeurs,    age   of 250 

climbing  on  machine    504 

contributory   negligence  of    589-594 

driving   machine,    effect   on    insurance ." 1045 

driving   machines    343 

incompetent,   driving   machine    853 

Injury    to    500-506 

liability   of   owner  for 839 

running    in   front    of   machine    334 

speed   past    369 

standing    vehicle    started    by '. 406 


Index.  1285 

Church  PAGK 

garage    near    217,222 

Cities 

(See  also  "Municipal  Corporations.") 

defective    highways     914-93D 

power    to    regulate    automobiles 63 

Classification 

motor  vehicles 69 

Coach 

(See  "Stage  Coach.") 

Collision  insurance 
(See  "Insurance.") 

Collisions 

animals    613 

cyclists    608-640 

horseback    travelers    610-613 

opinion  as   to   manner   of 1121 

pedestrians     487-550 

railroad  crossings    680 

two    vehicles    428-486 

Commerce 

(See  "Interstate  Commerce.") 

Commercial  trucks 
(See  "Trucks.") 

Commiissions 

sales  in  agents  territory 1015 

Common  carrier 
(See  "Carriers.") 

Common  knowledge 

(See   "Judicial   Notice.") 

Common  law 

execessive  speed,  a  misdemeanor  at 956 

liens   at    1092 

Common  purpose 

driver   and   passenger  engaged   in 8  92 

Comparative  negligence 

collision  of  two  vehicles    468 

railroad    crossing    689 

street  railway  collision 747 

Compensation 

rented    automobile    212 

right    of    chauffeur    to 2o<> 

Competency 

chauffeur,    evidence   of    1139 

chauffeur,    of.    opinion    as    to 344. 1121 

Complaint 

(See  "Pleading.") 


1286  IxDKx. 

Compromise  page 

inteit'erence  by  insured   witii   negotiations  for 1043 

Conclusions 

witness,    of     1117 

Conditional  sales 
(See  also  "Sales.") 

automobiles     1102 

filing    1103 

forfeiture   of  vehicles   violating   law 1144 

insurance   by   vendee    1104 

levy  on  interest  of  vendee 1103 

liability  of  vendor  for  negligence  of  purchaser 859 

priority   of   lien   for   repairs 1095 

registration   of  machine   sold   under    134 

retaking  the  machine  by  vendor    1104 

right  of  vendee  to  maintain  action  for  injuries 1104 

Conductor 

street  car,   of,   contributory   negligence   of 586 

Conflict  of  laws 

automobile  accident    419 

validity  of    conditional    sale    1102 

Consideration 

warranty,   of    1072 

Constitutional  law 

abridging  power  of  municipalities    110 

advertising  on  public  vehicles    268 

bond    of    jitneys 183-190 

definiteness  of  speed  regulation    961 

discrimination   against  motorists    66 

discrimination  as  to  jitneys   158-163 

due  process  of  law    66 

enactment    of    ordinances    86,  167 

exclusion  of  automobiles  from  highways 263 

forfeiture  of  vehicles  violating  law 1141 

form   of   statues    65 

furnishing  identity  in  case  of  accident 999 

garages,   regulation   of    220-227 

liability   for   injuries    271 

liability  of  owner  of  vehicle 793 

licensing  of  chauffeurs    251-256 

liens    for    repairs     109S 

lien   on  automobiles  for   injuries 66 

negligence  of  driver  imputed  to  guest 890 

obedience  to  directions  of  traffic  officer    304 

obstruction  in  streets 266 

power  to  regulate  automobiles   60-64 

regulation  for  the  identification  of  machines 266 

regulation   of   chauffeurs    248-256 

regulation  of  hack  stands 190-192 


Index.  128 


Constitutional  law — (Continued).  i-aoe 

regulation  of  law  of  road    268 

regulation   of   public    vehicles    154-202 

regulation  of  smoke  and  odors   270 

removal  of  number,  as  a  crime 1005 

repeal   of   power   of   municipalities    76 

restriction  of  machines  to  certain  streets 26  4 

right   of   transit    29 

service  of  process  on  automobilists    .  .' 2  73 

speed    regulations     261,  957 

taxation  of  automobiles    271 

title   of   ordinance    86 

transfer  of  original  bill  of  sale  on  sale  of  machine 1066 

validity  of  ordinances    79 

Construction 

garages,    of    220-224 

Contest 

(See   "Racing.") 

Contracts 

agency    1008  et  seq. 

automobile    insurance 1029-1058 

licenses  not 102 

sales  of  automobiles 1060-1091 

Contributory  negligence 
(See  also  "Negligence.") 

absence  of  lights 475 

acts    in    emergencies    479 

acts   in   emergencies   by   pedestrians    602 

assumption    that    travelers    will    use   care 417 

automobilist  injured  by  defective  highway 932-939 

children,    of 589-594 

collisions  at  grade  crossings 680-737 

collision  of  two  vehicles    467-481 

crossing  a  railroad  without  stopping    713 

cyclists,   of 626-638 

defense  in  case  of  violation  of  law  or  road 309 

defense   to   violation   of   regulation    336 

driver  of  frightened  horses    671-675 

duty  of  pedestrians  to  look  for  machines 562 

effect  of  violation   of  regulation    .     348 

excessive    speed 476 

failure  of  chauffeur  to  have  license 254 

failure  of  pedestrian   to  see  machine    572 

failure  to  give  passing  vehicles  sufficient  space 474 

failure  to  register  machine 139-14S 

guest    or    passenger,   of 899 

horseback   travelers,   of    6  12 

imputation  of,   to  passenger  in   public  automobile 200 

imputation   to  guest  of  negligence  of  chauffeur 883 


1288  Index. 

Contributory  negligence — (Continued).  page 

in  general    416 

last  clear  chance    480 

leaving  horses  unattended 673 

lights  on  animal  drawn  vehicles    412 

looking  by  pedestrian  before  crossing  street 562 

miscalculation   of    danger   by   pedestrian.  .' 578 

passenger   in   dangerous  position 477 

pedestrian  crossing  street  in   front   of   machine 576 

pedestrian  on  sidewalk 583 

pedestrians    of     551-607 

pedestrian  stopping  in  street    587 

pedestrian  walking  along  highway    560 

persons  under  disability 595 

place   for   pedestrian   to   cross    557 

prosecution    for    homicide     987 

railroad   crossing,  burden  of  proof    687 

recklessness    of    defendant    472 

reliance  of  pedestrian  on  care  of  chauffeur 579 

reliance  on  obedience  of  law  of  road  by  other  vehicles 477 

spectator  of  race 589 

street  railway  collision,  proximate  cause 747 

street  railway  collision,  when  not  a  bar 745 

street   railway   passenger    584 

sudden    stop    474 

violation  of  law  of  road  as 472 

watching  auto  race 57 

workman  in  street    596 

Control 

injury  to  cyclist    624 

injury   to   pedestrian    532-538 

liability  for  operation  of  machine  based  on 838 

motor  vehicle,  of 382 

railroad   crossing,   at    720 

street  railway  collision    767 

Conversion 

automobile  in  garage 236 

rented   automobile,  of 209 

Comers 

(See  "Cutting  (Corners;"  "Turning  Corners.") 

injury  to  cyclist    621 

law  of   road   as   to  turning 291-295 

Corporations 

(See   also   "Municipalities.") 

liability  of,  for  act  of  driver 855 

registration    by     131 

sale  of  machine  by  or  to 1063 

Cost 

as  measure  of  damage  to  automobile 942 


Index.  1289 

Counties  face 
(See  also  "Municipalities.") 

defective  highways    914-939 

license   taxes   imposed   by    109 

power  to  regulate  automobiles   63 

County  commissioners 

power  to  regulate  vehicle 74 

Courts 

judicial   notice  of  ordinance    88 

Covenant 

forbidding  garage 217 

Crank 

defective,    as    negligence     ■  402 

Cranking 

injury  while,  accident  insurance    1058 

Crimes 

(See  "Criminal   Law.") 

Criminal  law 

accessories  to  violation  of  law 956 

accidental    killing    984 

arrests  at  night    975 

assault  with  automobile    987 

automobile    offenses    ; 95  2-1006 

burden   of   proof   of   homicide    985 

burglary   of  garage    990 

contributory  negligence  of  deceased  as  defense  to  homicide.  .  986 

death  of  passenger  as  homicide    985 

defending  speed  cases   970-978 

definiteness  of   speed   regulation    961 

definiteness  of  statute 69 

destruction  of  sign  posts    18 

driving  wagon  without  lights    276 

evidence  of  officers  in  speed  cases 975 

(See  also  "Evidence.") 

evidence  of  speed    976 

exceeding  common  traveling  pace    962 

extenuating  facts  in  defense  of  speed  violation 971 

failure  of  chauffeur  to  have  license 995 

failure   to   have  license  for   public  vehicle 179 

failure   to   register  machine 995 

failure   to  stop  on   signal    998 

former    jeopardy     966 

furnishing  identity  in  case  of  accident 999 

homicide  in  automobile  cases    978-987 

identification  of  speed  offender    967,  974 

ignorance    of    speed    limit    964 

indorsing  conviction  on  license 103 

information   for   violation   of   speed    limit    967 

injury  to  guest 879 


1290  Index. 

Criminal  law— (Continued).  i'A«E 

intention  as  to  speed  violation    963 

intoxicated    driver    ^^^ 

larceny  of  automobile    990 

liability  of  owner  for  homicide  of  chauffeur 985 

lights   on   machine    ^^^* 

negligent  driving  as  manslaughter    980 

preparing  defense   in   speed   cases    972 

prior  reputation  of  chauffeur   987 

punishment    for   speed   violation    96S 

punishment   for   violation   of   ordinance    88 

racing  on  highway   ^'^ 

racing  resulting  in   homicide    983 

reckless  driving  as  murder    978 

removal   of  number  as  a  crime    1005 

responsibility   for   act  of   chauffeur    953 

reward  for  apprehension  of  violators    1006 


signs  as  to  speed 


960 


speed  in  emergency  cases    964 

speed  on  speedway   97,  97  4 

speed    ordinances    957 

speed    regulations    956-969 

speed  violation  not  malum  in  se    962 

statutes  with  no  prescribed,  limit  of  speed 969 

unreasonable    speed    prohibited 3(0 

unusual  speed  as  basis  for  charge  of  homicide   983 

use   of  speedometer    978 

using  machine  without  consent  of  owner   992 

venue  in  speed  cases    975 

violation  of  law  of  road ^^"^ 

warning  autoists  of  speed  trap 9 do 

Cripple 

contributory    negligence    of     595 

driving    automobile     342 

injury   to    *^^ 

Cross-examination 

police  officers,  of,  in  speed  cases    975 

Crossing 

contributory   negligence    of   pedestrian    557 

in  front  of  street  car '^59 

Crossings 

collisions    at     680-737 

duty  of  pedestrians  to  look    562 

Crosswalk 

pedestrian   on    522 

Culvert 

defective     925 


Index.  1291 

Curb  I'Acn 

distance    from     281,  292,  455 

insurance  against  collision   with    1039 

slower   vehicles   at    289 

Curtains 

(See  "Side  Curtains.") 

Custom 

(See   "Law  of   Road.") 

Cutting  corners 

law  of  road  as  to 293 

negligence    in     455 

Cyclist 

acts  in  emergencies    63<i 

contributory   negligence   of    .626-638 

crossing  in  front  of  automobile    631 

last  chance  doctrine  as  to    635 

looking  for  approaching  vehicles    629 

look   out   by   automobilist    623 

negligence  of  guest  of    638 

province    of    jury    638 

proximate  cause  of  negligence  of 628 

reliance  of  observance  of  law  by  automobile 634 

rights    of    60.S 

right  to  use  highways   50 

speed   and   control   of   machine    624 

speed    of     632 

turning  or  backing  automobile  in  street   622 

violation   of  law  of  road 617.633 

warning    of    approach    of    634 

warning  of   approach    to    G2«T 

D 

Damages 

automobile,   to,  market  value    941 

breach   of  warranty 107S 

collision   insurance  policy    1040 

compensatory 420 

contract  between  dealer  and  manufacturer loll 

cost   of   repairs    944 

difference  between  value  before  and  after  injury 942 

expenses   of    preserving   car    9  46 

expenses  of  transportation  of  machine    94<i 

fraud   in  sale  of  machine    1070 

frightening   horses    677 

garage  keeper,   liability  of    230 

increased     423 

indemnity    insurance    policy    1050 

injured    persons,    to    420-42? 

injury    to    automobile     940-951 


1292  Index. 

Damages —  ( Continued) .  pack 

injury   to   pedestrian    548 

loss  of   earnings    ; 420 

mental    anguisli     421 

punitive     422 

sales  in  agent's  exclusive  territory    1015 

seller  of   machine,    by 1082 

theft  insurance  policy    1057 

usuable  value  during  repairs    946 

Danger 

automobile  as  a  dangerous  machine 29 

automobile  not  inherently  dangerous 791 

avoidance    of    dangerous    situation     334 

care  to   avoid    435 

Dangerous  agency 

automobile    as     29 

Darkness 

(See  also  "Lights.") 

as   obstruction   to   view   of   driver 361 

control  of  machine  during 384 

crossing  track   during 715 

speed   of  machine   during    360 

violation   of   law   of   road    during 310 

Dai^hter 

(See  "Children;"  "Parent  and  Child.") 

Deaf 

contributory    negligence    of    595 

injury    to • 498 

Dealers 

(See  also  "Garages.") 

license    fees    of     127 

licensing    of     1090 

registration   by    132 

rights  and  liabilities  of 1008-1026 

tax  on 1090 

Death 

(See  "Homicide.") 
registration  upon    135 

Deceit 

sale  of  machine  through   1068 

Declarations 

(See  "Admissions;"  "Evidence.") 

by  pedestrian  as  to  safety  or  crossing 579 

chauffeur,    of     • 837 

Deeds 

covenant   forbidding  garage    217 

Defending  speed  cases 

(See  "Criminal  Law;"  "Speed.") 


Index.  1293 

Definiteness  page 

statutes,    of     69 

Definitions 

agency     1008 

autocar    4 

automobile    1,2 

automobile  as  an  appurtenance    10 

automobile    as    a    carriage    7 

automobile  as  a  pleasure  carriage 9 

automobile   as  a  stage  coach 5 

automobile    as    a    vehicle    6 

automobile  as  a  wagon    y 

automobile    line    5 

automobilism     2 

automobilist    14 

automotor     5 

auto    truck     3 

car    4 

carbureter    16 

chassis    16 

chauffeur    246 

common    carrier     152 

driving     15 

engine    16 

express   warranty    1071 

frame     17 

garage     ,     215 

highways     17 

intersecting    streets    21 

jitney     151 

joy-riding    4,  5 

legislative    10 

motor     4 

motor  car  in  English  statute 11 

motorcycle     12^ 

motorcycle   as   a   carriage    13 

motoring 4 

owner    14 

pent    roads     19 

plying  for  hire    17S 

public    automobile    150 

public    highway     Ig 

race    5g 

riding    15 

roads    19 

roadway     ! 19 

streets    19 

suit 1043 

taxicab     - 151 

transmisison    gear     17 


1294  Index. 

Degree  of  care  ^'^'^'■* 

(See   "Care.   Negligence.") 
required  of   automobilist    318-330 

Delivery 

sold    automobile,   of 1*^64 

Deposit 

recovery  of.  by  agent 1013 

Depression 

highway,    in     ^^0 

Descent 

speed  while  approaching 386 

Development 

motor  carriage,  of    2' 

Discovered  peril 

(See  "Last  Clear  Chance.") 

Discrimination 

jitney   bonds    ^^'* 

license   fees  of   public   automobiles 175 

motor  vehicle  laws •' 66 

municipal    ordinances    80 

regulation   as   to   chauffeurs    252 

regulation  of   garages    222 

regulation   of   vehicles   used   for   hire 158-163 

restriction   of   machines    to   certain    streets 264 

statutes  for  licensing  and  registration 124 

Dizziness 

driver  having  attack  of 342 

Dog 

(See  also  "Animals.") 

injury  to    ^^3 

Domestic  relations 

(See  "Husband  and  Wife,"  "Parent  and  Child,"  "Master  and 
Servant.") 

Double  damages 

when    allowed    *23 

Double  taxation 

(See  "Taxation.") 

Drawbridge 

contributory    negligence    in    approaching. 936 

negligence    of    keeper    of 925 

Driver 

(See  "Chauffeur.") 

Driving 

defined    •  •  •     •  • ^5 


Index.  1295 
E 

Electric  company  page 

pole  placed  in  street  by    920 

Elevator  shaft 

ganige   employee   falling   down    243 

Embankment 

speed    while    approaching    386 

Emergencies 

acts  by  cyclists  in    636 

acts   by   pedestrians   in    602 

acts   in    471) 

acts   in,   collision    with   street   car 775 

acts  in,  passenger  remaining  in  machine 911 

conduct    of    driver    in     33:< 

crossing    railroad    track     726 

speed    in     379 

Employer 

(See  "Chauffeur;"  "Master  and  Servant.") 

Engine 

brake    as    a 17 

defined    16 

license  fee  according  to  horse  power. 69 

stopping  to  avoid  frightened   horses 662 

England 

law  of  road  in 282.286 

revocation  of  licenses  in 103 

Estimates 

(See  "Opinion") 
Evidence 

absence  of   railroad    warning 733 

absence  of  warning 390 

action  for  repairs  to  machine 228 

admissions    by   agent 1116 

admissions  by  owner 1115 

burden  of  proof: 

action  against   garage    man 240 

action  by  hirer  against  owner 207 

as    to    registration .' 146 

competency    of    driver 340 

negligence — street    railway     7  46 

proceedings  of  forfeiture  of  vehicle  for  violating  law 1150 

certificate   of   registration 147 

common  knowledge  that  automobile  will  frighten  horses.  ...  37 

compilation    of    ordinances    89 

conclusions    of    witnesses 1117 

condition  of  machine  after  accident 404 

declarations    of    suffering 1117 

effect  of  violation  of  regulation o44-355 


1050 
1109 


1296  Index. 

Evidence— (Continued).  i'age 

excessive   speed    as 374-378 

fraud  in  sale  of  machine l^"^^ 

insurance    of    party. 

judicial   notice 

law  of  road 277,  1109 

of  machine ^^^^ 

ordinances     

speed   ordinances ^^^ 

lights  on  other  machines ^^^ 

meaning   of    terms ^^ 

officers  in  speed  cases,  of ^"^^ 

■*  1 1 18 
opinions    

competency   of  driver 344,  1121 

defects    in    machine 1121 

distance  in  which  machine  can  be    stopped 1122 

distance  in  which  object  can  be  seen 1122 

identification   of  machine  from  track 1121 

manner   of  collision 1121 

noise  of   machine 1121 

safety  of  highway 916,1120 

value ^^^^ 

parts  of  machine 1110 

parol,  to  show  breach  of  warranty 1080 

photographs     1111 

defective    highway    1111 

presumption  as  to  skill  of  driver   340 

presumption  of  control  of  machine 865 

presumption  of  ownership  of  machine 864 

prior  reputation  of  chauffeur  for  care 986 

probative  force  of  violation  of  regulation  as  to  lights 410 

proof    of    ordinance 88 

relevancy 1112 

arrest  of   automobilist 1113 

care    in    selection    of    vehicle 1 1 1 5 

character  of  horse 1112 

conduct    of    accused 1112 

conviction    of    speeding 1113 

discharge   of   chauffeur    after    accident.  . 1114 

injuries  as  evidence  of  force  of  collision 1114 

mental   state  of   party 1114 

wheel  tracks   in   highway 1115 

res   gestae    1116 

res  inter   alios   ecta 1136 

care    after    accident 1138 

competency    of    driver 1139 

defects   in   other  machines 1138 

habits     1139 

negligence  on  other  occasions    1136 

res  ipsa  loquitor,   injury  in  garage 244 


Index.  1297 

Evidence —  ( Continued) .  page 

skidding  as  res  ipsa  loquitor 402 

speed  of  machine 1123 

characterization   of   speed .; 1129 

conflict  between  opinion  and  surrounding  circumstances...  1132 

English    law    1136 

estimate  of  speed  from  track 1131 

experiments    1134 

foundation    for    opinion 1129 

noise  of   machine 1132 

opinion   of   driver 1123 

opinion    of   observer 1124 

opinion    of    passenger 1120 

photo-speed-recorder 1134 

qualification   of   witnesses 1127 

speed  at  other  places 1133 

speedometer    1135 

speed   violation,   of 976 

statements    as    to    safety    of    crossing 579 

statements  of   agent  selling   machine 1082 

siatements    of    chauffeur 837 

violation  of  law  of  road,  as 304,   438 

Examination 

chauffeui's  of  public  vehicles 180 

owner  of  machine  before  trial,  of 874 

Excavations 

highway,  in 920 

Exclusion 

automobiles,    of    from    certain    streets 264 

non-residents,   of,   from   highways 57 

public  vehicles   from  streets 180 

Execution 

exemption  of  automobiles  as  a  tool  or  equipment  of  trade.  ...  10 

exemption  of  automobile  as  a  wagon 9 

exemption  of  automobiles  from 8 

levy  on  interest  of  conditional   vendee 1103 

taxicab    as   exempt    from 153 

Exemplary  damages 

(See  "Punitive  Damages") 
Exemption 

automobile  as  a  tool  or  implement  of  trade 10 

automobile    as    wagon 9 

automobiles,  of    8 

taxation,    from,   of   automobiles 122 

taxicab,  of   153 

Experience 

chauffeur,  of    340 

Experiments 

proof    of    speed 1134 

82 


1298  Index. 

Experts 

(See  "Opinions") 
Express  warranties 

(See    "Warranties") 
Eyesight  page 

chauffeur    with    defective 342 

F 

Fair  grounds 

races    on     57,516,601 

spectator   watching   race 589 

Fare 

public    automobiles,    on 195 

punishment  of  passenger  for  failure  to  pay 193 

recovery   of    201 

Fees 

(See   "License   fees") 

Fellow  servants 

chauffeur,    of     836 

Fenders 

ordinances  requiring  use  of 76,  81 

Ferries 

right  of  automobiles  to  use.  .■ 53 

Fictitious  name 

registration    in .  •. 131 

Filing 

chattel   mortgages    1101 

conditional   sale    1103 

notice  of  lien  on  machine 1094 

Filling  stations 

exclusion  of,  from  certain  streets 222 

licensing   of    225 

negligence   of   employee  of 232 

Fine 

imposed   by   the  municipal   ordinances 88 

speed    violation,    for 968 

Fire 

liability  of  garage  man  for 232 

Fire  apparatus 

speed  of    536 

Fire  department 

licensing  vehicles   of 69 

ordinances  giving  priority  to 270 

purchase  of  machine  by    1063 

speed  of  machine 81,   372,   964 

Fire  engines 

not  automobiles    11 


Index.  1299 

Fire  insurance 

(See  "Insurance" > 
Firm 

(See   "Partnership") 

Fitness  pack 

implied    warranty    of , 1076 

Flagman 

injury    to     508 

reliance  of  chauffeur  on 705 

Flight 

after  accident    1113 

Foot  traveler 

(See    "Pedestrian") 
Forfeiture 

vehicles    violating    law 1141-1152 

constitutionality   of    forfeiture 1141 

statutes    authorizing    forfeiture , 1142 

general   construction   of   statutes 1143 

illegality  of  use  of  vehicle 1143 

protection    of    liens 1144 

burden  of  proof  as  to  innocence  of  claimant 1150 

right  of  innocent  owner    1148 

procedure     1151 

Former  jeopardy 

speed   regulations    966 

Frame 

deiined    17 

Franchise 

jitney    license    not    a 174 

Fraud 

effect  of,  on  insurance  policy 1030 

sale  of   machine   through 1068 

Frauds,  statute  of 

sale   of   machine 1067 

Fright 

as   element  of   damages 548 

Frightening  horses 

animal   not   on   highway 650 

auto   driver   not   an    insurer 645 

•automobile    left    unattended 650 

automobile    likely    to 37 

automobiles   not  excluded  on   account  of 49 

contributory  negligence  of  driver  of  horses 671-675 

damages    677 

degree  of  oare   to   avoid .  .  ". 643 

emission  of  smoke  of  vapor 655 

evidence  of  vicious  character  of  horse 1112 

failure  to  sound   horn 654 


1300  Index. 

Frightening  horses — (Continued).  page 

failure  to  stop  on  signal   as  a  crime 998 

joint    wrongdoers     676 

leaving  horse   unattended    673 

liability   for    641-679 

lights  on   machine   • 671 

nature   of   horse 674 

negligence  after  stopping    669 

noise     650-655 

pleading    676 

province  of  jury 678 

proximate  cause  of  injury    648 

proximity  of  machine    657 

speed  of  machine 369,  656 

statutory  duty  to  stop  machine 663 

stopping    machine 658-665 

stopping  on   signal   of   driver 665 

tendency  of  automobiles  to    4J 

G 

Garages 

burden  of  proof  in   iction  against  garage  man 240 

construction  of,  regulated    221 

conversion  of  machine  in    236 

convenant    forbidding    217 

defective 243 

defined 215 

delay   in   making    repairs 238 

exclusion  of  filling  stations  from  certain  streets 222 

extinguishment  of  lights  before   delivering  gasoline 225 

fire    proof,    required     224 

garage  keeper  as  a  vvheelwright 215 

insurance   against    injury    in     1040 

keeper   as  carrier    154 

liability  for  acts  of  chauffeur 241 

liability  for  chauffeur  furnished  by 823 

liability  for  sale  of  inferior  oil 239 

liability  of  keeper    230-244 

liability  of  keeper  for  fire    232 

licenses  for  storing  gasoline  and  oils    222 

licensing  of    222 

licensing  of  vehicles  used  for  hire    173 

lien   for   storage    1098 

liens    1092-1106 

location    of    222 

machine  kept  in.  liability  of  owner 831 

machine  stolen    233 

manner  of  construction  of 224 

matters   pertaining   to    .     214-244 


Garages — (Continued) , 


Index.  1301 


PAGE 

238 


negligent  repairs  to  machine 

nuisance,   as   a    

pedestrian   entering,   struck    244 

private  hire  of  automobiles    203-213 

register  of  repairs    ^26 

,    ^.           p                                                                                      ...  .220-227 
regulation    of     ^^^  ^^  i 

removal  from,  effect  on  insurance    1033 

repairs  to  machine  on  authority  of  chauffeur 228 

replevin  by  keeper  of    

rights  of  keeper    2-7 

"stable,"    not    a    ^^^ 

status  of  keeper    ^■^j' 

temperature  of    "* 

towing   disabled   machine    242 

Gas 

ordinances  as  to  the  escape  of    °--' 

Gasoline 

222 
licenses   for  storing    

lights  on  machine  extinguished  before  receiving ••  225 

purchased  by  chauffeur,  liability  of  owner 821 

storage  of    

storage  of,  as  nuisance "^^ 

Gasoline  engine 
(See  "Engine.") 

Gasoline  tank 

ordinance  forbidding  maintenance  of    267 

Gates 

70fi 

railroad  crossing 

Gearing 

402 
defective    

General  statutes 

(See  "Statutes.") 
Grade  crossings 

(See  also  "Railroads.") 

„.  ,  .  680-737 

collisions  at    

Gross  negligence 

(See  also  "Negligence.") 

contributory  negligence  as  defense  to    55- 

Guaranty 

(See  "Sales;"  "Warranties.") 

Guardian 

purchase  of  automobile  by    

Guard  rails  ^^ 

necessity  of    '  " 


1302  Index. 

Guest 

(See  also  "Passenger.")  pagk 

contributory    negligence    of 899 

cyclist,   of    638 

death  of,  as  homicide 985 

directing  operation  of  machine,  liability  of  owner 816 

failure  to  warn  driver  of  dangers    909 

imputation  of  driver's  negligence  to    883 

injury  from  defective  highway   938 

liability  for  injury  to    877 

lookout  by 902 

opinion  of,  as  to  speed    1126 

permitting  excessive  speed    912 

reliance  on   driver 904 

remaining  in  machine    911 

responsibility  for  crimes  of  chauffeur 955 

riding  in  defective  machine  ♦.    913 

riding  with  intoxicated  driver 908 

status  of    877-913 

H 

Habits 

evidence   of    1139 

Hackney  coach 

(See  "Taxi  Cabs.") 

taxicab,  as    60 

Hack  stands 

regulation    of     190-192 

revocation    of    license    174 

Highways 

(See  also  "Law  of  Road.") 

assumption  of  danger  of  defective   935 

assumption  that  travelers  will  use  care    417 

bridge  as  a  public .  17 

care    at    street   crossings    326 

care  when   violating   law   of  road 328 

collisions  at  railroad  crossings 680-737 

collisions   of   automobiles   with    pedestrian 487-550 

collisions   of   two   vehicles    430-486 

collision   with  vehicle  standing  in   street    459 

confused   pedestrian    506 

contributory  negligence  in  violating  law  of  road 472 

contributory   negligence  of  pedestrians    551-607 

contributory  negligence  of  person  injured  from  defective.  ..  932-939 

crimes    952-1006 

damage  to,  by  heavy  truck    50 

defective    bridges    925 

defective    culvert     925 

defined    17 


Index.  1-><>-^ 

Highways — (Continued).  '''■■• 

distance    from   curb    -^^ 

drawbridge  keeper   negligent    925 

driving  automobile  along  street   railway   track    764-767 

driving  cattle  along    ^^^ 

driving  on  wrong  side  of    279 

equal   rights  of  automobiles    50 

exclusion    of   automobiles    from    263 

exclusion  of  public  vehicles  from    180 

excuse  for  violation  of  law  of  road 309-313 

frightening    horses     641-679 

holes  or  excavations   _     ^^^ 

homicide   in   operation   of    machine    '* '  "^-987 

20 
include   streets    

injury  to  animals   ^^^ 

injury  to  workmen  in •  •  •        5"' 

jitney  routes  regulated    193 

judicial  notice  of  law  of  road    1109 

law  of  road  as  to  turning  corners    291-295 

law  of  road  as  to  two  vehicles 436-463 

law  of  road  at  intersecting  streets   295-300 

law  of  the  road • 275-314 

leaving  car  in  street  unattended 404-407 

liability  of  abutting  owners  for  defective 930 

liability  for  acts  of  driver 788-876 

lights  required  on  vehicles    407-413 

lookout  for  defects  in 395.  935 

municipal   knowledge   of  defective   highway    928 

municipal  ordinances  as  to    83 

necessity  of  guard   rails    922 

negligence  in  operation  of  automobiles    318-4  26 

no  insurance  of  safety  of 917 

notice  of  injury  from  defective 929 

obstruction  of  street  by  building  operations 932 

obstructions   in    917 

obstructions  placed  in  street  by  third  person    919 

opinion  as  to  safety  of    916,  1120 

overtaking  and  passing  travelers    286-291 

passenger  injured  from  defects  in    938 

pedestrian  at  street  crossing    524-527 

pedestrian    stopping    in     ^87 

pedestrian   walking   along    519.560 

place  reserved  for  pedestrians -^1^ 

pole  placed  in  street  by  electric  company 920 

proximate  cause  of  injury  from 926 

purchase  of  automobile  for  use  in  repair  of 1063 

racing  as  a  crime   957 

racing   on    *[ ' 

regulation   of    law   of   road    -''1 

regulation    restricting   parking    '*0  < 


1304  Index. 

Highways — (Continued).  page 

regulations    for   obstruction   of    266 

relative  rights  of  automobile  and  street  car 739-748 

restriction  to  certain  streets    181 

right  of  automobilist  to  use    48 

right   of    cyclists    608 

right  of   cyclist   to   use 50 

right  of  traveler  to  assume  safety  of 933 

right   to  use    44-59 

rights   of   horseback    travelers    . 610 

rights    of    horses    641 

safety  of,  for  automobiles    914-939 

school  yard  is  not  a    18 

signals  from  one  driver  to  another 303 

slippery   surface    924 

slower  vehicles  at  curbs 289 

snowdrift   as    defect    in 918 

speed   at   street   intersections    364 

speed  on   defective    937 

speed  over  bridges    369 

speed  regulations    , 261 

standing  vehicles    267 

status  forbidding  use  of 117 

status  of  guests  and  passengers 877-913 

statutes  imposing  liabilities  for  injuries 271 

towing   disabled    vehicles    414,  542 

unregistered  machine  as  trespasser 140 

use   of,    by   automobiles    25 

use  of  traction  engine    426 

vehicle  left  standing  in    538 

violation  of  law  of  road  as  evidence    304 

what   constitutes    17 

width    of     925 

Hire 

(See  also  "Taxi  Cab.") 

car  let  for,  liability  of  owner 827 

imputation  of  negligence  to  passenger  for 898 

license  fee  on  machine,  used  for    127 

private,    of    automobiles     203-213 

public  carriage  for    149-202 

regulation   of    vehicles    used    for   public 154-202 

use  of  machine  for,   effect  on  insurance   policy 1035 

History 

automobiles,  of 22-27 

Hog 

injury    to     616 

Holes 

highway,    in 920 


Index.  1305 

Homicide  page 
(See  also  "Criminal  Law.") 

burden    of    proof 9g5 

contributory  negligence   of  deceased  as  defense 553,  986 

death   of    passenger    985 

negligent    driving   as    manslaughter    980 

prior  reputation  of  chauffeur  for  care 987 

ra^e  causing    983 

reckless   driving   as   murder    978 

responsibility  of  owner    953,  985 

unusual   speed   as    983 

Horn 

(See  also  "Signals;"  "Warning.") 

failure  to  sound  when  passing   654 

frightening    horses     652 

negligence  in  failing  to  equip  with 403 

negligence    in    sounding    388 

regulation    requiring    390 

sounding,   before  crossing  railroad    719 

Horseback  travelers 

contributory    negligence     612 

law  of  road  as   to    *. 290 

right      of    610 

Horse  power 

license  according  to    69 

license  fees  according  to    69,  80,  126 

machine  of,  misrepresentation  as  to    1069 

Horses 

(See  also  "Animals;"  "Frightening  Horses.") 

frightening    641-679 

injury  to    614 

rights  of    ,     641 

Hospital 

exclusion   of  garage  near    222 

Hotel 

taxicab   service   for    191 

Hours 

exculsion  of  automobiles  from  highways  during  certain 263 

jitney  service,  regulated    193 

Household  effects 

automobiles   as    2 

Humanitarian  doctrine 

collision  with  street  car 776 

injury    to   pedestrian 598 

Husband  and  wife 

imputed   negligence    896 

joinder  of  causes  of  action    419 

liability  for  operation   of  machine    851 

reliance  of   wife   on   husband    905 


1306  Index. 

I 

Identification  p-'^<^'''- 

furnishing,   in   case   of   accident    999 

machine   of,   from   track    1121 

machines,    of,    regulations   for    266 

number  plate,  of,  lights  for    408 

speed  offender,  of 967,  974 

through    registration     107 

Illumination 

(See   "Lights.") 

Implement 

trade,   of,   automobile  as   a 10,  43 

Implied  warranties 

(See  "Warranties.") 

Imputed  negligence 

(See   "Negligence;"    "Contributory   Negligence.") 

driver   to   guest    883 

husband  and   wife 896 

liability   for   acts  of   driver    788-876 

parent  and   child    897 

passenger  in  public  automobile 200 

Increased  damages 

violation  of  law  of  road    445 

when    allowed     423 

Incumbrance 

(See  "Lien.") 

Indemnity  insurance  * 

(See   "Insurance.") 

Independent  contractor 

using  machine,   liability   of   owner 830 

Indictment 

(See  also,  "Criminal  Law.") 

failure  to   register  machine    995 

larceny  of  automobile    991 

Infants 

(See  "Children.") 

party   to  sale  of  automobile 1061 

Information 

speed    violation     667 

Injury 

(See  "Damages;"  "Negligence.") 

Inspection 

duty  of,   by  purchaser    1069 

jitney,    of     196 


Index.  1,107 

Instruction 

(See  "Interpretation.")  p^^.,., 

chauffeurs,   of    253 

measure  of  damages q^q 

rights   of   parties    4.^9 

Insurable  interest 

automobile     10''0 

Insurance 

accident     1053 

collision     10''7 

amount  of   recoverj-    1041 

portion  of  road    1039 

curbing    1Q3^ 

down    embankment     1039 

recovery   against    tliird   person    for   injury    104] 

subrogation  of  insurer    104]^ 

upset  of   machine    1040 

while    in    garage    1(,4q 

with    stationary    objects    1038 

^itch     1033 

^ater    1033 

conditional    vendee,    by    1104 

evidence  of,  in  action  with  third  person    1050 

fire,   construction  of  policy    10?,0 

acceptance  of  repairs  in  lieu  of  money 1036 

change  of   title    IO32 

determination  of  amount  of  loss lOStj 

false    representations     1030 

incumbrance  on  property   1033 

insurable   interest    1030 

private  garage  warranty    IO33 

safeguarding   machine    1034 

use   for   rent    or   hire IO05 

valued    policy    10;i7  ' 

indemnity    1042-1052 

action  against  officer  cf  insured  corporation    1044 

action   by   injured  person   against  company 105J 

age  of  driver ^ 1015 

amount  of  recovery    1050 

assumption  of  defense  of  action    104:^, 

authority  of  company   to   write    1042 

change  of  use  of  machine 104t; 

consent  of  insurer  to  settliement   1049 

evidence  of  insurance    IO50 

failure  of  insured  to  co-operate    IO47 

indemnity  of  partners    IO44 

interference  with  negotiations  for  compromise 104S 

necessity  of  trial  of  action    1049 

notice  of   accident 1046 


1308  Index. 

Insurance —  ( Continued) .  i'age 

stipulation  to  defend  suits    1043 

validity  of 1042 

theft 1053 

amount  of  damage    . 1057 

conversion  without  intent  to  commit  crime 1053 

lai-ceny  by  trick  or  device    1055 

persons  in  service  of  owner   1055 

pilferage     1054 

subrogation  of  insurer 1058 

sufficiency  of  proof  of  theft    " 1056 

Intent 

assault 987 

furnishing  identity  in  case  of  accident    1001 

ignorance  of  speed  limit    964 

larceny  of  automobile    990 

violation  of  speed  regulation    963 

Intention 

(See  "Intent.") 

Interpretation 

fire  insurance  policy 1030 

motor  vehicle  statues 71 

statute  imposing  high  degree  of  care    328 

Intersecting  streets 

(See  also  "Street  Crossings.") 

collision    of    two   vehicles    457-462 

defined    21 

equal  rights  of  travelers 295 

injury  to  pedestrian    524-527 

law  of  road  as  to 295-300 

law  of  road  as  to  turning  corners 291-295 

looking  for  street  cars 750 

lookout   for  travelers    393-398 

rights    at     52 

speed  of  machine  turning  corner    537 

street  car  and  automobile   739 

warning  of  approach    . 398 

Interstate  commerce   » 

contract  for  shipment  of  automobiles    1011 

federal  control  over  motoring , 90-100 

jitney  carrying  passengers  over  State  line 168 

law  licensing  and  registering  machines    116 

taxation  of  vehicles  in  transit    273 

tax  on  sales    1090 

Intervention 

proceedings  of  forfeiture  of  vehicles  violating  law 1151 

Intoxicated  person 

contributory  negligence  of    595 

injury    to     498 


Index.  1309 

Intoxicating  liquors  ^*^^ 

forfeiture   of   vehicles   violating  law    1141-1152 

constitutionality  of   forfeiture    1141 

statutes   authorizing   forfeiture    1142 

general  construction  of  statues 1143 

illegality  of  use  of  vehicle   1143 

protection    of    liens    1144 

rights  of  innocent  owner    :  .  .  .  .  1148 

burden  of  proof  as  to  innocence  of  claimant 1150 

1    1    T  1 

procedure     

Intoxication 

chauffeur,  of    ^^^ 

driving  machine  under,  as  a  crime    9^^ 

passenger  riding  with  Intoxicated  driver 908 

J 

Jitneys 

abrogation    of    license    of     1^^ 

bonds    of     183-190 

carriage  ot  passengers  in    xty  ^.u^ 

carriage  of  passengers  over  State  line    168 

common  carriers,  as    ^""^ 

dangerous  speed   forbidden    1^" 

defined     ^^^ 

degree  of  care  by    330 

discrimination    158-163  • 

display   of    license    by    1^6 

distinguished  from  other  carriers 158 

driver   diverging   from   route 810 

enactment  of  ordinances    16*^ 

exclusion  from  streets    1^" 

injury   to   pasenger    197-199 

inspections    of     1^** 

liability  for  acts  of  driver  of    1^^ 

licenses   of    170-180 

lighting   of    l^** 

municipal    regulation   of    163-168 

ordinances    regulating     ^^ 

penalty  for  violation  of  regulations    197 

rate    of    fare ^^^ 

recovery  of  fare "^^ 

regulation    of     154-202 

regulation  of,  by  public  utility  commission    16S 

restriction    to    certain    streets    ^'^'■ 

revocation  of  license    1'4 

routes  and   schedules   regulated    193 

service  of   process   on    '^^  ' 


status   of 


152 


1  Of: 

tax   on   gross   receipts 

use   of   trailers   forbidden    1^^ 


1310  Index. 

Joinder  pagk 

causes  of  action 419 

Joint  enterprise 

driver   and   passenger   engaged    in    892 

Joint  ownerships 

automobile,    of     861 

Joint  tort  feasors 

collision   of  two  vehicles 466 

Joint  wroi^doers 

defective   highway    . 931 

drivers  of  two  vehicles    466 

frightening   horses ; 676 

Joy-riding 

assumption    of   risk    5 

defined     • 4 

Sunday,  on,  hire  of  auto  for 213 

Judicial  notice 

law  of   road,    of    277,  1109 

municipal    ordinances    1109 

nature  of  automobile    1108 

proof   of   ordinance    88 

speed  of  ordinances    959 

Jury 

(See  "Province  of  Jury.") 

right  of  trial  by,  on  forfeiture  of  vehicle 1142 


Keeper  of  garage 

(See  "Garages.") 
Keeping  to  right 

(See  "Law  of  Road.") 

L 

Laborers 

(See    also    "Workman.") 

contributory  negligence  of    596 

Lamps 

(See  also  "Lights.") 

trade    marks    in 1028 

Landlord  and  tenant 

relation  of,  does  not  exist  betwen  garage  keeper  and  owner.        216 

Larceny 

automobile    in    garage    216,   233 

automobile,    of    990 

insurance    against    • 1053 

rented  automobile,  of    209 


Index.  l.ni 

Last  clear  chance  iacji: 

auto  stalled  on  street  car  track    775 

collision  of  two  vehicles    480 

collision  with  street  car 775 

cyclist    635 

injury  to  pedestrian    598 

railroad    crossing    724 

laundry 

chauffeur   after,   liability   of  owner    817 

Law  of  road 

assumption   that  travelers  will  obey    417 

bicyclist,  application  to   278 

care   when   violating    328 

collision  of  two  vehicles    436-463 

cutting  corners    293 

cyclist  violating    633 

distance  from  curb    281 

driving   machine   on    sidewalk    304 

driving  on  wrong  side  of  highway    279 

driving  past  street  car    514 

duty  of  pedestrian  to  look  out  for    567 

establishment    of    276 

evidentiary  value  of  violation    344 

excuse   for   violating    309-313 

injury   to   cyclist    617 

injury  to  pedestrian    520 

intersecting  streets    295-300 

judicial  notice  of    277,  1109 

matters   pertaining   to 275-314 

meeting   and   passing   other   travelers    282-285 

municipal   regulations  as  to 82 

negligence  in  adhering  to   313 

overtaking  and  passing  travelers    286-291 

pedestrians,    application    to    278 

presumption  of  negligence  from  violation    306 

proximate  cause  of  violation    307 

regulations   as  to    268 

reliance  by  pedestrian  on    582 

reliance   on    477 

signals  from  one  driver  to  another    303 

skiding  as  excuse  for  violation  of    313 

slower   vehicles   at   curb    289 

street  railway  cars,  application  to   279 

treble  damages    445 

turning   corners    291-295 

turning  or  backing  machine    300 

violation    during    darkness 310 

violation  imposes  higher  degree  of  care 307 

violation  of,  as  a  crime   997 

violation  of,  as  contributory  negligence    472 


1312  Index. 

Law  of  road — (Continued).  i'A(ii^ 
violation   of,   as   contributory    negligence   to   injury   from   de- 
fective   highway     934 

violation  of,  as  evidence    304,  438 

violation   of,  collision  with  street  car    772 

violation  to  avoid  negligence  of  another 312 

violation  to  avoid   obstruction    311 

Laws 

conflict   of    419 

Legislature 

(See  "Regulation.") 

definition    by    . 1^ 

power  to  regulate  automobiles    60-72 

Levy 

(See  "Execution.") 

License  fees 

beyond   cost  of   registration 118 

chauffeurs     252 

discrimination     68 

discrimination  against  non-residents    69 

discrimination  in    80 

disposition   of    135 

garages,   of    . 222 

graded  on  horse  power    126 

limitation  on 100 

nature   of    104 

operation  of  ordinance  imposing 167 

public  automobiles,  of    175 

seating  capacity  according  to    126 

Licenses 

authority  of  county  to  impose    109 

chauffeurs,    of    251-256 

chauffeurs  of  public  vehicles,  of    180 

contractor  carrying  mail  for  United  States , 137 

dealers,   of    1090 

display  of,  by  jitney    196 

exclusion  of  automobiles  from  highways  until  procurment  of.  263 

failure  of  chauffeur  to  have 254 

as  a  crime    - 996 

filling   station 225 

garages,    of     222 

hack  stands,  of    190 

jitney,   not  franchises    174 

motor    vehicles,    of     101-148 

nature    of     102 

not    contracts    173 

presumption   of   ownership    from    864 

public   automobiles,   of    170-180 

revocation   of    ,  .  •  •  103,  174 


Index.  1313 

iJCnS  PAGE 

automobiles,    on     1092-1106 

chattel    mortgages     1101,  1102 

conditional  sale  of  machine    1102,  1105 

effect   on    insurance 1033 

forfeiture  of  vehicles  violating  law    1144 

injuries    caused    by    machine    66,271,  1104 

repairs   for    1092-1106 

assignment  of  lien    1098 

filing  notice  of  lien    1094 

loss  of  lien  by  excessive  demand    1097 

loss  of  lien  by  surrender  of  machine 1096 

priority   of   len    1095 

storage     lOgg 

Lights 

absence  of.  as  contributory  negligence    475 

absence  of,   as  criminal   offense    1004 

animal    drawn    vehicles    412 

duty  of  pedestrian   to  carry    560 

extinguished    while   receiving   gasoline    225 

frightening    horses     671 

hours    for   illumination    409 

injury   to   pedestrian    539 

leaving  car  in  streets  unattended    406 

lookout  for  defects  in   highway    936 

motorcyclists,    by    409 

passenger    permitting   defective    9\3 

proximate    cause     412. 

requirement    of     407-413 

search,  prohibited 411 

speed   at   night 36o 

sufficiency  of , 411 

tonneau   of   jitney,    in    196 

train  of  vehicles  pulled  by  tractor 408 

vehicle  obscured   by    434 

Liquors 

(See   "Intoxicating  Liquors.") 
Listening 

railroad  crossing  at    692 

street  cars,   for    75,) 

Liveryman 

registration    by     I33 

Livery  stable 

garage  as  substitute  for    215 

Location 

garages,    of     222 

Lookout 

by  passenger  at  railroad    crossing    704 


1314  Index. 

Lookout —  ( Continued ) .  vm;  k 

defects  in   highway,   for    935 

duty   of  cyclist    629 

for   other   vehicles    471 

injury  to  cyclist 623 

intersecting  streets,  at 458 

pasenger,  by    902 

pedestrian,    by     . • 562 

pedestrians,    for     527 

pedestrian  looking  back    571 

one  backing  his  machine    396 

railroad  crossing,  at 692 

street  cars,  for 750-759 

street  railway,   by    781 

street   railway   passenger,   by    584 

view  of  pedestrian  obstructed    568 

Lottery 

sale  of  machine  for    1066 

M 

Machine 

automobile  as 11 

automobile  as  a  dangerous   29 

automobile  not  merely  a    28 

Mail 

licensing  of  vehicle  carrying 137 

Mandamus 

compelling  right  to  use  toll  roads 56 

requiring  municipal  authorities  to  exclude  unlicensed  jitneys.  179 

Manhole 

injury  to  automobile  from 919 

Manslaughter 

(See  "Homicide.") 

negligent   driving   as    980 

Manufacturers 

discrimination   as   to    68 

duty  to  make  repairs 1025 

fixing   retail   price    1021 

liability  for  defects 1023 

license  fees  of 127 

relation   with   owner    1023 

return  of  parts  to 1014 

rights  and  liabilities  of   1007-1028 

sharing  profits     with  owner   1025 

trade   marks   of    1026 

Market  value 

damages  to  automobile    941 


Index.  1315 
Massachusetts 

PACK 

effects  of  failure  to  register  machine    139 

Master  and  servant 

(See  also  "Chauffeur.") 

agent  trying  to  sell  machine 333 

automobile  school,  liability  of    034 

car  let  for  hire go? 

chauffeur  after  his  meals    g^Y 

chauffeur  after  laundry   gj^ 

chauffeur  loaned  to  another    g22 

chauffeur  permitting  another  to  run  machine   .  .  .  gig 

^^^"^^"^«    '.'.■■■■.  ■.■.245-260 

chauffeur    taking   passengers    81g 

chauffeur  teaching  operation  of  machine   835 

chauffeur    testing    machine     gl^; 

competency    of    chauffeur    ['  3^^ 

corporations,    liability    of     gcc 

defective  garage    04 -> 

divergence  by  chauffeur  from  proper  course    8O9 

driver  under  direction  of  owner's  family gig 

employment     alone     not     sufficient     to     charge     owner     with 

servant's    conduct     ^og 

fellow    servants    of    chauffeur .  .  .  g36 

independent  contractor  using  machine g30 

joint  ownership  of  machine    ogl 

liability  for  act  of  salesman 797 

liability  for  acts  of   driver    *..*,. '788-876 

liability    for    defective    machines .'...'.*.  792 

liability    for    repairs     g2i 

liability   of   bailee .  .  . 0-9 

liability  of  garage  man  for  acts  of  driver .'  .  241 

liability  of  municipalities    "  '  g-g 

liability  of  owner  riding  in   machine    '  '  392 

liability  of  passenger  for  acts  of  driver .  ggi 

liability  of  seller  for  acts  of  servant .........  856 

machine   and   driver   loaned    ...                                                       '  00c 

,  .        ,                                                    520 

machine    kept    in    garage    831 

machine   loaned   to   third   person    ,\  _\  824 

negligence  of  servant  imputed  to  master .*  '  ]  895 

ownership  alone  does  not  create  liability '789-796 

parent  and  child  as ^ g  .  ' 

physical   condition  of  chauffeur 341 

presumption  of  control  from  ownership 866 

private   use   by   chauffeur S06 

ratification   of  servant's   act    .  .  .                                   ceo 

,,     ,                                                          000 

seller  s   agent   accompanying   purchaser    833 

statements  of  chauffeur  as  evidence  against  owner  .........  837 

use  of  machine  without  consent  of  owner SO4 

verdict  exonerating  chauffeur  but  holding  owner   .  .  .  .  .  .  .  .  .  .  874 


1316  Index. 

Meals  PAGE 

chauffeur  driving  car  for,   liability   of   owner 817 

Measure   of   Damages 

(See  "Damages.") 
Meeting  and  passing 

(See  "Law  of  Road.") 
Mental  anguish 

damages     421 

Military 

speed   of  machines    374 

Military  encampment 

licensing    bus    used    in     173 

Minors 

(See  "Children.") 

driving    machine 343 

driving  machine,  effect  on   insurance    1045 

Mirror 

faiure   to   attach    773 

Misdemeanor 

(See  "Criminal  Law") 
Misjoinder 

causes  of  action 419 

Model 

machine  of,  misrepresentation  as  to 1068 

Monopolies 

fixing  price  for  sale  by  dealer    1021 

Mortgage 

(See  "Chattel  Mortgage.") 

forfeiture  of  vehicles  violating  law    1144 

Mortgagee 

registration  of  machine  by    13  i 

Motor 

defined 4 

stopping,  to  avoid  frightening  horses    662 

Motor  car 

English    definition     11 

outlaw,   not   a    30 

Motor  carriage 

(See   "Automobile.") 

Motorcycle 

(See  also  "Cyclists.") 

carriage   as 13 

defined    12 

left  in  garage    232 

motor   vehicle    as    12 

regulations    giving    rights    to     269 


TxDF.x.  1M17 

Motor  hacks 

(See  "Taxioabs.") 

Motoring  pa<;v. 

defined    4 

federal   control   over    90-100 

Motorman 

opinion  of,  as  to  speed  of  automobile    1128 

Motor  vehicles 

(See  "Automobiles  ") 

legislative  definition  of    1'^ 

motorcycle,  as   12 

s!ed  as    13 

Mules 

(See  "F'riglitening  Horses.") 

Municipal  authorities 

required   to  exchide  unlicensed  jitneys    179 

Municipal  corporations 

bus  line  operated   by  city    16'«; 

eifeci  of  violation  of  ordinance    344-355 

exemption  of  vehicles,  of.  from  license 69 

garages,    regulation   of    220-227 

injury    of    employee   of    508 

injury  to  machine  from  defective  highway    914-939 

inspection   of  jitneys    196 

judicial  notice  of  ordinances    1109 

knowledg3  of  defective  highway    928 

liability  of,  for  acts  of  its  chauffeurs    856 

license  fee  on  police  or  fire  vehicle    127 

licenses  for  storing  gasoline  and  oils 222 

licensing  chauffeurs  of  public  vehicles 180 

licensing    of    chauffeurs     251-25H 

licensing    of    garages    222 

licensing   of    public    automobiles    170 

notice  of  injury  for  defective  highway 929 

ordinance  requiring  obedience  to  traffic  officer    304 

power  to  register  and  license  machines    109-114 

power  to  regulate  automol)iles 63,74-89 

purchase    of    machine    by    106o 

registration  of  vehicles    S3 

regulation  as  to  smoke  and  odors 2  70 

regulation  for  indentification  of  machines    266 

regulation   of  advertising  on   public  vehicles    .     . 268 

regulation    of   chauffeurs    24S-2-t6 

regulation  of  fare  of  public  automobile    195 

regulation   of  hack  stands    190-192 

regulation    of   public    vehicles    163-168 

regulation  requiring  bonds  of  jitney    183-190 

regulations  for  obstruction  of  streets    266 

restriction  of  jitneys  to  certain  streets    181 


1318  Index. 

Municipal  Corporations — (Continued).  page 

routes  and  schedules  of  jitneys  regulated    193 

solicitation  of  taxicab  passengers   forbidden    191 

speed  of  police  and  fire  vehicles    81 

speed   regulations    •  •  261 

taximeters   required   on   taxicabs    194- 

Municipalities 

(See  "Municipal  Corporations.") 
Municipal  ordinances 
(See  "Ordinances.") 
Murder 

(See  'Homicide.") 

reckless    driving    as 978 

Mutuality 

agency   contract,    of    1009 

N 

Name 

on  machine,  presumption  of  ownership ^^% 

National  prohibition 

forfeiture  of   vehicles   violating   law 1141 

Nature 

automobile,   of    28-43 

bicycle,   of    32 

license,    of    102 

Navy 

speed   of   military    machines 374 

Negative  evidence 

absence  of  warning  by  railroad i 733 

Negligence 

(See  also  "Law  of  Road;"  "Proximate  Cause.") 

abutting  owners,   defects  in  highway 930 

action   against   insurance  company 1052 

action  by  conditional  vendee 1104 

adhering  to  law  of  road 313 

assumption   that   travelers   will   use   care 417 

avoidance   of   dangerous  situation 334 

care    after    accident ■■. 1138 

care   at   street    crossings 326 

care  in  avoiding  vehicles 428 

car©  when  violating  law  of  road 328 

chauffeur    towing   disabled    machine. 242 

chauffeur   under   age 251 

children     589-594 

children    climbing    on    machine 504 

collisions  at  railroad  crossings 680-737 

collision   of  two  vehicles 428-486 

collision    with    pedestrian 487-550 


Index.  131  !•' 

Negligence — (Continued).  pack 

collision    with   street   car 739-778 

collision  with  street  car. 747 

collision  with  vehicle  standing  in  street 459 

competency    of    driver 34i> 

concurring  negligence  of  third  party 337 

conduct  of  driver   in   an   emergency 333 

confused    pedestrian    506 

contributory,    in    general 41fi 

as    defence    to    homicide 986 

traveler  injured  by  defective  highway 932 

control    of    machine 382 

cyclists    626-638 

defective  garage    243 

defective  highways    114-939 

defective   machine 402 

degree  of  care  at  railroad  crossings 683 

degree  of  care  required  in  operation  of  automobiles 318-330 

degree  of  care  to  avoid  frightening  horses 643 

driver   of    frightened    horses 671-675 

driving  automobile  along  street  railway  track 764-767 

driving    machine    on    sidewalk 304 

driving   machine   past   street   car 508-515 

driving   past   street   car 508-515 

effect  of  failure  to  register  machine 139-148 

effect   of   violation    of    regulation 344-355 

excessive  speed  as  contributory 476 

excessive  speed  as   evidence  of 374-378 

excuse  for  violation  of  law  of  roads 309-313 

extending  arm  out  of  window  of  jitney 197 

failure   of   brakes   to    work 434 

failure  of  chauffeur  to   have  license 254 

failure  to  equip  machine  with   horn 40.^ 

failure   to   give   warning 390 

failure  to  have  license  for  public  vehicle 179 

fire  in   garage 232 

frightening  horses    641-679 

garage  keeper,  of.  not  chargeable  to  owner 216 

grade  crossings    680-737 

guest,   injury   to 877 

guests    and    passenger 877-913 

guest    or    passenger 899 

homicide,    as     978-987 

imputation  of,  to  passenger  in  public  automobile 200 

imputation    to    guest    or    passenger 883 

injury    from    defective    highway 926 

injury  to  automobile  from  wagon 435 

injury    to    children 500-506 

injury   to   passenger   in    public  automobile 197-199 

Injury    to    pedestrians 493 


1320  Index. 

Negligence—  ( Continued) .  i'^^''^ 

in   stopping    ^°' 

intervening    agency     ^^^ 

intoxication    of    driver ^^^ 

joint  liability  of  tuo   drivers    466 

law    of    tlie    road 275-314 

law  of  the  road  as  to  vehicles 436-463 

leaving  car  in  street  unattended 404-407 

liability  for  acts  of  chauffeur  of  garage -^       241 

liability    for  acts   of   driver    788-876 

liability  for  acts  of  driver  of  public  automobile 199 

liability  of  chauffeur  to  owner 260 

liability  of  garage  keeper    .     230-244 

liability   of   manufacturer    1^23 


liability  of  owner  for  injury. 


256 


liability  of  parent  for  acts  of  child    839 

lien  on  machine  for  injuries    H^"* 

looking   for   street   cars - 750-759 

look  out  for  travelers    393-398 

moving  machine  under  direction  of  police  officer 335 

noise    '^^ 

operation  of  motor  vehicles  in  general 318-426 

operation    of    trains     730-737 

other  acts  of    -^     ^^.^^ 

pedestrians     551-607 

physical  condition  of  chauffeur    3^1 

place  reserved  for  pedestrians    51^ 

pleading   injury  to   pedestrians    546 

private  hire  of  automobiles    203-213 

proximate  cause  of    335-338 

racing  on  highway ^  ' 

recovery  by  mortgagor  for  injuries    HOI 

relative  rights  of  automobile  and  street  car 739-748 

reliance  by  pedestrian  on  care  of  chauffeur 579 

repairs  by  garage  man    238 

rights  of  cyclists    ^^^ 

rights   of   horseback   travelers    610 

skidding     : •        40'^ 

spectator   of   race    ^^ 

speed ^56 

speed   not   exceeding   limit    3*^9 

speed   of   machine 355-382 

statutes  imposing  liability  for  injuries  from  machine 271 

stopping  machine    ^°* 

stopping  machine  to  avoid  frightening  horses 658-665 

street   railway  company,   of "^9 

street  railway  of.  burden  of  proof    746 

sudden    stop     474 

sufficiency  of  compliance  with  statutes 415 

taking  hands  off  steering  wheel 383 


Index.  1321 

Negligence — (Continued) .  pacii: 

towing    disabled    vehicles     .     . 414 

turning  or  backing  machine    300 

unavoidable   accident    332-335 

unavoidable  accident  to  pedestrian    497 

unreasonable  speed   prohibited    357 

use   of   traction   engine    426 

violation  of  law  of  road    :jO^ 

violation  of  lavsr  of  road  not  negligence  per  se   439 

violation    of    regulation     351 

warning    of    approach     38 S 

Night 

(See    also    "Lights.") 

control   of   machine   at    384 

exclusion  of  automobiles  during 263 

leaving  car  in  street  unattended    406 

speed  of  machine  at   360 

Noise 

estimate  of  speed   from    1102 

frightening    horses .  641-679 

negligence    in    making    398 

opinion   as   to 1121 

Nominal  damages 

injury  to  automobile    940 

Non-residents 

discrimination    as   to    69 

exclusion   of   from   highway    57 

registration    and    licensing 12S 

service  of  process  on    27  3 

statutes  imposing  license  fee  on    117 

Notice 

accident,  of,  to  insurance  company 1046 

lien    on    machine    1094 

Nuisance 

automobile    as   a     29 

garage   as   a    21m 

obstructions   in  highway   as    901 

unlicensed   vehicle   as    139 

Number 

removal  of  manufacturer's  as  a  crime    1005 

Number  plate 

display   of    137 

display  of,  by  jitney 196 

failure   of  state   to  deliver    IIS 

light    for    identification    of    408 

regulation    requiring     115 

requirements    of     266 


1322  Index. 

o 

Object                                                   '  PAGR 

law  of  road,  of    277 

Observer 

opinion  of,  as  to  speed  of  machine    1124 

Obstacle 

violation  of  law  of  road  to  avoid 311 

Obstrnctions 

abutting  owner,  when  liable  for    •  •  •  931 

darkness    as    361 

highway  in,  placed  by  third  persons 920 

highways,    in 917 

municipal  ordinances  prohibiting    83 

railroad  crossing  at    699 

railroad,   of    '''35 

violation  of  law  of  road  to  avoid    311 

Odors 

judicial  notice  of  capability  of  machine  to  emit 1108 

ordinances   as   to    83 

regulation    as    to    270 

Offenses 

(See  "Criminal  Law.") 

Oils 

licenses   for  storing    222 

purchased  by  chauffeur,  liability  of  owner 821 

sale  of  inferior    239 

-  storage    of     225 

storage  of,  as  nuisance    .    217 

Omnibuses 

public   carriage   for   hire 149-202 

One  way  street 

application  of  regulations  to    279 

ordinances  as  to 269 

Operators 

(See  "Chauffeurs.") 

Opinion 

competeny   of   chauffeur    1121 

competency  of   driver 344 

defects  in  machine 1121 

distance  in  which  machine  can  be  stopped 1122 

distance  in  which  object  can  be  seen 1122 

driver,  of,  as  to  speed    1123 

estimate  of  speed  from  track    1131 

foundation  for,  as  to  speed   1129 

identification  of  machine  from  track 1121 

manner  of   collision    1121 

'         noise  of  machine    1121 

observer,  of,  as  to  speed    1124 


Index.  1323 

Opinion — (Ctontintied.)  pagk 

passenger,  of,  as  to  speed    1126 

safety    of    highway    916,1120 

speed   from  noise    1132 

speed  from  track 1131 

speed,    qualification   of   witness    1127 

value.     .     1118 

warranties   contrasted    1072 

Ordinances 

(See  also  "Regulations;"  "Municipal  Corporations.") 

admissibility  of   compilations  of    89 

criminal    offenses    ; 952-1006 

driving  past  street  car    508 

effect  of  violation  of    344-355 

enactment    of    167 

fenders  on  trucks    76,  81 

forbidding  solicitation  of  taxicab  passengers 191 

ignorance  of  speed  limit 934 

judicial  notice  of    959 

leaving  car  in  street  unattended 407 

licensing  chauffeurs  of  public  vehicles    180 

licensing  of  public  vehicles 170 

lights    required     407-413 

one  way  streets    269 

pleading    of     353 

priority   at  intersecting  streets    4C9 

prohibiting   advertising   in   vehicles    268 

proof  of    88 

punishment  for  violation  of    88 

punishing  passenger  for  failure  to  pay  fare 193 

regulating  fare  of  public  automobile 195 

regulating  garages    220-227 

regulating  hack  stands    .     190-192 

regulating   law   of   road    268 

regulating   motor   vehicles    73-89 

regulating    public    vehicles    163-168 

regulating  public  vehicles,  reasonableness  of 166 

regulating   speed    359 

regulating  speed  past  street  cars    363 

regulation  as  to  smoke  and  odors    270 

regulation    of    chauffeurs 248-256 

requiring  bonds  of  jitney    183-190 

requiring  obedience  to  traffic  officer 304^ 

routes  and  schedues  of  jitneys  regulated    193 

speed     536 

speed  approaching  street  railway 767 

speed  at  street  intersections    364 

speed  of   railroad   trains    731 

speed   of   street    cars    782 

speed    regulation    .261,  957 


1324  Index. 

Ordinances — (Continued).  ^■'^^^ 

taximeters    required    on    taxicabs    194 

title    ot    «5'11« 

use  of  heavy  trucks    ^^ 

warning  of  approach  of  machine   390 

Outlaw 

motor  car  not  a    

Overtaking  and  passing 
(See  "Lav/  of  Road.") 

Owner 

(See  also  "Automobiles.") 

1  1  1  c 

admissions    by     -, 

crimes   of    chauffeur    ^^^ 

defined    ^"^ 

liability  for  acts  of  driver   788-876 

liability  of,  for  homicide  of  chauffeur    98o 

machine  used  for  carriage  of  family 844 

relation    with    manufacturer     1^23 

riding  in  machine,  liability  of 80- 

use  of  machine  without  consent  of 804 

Ownership 

certificate  of  registration   as  evidence   of    147 

presumption  of    °^^ 

p 

Pain 

declarations  of    Ill" 

Parent 

(See  also  "Children.") 

contributory  negligence  of    ■ 59» 

Parent  and  child 

(See  also  "Master  and  Servant.") 

imputation    of    negligence     897 

incompetent    driver    853 

liability  of  owner  for  operation  by  member  of  family 839 

machine  driven  without  owner's  consent    843 

machine  used  for  carriage  of  owner's  family 844 

relation  of  master  and  servant    . 841 

Park  commissioner 

judicial  notice  of  regulation  of    89 

regulation   of   automobiles    by    ^8 

speed  regulations    ^^^ 

Parking 

prohibited  by  ordinance ^^'^ 

2fi7 

regulation  of    

Parks 

(See  also  "Park  Commissioners.") 

exclusion  of  automobiles  from    266 


Index.  ]  325 
Parol  evidence 

PAOK 

breach  of  warranty    j^g^ 

fraud  in  sale  of  machine   1^70 

Partners 

indemnity  insurance  of    1044 

liability  for  operation  of  machine    gg2 

registration   by    '  '  '  .  «- 

registration    in    trade-name    ■•»■, 

Parts 

received  in  evidence 1110 

Passenger 

(See  also   "Guest.") 

automobiles   as  carriers  of    4  2 

carriage  for  hire    *.*.....  1 49-'>02 

chauffeurs  taking,  liability  of  owner gjg 

contributory  negligence  of ggg 

"y^"«t'   °'    '•'.'.'.'.'.'.'.'.'.'.'.'.'....  638 

dangerous  position  of    .m^ 

death  of,  as  homicide    ggg 

degree  of  care  as  to   --q 

driving  machine  past  street  car   508-616 

failure  to  warn  driver  of  dangers 909 

horse  drawn  vehicles,  in,  stopping  machine  on  signal 668 

injury  from   defective   highway    53g 

imputation  of  driver's  negligence  to    gj53 

injury    to     g,^^ 

injury  to,   in   rented   automobile    207 

joint  liability  of  two  drivers  to    4g^ 

liability  of,  for  acts  of  chauffeur ggj 

liability  for  acts  of  driver  of  public  automobile igg 

lookout  by    ., 

looking   for   trains    ,jq, 

opinion  of,  as  to  speed    112fi 

permiting    excessive   speed     ^  ^  ^  ^  9;j2 

punishment  for  failure   to  pay  fare 193 

recovery  of  fare  from 201 

recovery  on   jitney  bond    j^^ 

reliance  on  driver qqa 

remaining    in    machine 9jj 

responsibility   for  crimes  of  chauffeur    955 

riding   in    defective   machine    92^ 

riding  on  doors  of  motor  buses  prohibited 196 

riding  with    intoxicated    driver    90g 

solicitation  of,  forbidden    ^oj 

speed  while  passing  street  cars    354 

status   of    ■  ■  ■  ■  S77.913 

street  railway  contributory  negligence    5g3 

street   railway,    liability   of   automobilist 7g6 

street,  railway,   liability  of  company    7jjg 


1326  Index. 

Passenger — (Continued).  page 

taxicab,  assault  on    199 

unregistered  automobile  in,  injury  to 139-148 

Pedestrians 

acts  in  emergencies    602 

aged 499 

assisting  passenger  on  street  car 513 

at    street    crossing    524-527 

automomile  on  wrong  side  of  street    .    ., 521 

automobile  turning  corner    523 

beggar 499 

blind    499 

care  of,  depend  on  surrounding  circumstances 555 

carrying    umbrella     575 

children   in  street    500-506 

collision  of  automobile  with 487-550 

confused     506 

continuing  to  look  for  machines 569 

contributory   negligence  of    551-607 

contributory  negligence  of  children    589-594 

contributory  negligence  of  intoxicated    595 

contributory  negligence  of,   province   of  jury 605 

cripple    498 

crossing  street  in  front  of  machine   .    .  . 576 

crossing  street  in  storm    575 

cross   walk,  on    522 

damages 547 

deaf    .     .     ..^ 498 

disabled,  contributory  negligence  of    595 

disabled    vehicles   being   towed    542 

driving  machine  past  street  car 508-515 

driving  machine  on  sidewalk    304 

duties  of    488 

duty  to  look  machines   561 

entering  garage,  struck  by  automobile 244 

failure  to  see  machine 572 

failure  to  stop   machine    533 

general   duties  of    552 

in   safety  zone    519 

intoxicated 498 

last   chance   doctrine 598 

law  of  road,  application  to 278 

looking  backward    571 

looking  before  crossing  street    562 

looking  out  for  violation  of  road    567 

lookout  for 393-398 

naachine  on  sidewalk    331 

miscalculation   of   danger  by    578 

place  for  crossing  street 557 

place  reserved  for 516 


Index.  1327 

Pedestrians — (Continued).  i-agk 

pleading     5*^ 

province  of  jury    546 

proximate  cause  of  injury  to    493 

recovery  by,  on  jitney  bond 187 

reliance  on   law  of  road    582 

reliance   on    proper   speed    •• 681 

sidewalk,  on    517 

signal  of  approach  to    54i) 

speed   at  street   intersections    364 

speed  and  control  of  machine 532-538 

speed  while  passing  street  cars    364 

standing  in  street 530 

stopping  in   street    .     587 

towing  disabled  vehicle    414 

turning  or  backing  without  warning 531 

unavoidable  accident    497 

walking   along    road    519,  573 

warning  of  approach  of  machine    388 

watching    race     589 

workmen  in  street    507 

Penalty 

violation    of    jitney    regulation    197 

Pent  roads 

defined    1  * 

Petition 

forfeiture   of  vehicles  violating  law    1151 

Photographs 

admissibility    of    1111 

defective    highway     - im 

Plate 

(See  "Number  Plate.") 

illumination   of.   crimes    1005 

Pleading 

acts  of  chauffeur    837 

collision  of  two.  vehicles    *81 

frightening    horses     ^"^^ 

injury    to    pedestrian     ^^^ 

ordinance,  of   ^^^ 

Pledge 

automobile,    of     ^^^'■ 

Plying  for  hire 

defined     ^'^^ 

Pole 

obstruction  of  streets  by ^^^ 

placed  in  street  by  electric  company    ^^n 


-1328  Index. 

Police  department  j.^^^g 

license  fee  on  machine  of 127 

licensing  of  veliicles  of    gg 

purchase  of  machine  by    1063 

speed   of  machine    81    372    954 

Policeman 

contributory    negligence    of    597 

evidence  of,  in  speed  cases    975 

Police  officer 

(See  "Traffic  Officer.") 

Police  power 

(See  "Regulations.") 

garage,   regulation  of    • 220-227 

licensing  and   registration   of   machines    107 

municipalities   of    74 

regulation   of   automobiles    61 

regulation  of  chauffeurs 248-256 

*  regulation  of  public  vehicles 154-202 

Policy 

(See  "Insurance.") 

Posting- 
ordinances,    of    S6.  959 

Power  of  attorney 

required    from   jitney   proprietor    19g 

Precautions 

evidence   of   subsequent    1138 

Presumptions 

(See  also  "Burden  of  Proof.") 

control   of  machine,   of    865 

from  violation  of  law  of  road    3O6 

negligence  from  violation  of  law  of  road,  rebuttal  of 309 

ownership  of  machine,  of    864 

skill   of   driver    34q 

violation  of  law  of  road 440 

violation  of  regulation  from 344-355 

violation   of  speed    regulation 374-378 

Price 

supplies  and  repairs  by  garageman    . 227 

Principal  and  agent 

(See  "Agency;"   "Master  and  Servant.") 

Priorities 

lien   on    machine    1095 

lien  for  storage    1099 

Private  crossings 

street    railway     7og 

Private  hire 

automobiles,    of     203-213 


Index.  l*^-*^ 

p*r.r 

Procedure 


forfeiture  of  vehicles  violating  law    1150 

Process  , 

regulation    as   to   service    of    

Prohibition 

forfeiture  of  vehicles  violating  law 

Property  .,g 

automobile   as   personal    

Province  of  jury 

collision  of  two  vehicles    

conduct  ot  driver  in  emergency    ^^• 

contributory  negligence  of  chauffeur  colliding  with  street  car        <78 

contributory   negligence  of   children    ^ 

contributory  negligence  of  passenger    

contributory    negligence   of    pedestrian    

crossing  street  in  front  of  street  car    ^^ 

frightening  horses    ^^.^^ 

in  automobile  cases    " 

,,    ,  boo 

injury    to   cyclist    

injury  to  pedestrian    

liability  for  act  of  chauffeur    ' 

looking  for  street  cars    .^ 

look  out  fvor   pedestrians    ^J^ 

pedestrians  in  emergency    ^^ 

railroad  crossings    '1 

reasonableness    of    speed    

running  machine   without   lights    

safety   of    highway 

speed  on  defective  highway 

street  car  and  automobile  at  intersecting  streets V4^ 

sufficiency  of  lights 

sufficiency  of  warning    

towing   disabled   vehicle    . 

value  of  opinion  evidence  as  to  speed - 

violation    of    regulation     

warning  of  approach    

Proximate  cause 

(See   "Negligence.") 

absence  of  lights  on  animal  drawn  vehicle J^^ 

collision  of  two  vehicles    

concurring  negligence  of  third  party  


con 


tributory  negligence  in  case  of  two  colliding  vehicles.  ...        470 


628 


contributory  negligence  of  cyclist    

defective    highway    

failure  of  chauffeur  to  have  license    1-9  i48 

failure  to  register  machine    '"   ' ^^^ 

failure  to  have  lights  on  machine    

frightening    horses     ^^^    ^^;^ 

injvxries   to   pedestrians    

84 


1330  Index. 

Proximate  cause — (Continued).  p^ge 

intervening    agency    338 

intoxication  of  chauffeur    34I 

negligence  in  operation  of  machine 335-338 

speed  of  machine   35g 

standing  vehicle  started  by  third  person    406 

street  railway  collision    747 

vehicle  left  standing  in  street    539 

violation  of  law  of  road 3O8 

violation   of  regulation    351 

Publication 

ordinances   of    86,  959 

Public  automobiles 

carriage   for  hire    I93,  202 

defined    150 

Public  highways 
(See  "Highways.") 

defined     Ig 

Public  hire 

automobiles,   of    149-202 

Public  utility  commissions 

regulation  of  jitneys    168 

Punishment 

violation   of  speed   limit    968 

Punitive  damages 

frightening    horses     677 

injuries   to   pedestrian    •  .  .  546 

when    allowed     422 

Purchaser 

registration    by     I34 

Purpose 

motor  vehicles  statutes,   of    63 

registration,  of    105 

Question  for  jury 

(See  "  Province  of  Jury.") 

R 

Race 

defined    58 

Racing 

criminal   offense    .         957 

homicide   as   result   of    983 

spectator  of   race    589 

use  of  highways  for 57 

Radiator 

received    in    evidence    .     ., 1110 


Index.  1331 


Railroad  crossings  *''^*^^- 

. . .         726 
acts  in  emergencies    

burden  of  proof  as  to  negligence    687 

care  of  taxicab  driver ^^^ 

choice    of     '  „^  1„„ 

„.  .  „.  680-737 

collisions    at 

comparative    negligence ^^^ 

contributory  negligence  of  auto  driver  in  general    ^80 

crossing  in  front  of  train    '^^' 

defective  automobile  stopping  on  track 723 

^  ^     ,      .  735 

defects   in    

degree  of  care  at    

distinction  between  automobiles  and  other  vehicles 684 

failure   to   see   train    

imputation  of  negligence  to  passenger S8d 

inability  to  stop  automobile   at    '^^^ 

last  clear  chance  doctrine •  •  •  •        "^^^ 

looking   and   listening    ^^^ 

looking   by   passenger    ' 

machine  stalled  on  track   •  •  •      ^^ 

negligence  in  operation  of   trains    730-737 

obstructed    view     ^ 

obstruction  along    ' 

private   crossing    

province   of   jury    

relative  rights  of  automobilist  and  railroad 691 

reliance  on  automatic  signals 

reliance  on  flagman    '^ 

reliance  on  open  gates    * 

reliance  on  signal  from  engineer 

711 
running  into  train    

sounding   horn  by   automobilist    '^^" 

speed  and  control  of  machine "^2 

,       .  36fi 

speed    at    

speed  of  train    

stopping   before   crossing   track    ''l^-  "^29 

violation  of  statue  by  automobilist    "^2- 

732 
warning  from   trains    

when  contributory  negligence  not  a  bar 

Railroads 

(See  also  "Railroad  Crossing;"   "Street  Railways.") 

crossing  by  jitney    7qo  7^7 

negligence  in  operation  of  train    .' 

rights    at    crossings    

Rain  ^  „  . 

injury  to  pedestrian   during    

Rate  of  speed 

(See  "Speed.") 

Rates 

fare,  of.   public   automobile 


1332  Index. 

Ratification  page 

unauthorized  act  of  dealer    1017 

Real  evidence 

part   of   vehicle 1110 

Rear 

looking  for  street  cars  in    758 

looking  toward    395 

Reasonable  care 

(See  "Negligence.") 

Reasonableness 

ordinance    of    S4,  106 

Rebuttal 

presumption  from  violation  of  law  of  road    309 

presumption  of  control  of  machine 871 

Recission 

by  infant  of  sale  of  machine 1061 

failure  of  company   to  deliver  machine 1065 

fraud   in  sale  of  machine 1070 

purchase   of   machine,    by 1085 

Recording 

chattel   mortgage    1101 

Register 

repairs,  of,  by  garageman    226 

Registration 

exclusion  of  automobiles  from   highway  until 263 

failure    to    register   as   crime 995 

motor    vehicles,    of     101-148 

presumption   of  ownership   from    864 

validity   of   sale    1066 

Regulations 

advertising  on  public  vehicles    268 

approaching  embankment  or  descent    386 

approaching  street  railway    767 

assumption  that  travelers  will  obey    417 

at  railroad   crossings    366 

at  street  intersections 364 

changing  liability  of  owner    793 

chauffeurs,    of    248-256 

construction  of    70 

contractor  carrying  mail  for  United  States    137 

ciminal    offenses    952-1006 

driving  past  street  car    '•  ■  •  511 

effect  of  violation   of    344-355 

exclusion    for    highways    263 

exclusion  of  filling  stations  from  certain  streets 222 

federal     90-100 

fenders  on  trucks   76,  81 

fire  and  police  machines    372 


Index.  1'->3o 

Regulations — (Continued) .  pagi. 

forfeiture  of  vehicles  violating  law    1141 

frightening    horses     3*^9 

identification  of  machines    266 

ignorance    of    speed    limit 96"* 

law   of   road    26S 

leaving  car  in  street  unattended    407 

licensing    and    registration     101-14S 

licensing  of   filling   stations    225 

liens     ;     1092-1106 

negligence  of  driver  imputed   to  guest    891 

one   way   streets    269 

past   street   cars    -^^^ 

priority   at   intersecting  streets    459 

public    vehicles,    of     ^  54-202 


railroad    trains 


731 


speed    261.359,536 

standing    vehicles     267 

statutory     ^*^-'^- 

stopping  machine  on  signal  of  driver  of  horse •  •  •         665 

stopping    on    fright    of    horse    663 


street  cars 


78: 


sufTiciency  of  compliance  with 415 

transfer  of  original  bill  of  sale  on  sale  of  machine 1066 

unreasonable    speed    prohibited     370 

use   of   heavy   trucks 50 

violation  by  driver  crossing  railroad    "22 

violation  of,  as  contributory  negligence,  defective  highway..  934 

violation  of  law  of  road  as  a  crime    99 ^ 

violation  of  speed,  as  evidence  of  negligence 374-378 

violation  of,  street  railway  collision    "^72 

warning  of  approach  of  machine    • 390 

Rental 

automobiles,    of     203-213 

effect   on    insurance    policy 1035 

Rental  price 

automobile,  of,  recovery  of 21^ 

Rental  value 

damages  to  automobile,  as    949 

Repairs 

assignment   of  lien   for    ^^98 

cost  of,  as  measure  of  damages  to  automobile 944 

damages  under  collision   insurance   policy,  as 1041 

delay  of  garageman  in   making    -38 

duty  of  manufacturer   to  make    1025 

evidence    of    subsequent     * 1138 

in  lieu  of  money  due  under  insurance 1036 

liability  of  owner  for.    821 

liens    for     1092-1106 


1334  Index. 

Repairs — (Continued).  page 

loss  of  lien  by   excessive   demand 1097 

loss  of  lien  by  surrender  of  possession    1096 

opinion  of  value  of    1119 

recovery   of,   by    garage   man 227 

register    of,    by    garage    man 226 

Repeal 

municipal   control   over  automobiles    76 

statutes,    of "^^ 

Replevin 

automobile,  of ^^ 

garage   keeper,   by    ; 216 

Report 

accident,    of 1001 

Res  gestae 

admission   of    •  1117 

statements  as  to  safety  of  crossing 579 

statements   of   chauffeur 837 

Residence 

garage,    near    219,  22. 5 

Res  inter  alios  acta 

care    after    accident 1138 

competency   of    driver • 1139 

detects   in   other  machines    1138 

habits   1139 

negligence  on  other  occasions   1136 

Res  ispa  loquitor 

injury   to   garage    244 

pedestrian   on  sidewalk    331,  518 

skidding    as     ^02 

Revocation 

license,    of    .      • 103 

Reward 

violations  of  automobile   laws,   for    1006 

Riding 

defined     1^ 

Roads 

(See  "Highways;"  "Law  of  Road.") 

defined    1^ 

Roadway 

defined    1* 

Roller 

(See  "Steam  Roller.") 
Rope 

across   highway •  •        919 

towing   disabled   vehicle •  • •  ,•        414 

Routes 

jitneys,    of,    regulated    193 


Index.  1^'^-'^ 


Runaway  horses 

(See   "Frightening  Horses.") 


PAUK 

1120 


519 


Safety 

highways,  of,  opinion  as  to    

Safety  zone 

pedestrian  in    

Sales 

(See  also  "Conditional  Sales.") 

asent  trying  to  sell  machine,  liability  of  owner 833 

..,  .  1060-1091 

automobiles,   of    

capacity  of  parties  to  sale    1*^61 

^^r'^ :;:::::::;:;:  mi 

infants     .„„„ 

municipal   corporations    

private    corporations    

...  .  1064 

<ielivery 

effect    on    insurance 

exclusive   territory   of   agent •  •  • 

fraud    and    deceit ^^f^ 

inferior  oil    

liability    for    operation    after s^** 

liability  of  seller  for  act  of  servant 858 

license  for  public  vehicle,  of ^^^ 

licensing  of  dealers  in  second  hand  machines 1090 

price  fixed  by  manufacturer   1021 

registration   by  purchasers    J^* 

regulations  as  to  transfer  of  original  bill  of  sale 1066 

relation  between  manufacturer  and  consumer 1023 

remedies  of  purchaser   ^^H 

1085 

damages   „        ^„„„ 

.    T  .  „,,^  1085,  1086 

recission  of  sale    

recovery  of  purchase  price    ^^^^ 

return   of  machine ]/'i 

1082 
remedies    of    seller    

,  108^ 

damages    

recovery  of  purchase  price    

rented  auto,  of,   by  hirer    ^^^ 

tax  on    J^g,^ 

tax   on   dealers    .«„^ 

,.,.,        „  1066 

validity  of   

machine  to  be  used  for  lottery ^""'^ 

seller   not   owning   machine - 

statue  of  frauds    j      , 

violation  of  regulation  laws    10^^ 

1071 

warranties    ^^^^ 

caveat  emptor    ^ 

damages    

effect  of  express  contract  on  implied  warranty 1077 


3336  Index. 

Sales — (Continued).  paok 

guaranty  of  satisfaction    1074 

implied   warranty   of   fiitness    1076 

parol  evidence  to  show    1080 

second   hand   machine 1077 

sellers    talk     1073 

statements   of    agent 1082 

usual    warranty    1074 

waiver   of   breach   of 1081 

warranty  of  future  service    1075 

when  title  passes    1065 

Salesman 

chauffeur,    as     246,  2i>l 

liability  for  act  of    797 

rights  and  liabilities  of    1008-102d 

Satisfaction 

guaranty    of    1074 

Schedules 

jitneys,    of,    regulated 193 

School 

automobile   liability   of 834 

exclusion  of  garage  near   222 

garage    near 217 

Seating  capacity 

license  fees  according  to    ^ 68,126 

Secretary  of  state 

certificate   of   registration    as   evidence 147 

Seizure 

vehicles    violating    law    1141 

Servant 

(See  "Master  and   Servant.") 
Service 

summons,   of,   on   automobilist    273 

summons,   of,   on   jitney   owner    197 

Side  curtains 

cutting  off  lookout 396 

Sides 

lookout   toward 396 

Sidewalk 

driving  machine  on    304 

injury   to   a    pedestrian  on    517,  596 

trailer   running   on 41 1 

Sight- seeing  automobile 

carriage    for    hire 149-202 

carrier,    as     42.  154 

injury  to   passenger    197 

jitneys    contrasted     IGO 

stand    of    190 


1331 


Index. 

PAGK 

8G 

960 


^^^^  ,  .  8G 

establishment    oi     

stating    speed     

Signal 

(See  also  "Warning.")  . 

.  0  4 'J 

approach,    of     ^^^ 

antomotic    railroad     g^, 

driver  of  frightened  horse,  by    ^^^ 

fallue  to  stop  on,  as  a  crime 

one    driver    to    another    ' 

ordinances  requiring    ^^ 

reliance    of    pedestrian    on _^^ 

sounding,   before  crossing   railroad    ' 

towing    disabled    vehicle 

turning  or  backing  without - 

Sign  posts  ^^ 

destruction   of    

Skidding"  „ .  „ 

as  excuse  for  violation  of  law  of  road ^^ 

injuries    from     .„., 

into   vehicles   to   avoid    pedestrians 

Skill  039 

chauffeur,    of     

Sled  ^3 

motor  vehicle,   as    

Smoke  gg- 

frightening    horses     ^^^ 

negligence  of  one  driving  in  a  cloud  of    

ordinances   prohibiting    ^^^ 

regulations    as    to 

Snowdrift  ^^^ 

defect   in    highway    

Solicitation                                                                                                   ^.^^ 
passengers   of,   forbidden    

Son 

(See  "Children;"  "Parent  and  Child.") 

Special  statutes 
(See  "Statutes.") 

Speed  (J  3,^ 

approaching  defect   in  highway    ' 

approaching   embankment   or   descent    ^^^ 

arrests ^,j^ 

«t    night 3g,^ 

at  night 355-382 

automobiles,   of    .. 

bridge,    over 

characterization   of   speed   as   "fast."   etc ^-^ 

common    lav.'   misdemeanor    


1338  Index. 

Speed — (Continued).  pack 

constitutionality  of  criminal  statutes   957 

control    of    machine 382 

criminal  oiTenses    956-969 

cyclist,    of    632 

defending   speed   cases    970-978 

deflniteness  of  regulation    961 

discrimination  of  statutes  regulating 66 

driving  past  street  car 512 

emergency    case    379,  964 

estimate  of,  from  noise    .' 1132 

from    track    1131 

evidence  of  officers  in  criminal  cases    975 

exceeding  common  traveling  pace    962 

excessive,  as  contributory   negligence    » 476 

as   evidence   of   contributory    negligence 374-378 

excuse   for   violation   of   regulation 378 

experiments  to  prove    1134 

extenuating  facts  in  cases  of  excessive 971 

fire    apparatus     372 

foundation  for  opinion  as  to    1129 

frightening  horses    369,  656 

homicide  as  result  of  racing    983 

identification  of  offender   967,  974 

ignorance    of    limit    964 

information  for  violation    966 

injury  to  cyclist 624 

injury   to   pedestrian    532-538 

intent    to   violate   regulation    963 

jitneys,  of    196 

judicial  notice  of  capability  for 1108 

judicial   notice  of   ordinance 959 

manslaughter  arising  from  excessive    983 

military    machines     374 

opinion  as  to,  driver    1123 

observer    1124 

passenger     1126 

ordinance    regulating     80 

passenger   permitting   excessive .    912 

passing    children     371 

passing  street  cars 363 

police    patrol     372 

posting    and    publishing   ordinance 959 

preparing    defense 972 

presumption  of  negligence  from  excessive 348 

prohibition    of   unreasonable    357 

proof  of,  by  speedometer 1135 

proximate   result   of   excessive 356 

punishment   for  violation   of   limit 968 

qualification  of  witnesses  giving  opinion  as  to  speed 1127 

racing   as   a   crime 956 


Index.  1339 

Speed — (Continued).  page 

racing  on  highway 57 

railroad    crossings,    at    366,  720 

reckless   driving   as  murder    y7S 

regulation  of    261 

reliance   by  pedestrian   on   proper 580 

signs   stating   permitted    86 

speedway,    on     974 

statutes   with    no    prescribed    limit 969 

stopping  machine  to  avoid  frightening  horses 658-665 

street    intersections     364 

street  railway  car,   of    780 

street   railway   collision    767 

street   railway   crossings    366 

trains,   of    731 

turning   corners    362 

unreasonable,    prohibited     69,  369 

use   of  speedometer   in   prosecutions    978 

venue   in   criminal   cases    975 

violation    not    malum    in    se 962 

Speed  contests 
(See  "Racing.") 

Speedometer 

evidence    of    speed     1135 

use  of,  in  speed  cases    978 

Speed  trap 

warning    autoists    of 965 

Stable 

garage  not  a 218 

Stage  coach 

automobile    as 5 

Standing  vehicle 

collision    with     463,  539 

frightening    horses     650 

lights    on     409 

near  street  railway   tracks    769 

negligence    in    leaving    unattended 404-407,  539 

obstructions  in  highway  regulated 267 

Stands 

(See  "Hack  Stands.") 

State 

(See    also    "Statutes.") 

races  on   fair  grounds    57 

Status 

automobile,   of    28-43 

automobilist.    of 38 

carriage   for   hire,  of    152-154 

chauffeur,    of    247 

garage  keeper,   of    215 


1340  Index. 

Statue  of  fraud  pagk 

sale    of    machine 1067 

Statutes 

(See   also   "Regulations.") 

abrogating  municipal  powers    Ill 

changing    liability    o£    owner 793 

criminal    offenses    952-1005 

definiteness    of    69 

definitions    in    11 

effect  of   violation   of    344-355 

federal  control  over  motoring    90-100 

imposing  high  degree  of  care  on  automobilists 328 

licensing    and    registration 101-148 

negligence   of   driver   imputed   to   guest 890 

regulating    garages     220-227 

regulating   motor   vehicles    60-65 

regulating   public    vehicles    154-202 

regulating  speed    359 

repeal    of    70 

speed  at  street  intersection    364 

speed    regulation    261 

stopping  machine  on  signal  of  driver  of  horse 665 

stopping  on  fright  of  horse    .    . 663 

sufficiency   of    compliance    with 415 

Steam 

frightening    horses 655 

Steam  roller 

operation    on    highway 426 

Steering'  wheel 

negligence  in  taking  hand  off 383 

Stones 

highway    in 919 

Stopping- 
automobile  before  crossing  street  railway  track 768 

crossing    railroad    without 713 

duty  of    384 

failure  to  stop  as  evidence  of  negligence 336 

failure  to  stop  on  signal,  as  a  crime 998 

frightening  horses,  to  avoid 658-665 

injury   to   pedestrian    533 

jitney,  of,  before  crossing  railroad    196 

judicial   notice   of  possibility 1108 

negligence    in     387 

opinion  as  to  distance  of    1122 

street    cars     784 

suddenly     474 

Storage 

gasoline    and    oils,    of    224 

lien  for 1098 

priority  of  lien   for    1098 


Index.  1341 

Storm  ^-^«^ 

pedestrians    crossing    street    in 575 

Street  car 

(See  "Street  Railways.") 

Street  crossings 

collision   ot    two   vehicles 4  01-461' 

degree    of    care    at 326 

lookout    for    travelers    394 

''     place   for   pedestrian    557 

speed    regulations    at 262 

view    obstructed 527 

warning    of    approach     38 . 

Street  intersection 

injury   to  cyclists 621 

speed    at 364 

Street  railways 

acts    by    caufteur    in    emergency 7  75 

automobile  running  against  street  car 769 

automobile    standing    near    track •  •  •         769 

auto   stalled'  on   track 773 

backing  machine  into  street  car 756 

brakes   on    automobile    769 

collision   of   automobile    with    street    car 739-778 

collision    with   automobile,   contributory   negligence 77S 

collision   with  taxicab    •  • 198 

contributory  negligence  by  conductor    586 

contributory  negligence  of  automobilist.  when  not  a  bar 746 

contributory   negligence  of   passenger    583 

crossing  in  front  of  street  car 759 

driving  machine   along   track    764-767 

driving  past  car    508-515 

general  duty  of  automobilist    748 

imputation  of  negligence  to  passenger  in  auto 887 

insurer,  not  an    '  '*'* 

jitneys   contracted    16'^ 

last  clear  chance  doctrine 775 

law  of  road,  application  to 279 

liability  of.  auto  striking  passenger 515 

liability   to    passenger    786 

listening  for  street  cars 75rt 

looking  by  automobilist  for  street  cars    750-759 

looking  for  street  cars    in  rear 75S 

lookout    by 7S1 

negligence  of    780-78  < 

passenger,  liability  of  auto  driver  for  injury  to '86 

private   crossings    '^^ 

relative  rights  of  automobilist   739-74S 

reliance  by  automobilist  on  care  by 7(1 

signal   of   approach    to 541 


1342  Index. 

Street  railways — (Continued).  page 

speed   and   control   of   automobile 767 

speed  at  crossings 36G 

speed  of   automobile   passing  cars 36$ 

speed   of   car   of    782 

stopping  automobile  before  crossing  track 768 

stopping  automobile  passing  car    386 

stopping  street  car   784 

street  car  as  a  vehicle   ^7 

street  cars  as  motor  vehicles H 

street  cars  compared  with  automobiles i 37 

turning  machines  in  front  of  street  car 756 

turning  or  backing  auto  in  street 770 

violation  of  law  of  road  to  avoid  passengers 311 

violation  of  regulation  by  automobilist 772 

warning  of  approach  of  street  car 78& 

Streets 

(See  also  "Highways.") 

defined    .     1^ 

exclusion  of  automobiles  from   263 

intersecting,  defined 21 

regulations  for  obstruction  of    266 

Sub-dealers 

relation    with    dealer     1021 

Subrogation 

collision    insurance    policy    1041 

theft    insurance    1058 

Summons 

regulations  as  to  service  of 273 

service  on  jitney  owner 197 

Sunday 

hire  of  automobile  for  joyriding  on 213 

Supplies 

lien    for     ••  1093 

purchased  by  chauffeur,  liability  of  owner 821 

recovery  for,  by  garage  man 227 

Suriety 

bonds   of    jitney    183-190 

Surety  company 

jitney  bonds    1^5 

T 

Tarvia 

negligence  in  spreading  on   road 925 

Tax 

(See  "Taxation.") 

license  fee  not   a    1^* 


Index.  1343 

•  i       . 
Taxation  j'agk 

automobiles    in    transit 100 

double 121 

exemption   of   automobile   from    122 

gross  receipts  of  jitney 196 

license   fees   of   public  automobiles 175 

motor    vehicles     123,  271 

sales,  tax  on    1090 

Tax  collector 

payment  of  license  fee  to    115 

Taxes 

licenses,   imposed   by   counties    109 

Taxicabs 

(See  also  "Automobiles.") 

as   hackney   coach    152 

care  of  driver  at  railroad  crossing   690 

carriage  of  passengers  in    149-202 

carriers,    as     42 

collision   with   street   railway   car    198 

defined 151 

degree   of   care   by    330 

exclusion  from  streets    181 

exemption   from   execution \ 153 

injury    to    passenger 197-199 

jitneys   contracted    160 

liability  for  acts  of  drivers  of    199 

licenses    of     170-180 

municipal   regulation   of    163-168 

obstructions   in   streets    266 

ordinance   forbidding   driver  to   be  more   than    10    feet   away 

from    167 

rate    of    fare 195 

recovery   of   fare    201 

regulation  of    154-202 

service   for   hotel 191 

stands   of    190-192 

taximeters    required     194 

Taximeters 

installation    of,    required     194 

Temperature 

garage   man   liable   for   negligence   as   to 230 

Testing 

chaulTeur   testing  machine,    liability   of  owner    816 

Theft 

automobile   in    garage    210.233 

automobile,    of    990 

insurance    against     1053 

rented  automobile,   of    209 


1344  Index. 

Theft  insurance  tage 

(See  "Insurance.") 

Tires 

lien   for    1092 

trademarks   on 1027 

Title 

motor  vehicle  laws,   of    65 

ordinance,   of    86 

registration   act,   of    115 

statutes,  of,   regulating  automobiles    62 

Toll  roads 

assault  on  keeper    55 

right  of  automobiles  to  use    54 

use,  of,   by   automobile    5,  6,  9 

Tool 

automobiles    as    a     10,43 

Torts 

(See  "Negligence.") 

Towing 

disabled    vehicles     414,  542,  836 

liability  of  garage    242 

Towns 

(See  also  "Municipal  Corporations.") 

defective  highways 914-939 

power  to  regulate  automobiles    63 

Tracks 

driving  automobile  along  strecL  i  an  way    764-767 

estimate   of   speed    from    1131 

evidence   of    1115 

identification  of  machine  from    1121 

Traction  engine 

automobile,    as    2,  11 

use    of     426 

Trade  marks 

automobile    1026 

word   taxicab   as   a    151 

Trade  name; 

registration    in 1^1 

Traffic  laws 

(See  "Laws  of  Road.") 

Traffic  officers 

contributory  negligence   of    597 

negligence    in    moving    machine    under    direction    of 335 

obedience  to  directions  of    304 

regulation    requiring   obedience    to 269 


Index.  ]  345 

Trailers  p^ce 

jitneys,    on,    forbidden igg 

running  on  sidewalk    4^4 

"se    of    426 

Trains 

(See  also   "Railroad   Crossings.") 

collisions  with 680-737 

Transfer 

license  for  public  vehicle,   of    IgO 

Transit 

right  of    95 

taxation    of    vehicles    in     273 

Transmission  gear 

defined    j^y 

Traveler 

(See  "Pedestrian.") 

Traveling  salesman 

liability  for  act  of 797 

Tretle  damages 

violation  of  law  of  road    445 

when    allowed     ." 423 

Trespassers 

children  climbing  on  machine 504 

standing  vehicle  started  by  third  person    406 

unregistered    machine    as    139-148 

Trial 

examination    of   owner   before 374 

Tricycles 

(See   also    "Cyclists.") 

not  within  motor  vehicle  laws H 

Trucks 

advertising  on    268 

damage  to  highways  by  heavy   50 

license   fees  of    68   126 

ordinance  requiring  use  of  fenders  on 76.  81 

Turning 

(See  "Law  of  Road.") 

automobile  on  street  car  track 770 

in  front  of  street   car    756 

injury  to    cyclists    622 

injury    to    pedestrian     53 1 

machine   in   street    3O0 

Turning  comers 

collision  of  two  vehicles   454-456 

injury    to    pedestrian     523 

speed    of    machine 362 

85 


J  346  Index. 

Turnpike  company  page 

(See  "Toll  Roads.") 
Turntable  cases 

application    of     505 

u 

Ultra  vires 

negligence   of   chauffeur    856 

Umbrella 

pedestrian   carrying    575 

Unavoidable  accident 

avoidance  of   dangerous  situation    334 

collision  of  two  vehicles   432-435 

injury  to  child    502 

liability    for    332,  335 

street  railway  not  an   insurer 744 

United  States 

regulation   of   motoring    90-100 

Unlicensed  automobilist 
(See  "Registration.") 

V 

Validity 

chattel    mortgage ; 1101 

Value 

damages    to    automobile 941 

opinion  as  to 1118 

Valued  policy 

fire    insurance     1037 

Vapor 

frightening   horses    655 

Vehicle 

automobile   as  a    ; 6 

bicycle    as 12 

horse  drawn,  compared  with  automobiles 39,  40 

street  car  as  a 7 

Venue 

speed   cases    975 

Verdict 

exonerating  chauffeur,  but  holding  owner  of  machine 874 

Vertigo 

chauffeur   having   attack   of    342 

Vessels 

right  of   automobiles  on    53 

Vicious  horse 

contributory    negligence    of    driver 674 


Index.  1347 

Villages  pagk 
(See  also  "Municipal  Corporations."  i 

defective   highways   in    914-939 

powers    to    regulate    automobiles     63 

Vindictive  damages 

(See   "Punitive   Damages.") 
Volstead  act 

forfeiture  of  vehicles  violating  law    1141 

w 

Wages 

right   of   chauffeur   to    256 

Wagon 

automobile    as    a 9 

collision    with    automobiles 428-48G 

injuries  to  automobiles  from    435 

lights    on     412 

Waiver 

breach  of  warranty    1081 

fraud  in  sale  of  machine 1071 

Walk 

(See  "Sidewalk.") 

War 

speed   of  military   machine 374 

Warning 

approach  of  street  car.  of    78.5 

cyclist,   by    , 634 

driver  diverting  from  usual  course  of  travel    393 

giving     387 

injury  to  cyclist 626 

passenger,    by     909 

private  railroad  crossings,  at   736 

railroad    trains,   by    732 

shouting   by   bystanders    392 

towing   disabled   vehicle    414 

turning   or   backing   without    531 

Warranties 

(See  also  "Sales.") 

application    for   insurance,   in    1030 

caveat    emptor     1072 

consideration    of     1072 

damages  for  breach  of 1078 

express,    defined    1071 

express    or    implied     1071 

future  service,  of    1075 

guaranty    of   satisfaction    1074 

implied    warranty    of    fitness    1076 

opinions     1073 


1348  .  li^DEX. 

Warranties — (Continued) .  ^^^^ 

parol     evidence  to  show    1080 

private   garage,    in   insurance   policy    1033 

remedies    of    purchaser    1084 

sale  of  second  hand  machine 1077 

seller's  talk 1073 

waiver  of   breach   of    1081 

Water 

washing  automobile  as  domestice  use  of 2 

Weight 

damage  to  highways  by  heavy  trucks 50 

Wheel 

negligence   in   taking  hand   off  steering.     .  .  •. 383 

Wheelbarrow 

lights   on    '*12 

Wheels 

defective 22 

liability  of  manufacturer    for   defective.     . 1023 

Wheelwright 

garage    keeper    as    a 215 

Whistle 

blowing,    by   railroad   engine 732 

Width 

highway,    of    ^^^ 

Wife 

(See  "Husband  and  Wife.") 
Witnesses 

(See   also   "Evidence.") 


conclusions  of 


1117 


opinion   of,  value  by 1118 

qualification  for  speed,  opinion    1127 

Words  and  phrases 
(See  "Definitions.") 

Workmen 

contributory  negligence  of    596 

injury    to     ^^"^ 

Workmen's  compensation  laws 

injury    to    chauffeur    • ^°° 

[Total  number  of  pages  1382] 


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